Pritam
Pal Vs. High Court of Madhya Pradesh, Jabalpur Through Registrar [1992] INSC 55 (19 February 1992)
Pandian,
S.R. (J) Pandian, S.R. (J) Reddy, K. Jayachandra (J)
CITATION:
1992 AIR 904 1992 SCR (2) 864 1993 SCC Supl. (1) 529 JT 1992 (2) 41 1992 SCALE
(1)416
ACT:
Constitution
of India, 1950:
Articles
129 and 215-Contempt Jurisdiction-Power of Supreme Court/High Court to punish
for Contempt of itself- Whether could be curtailed or abridged by ordinary
legislation or Rules-Procedure for contempt proceedings being summary, power to
be used sparingly-Procedure to be fair and contemner to be given an opportunity
of defending himself.
Contempt
of Courts Act, 1971:
Sections
2(b), 17 and 20-Criminal Contempt-Advocate, practising at High Court making libellous
allegations against sitting High Court Judges-Whether amounts to interference
with administration of justice and affects the image, dignity and high esteem
of office of judge of High Court-Sentence of two months' simple imprisonment
awarded by High Court-Whether justified.
HEAD NOTE:
The
appellant, an Advocate practising in the High Court was earlier working in the Defence
Accounts Department, on re-employment, after retiring from the Army. He had
filed a Writ Petition before the High Court, claiming certain benefits like
pension, gratuity, pay and allowances etc., pertaining to the service rendered
by him in the Defence Accounts Department and the Army. The High Court
dismissed the Writ Petition. It also dismissed the appellant's review
application. This Court also dismissed his Special Leave Petition against the
High Court's order.
Thereafter,
the appellant, moved a Contempt Petition under Section 16 of the Contempt of
Courts Act, 1971 making some serious allegations against the two Judges of the
High Court, who dismissed his Writ Petition and also the Review Petition. A
Division Bench of the High Court summarily dismissed the contempt petition.
865
Meanwhile, the Registry of the High Court examined the allegations made in the
affidavit filed by the appellant under Rule 5 of the Rules regarding contempts
framed by the High Court. A Division Bench of the High Court, before which the
matter was placed on the order of the Chief Justice, took cognizance of the
criminal contempt and directed issue of notice to the appellant directing him
to show cause as to why he should not be punished for contempt of Court. The
appellant filed his reply raising certain preliminary objections, contending
that the notice was bad for the reasons that
(1) the
Section of the Act under which cognizance had been taken was not specifically
mentioned;
(2) the
notice did not show sufficient cause as to why the words and expressions used
in the offending portions marked had been construed as contemptuous
(3) the
procedure followed by the High Court was contrary to the rules framed by it;
and
(4) no
consent of the Advocate General had been obtained, and prayed for discharge of
the rule of contempt.
Meanwhile,
on the basis of the High Court's Order, the appellant inspected the Court
records relating to this matter, and thereafter, he was also informed that the
proceedings were under the provisions of Article 215 of the Constitution of
India.
After
examining the remarks made by the appellant in his contempt petition the High
Court rejected the objections of the appellant/contemner and held that the contemner
was guilty of criminal contempt of not only scandalising the Court and lowering
its authority but also substantially interfering with the due course of
justice. Taking note of the defiant attitude of the contemner who even did not
think it necessary to apologise but tried to justify the aspersions, the High
Court sentenced the contemner to suffer simple imprisonment for two months.
In the
appeal before this Court, the contemner who appeared before the Court in
person, contended that the order of the High Court should be set aside on the
ground of procedural irregularities in that (1) that the offending remarks had
not been communicated to him as per Rules 5 and 9 framed by the High Court; (2)
that the cognizance of the criminal contempt had not been taken in conformity
with Section 15 of the Act; (3) that the procedure, after cognizance as
prescribed under Section 17 of the Act had not been followed; and (4) that
Article 215 of the Constitution of India did not prescribe any procedure to be
followed. He 866 also contended that he had not been given a fair and full
hearing and that the Judges had browbeaten and unjustly convicted him ignoring
the well settled principle that every person had an inalienable right of making
fair criticism, and that the order in question was pre-conceived and pre-
judged one. In his written statement also he made certain remarks about the
Judges of the High Court, in attempting to justify his action which had led to
the initiation of proceedings for contempt of Court before the High Court.
Dismissing
the appeal, this Court,
HELD:
1.1 The power conferred upon the Supreme Court and the High Court, being Courts
of Record under Articles 129 and 215 of the Constitution respectively, is an
inherent power and the jurisdiction vested is a special one not derived from
any other statute, but derived only from Articles 129 and 215 of the
Constitution of India.
Therefore,
the constitutionally vested right cannot be either abridged by any legislation
including Contempt of Courts Act or abrogated or cut down. Nor can they be
controlled or limited by any statute or by any provision of the Code of
Criminal Procedure or any Rules. The special feature of the procedure to be
followed in a contempt proceeding being summary procedure, which is recognised
not only in India but also abroad, the caution that has to be observed in
exercising this inherent power by summary procedure is that the power should be
used sparingly, that the procedure to be followed should be fair and that the contemner
should be made aware of the charge against him and given a reasonable
opportunity to defend himself. [883B-D] Sukhdev Singh Sodhi v. The Chief
Justice and Judges of the PEPSU High Court, [1954] SCR 454; R.L. Kapur v. State
of Madras, [1972] 1 SCC 651; Delhi Judicial Service Association v.
State of Gujarat, [1991] 4 SCC 406; S. Mulgaokar, [1978] 3 SCC 339; Brahma Prakash
Sharma and Others v. The State of Uttar Pradesh, [1953] SCR 1169; and D.N. Taneja v. Bhajan Lal, [1988] 3
SCC 26 relied on.
Hira Lal
Dixit v. State of U.P., AIR 1954 SC 743; Advocate General, Bihar v. M.P. Khair
Industries, [1980] 3 SCC 311; Ashram M. Jain v. A.T. Gupta, [1983] 4 SCC 125
and M.B. Sanghi v. High Court of Punjab and 867 Haryana, [1991] 3 SCC 600,
referred to.
State
of Bombay v. P. 1958 Bom. Law Reporter, (60)
Page 873, referred to.
Clements
and the Republic Costa Rica v. Erlanger, [1877] 46 L.J. Ch. 375 page 383, Ex parte
Terry, 128 U.S. 289, 307, 9 S.Ct. 77 80 (1888); Matsusow
v. United Sates, 229 F.2d 335, 339 (5th Cir.) 1956; Sukhdev Singh Sodhi, C.K. Daphtary;
Re Abdool v. Mahtab, (1867) 8 WR Cr. 32 page 33; 1900 (2) Q.B. 36 at 40; Andre
Paul v. Attorney General, AIR 1936 PC 141, Attorney General v. Butterworth,
(1963) 1 Q.B.
696;
Reg. v. Odham's Press Ltd. Ex parte A.G., (1957) 1 Q.B.
73;
Morris, v. The Crown Office, (1970) 1 All.E.R. 1079, 1081, Offutt v. U.S., (1954) 348 US
11 Jennison v. Baker, [1972] 1 All ER 997 1006, referred to.
Belchamber's
Practice of the Civil Court, 1884 Ed. P. 241; Contempt of Court. By Oswald and Halbury's
Law of England (4th Edition) by Lord Hailsham page 3, referred to.
1.2.
In the instant case, the offending criticism and the scandalising allegations
made by the appellant/contemner are most fatal and dangerous obstruction of
justice shaking the confidence of the public in the administration of justice
and calling for a more rapid and immediate punitive action. These calculated
contemptuous remarks and the sweeping allegations are derogatory in character,
not only to the dignity of the Judges and casting aspersions on their conduct
in the discharge of their judicial functions but also wounds the dignity of the
Court. It is highly painful to note that the appellant/contemner who is none
other than an Advocate practising in the same highest Court of the State after
having failed to wrench a decision in his favour in his own cause which he
prosecuted as party in person has escalatingly scandalised the Court by making libellous
allegations which are scurrilous, highly offensive, vicious, intimidatory, malacious
and beyond condonable limit. Even a cursory reading of the remarks made against
the Judge of the High Court unambiguously show that the potentially prejudicial
utterances and the outrageous allegations rumbustiously and invectively made by
the contemner with malicious design of attempting to impair the administration
of justice have struck a blow on the judiciary and also seriously sullied the
image, dignity and high esteem which the office of the Judge of the High Court
carried with it and thus impeded the course of justice by fouling its source
868 and stream. The incident in question is a flagrant onslaught on the
independence of the judiciary, destructive of the orderly administration of
justice and a challenge to the supremacy of the Rule of Law. The maxim "Salus
populi suprema lex", that is, "the welfare of the people is the
supreme law" adequately enunciates the idea of law. This can be achieved
only when justice is administered lawfully, judicially, without fear or favour
and without being hampered and thwarted, and this cannot be effective unless
respect for it is fostered and maintained. [888E-H,889A-C] 1.3.To punish an
Advocate for Contempt of Court, no doubt, must be regarded as an extreme
measure, but to preserve the proceedings of the Courts from the being deflected
or interfered with, and to keep the streams of justice pure, serene and
undefiled, it becomes the duty of the Court, though painful, to punish the contemner
in order to preserve its dignity. No one can claim immunity from the operation
of the law of contempt, if his act or conduct in relation to Court or Court
proceedings interferes with or is calculated to obstruct the due course of
justice. In view of the heinous type of scandalising the Court, the finding of
the High Court that the appellant/contemner has made himself guilty of criminal
contempt is confirmed. [889D-E]
1.4 As
regards the sentence, it is clear from the order of the High Court that the
appellant had adopted a defiant attitude and tried to justify the aspersions
made by him even without thinking it necessary to apologise. Before this Court
also, the appellant has neither expressed any contrition nor has he any
repentance for the vicious allegations made against the Judges of the High
Court. But, on the other hand, he has exhibited a dogged determination to
pursue the matter, come what may. A reading of his memorandum of grounds and
the written and signed arguments show that he was ventured into another bout of
allegations against the High Court Judges and persisted in his campaign of
vilification. His conduct in this Court has aggravated rather than mitigating
his offence. [889F-H]
1.5.
Therefore, having regard to the sentencing policy that punishment should be
commensurate with the gravity of the offence, the sentence of 2 months'
imprisonment in no way calls for interference and is accordingly confirmed.
[890A]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 258 of 1981.
869
From the Judgment and Order dated 12th Feb. 1981 of the Madhya Pradesh High Court in
Misc. Criminal Case No. 617 of 1980.
Appellant
in person.
Uma Nath
Singh for the Respondent.
The
Judgment of the Court was delivered by S. RATNAVEL PANDIAN,J. The appellant,
Mr. Pritam Pal Dhingra is a practising Advocate in the High Court of Madhya
Pradesh at Jabalpur, having joined the Bar on 4.2.1979.
Earlier
to joining the Bar, he was serving in the Army and retired on 23.12.65.
Thereafter, he was re-employed in the Defence Accounts Department on 7.2.1966
as U.D.C. (Auditor).
On
29.2.76, the appellant served three months' notice of resignation upon the
departmental authorities for the reasons mentioned in the said notice and also
requested to pay him the contributory provident fund benefits for his 10 years
service though the date of his superannuation in the said post was 30.9.1986.
The Department not only refused to accept his resignation but also did not
relieve him even after the expiry of three months. According to the appellant,
there was neither any departmental enquiry pending nor contemplated against him
during those three months i.e. between 29.2.76 and 31.5.76. However, a charge
sheet dated 21.12.76 for imposing a major penalty on a complaint by Jt. C.D.A.
Vehicle Factory was served on him to which he submitted his written statement.
Then he served a final quit notice w.e.f. 8.1.77. Though on the basis of the
show cause notice, an enquiry was started, nothing came out of it. Therefore,
the appellant moved the High Court of Madhya Pradesh at Jabalpur by filing Writ Petition M.P. No.
786 of 1978 under Article 226 of the Constitution of India sworn on 27.11.78
requesting several prayers inclusive of issuance of directions to the
respondent therein (the departmental authorities) to accept his resignation so
as to enable him to take any other profession of his liking and to declare the
retention of his service against his will after 31.5.1976 as illegal and malafide
and to re-imburse pay and allowances for the period of his enforced absence
after the expiry of three months notice period etc. The High Court issued show
cause notice to the respondents 1 to 3 in the Writ Petition. The respondent No.
3 thereafter accepted the resignation dated 29.2.76 of the appellant w.e.f.
15.1.79 by 870 which time the appellant claims to have completed 31 years of
combined military and civil service i.e. from 29.11.47 to 15.1.79. Meanwhile,
the departmental enquiry initiated against him was dropped. Then the appellant
submitted supplemental applications praying that his resignation should be
converted into one of voluntary retirement and that his military services
should be counted with civil service and that he should be given all service
benefits like pension, gratuity etc. as well as consequential benefits on
account of the delay in acceptance of his resignation.
Two
applications being I.A.No. 908/79 and I.A. No. 4246/78 were filed by the
appellant, they being one for amendment of the petition and the other for
taking some additional grounds. Both applications were allowed by a Division
Bench of the High Court comprising of Mr. Justice J.S. Verma (as he then was)
and Mr. Justice U.N. Bachawat, as the counsel for the respondents had no
objection and granted one week time for incorporating the amendments in the
petition. At the request of the counsel for the respondent, Shri R.P. Sinha,
the Court granted two weeks time to file the additional return by order dated
16.3.79.
The
case was listed for further hearing on 2.4.79 on which date the writ petition
was dismissed. The appellant then on 16.4.79 moved an application to review the
order dated 2.4.79. The application was registered as M.C.C. No. 209 of 1979.
This application was too dismissed on 23.4.79 with the following observation:
"The
grievance of the petitioner in this review petition is that the writ petition
(M.P. No. 786/78) was dismissed in motion hearing without hearing the
petitioner. The substance of the order dismissing the Writ Petition in motion
hearing as stated earlier indicates that this averment made by the petitioner
is not correct. We also distinctly recollect that the petitioner was heard
fully on the question of admission and it was only thereafter that the petition
was dismissed by dictating that order in the Court in the presence of the
petitioner. We would, therefore, reiterate that this grievance of the
petitioner that he was not heard at the time of motion hearing is wholly
incorrect.
The
submissions made by the petitioner in support of this review application are
(1) that
there is error apparent on the face of the record because the writ petition was
dismissed in motion hearing without hearing the petitioner;
(2)
that, sum- 871 marily dismissal of the writ petition was arbitrary because
after notice had been issued to the respondents 1 to 3 show cause why the
petition be not admitted, it was incumbent on the Court to admit the writ
petition and hear both sides at length before passing any order; and
(3) that,
on account of above position, the petitioner was not given a fair deal before
dismissing the writ petition in motion hearing.
As
earlier stated, the petitioner was heard fully at the end of motion hearing and
so also the counsel for respondents Nos. 1 to 3, Shri R.P. Sinha. The main
averment on the basis of which all the aforesaid submissions are based, i.e.
lack of full opportunity to the petitioner is, therefore, wholly non-existent.
We are constrained to observe that in making these submissions, the petitioner
who is now enrolled as an Advocate, has not been fair to the Court. The
petitioner who is now enrolled as a lawyer was expected to exhibit at least the
minimum decorum and sense of responsibility which is expected from a members of
this noble profession. We are pained to observe that the petitioner took a very
unreasonable attitude and exhibited a behaviour which could not be appreciated
even by the member of the Bar who were present when this order was being
dictated in the Court room after the hearing. However, taking into account the
fact that the petitioner is a new entrant in the Bar, we have chosen not to
take serious notice of the conduct of the petitioner in the hope that the
petitioner having now become a member of the Bar will try to follow the high
traditions of the Bar which he has chosen to join.
There
is no merit in this Review application. It is summarily dismissed." On
being aggrieved by the above order of dismissal dated 2.4.79, the appellant
filed Special Leave Petition No. 570 of 1979 before this Court but was not
successful as the SLP was dismissed on 25.7.79.
The
appellant on being disturbed by the dismissal of his Writ Petition moved a
Contempt Petition on 16.4.80 under Section 16 of the Contempt of Courts Act,
1971 (hereinafter referred to as `the Act') making some 872 serious allegations
against the two Hon'ble Judges of the High Court who dismissed his Writ
Petition on 2.4.79 and thereafter the Review Petition on 23.4.79 and also impleaded
Shri R.P. Sinha as the third respondent in that petition.
According
to the appellant, the contempt petition was registered as M.C.C. No. 136 of
1980 and placed before a Division Bench on 29.4.1980 which after hearing the
appellant summarily dismissed contempt petition.
While
it was so, the Registry of the High Court examined the allegations made in the
affidavit filed by the appellant in M.C.C. No. 136/80 under Rule 5 of Rules
regarding contempts framed by the High Court (Notification No. 8958 - Nagpur
dated the 24th October, 1953) and placed the matter before the learned Chief
Justice of the said High Court who on that motion/reference passed an order on
2.5.1980 to place the matter before a Division for further action. The Division
Bench before which the matter was placed took cognizance of criminal contempt
and directed issue of notice on 13.5.80 to the appellant directing to show
cause as to why he should not be punished for contempt of Court to which the
appellant filed his reply raising certain preliminary objections stating that
the notice was bad for the reasons, namely,
(1)
The Section of the Act under which cognizance had been taken was not
specifically mentioned;
(2)
Though the offending portions are marked the notice does not show sufficient
cause as to why the words and expressions used therein have been construed as
contemptuous;
(3)
The procedure followed by the High Court was contrary to the rules framed by
it; and
(4) No
consent of the Advocate General has been obtained. The appellant, on the basis
of the above objections prayed to discharge the rule of contempt.
On
11.7.80 when the case came up for hearing, the learned Advocate General filed
his reply to the preliminary objection and served a copy of the same to the
appellant. On the same day, the High Court passed an order reading thus:
"........The
Government Advocate further gives notice to the respondent that the contempt
proceedings are under Art. 215 of the Constitution.
Let
the respondent take inspection of the original record in case he would like to
know the offending portions marked both 873 underlined and side marked and let
him file his reply on merits within 15 days." Admittedly, the appellant
inspected the Court records relating to this matter. Even thereafter when the
appellant persistently requested as under what Section of the Act he has been
charged, he was informed that the proceedings were under the provisions of
Article 215 of the Constitution of India.
For
the proper understanding of the issue in question, we feel that it would be
necessary to reproduce the offending words and passages as appearing in the
contempt petition. They are as follows:
"7.
That on 2.4.79, when the case came up for hearing, the judicial process
required that it was the non-applicant, Shri R.P.Sinha who should have been
heard in the first instance and he should have been asked by the Court whether
he has filed the addition return but on account of misfortune of the petitioner
and misconduct of the Presiding Judge, Justice Shri J.S. Verma that he while
coming out of the chamber and occupying the seat in the temple of justice
called out the petitioner and told him that after the acceptance of the
resignation, the petition had become infructuous as such he was dismissing it
summarily. The petitioner was shocked to witness the most illegal and
unconstitutional legal process adopted by the Hon'ble
Judge..............................................
......
When the petitioner started arguing his case that his Fundamental Rights were
infringed, the Hon'ble Presiding Judge not only stopped the petitioner from
arguing his case but threatened him for dire consequences in case the
petitioner argued any more. This amounts to desacrilege the sanctity of his own
Court by the Judges.
8.
.......................
9.
....... The Review Petition was heard by the same Bench in utter disregard of
judicial cannon since no person against whom serious allegations have been levelled
(against) can be a Judge in his own case. The Review Petition was also 874
rejected summarily repeating the false averments more in explicit terms that
they heard the petitioner as well as the counsel for the respondents thus
super-imposing the seal of truth over the falsehood.
GROUNDS
1. The
petitioner charges the Hon'ble
Court especially
Justice J.S. Verma for adopting a most illegal and unconstitutional judicial
process in utter disregard of cannons and principles of adjudication, for
showing rude behaviour towards the petitioner. The amounts to desacrilege the
sanctity of his Court.
2.
That when the attention of Justice Verma was drawn on 2.4.79, that he was
violating the legal process, he misbehaved with the petitioner without any
valid reason which amounts to misconduct of the Judges.
3.
That again on 23.4.1979 when the Review Petition was being argued, he
threatened the applicant/petitioner for dire consequences for no valid reasons.
4.
That the High Court is a Temple of Justice and the Judges who occupy the seat
of justice are just like Dharamraj. Dharamraj's are not supposed to utter
falsehood atleast while occupying this sacred seat of Justice. The Hon'ble
Judges have not only uttered falsehood in their order dated 2.4.79 ( Annexure
`B') but super - imposed their false averments in their order dated 23.4.79 in
which they stated that they distinctly recollect that the petitioner as well as
the counsel for the respondents were heard. The petitioner's charge that they
do not remember as to what they heard................
5.
6. The
charge against Justice U.N. Bachawat (the associate Judge) is that he silently
witnessed the proceedings throughout. He never uttered a single word or
intervened when his senior faltered out and succumbed to the false averments
875 of the Presiding Judge as if was not an independent Judge but serving
faithfully and obediently to his master.
7.
8.
That the petitioner avers that both the contemner Judges have acted and bad
faith and have fouled the seat of justice by clear malafides act of theirs and
as such no protection can be extended to them under cover a bonafide act done
in good faith as Judges.
9.
That both the Judges have violated the sanctity attached to the seat of Justice
and have committed a Contempt of their own Court. Both have acted malafidely in
bad faith.
PRAYER
It is, therefore, prayed that Contempt Proceedings under Section 16 of the
Contempt of Court Act, 1971, may be initiated against Justice J.S. Verma and
Justice U.N. Bachawat of the Madhya Pradesh High Court on the aforesaid
grounds." The High Court after examining the above scandalising remarks
made by the appellant in his contempt petition rejected the objections of the appellant/contemner
holding that the cognizance of the criminal contempt was taken by it on suo moto,
that the contemner was informed that the Court was invoking its jurisdiction
under Article 215 of Constitution of India to punish him for contempt, that the
Contempt of Courts Act, 1971 does not confer any new jurisdiction by its
authority, that in a suo moto action by the High Court, consent of the Advocate
General was not necessary, that non quoting of the provisions Section in the
notice is immaterial and that the contemner had full notice of the charge of
contempt levelled against him and concluded, "We see no defect in the
notice served upon the contemner, nor do we find defect in the procedure
followed." Then after referring to certain decisions of this Court in
Perspective Publications v. State of Maharashtra, [1969] 2 SCR 779; C.K. Daphtary
v. O.P. Gupta, [1971] 1 SCC 626 and Baradakanta Mishra v. Registrar of 876 Orissa
High Court, [1974] 1 SCC 374, the High Court made the following observation
with reference to the facts of the case:
"16.
The offending portions in paras 7 and 9, and repeated in grounds 1,2,3 and 4,8
and 9 attribute to Mr. Justice J.S. Verma
(a) improper
motive,
(b) unfairness
and undue basis in dealing with the case,
(c) being
a Judge who administers justice in a cursory manner without giving thought to
the points involved,
(d) of
being intemperate in language, impatient and unjust,
(e) who
would arise false proceedings and when falsity has been brought his notice,
would have the audacity to stick to the falsehood.
17. If
the words have this import, the inevitable effect is undermining the confidence
of the public in the judiciary. The person who has indulged in scurrilous abuse
of the Judge, must suffer in punishment." On the basis of the above
observations, the High Court recorded its finding thus:
"20.
In our reading of the offending portions duly marked in paras 7,9 and grounds
1,2,3 and 4,8 and 9 of the application dated 16.4.1980 in the context in which
they have been written, there are imputations of malafides, bias and prejudice
against Mr. Justice J.S. Verma. The contempt involved in these passages is
grossly scandalous.
21.
Coming to the allegations in Ground No. 6 relating to Mr. Justice Bachawat, it
was said that "he silently witnessed the proceedings. He never uttered a
single word or intervened when his senior faltered and succumbed to false
averments of the Presiding Judge as if he was not an independent Judge but
serving faithfully and obediently his master." Finally, the High Court
held that the contemner, Mr. Pritam Lal is guilty of criminal contempt of not
only scandalising the Court and lowering its authority but also substantially
interfering with the due course of justice.
Coming
to the question of sentence, the High Court taking note of the defiant attitude
of the contemner who even did not think it necessary to 877 apologise but tried
to justify the aspersions, sentenced the contemner to suffer simple
imprisonment for two months.
Hence
the present appeal.
The Contemner,
Mr. Pritam Lal appeared before us in person and advanced his arguments which
are similar to the submissions made before the High Court, inter alia
contending that the impugned order of the High Court should be set aside with
costs and suitable compensation on the ground of procedural irregularities in
that (1) that the offending remarks have not been communicated to him as per
Rules 5 and 9 framed by the High Court; (2) that the cognizance of the criminal
cotmpt has not been taken in conformity with Section 15 of the Act; (3) that
the procedure after cognizance as prescribed under Section 17 of the Act has
not been followed; and (4) that Article 215 of the Constitution of India does
not prescribe any procedure to be followed. According to him he has not been
given a fair and full hearing but on the other hand, the learned Judges have
browbeaten and unjustly convicted him ignoring the well settled principle that
every person has got an inalienable right of making fair criticism. He has
further added that the impugned order was pre-conceived and pre- judged one. In
addition to the oral arguments, he has filed detailed written arguments, signed
on 15.11.88 citing a number of decisions which in our view, do not have any
relevance to the facts of the case. In the written submissions also, he has
again made certain outrageous and contemptuous remarks about the Judges of the
High Court, in attempting to justify his action which has led to the initiation
of the proceedings of contempt of Court before the High Court.
As
rightly pointed out by the High Court, these contentions in our opinion do not
merit any consideration since every High Court which is a Court of Record is
vested with `all powers' of such Court including the power to punish for
contempt of itself and has inherent jurisdiction and inalienable right to
uphold its dignity and authority.
Whilst
Article 129 deals with the power of the Supreme Court as Court of Record,
Article 215 which is analogous to Article 129 speaks of the power of the High
Court in that respect.
Prior
to the Contempt of Courts Act, 1971, it was held that the High Court has
inherent power to deal with a contempt of itself summarily and 878 to adopt its
own procedure, provided that it gives a fair and reasonable opportunity to the contemner
to defend himself. But the procedure has now been prescribed by Section 15 of
the Act in exercise of the powers conferred by Entry 14, List III of the
Seventh Schedule of the Constitution. Though the contempt jurisdiction of the
Supreme Court and the High Court can be regulated by legislation by appropriate
Legislature under Entry 77 of List I and Entry 14 of List III in exercise of
which the Parliament has enacted the Act 1971, the contempt jurisdiction of the
Supreme Court and the High Court is given a constitutional foundation by
declaring to be `Courts of Record' under Articles 129 and 215 of the
constitution and, therefore, the inherent power of the Supreme Court and the
High Court cannot be taken away by any legislation short of constitutional
amendment. In fact, Section 22 of the Act lays down that the provisions of this
Act shall be in addition to and not in derogation of the provisions of any
other law relating to contempt of courts. It necessarily follows that the
constitutional jurisdiction of the Supreme Court and the High Court under
Articles 129 and 215 cannot be curtailed by anything in the Act of 1971. The
above position of law has been well settled by this Court in Sukhdev Singh Sodhi
v. The Chief Justice and Judges and Judges of the PEPSU High Court, [1954] SCR
454 holding thus:
"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 has been further
observed:
"The
High Court can deal with it summarily and adopt its own procedure. All that is
necessary is that the procedure is fair and that, the contemner is made aware
of the charge against him and given a fair and reasonable opportunity to defend
himself." In R.L. Kapur v. State of Madras, [1972] 1 SCC 651 a question
arose did the power of the High Court of Madras to punish contempt of itself arise
under the Contempt of Courts Act, 1952 so that under Section 25 of the General
Clauses Act, 1897, Sections 63 to 70 of the Penal Code and 879 the relevant
provisions of the Code of Criminal Procedure would apply. This question was
answered by this Court in the following words:
"The
answer to such a question is furnished by Article 215 of the Constitution and
the provisions of the Contempt of Courts Act, 1952 themselves.
Article
215 declares that every High Court shall be a court of record and shall have
all powers of such a court including the power to punish for contempt of
itself. Whether Article 215 declares the power of the High Court already
existing in it by reason of its being a court of record, or whether the article
confers the power as inherent in a court of record, the jurisdiction is a
special one, not arising or derived from the Contempt of Courts Act, 1952, and
therefore, not within the purview of either the Penal Code or the Code of
Criminal Procedure." After giving the above answer to the query raised,
this Court has reiterated the view held in the case of Sukhdev Singh Sodhi
(referred supra).
The
view expressed in Sukhdev Singh Sodhi and followed in R.L. Kapur been referred
with approval in a recent decision in Delhi Judicial Service Association v.
State of Gujarat, [1991] 4 SCC 406, holding that the view of this Court in Sukhdev
Singh Sodhi is "that even after the codification of the law of contempt in
India, the High Court's jurisdiction as a Court of Record to initiate
proceedings and take seisin of the matter remained unaffected by the contempts
of Courts Act, 1926." Beg, C.J. in Re S. Mulgaokar, [1978] 3 SCC 339 has
explained the special power of the Supreme Court under Article 129 stating.
"This Court is armed, by Article 129 of the Constitution, with very wide
and special powers, as a Court of Record, to punish its contempts." In
Delhi Judicial Service Association case (supra), it has been pointed out as
follows:
"Article
129 provides that the Supreme 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. Article 215 contains 880 similar provisions in respect of a High Court.
Both the Supreme Court as well as High Courts are courts of record having powers
to punish for contempt including the power to punish for contempt of
itself." Yet another question whether the provisions of the Code of
Criminal Procedure are applicable to such Proceedings, has been negatively
answered by this Court in Sukhdev Singh Sodhi case (supra) stating thus:
"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 procedure. All that is necessary is that the procedure is
fair and that the contemner is made aware of the charge against him and given a
fair and reasonable opportunity to defend himself." See also Brahma Prakash
Sharma and Others v. The State of Uttar Pradesh, [1953] SCR 1169.
From
the above judicial pronouncements of this Court, it is manifestly clear that
the power of the Supreme Court and the High Court being the Courts of Record as
embodied under Articles 129 and 215 respectively cannot be restricted and trammelled
by any ordinary legislation including the provisions of the Contempt of Courts
Act and their inherent power is elastic, unfettered and not subjected to any
limit.
It
would be appropriate, in this connection, to refer certain English authorities
dealing with the power of the superior Courts as Courts of Record.
The
1884 edition of Belchamber's Practice of the Civil Court 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 contempts, without its precincts, as well as in facie
curiae............." In 9 Halsbury's Law of England (4th Edition) by Lord Hailsham
at page 3 under the caption "Criminal Contempt", the following
passage is found:
881
"The superior courts have an inherent jurisdiction to punish criminal
contempt....." It is further stated at page 3 itself that the power to
commit by summary process is arbitrary and unlimited, but that power should be
exercised with the greatest caution.
In Re
Clements and the Republic of Costa Rica v. Erlanger, [1877] 46 L.J.Ch. 375 at page 383, Lord Jessel,
M.R. said:
"......this
jurisdiction of committing for contempt being practically arbitrary and
unlimited should be most jealously and carefully watched, and exercised....,"
Reference also may be bad to a decision of the Division Bench of the Bombay
High Court in State of Bombay v. P., 1958 Bom. Law Reporter, (60) Page 873
wherein it has been held that the jurisdiction which each Judge of the High
Court possesses and uses as constituting a Court of Record is a jurisdiction
which is inherent in the Court itself for punishment for contempt of Court,
whether it is ex facie the Court or otherwise and that for the exercise of that
jurisdiction it is not necessary to refer either to the Letters Patent or the
Rules framed by the Court thereunder and that it is a jurisdiction which is
being exercised in the same manner as was exercised in the Court of King's
Bench Division in England.
In
special feature of the procedure to be followed in a contempt proceeding is the
summary procedure which is recognised not only in India but also abroad.
It is
an outstanding characteristic of the law of contempt both in England and Scotland that it makes use of a particular and summary procedure which
is unknown to any other branch of those countries. In England, this summary procedure began to be
adopted by the common law Courts inspite of trial by jury and that the trial by
jury for contempt has steadily declined and has now fallen entirely into disuse.
In other words, consequent upon the use of the summary procedure in England, a person alleged to be in contempt
does not enjoy the benefit of some of the safeguards of the ordinary criminal
law such as those provided by the Judges' Rules in England and Wales and the right to trial by jury.
882
Rule 42 of the Federal Rules of Criminal Procedure of United States reads that
``A criminal contempt may be punished summarily if the Judge certifies that he
saw or heard the conduct constituting the contempt and that it was committed in
the actual presence of the Court." In Ex parte Terry, 128 U.S. 289, 307, 9
S.Ct. 77, 80 (1888) and in Matsusow v. United States, 229 F.2d 335, 339 (5th
Cir. 1956), it has been ruled that "If the contempt be committed in the
face of the court, the offender may be instantly apprehended and imprisoned at
the discretion of the judges, without any further proof or examination."
In the Contempt of Court by Oswald, the following passage relating to the
summary power of punishment is found:
"The
summary power of punishment for contempt has been conferred on the courts to
keep a blaze of glory around them, to deter people from attempting to render
them contemptible in the eyes of the public. These powers are necessary to keep
the course of justice free, as it is of great importance to society." In
the year 1899, Lord Moriss in delivering the judgment of the Judicial Committee
in Mc Leod v. St. Aubin 1899 AC 549 (C) said:
"The
power summarily to commit for contempt is considered for the proper
administration of justice." This has long been the practice in India also.
The
power under Articles 129 and 215 is a summary power as held in the cases of Sukhdev
Singh Sodhi, C.K. Daphtary (referred to above) and in Hira Lal Dixit v. State
of U.P., AIR 1954 SC 743.
Peacock,
C.J.laid down the rule quite broadly in the following words in Re Abdool v. Mahtab,
1867 (8 WR) Cr. 32 at page 33:
"there
can be no doubt that every court of record has the power of summarily punishing
for contempt." The above view is re-stated in a number of decisions of
this Court.
In the
case of Sukhdev Singh Sodhi it has been observed:
883
".......the power of a High Court to institute proceedings for contempt
and punish where necessary is special jurisdiction which is inherent in all
courts of record and section 1 (2) of the Code expressly excludes special
jurisdiction from its scope." The position of law that emerges from the
above decisions is that the power conferred upon the Supreme Court and the High
Court, being Courts of Record under Articles 129 and 215 of the Constitution
respectively is an inherent power and that the jurisdiction vested is a special
one not derived from any other statute but derived only from Articles 129 and
215 of the Constitution of India (See D.N. Taneja v. Bhajan Lal, [1988] 3 SCC
26) and therefore the constitutionally vested right cannot be either abridged
by any legislation or abrogated or cut down. Nor can they be controlled or
limited by any statute or by any provision of the Code of Criminal Procedure or
any Rules. The caution that has to be observed in exercising this inherent
power by summary procedure is that the power should be used sparingly, that the
procedure to be followed should be fair and that the contemner should be made
aware of the charge against him and given a reasonable opportunity to defend
himself.
If we
examine the facts of the present case in the backdrop of the proposition of
law, the contentions raised by the appellant challenging the procedure followed
by the High Court do not merit any consideration since the appellant has been
served with a notice of contempt and thereafter permitted to go through the
records and finally has been afforded a fair opportunity of putting forth his
explanation for the charge levelled against him. Incidently, we may say that
the submission of the contemner that the impugned order is vitiated on the
ground of procedural irregularities and that Article 215 of the Constitution of
India is to be read in conjunction with the provisions of Sections 15 and 17 of
the Act of 1971, cannot be countenanced and it has to be summarily rejected as
being devoid of any merit.
The
remaining important question for consideration are whether the statements which
we have extracted in the preceding part of this judgment, made by the contemner
amount to a scurrilous attack on the integrity, honesty and judicial
impartiality of the learned Judges of the High Court and whether the contemner
by his conduct as well as by making such 884 written scandalising statements
and invective remarks have interfered and seriously disturbed the system of
administration of justice by bringing it down to disrespect and disrepute.
There
is an abundance of empirical decisions upon particular instances of conduct
which has been held to constitute contempt of Court. We shall now refer to a
few.
Lord Russel
of Killowen, L.C.J. has laid down the law of Contempt in 1900 (2) Q.B. 36 at 40
as follows:
"Any
act done or writing published calculated to bring a Court or a Judge of the
Court into contempt, or to lower his authority, is a Contempt of Court."
The above proposition has been approved and followed by Lord Atkin in Andre
Paul v. Attorney General, AIR 1936 PC 141.
Lord
Justice Donovan in Attorney General v. Butterworth, 1963 (1) Q.B 696, after
making reference to Reg. v. Odham's Press Ltd., ex parte A.G. 1957 (1) Q.B. 73
said, "Whether or not there was an intention to interfere with the
administration of justice is relevant to penalty, not to guilt." This
makes it clear that an intention to interfere with the proper administration of
justice is an essential ingredient of the offence of contempt of court and it
is enough if the action complained of is inherently likely so to interfere.
In
Morris v. The Crown Office, (1970) 1 All.E.R. 1079 at page 1081, Lord Denning
M.R. said:
"The
course of justice must not be deflected or interfered with. Those who strike at
it strike at the very foundations of our society." In the same case, Lord
Justice Salmon spoke:
"The
sole purpose of proceedings for contempt is to give our courts the power
effectively to protect the rights of the public by ensuring that the
administration of justice shall not be obstructed or prevented." 885 Frank
Further, J in Offutt v. U.S., [1954] 348 US 11 expressed his view as follows:
"It
is a mode of vindicating the magesty of law, in its active manifestation
against obstruction and outrage." In Jennison v. Baker, [1972] 2 All ER
997 at page 1006, it is stated:
"The
law should not be seen to sit by limply, while those who defy it go free, and
those who seek its protection lose hope." Chinnappa Reddy, J. Speaking for
the Bench in Advocate General, Bihar v. M.P. Khair Industries, [1980] 3 SCC 311
citing those two decisions in the ases of Offut and Jennison (supra) stated thus:
"......it
may be necessary to punish as a contempt, a course of conduct which abuses and
makes a mockery of the judicial process and which thus extends its pernicious
influence beyond the parties to the action and affects the interest of the
public in the administration of Justice. The public have an interest, an
abiding and a real interest, and a vital stake in the effective and orderly
administration of justice, because, unless justice is so administered, there is
the peril of all rights and liberties perishing. The Court has the duty of
protecting the interest of the public in the due administration of justice and,
so it is entrusted with the power to commit for Contempt of Court, not in order
to protect the dignity of the Court against insult or injury as the expression
"Contempt of Court" may seem to suggest, but to protect and to
vindicate the right of the public that the administration of justice shall not
be prevented, prejudiced, obstructed or interfered with." Krishna Iyer, J.
in his separate Judgment in re S. Mulgaokar (supra) while giving the broad
guidelines in taking punitive action in the matter of Contempt of Court has
stated:
".......if
the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory
or malicious beyond condonable limits, the strong arm of the law must, in the
name of public interest and public justice, strike a blow on him who 886
challenges the supremacy of the rule of law by fouling its source and
stream." In the case of Brahma Prakash (supra), this Court after referring
to various decisions of the foreign countries as well as of the Privy Council
stated thus:
"It
will be an injury to the public if it tends to create an apprehension in the
minds of the people regarding the integrity, ability or fairness of the Judge
or to deter actual and prospective litigants from placing complete reliance
upon the Court's administration of justice, or if it is likely to cause
embarrassment in the mind of the Judge himself in the discharge of his judicial
duties. It is well established that it is not necessary to prove affirmatively
that there has been an actual interference with the administration of justice
by reason of such defamatory statement; it is enough if it is likely, or trends
in any way, to interfere with the proper administration of law." In Ashram
M.Jain v. A.T. Gupta, [1983] 4 SCC 125 the facts were thus:
The
petitioner who filed a special leave petition accompanying by an affidavit
affirming the statement made in the said SLP indulged in wild and vicious
diatribe against the then Chief Justice of the High Court of Maharashtra.
When
the SLP was heard, this Court directed notice to be issued to the petitioner as
to why he should not be committed for contempt under the Contempt of Courts
Act, 1971. After hearing the parties and then not accepting the unconditional
apology of the petitioner, this Court convicted the petitioner for contempt and
sentenced him to suffer simple imprisonment for a period of two months. In that
case, Chinnappa Reddy, J. speaking for the Bench said:
"The
strains and mortification of litigation cannot be allowed to lead litigants to
tarnish, terrorise and destroy the system of administration of justice by
vilification of judges. It is not that judges need be protected; judges may
well take care of themselves. It is the right and interest of the public in the
due administration of justice that has to be protected." 887 Reference may
be made to a recent decision of this Court in M.B. Sanghi v. High Court of
Punjab and Haryana, [1991] 3 SCC 600. In that case, the appellant, a practising
advocate having failed to persuade the learned Subordinate Judge to grant an
ad-interim injunction pending filing of a counter by the opposite party, made
certain derogatory remarks against the learned Judge who instead of succumbing
to such unprofessional conduct made a record of the derogatory remarks and
forwarded the same to the High Court through the District Judge to initiate
proceedings for Contempt of Court against the appellant. The High Court holding
that the remarks made on the learned Sub Judge are disparaging in character and
derogatory to the dignity of the judiciary found the appellant guilty of
Section 2 (c) (i) of the Contempt of Courts Act. The appellant therein though
denied to have made the remarks, however, offered an unqualified apology. But
the High Court without accepting the apology punished the appellant therein
with a fine of Rs. 1,000.
Ahmadi,
J. of this Court in his separate judgment has observed:
"The
tendency of maligning the reputation of judicial officers by disgruntled
elements who fail to secure the desired order is ever on the increase and it is
high time it is nipped in the bud. And, when a number of the profession resorts
to such cheap gimmiks with a view to browbeating the judge into submission, it
is all the more painful. When there is a deliberate attempt to scandalise which
would shake the confidence of the litigating public in the system, the damage
caused is not only to the reputation of the concerned judge but also to the
fair name of the judiciary. Veiled threats, abrasive behaviour, use of
disrespectful language and at times blatant condemnatory attacks like the
present one are often designedly employed with a view to taming a judge into
submission to secure a desired order. Such cases raise larger issues touching
the independence of not only the concerned judge but the entire institution.
The foundation of our system which is based on the independence and
impartiality of those who man it will be shaken if disparaging and derogatory
remarks are made against the presiding judicial officers with impunity. It is
high time that we realise that the much cherished judicial independence has to
be protected not only from the executive or 888 the legislature but also from
those who are an integral part of the system." After having made the above
observation, the learned judge concerned with the conclusion of Agarwal, J.
dismissing
the appeal and while doing so, he expressed his painful thought as follows:
"When
a member of the bar is required to be punished for use of contemptuous language
it is highly painful - it pleases none - but painful duties have to be
performed to uphold the honour and dignity of the individual judge and his
office and the prestige of the institution. Courts are generally slow in using
their contempt jurisdiction against erring members of the profession in the
hope that the concerned Bar Council will chasten its member for failure to
maintain proper ethical norms. If timely action is taken by the Bar Councils,
the decline in the ethical values can be easily arrested." We are in full
agreement with the above view.
Reverting
to the facts of the case, the offending criticism and the scandalising
allegations made by the appellant/contemner are most fatal and dangerous
obstruction of justice shaking the confidence of the public in the
administration of justice and calling for a more rapid and immediate punitive
action. These calculated contemptuous remarks and the sweeping allegations
which we have extracted above are derogatory in character not only to the
dignity of the learned Judges casting aspersions on their conduct in the
discharge of their judicial functions but also wounds the dignity of the Court.
It is highly painful to note that the appellant/contemner who is none other
than an Advocate practising in the same highest Court of the state after having
failed to wrench a decision in his favour in his own cause which he prosecuted
as party in person has escalatingly scandalised the Court by making libellous
allegations which are scurrilous, highly offensive, vicious, intimidatory, malacious
and beyond condonable limit. Even a cursory reading of the remarks made against
the learned Judge of the High Court unambiguously show that the potentially prejudicial
utterances and the outrageous allegations rumbustiously and invectively made by
the contemner with malacious design of attempting to impair 889 the
administration of justice have struck a blow on the judiciary and also
seriously sullied the image, dignity and high esteem which the office of the
Judge of the High Court carries with it and thus impeded the course of justice
by fouling its source and steam. In our opinion, the incident in question is a
flagrant onslaught on the independence of the judiciary, destructive of the
orderly administration of justice and a challenge to the supremacy of the Rule
of Law.
The
maxim "Salus populi suprema lex", that is "the welfare of the
people is the supreme law" adequately enunciates the idea of law. This can
be achieved only when justice is administered lawfully, judicially, without
fear or favour and without being hampered and thwarted, and this cannot be
effective unless respect for it is fostered and maintained.
To
punish an Advocate for Contempt of court, no doubt, must be regarded as an
extreme measure, but to preserve the proceedings of the Courts from being
deflected or interfered with, and to keep the streams of justice pure, serene
and undefiled, it becomes the duty of the Court, though painful, to punish the contemner
in order to preserve its dignity. No one can claim immunity from the operation
of the law of contempt, if his act or conduct in relation to Court or Court
proceedings interferes with or is calculated to obstruct the due course of justice.
In
view of the above heinous type of scandalising the Court, we unhesitatingly
confirm the finding of the High Court that the appellant/contemner has made himself
guilty of criminal contempt.
Coming
to the question of sentence, it appears from order of the High Court that the
appellant had adopted a defiant attitude and tried to justify the aspersions
made by him even without thinking it necessary to apologise. Before this Court
also, the appellant has neither expressed any contrition nor has he any repentance
for the vicious allegations made against the learned Judges of the High Court.
But on the other hand, he has exhibited a dogged determination to pursue the
matter, come what may. A reading of his memorandum of grounds and the written
and signed arguments show that he was ventured into another bout of allegations
against the High Court Judges and persisted in his campaign of vilification.
His present conduct has aggravated rather than mitigating his offence.
890
Therefore, having regard to the sentencing policy that punishment should be
commensurate with the gravity of the offence, we hold that the sentence of 2
months, imprisonment in no way calls for interference and accordingly the
sentence is confirmed.
For
the reasons aforementioned, the Criminal Appeal is dismissed.
N.P.V.
Appeal dismissed.
Back