The
Commissioner, Agra & Ors Vs. Rohtas Singh & Ors [1997] INSC 914 (9
December 1997)
SUJATA
V. MANOHAR, G.T. NANAVATI
ACT:
HEADNOTE:
Mrs. Sujata
V. Manohar, J Leave granted.
These
appeals are from a judgment of the Allahabad High Court holding that Government
Advocates and Standing Counsel for the State of Uttar Pradesh cannot be allowed to appear and defend Government officials
against who notices for contempt of court are issued. In the Allahabad High
Court advocates for the State appearing in criminal matters are designated as
Government Advocates while advocates on behalf of the State appearing in civil
matters are designated as Standing Counsel. The High Court has held that
neither category of advocates can appear in contempt proceedings on behalf of
an alleged contemnor who is an official of the State Government. The Allahabad
High Court has further held that no monetary help from the State Exchequer can
be extended to such Government officials towards litigation expenses in
contempt proceedings. These expenses are to be incurred personally by the
Government officials concerned which can be subsequently reimbursed to them if
they are honourably exonerated in contempt proceedings. The High Court has also
struck down a Government Order date 12th of September, 1996 issued by the
Special Secretary and Additional Legal Remembrancer, Government of U.P. under
which a panel of Advocates has been nominated for Government of U.P. and its
officers and/or employees. The High Court has struck down the names of the two It
has also held as of no consequence, the relevant provisions in the Legal Remembrancer's
Manual permitting Government Advocates and/or Standing Counsel to appear in
such matters.
The
impugned judgment has been pronounced in the course of contempt proceedings for
alleged violation of the orders of the Allahabad High Court dated 6.9.1996 in
Civil (Misc.) Writ Petition No.28721 of 1996 - Rohtas Singh vs. The
Commissioner, Agra Division & Ors. and the order of the High Court dated
11.7.1996 in Civil (Misc.) Writ Petition No.21843 of 1996 - Gaon Panchayat of
Village Bhavokara & Ors. vs. District Panchayat Raj Adhikari, Bulandshaher
and Ors. In these proceedings, Shri S.M.A. Kazmi, Additional Chief Standing
Counsel appeared for the alleged contemnors who were Government officials and
who were alleged to have violated the respective orders in the above two writ
petitions. When the court raised an objection that the State Law Officers
cannot appear in contempt proceedings to defend the contemnors, Shri S.M.A. Kasmi,
Additional Chief "Standing Counsel drew the attention of the court to the
above Government Order No.D/2714/7-Nyay-3-96-83/96 dated 12th September, 1996
under which six State Law Officers as aforesaid had been appointed by the State
Government to appear in all contempt cases in the High Court of Judicature at Allahabad
and its Bench at Lucknow for the purpose of defending the State Government
Officers/employees who wee charged with contempt. Mr. Kazmi contended that he
being one of the six State Law Officers so named, was authorised to appear for
the alleged contemnors.
The
attention of the High Court was also drawn to the Legal Remembrancer's Manual
of 1975. Under the Legal Remembrancer's Manual of 1975 Chapter V deals with
Chief Standing Counsel and Standing Counsel in the High Court who are
responsible for the conduct of all civil cases in the High Court to which the
State Government is a party. Under Court to which the State Government is a
party. Under Clause 5.04 of Chapter V the Standing Counsel is entitled to
represent the State or any authority within the state in such other civil cases
in which he might be required or directed to appear by the Government, the
Legal Remembrancer or the High Court. Chapter IV deals with Government
Advocate, his deputies and assistants. Under Clause 4.07 of Chapter IV, the
Government Advocate, Additional Government Advocate, Deputy Government Advocate
or Assistant Government Advocate shall have the right of private practice but
shall not, except under special permission of the Government, appear for the defence
in any criminal or quasi-criminal case or proceedings nor can be advise any
private party regarding any criminal case which might be pending or be likely
to be instituted in Uttar Pradesh.
It was
contended by Shri Kazmi, Additional Chief Standing Counsel for the State of U.P. that the Government order of 12th of September, 1996
constituted special authorisation entitling him to appear in contempt
proceedings on behalf of an alleged contemnor when that alleged contemnor was
an employee or officer of the State.
The
High Court, however, rejected this contention while holding that the Government
Advocates and Standing Counsel cannot be allowed to so appear.
The
High Court seems to have proceeded on the basis that it is for the state to
prosecute contemnors.
Therefore,
counsel for the State cannot appear for the "accused" contemnor. This
foundation of the High Court's reasoning is unfortunately not sound. A contempt
proceeding is often described as a quasi-criminal proceeding because it results
in punishment for the contemnor. The proceeding, however, cannot be equated
with the prosecution of a criminal by the State. Contempt proceedings are
essentially a matter between the court and the contemnor. Contempt jurisdiction
enables the court to ensure proper administration of justice and maintenance of
the Rule of Law. It is meant to ensure that the courts are able to discharge
their functions properly, unhampered and unsullied by wanton attacks on the
system of administration of justice or on officials who administer it, and to
prevent wilful defiance of orders of the court or undertakings given to the
court. That is why the Supreme Court and the High Court have an inherent power
to punish for contempt even dehors legislation pertaining to contempt of court.
This
is apparent also from the definition of "contempt" under the Contempt
of Courts Act, 1971. Two types of contempt are defined. Under Section 2(b),
Civil Contempt means wilful disobedience to any judgment, decree, direction,
order, writ or other process of a court or wilful breach of an undertaking
given to a court. While criminal contempt is defined under Section 2(c) to mean
the publication (whether by words, spoken or written, or by sings, or by
visible representations, or otherwise), of any matter or the doing of any other
act whatsoever which - (i) scandalises or tends to scandalise, or lowers or
tends to lower the authority of any court; or (ii) prejudices, or interferes or
tends to interfere with, the due course of any judicial proceeding: or (iii)
interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner. From this definition it is clear
that the courts' power to punish for contempt is a power which is required in
furtherance of proper administration of justice and preserving the authority of
the court. This power is expressly preserved under Articles 129 and 215 of the
Constitution. That is why the question of contempt is a question which is essentially
between the court and the contemnor.
Explaining
this position, this court in the case of D.N. Taneja v. BhajanLal (1988 [3] SCC
26) observed, "A contempt is a matter between the court and the alleged
contemnor. Any person who moves the machinery of the court for contempt only
brings to the notice of the court certain facts constituting contempt of court.
After furnishing such information he may still assist the court but it must
always be borne in mind that in a contempt proceeding there are only two parties,
namely, the court and the contemnor." In that case this Court held that
the person who had lodged the complaint was not entitled to any right of appeal
because he was not a necessary party in contempt proceedings.
It is
on account of the mistaken notion that the State has to prosecute an action for
contempt of court against the contemnor that the High Court, in the present
case, came to the conclusion that the Advocates appointed by the State to
represent it in courts of law cannot appear for an officer of the State who is
charged with contempt. It is, therefore, open to the State to nominate its
advocates to appear for its officials in contempt proceedings. In fact, in the
case of the highest law officer of the State - the Advocate General, this Court,
in the case of T.C. Hingorani v. G.P. Misra (1967 Law Reports Lucknow, page
662), held that the State Government could assign to the Advocate General the
duty to appear in a contempt proceeding for a contemnor, and the Advocate
General was entitled to so appear. This has been reiterated in Mohd. Iqbal Khandey
v. Abdul Majid Rather [(1994) 4 SCC 34] where the Court held that there was no
justification for the court to direct the counsel for the appellant, namely the
Additional Advocate General, not to appear for the appellant or to direct that
he should instead, assist the court.
It is
possible that there might be situations where the Advocate General may decline
to appear for an alleged contemnor who is an officer or employee of the State.
Section
15, for example, of the Contempt of Courts Act, 1971, which deals with
cognizance of criminal contempt, provides that in the case of a criminal
contempt, other than a contempt referred to in Section 14, the Supreme Court or
the High Court may take action on its own motion or on a motion made by (a) the
Advocate General, or (b) any other person with the consent in writing of the
Advocate General, or (c) in relation to the High Court for the Union Territory
of Delhi, such law officer as the Central Government may, by notification in
the Official Gazette, specify in this behalf, or any other person, with the
consent in writing of such law officer. In the case of any criminal contempt of
a subordinate court, the High Court may take action on a reference made to it by
the subordinate court or on a motion made by the advocate General or, in
relation to a Union Territory, such law officer as the Central Government may,
by notification in the Official Gazette, specify in this behalf. The Advocate
General or the law officer concerned many in such a case decline to appear for
the alleged contemnor in a criminal contempt case.
Our
attention was also drawn to Rule 6 of the Allahabad High Court Rules framed
under Section 23 of the Contempt of Courts Act which provides for a notice of a
criminal contempt being served on the Government Advocate an interested party
in the contempt proceedings. Moreover, the present case deals not with criminal
contempt but with civil contempt.
The
state is, therefore, entitled to authorise an law officer to appear in cases
where the contempt consists of disobedience of an order of the court by an
official or employee of the State. The further directions given by the High
Court that in all such cases the legal expenses should be borne personally by the
alleged contemnor except when he is honourably acquitted also appear to be
unwarranted. The High Court seems to have been moved into issuing such a
direction because of the large number of contempt cases pending in that court
against the officers of the State for their failure to carry out the orders of
the Court. It is indeed a disturbing situation. Where the conduct of the
concerned official is contumacious, the court can direct him to pay costs
personally, if the facts and circumstances of the case so warrant. But a
general direction of the kind given by the High Court cannot be sustained.
Hence,
the impugned order of the High Court is set aside and the appeals are allowed.
There will, however, no order as to costs.
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