Contempt of Court; Power & Jurisdiction of Supreme Court

The Supreme Court of India in Delhi Judicial Services Association Vs. State of Gujarat, AIR 1991 SC 2176 : 1991 (3) SCR 936 : (1991) 4 SCC 406 : JT 1991 (3) SC 617 : 1991 (2) SCALE 501 has held that Court has inherent power and jurisdiction to take action for contempt of subordinate or inferior courts also.

A bench comprising of Justice K.N. Singh, Justice Kuldip Singh and Justice N.M. Kasliwal observed that the power to be exercised sparingly only when contempt is likely to have repercussions throughout the country.

# Contempt of Court

High Courts as Courts of Record have inherent power and jurisdiction to take action for contempt of subordinate or inferior courts. Supreme Court having judicial superintendence over all courts in the country has same jurisdiction.

Criminal contempt is wide enough to include any act which would tend to interfere with administration of justice or which would lower the dignity and authority of court.

# Facts of the Case & Important Findings

Chief Judicial Magistrate was assaulted, arrested on flimsy grounds, handcuffed, tied with rope, photographs taken and published by Police Officers.The Apex Court held that it constituted clear case of criminal contempt. Quantum of punishment determined according to degree and extent of part played by each contemner.

Guidelines laid down by Supreme Court in case of arrest and detention of a Judicial Officer. It is to be followed by State Governments as well as High Courts. Judicial Officer not to visit Police Station. Except in connection with official and judicial duties and with prior intimation to District and Sessions Judge.

High Court Judge appointed as Commissioner. Inquiry made, evidence recorded and report submitted. The Apex Court held that contemners not persons accused of an offence.

Plenary jurisdiction unaffected by self imposed restrictions of the Court. From plenary jurisdiction flows supervisory jurisdiction over all courts and Tribunals in India. Supreme Court’s jurisdiction and power not limited. Can determine its own jurisdiction and it will De final.

Supreme Court taking cognizance of contempt matter arising out of an incident subject matter of trial before a criminal court. Has ample power to do complete justice and prevent abuse of process of court.

‘Cause’ or ‘matter’ includes proceeding pending in Civil or criminal matter. Need to do ‘complete justice’ would depend on facts and circumstances of case.

Decisions of Federal Court not binding but entitled to great weight. Changes brought about by Constitution to be kept in mind while considering Federal Court, Privy Council decisions.

Object of punishing contemner is to protect administration of public justice. Not to protect Judges personally. Police Officers assaulting, arresting and handcuffing Chief Judicial Magistrate and publishing photographs in news- papers constituted criminal contempt.

Punishment to contemners determined having regard to degree and extent of part played by each contemner. Guidelines laid down by Supreme Court to be followed by State Governments and High Courts while arresting Judicial Officers. Criminal contempt proceedings different from ordinary criminal proceedings.

Courts of Record have power to summarily punish for contempt of court. Contempt of Courts Act 1971 does not curtail inherent power of Supreme Court to punish for contempt.

Interpretation of Constitution not permissible to adopt a construction which would render any expression superfluous or redundant. Regard to be had to the social, economic and political changes, need of the Community and the independence of the judiciary. Supreme Court cannot be a helpless spectator bound by precedents of colonial days which have least relevance.

Position and role of Chief Judicial Magistrate. Coordination, Cooperation of police necessity for. Police to be scrupulously fair to offender. Magistrate to ensure fair investigation and fair trial of offender.

Purpose and object of Magistracy and police is complementary to each other. Judicial officer not to visit police station except in connection with official and judicial duties and with prior intimation to District and Sessions Judge.

A fortiori the Supreme Court being the Apex Court of the country and superior court of record should possess the same inherent jurisdiction and power for taking action for contempt of itself, as well as, for the contempt of subordinate and inferior courts.

# Facts in Detail

Mr. N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He soon found that the local Police was not cooperating with the courts in efficting service of summons, warrants and notices on accused persons, as a result of which the trials of cases were delayed.

He made complaint against the local police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete happened.

On account of these complaints, Mr. S.R. Sharma, Police Inspector, Nadiad was annoyed with the Chief Judicial Magistrate and he withdrew constables posted in the CJM Court.

In April 1989, the CJM filed two complaints with the Police against the Police Inspector and other Police Officials, Nadiad for delaying the process of the Court.

On 25th July, 1989, the CJM directed the police to register a criminal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since unqualified apology was tendered, the CJM directed the Police Inspector to drop the cases.

The Police Inspector reacted strongly to the CJM’s direction and he made complaint against the CJM to the Registrar of the High Court through the District Superintendent of Police.

On account of the aforesaid facts there was hostility between the Police of Nadiad and the CJM. On 25th September 1989, the Police Inspector met the CJM in his chambers to discuss a case where the Police had failed to submit the charge-sheet within 90 days.

During discussion the Police Inspector invited the CJM to visit the police station to see the papers and assured him that he would mollify the sentiments of the police officials. At 8.35 p.m. on the said date, the Police Inspector sent a Police Jeep to the CJM’s residence and he went to the Police Station.

According to the CJM when he arrived in the Police Station he was forced to consume liquor and on his refusal he was assulted, handcuffed and tied with rope by Police Inspector, Sub-Inspector, Head Constable, and Constable and that he was sent to Hospital for Medical Examination under handcuffs.

A photographer was arranged to take his photograph which was published in the newspapers. The Police Inspector disputed these allegations and according to him the CJM entered his chamber at the Police Station in a drunken state, shouting and abusing him and since he was violent, he was arrested, handcuffed and sent to Hospital for Medical Examination.

He himself wanted to be photographed and that is why the photographs were taken by the press photographer. As the incident undermined the dignity of courts in the country, Judicial Officers, Judges and Magistrates all over the country were in a state of shock, they felt insecure and humiliated.

A number of Bar Associations passed Resolutions and went on strike. The Delhi Judicial Service Association, the All India Judges Association, Bar Council of Uttar Pradesh and many others approached this Court by means of telegrams and petitions under Article 32 for saving the dignity and honour of the judiciary.

The CJM also filed an application for quashing the two FIRs lodged against him and for directing the trial of his complaint as State case an award of compensation.

On 29.9.1989 this Court took cognizance of the matter by issuing notices to the State of Gujarat and other Police Officers.

Since there was serious dispute between the parties with regard to the entire incident, the Court appointed the senior puisne Judge of the Allahabad High Court to inquire into the incident and to submit a report to the Court. The inquiry was held on behalf of the Court and not under the provisions of the Commission of Inquiry Act.

A detailed report was submitted to this Court and the Court directed copies to be delivered to the concerned parties and permitted the parties and the contemners to file their objections before this Court.

The Learned Commissioner’s Report establised the following facts and circumstances: that the CJM found that the Police of Nadiad was not effective in service of summons and had adopted an attitude of indifference to the court’s orders, and as complaints were forwarded to the authorities by the CJM there was confrontation between the local police and the magistracy.

When the CJM visited the police station pursuant to the Police Inspector’s request to discuss the matter, he was forced to consume liquor and on his refusal he was assaulted. He was tied up with a rope by the Police personnel and handcuffed deliberately in defiance of the state’s Police Regulations and Circulars and the decision of this Court in Prem Shankar Shukla v. Delhi Administration.,

A panchnama showing the drunken state of the CJM was pre- pared by the Police Inspector and signed by two panchas–a Mamlatdar and a Fire Brigade Officer. A press photographer was brought on the scene, the police personnel posed with the CJM for the press photographer and the same was published in newspapers.

A request made by the CJM to the Civil Hospital doctors to contact and inform the District Judge about the incident was not allowed. On examination at the hospital, the body of the CJM was found to have a number of injuries. His blood was taken and chemical examination conducted.

The Chemical Examiner submitted a report holding that the blood sample contained alcohol. At the initial stage only one case was registered against the CJM by the Police under the Bombay Prohibition Act, but when lawyers met the Police Inspector for securing release of the CJM on bail, the offence being bailable, the Police Inspector, registered another case under Sections 332 and 506 IPC in order to frustrate the attempt.

The District Superintendent of Police did not take immediate action in the matter but created an alibi that he had gone elsewhere and stayed in the government Rest House there, the register of the Rest House however indicating that the entry regarding the stay was manipulated subsequently by making an interpolation.

On behalf of the contemners-Police Officers it was contended that:

  • (1) this Court had no jurisdiction or power to indict the Police Officers even if they are found to be guilty, as their conduct does not amount to contempt of this Court. Articles 129 and 215 demarcate the respective areas of jurisdiction of the Supreme Court and the High Courts respectively, and this Court’s jurisdiction under Article 129 is confined to the contempt of itself only, and it has no jurisdiction to indict a person for contempt of an inferior court subordinate to the High Court.
  • (2) Even if the Supreme Court is a court of record, it has no power to take action for the contempt of a Chief Judicial Magistrate’s court as neither the constitution nor any statutory provision confer any such jurisdiction or power on this Court. So far as the High Court is concerned, it has power of judicial and administra- tive superintendence over the subordinate courts and Section 15 of the Contempts of Courts Act, 1971 expressly confers power on the High Court to take action for the contempt of subordinate courts.
  • (3) Under Entry 77 of List I of the Seventh Schedule, Parliament has legislative competence to make a law curtailing the jurisdiction of the Supreme Court and Section 15 of the Contempts of Courts Act 1971 curtails the inherent power of this Court with regard to contempt of subordinate courts. Inherent powers are always preserved but they do not authorise a court to invest itself with juris- diction when that jurisdiction is not conferred by law.
  • (4) Assumption of contempt jurisdiction with regard to contempt of subordinate and inferior courts on the interpretation of Article 129 of the Constitution is foreclosed by the deci- sions of the Federal Court in K.L. Gauba v. The Honable the Chief Justice and Judges of the High Court o]’ judicature at Lahore & Anr., AIR 1942 FC 1. This Court being the successor to the Federal Court was bound by the decisions of the Federal Court under Article 374(2) of the Constitution.
  • (5) In our country there is no court of universal jurisdiction, as the jurisdiction of all courts including the Supreme Court is limited.
  • (6) Article 142(1) does not contemplate any order contrary to statutory provisions.
  • (7) The findings recorded by the Commission cannot be taken into account as those findings are hit by Article 20(3) of the Constitution.

The Attorney-General urged that the power to punish contempt is a special jurisdiction which is inherent in a Court of record, that a superior court of record has inherent power to punish for contempt of itself and it necessarily includes and carries with it the power to punish for contempt committed in respect of subordinate or inferior courts, that a superior court of record having power to correct the order of an inferior court has power to protect that court by punishing those who interfere with the due administration of justice of that court.

It was further urged that the Contempt of Courts Act 1971 recognises and preserves the existing contempt jurisdiction and power of the court of record for punishing for contempt of subordi- nate or inferior courts, that the Act has not affected or restricted the suo motu inherent power of the Supreme Court being a court of record which has received constitutional sanction under Article 129, that since this Court has taken cognizance of the contempt matter arising out of the incident which is the subject matter of trial before the criminal court, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and prevent abuse of process of the court and that there is no limitation on the power of this Court under Article 142 in quashing a criminal proceeding pending before a subordinate court.

The basic questions that arose for consideration of the Court were:

  • (a) whether the Supreme Court has inherent jurisdiction or power to punish for contempt of subordinate or inferior courts under Article 129 of the Constitution,
  • (b) whether the inherent jurisdiction and power of the Supreme Court is restricted by the Contempt of Courts Act, 1971,
  • (c) whether the incident interfered with the due administration of justice and constituted contempt of court, and
  • (d) what punishment should be awarded to the contemners found guilty of contempt.

Disposing of the writ petitions, Criminal Miscellaneous Petitions, and contempt petitions, Apex Court held

# Civil and Criminal Contempt

Contempt of court is an act or commission calculated to interfere with the due administration of justice. It includes civil and criminal contempt.

Bowen L.J. in Helmore v. Smith, [1886] 35 Ch.D. 436 at 455, referred to.

The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court. The public have a vital stake in effec- tive and orderly administration of justice. The Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with Offutt v.U.S., [1954] 348 US 11, referred to.

The power to punish contempt is vested in the Judges not for their personal protecting only, but for the protec- tion of public justice, whose interest, requires that decen- cy and decorum is preserved in Courts of Justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties. Any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct.

The object and purpose of punishing contempt for interference with the administration of justice is not to safeguard or protect the dignity of the Judge or the Magis- trate, but the purpose is to preserve the authority of the courts to ensure an ordered life in society.

Attorney-General v. Times Newspapers, (1974] A.C. 273 at p. 302, referred to.

The Chief Judicial Magistrate is head of the Magistracy in the District who administers justice to ensure, protect and safaguard the rights of citizens. The subordinate courts at the district level cater to the need of the masses in administering justice at the base level.

By and large the majority of the people get their disputes adjudicated in subordinate courts. It is, in the general interest of the community that the authority of subordinate courts is protected. If the CJM is led into a trap by unscrupulous Police Officers, and if he is assaulted, handcuffed and roped, the public is bound to lose faith in Courts, which would be destructive of the basic structure of an ordered society. If this is permitted Rule of Law shall be supplanted by Police Raj.

The conduct of Police Officers in the instant case, in assaulting and humiliating the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice.

The incident is a clear interference with the administration of justice, lowering its judicial authority. Its effect was not confined to one District or State, it had a tendency to affect the entire judiciary in the country. The incident high-lights a dangerous trend that if the Police is annoyed with the orders of a presiding officer of a court, he would be arrested on flimsy manufactured charges, to humiliate him publicly as has been done in the instant case.

The facts of the instant case, demonstrate that a presiding officer of a court may be arrested and humiliated on flimsy and manufactured charges which could affect the administration of justice. In order to avoid any such situation in future, it is necessary to lay down guidelines which should be followed in the case of arrest and detention of a Judicial Officer.

In view of’ the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are’ properly investigated the following guidelines are to be followed:

  • (a) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.
  • (b) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.
  • (c) The fact of such arrest should be immediately communicated.to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court.
  • (d) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.
  • (e) Immediate facilities shall be provided to the Judicial Officer for communication with his family members, legal advisors and Judicial Officers, including the District & Sessions Judge.
  • (f) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical test be conducted except in the presence of the Legal Advisor of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available.
  • (g) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over- powered and handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and hand-cuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily deter- mined by the High Court.

These guidelines are not exhaustive but are the minimum safeguards to be observed in case of arrest of a Judicial Officer. These should be implemented by the State Governments as well as by the High Courts.

No judicial officer should visit a Police Sta- tion on his own except in connection with his official and judicial duties and functions, and this also with prior intimation to the District and Sessions Judge.

# Article 136 of the Constitution

The Supreme Court as the Apex Court is the protector and guardian of justice throughout the land, therefore, it has a right and also a duty to protect the courts whose orders and judgments are amenable to correction, from commission of contempt against them. This right and duty of the Apex Court is not abrogated merely because the High Court also has this right and duty of protection of the subordinate courts. The jurisdictions are concurrent and not exclusive or antagonistic.

Article 136 vests the Supreme Court with wide powers to grant special leave to appeal from any judgment, decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India except a court or tribunal constituted by or under any law relating to the Armed Forces. The Court’s appellate power under Article 136 is plenary, it may entertain any appeal by granting special leave against any order made by any Magistrate, Tribunal or any other subordinate court.

The width and amplitude of the power is not affected by the practice and procedure followed in insisting that before invoking the jurisdiction under Article 136 the aggrieved party must exhaust remedy available under the law before the appellate authority of the High Court. Self imposed restrictions do not divest it of its wide powers to entertain any appeal against any order or judgment passed by any court or tribunal in the country without exhausting alternative remedy before the appellate authority or the High Court. The power of the Court under Article 136 is unaffected by Articles 132. 133 and 134(A) in view of the expression “notwith- standing anything in this Chapter” occurring in Article 136.

Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955] 1 SCR 267 and Arunachalam v. P.S.R. Sadhananthm & Anr., [1979] 2 SCC 297, referred to.

In addition to the appellate power, the Supreme Court has special residuary power to entertain appeal against any order of any court in the country. The plenary jurisdiction of the Court to grant leave and hear appeals against any order of a court or Tribunal, confers power of judicial superintendence over all the courts and Tribunals in the territory of India including subordinate courts of Magistrate and District Judge. The Court has, therefore, supervisory jurisdiction over all courts in India.

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 similar provision in respect of High Court. Both the Supreme Court as well as High Courts are courts of record having powers to punish for contempt in- cluding the power to punish for contempt of itself..

The Constitution does not define “Court Of Record”. A “Court of Record” is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memo- rial and testimony, which rolls are called the ‘record’ of the court and.are conclusive evidence of that which is recorded therein.

‘ Wharton’s Law Lexicon: Words & Phrases (Permanent Edi- tion) vol. 10 p. 429: Halsbury’s Laws of England Vol. 10 p. 319.

In India prior to the enactment of the Contempt of Courts Act, 1926, High Court’s jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts in the absence of statutory provision exercised power of contempt to protect the subordinate courts on the premise of inherent power of a Court of Record.

Referred to.

  • Rex v. Aimon, 97 ER 94
  • Rainy v. The Justices of Seirra Leone, 8 Moors PC 47 at 54
  • Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal, ILR to Calcutta 109
  • Rex v. Parke, [1903] 2 K.B. 432 at 442
  • King v. Davies, [1906] 1 K.B. 32; King v. Editor of the Daily Mail, [1921] 2 K.B. 733
  • Attorney General v. B.B.C., [1980] 3 ALR 161
  • Venkat Rao 21 Madras Law Journal 832
  • Mohandas Karam Chand Gandhi [1920] 22 Bombay Law Re- porter 368
  • Abdul Hassan Jauhar’s AIR 1926 Allahabad 623
  • Shantha Nand Gir v. Basudevanand, AIR 1930 Allahabad 225 FB
  • Mr. Hirabai v. Mangal Chand, AIR 1935 Nagpur 46
  • Harkishan Lal v. Emperor, AIR 1937 Lahore 497
  • Mohammad Yusuf v. Imtiaz Ahmad Khan, AIR 1939 Oudh, 131
  • Legal Remembrancer v. Motilal Ghosh, ILR 41 Cal. 173

The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of Contempt to protect the subordinate courts. The Supreme Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exercise similar jurisdiction and power as the High Courts had prior to Contempt Legislation in 1926. Inherent powers of a superior Court of Record have remained unaffected even after Codifi- cation of Contempt Law.

Sukhdev Singh Sodhi v. The Chief Justice and Judges of the PEPSU High Court, [1954] SCR 454 and R.L. Kapur v. State of Tamil Nadu, AIR 1972 SC 858, referred to.

The Contempt of Courts Act 1971 was enacted to define and limit the powers of Courts in punishing contempts of courts and to regulate their procedure in relation thereto. There is no provision therein curtailing the Supreme Court’s power with regard to contempt of subordinate courts, Section 15 expressly refers to this Court’s power for taking action for contempt of subordinate courts. The section prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court. It is not a substantive provision conferring power or jurisdiction on the High Court or on the Supreme Court for taking action for the contempt of its subordinate courts.

The whole object of prescribing procedural modes of taking cognizance in Section 15 is to safeguard to valuable time of the High Court and the Supreme Court being wasted by frivolous complaints of contempt of court. Section 15(2) does not restrict the power of the High Court to the cognizance of the contempt of itself or of a subordinate court on its own motion although apparently the Section does not say so.

S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v. Vinay Chandra Misra, [1981] 2 SCR 331, referred to.

# Article 129 of the Constitution

Under Entry 77 of List I of the Seventh Schedule read with Article 246, Parliament is competent to enact a law relating to the powers of the Supreme Court with regard to ‘contempt of itself’. Such a law may prescribe procedure to be followed and it may also prescribe the maximum punishment which could be awarded and it may provide for appeal and for other matters. But the Central Legislature has no legislative competence to abridge or extinguish the juris- diction or power conferred on the Supreme Court under Article 129. The Parliament’s power to legislate in relation to the law of contempt relating to the Supreme Court is limit- ed, therefore the Contempt of Courts Act does not impinge upon the Supreme Court’s power with regard to the contempt of subordinate courts under Article 129.

Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself The expression used in Article 129 is not restrictive, instead it is extensive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression “including the power to punish for contempt of itself.”

Article 129 confers power on the Supreme Court to punish for 948 contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression “including”. The expression “including” has been interpreted by courts, to extend and widen the scope of power.

The plain language of the Article clearly indicates that the Supreme Court as a Court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record.

In interpreting the Constitution, it is not permis- sible to adopt a construction which would render any expres- sion superfluous or redundant.

While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court.

The conferment of appellate power on the Court by a statute section 19 of the Contempt of Courts Act 1971 does not and cannot affect the width and amplitude of inherent powers of this Court under Article 129 of the Constitution.

K.L. Gauba v. The Honable the Chief Justice and Judges of the High Court of Judicature at Lahore & Anr AIR 1942 FC 1, distinguished.

# Decisions of Federal Court

Article 374(2) is in the nature of a transitory provision to meet the exigency of the situation on the abolition of the Federal Court and setting up of the Supreme Court. There is no provision in the said Article to the effect that the decisions of the Federal Court shall be binding on the Supreme Court. The decisions of the Federal Court and the Privy Council made before the commencement of the Constitution are entitled to great respect but these decisions are not binding on the Supreme Court and it is always open to this Court to take a different view.

Referred to.

  • Om Prakash Gupta v. The United Provinces, AIR 1951 Allahabad 205 [Approved]
  • State of Bombay v. Gajanan Mahadev Badley, AIR 1954 Bombay 352 [Approved]
  • The State of Bihar v. Abdul Majid, [1954] SCR 786
  • Shrinivas Krishnarao Kango v. Narayan Devji Kango & Ors., [1955] 1 SCR 1
  • K.L. Gauba v. The Hon’ble the Chief Justice and Judges or the High Court of Judicature at Lahore & Anr., AIR 1942 FC 1 [Explained and Distinguished]
  • Purshottam Lal Jaitly v. The King Emperor, [1944] FCR 364 [Explained and Distinguished]

The Federal Court exercised limited jurisdiction as conferred on it by the Government of India Act 1935. The question regarding the inherent power of the Supreme Court as a Court of Record in respect of the contempt of subordinate Courts was neither raised nor discussed in its decisions.

The Federal Court observed that if the High Court and the Federal Court both have concurrent jurisdiction in contempt matters, it could lead to conflicting judgments and anamolous consequences. That may be so under the Government of India Act as the High Court and the Federal Court did not have concurrent jurisdiction, but under the Constitution, High Court and the Supreme Court both have concurrent jurisdiction in several matters, yet no anamolous consequences follow.

The Federal Court did not possess the wide powers as the Supreme Court has under the Constitution. There are marked difference in the constitution and jurisdiction and the amplitude of powers exercised by the two courts. In addition to civil and criminal appellate jurisdiction, the Supreme Court has wide powers under Article 136 over all the courts and Tribunals in the country.

The Federal Court had no such power, instead it had appellate power but that too could be exercised only on a certificate issued by the High Court. The Federal Court was a court of record under Section 203 but it did not possess any plenary or residuary appellate power over all the courts functioning in the territory of India like the power conferred on the Supreme Court under Article 136 of the Constitution. Therefore, the Federal Court had no judicial control or superintendence over subordinate courts.

Advent of freedom, and promulgation of the Constitution have made drastic changes in the administration of justice necessitating new judicial approach. The Constitution has assigned a new role to the Constitutional Courts to ensure rule of law in the country. These changes have brought new perceptions.

In interpreting the Constitution, regard must be had to the social, economic and political changes, need of the community and the independence of the judiciary. The Court cannot be a helpless spectator, bound by precedents of colonial days which have lost relevance. Time has come to have a fresh look to tile old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution.

# Power of Judicial Superintendence

Courts constituted under a law enacted by the Parliament or the State Legislature have limited jurisdiction and they cannot assume jurisdiction in a matter, not expressly assigned to them, but that is not so, in the case of a superior court of record constituted by the Constitution such a court does not have a limited jurisdiction, instead it has power to determine its own jurisdiction.

No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of the Constitution. In the absence of any express provision in the Constitution, the Apex Court being a Court of record has jurisdiction in every matter and if there be any doubt, the Court has power to determine its jurisdiction. If such determination is made by the High Court, the same would be subject to appeal to this Court, but if the jurisdiction is determined by this Court it would be final.

Referred to.

  • Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra, [1965] 1 SCR 413
  • Ganga Bishan v. Jai Narain, [1986] 1 SCC 75

Since the Supreme Court has power of judicial superintendence and control over all the courts and Tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest of inferior courts to ensure the flow of the stream of justice in the courts without any interference or attack from any quarter.

The subordinate and inferior courts do not have adequate power under the law to protect themselves, there- fore, it is necessary that this Court should protect them. Under the constitutional scheme it has a special role in the administration of justice and the powers conferred on it under Article 32, 136, 141 and 142 form part of the basic structure of the Constitution. The amplitude of the power of the court under these Articles of the Constitution cannot be curtailed by law made by Central or State Legislature.

The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Articles 32 and 226 of the Constitution. Therefore, this Court’s jurisdic- tion and power to take action for contempt of subordinate courts would not be inconsistent to any constitutional scheme.

The Apex Court is duty bound to take effective steps within the constitutional provisions to ensure a free and fair administration of justice through out the country. For that purpose it must wield the requisite power to take action for contempt of subordinate courts. Ordinarily, the High Court would protect the subordinate courts from any onslaught on their independence, but in exceptional cases, extraordinary situation may prevail affecting the administration of public justice or where the entire judiciary is affected, this Court may directly take cognizance of contempt of subordinate courts.

The Supreme Court will sparingly exercise its inher- ent power in taking cognizance of the contempt of subordinate courts, as ordinarily matters relating to contempt of subordinate courts must be dealt with by the High Courts. The instant case is of exceptional nature as the incident created a situation where functioning of the subordinate courts all over the country was adversely affected and the administration of justice was paralysed, therefore, this Court took cognizance of the matter.

# Plenary and Residuary Powers

Though there is no provision like section 482 of the Criminal Procedure Code conferring express power on the Supreme Court to quash or set aside any criminal proceeding pending before a criminal court to prevent abuse of process of the court, but the Court has power to quash any such proceeding in exercise of its plenary and residuary powers under Article 136 of the Constitution, if on the admitted facts no change is made out against the accused or if the proceedings are initiated on concocted facts, or if the proceedings are initiated for oblique purposes.

Once the Supreme Court is satisfied that the criminal proceedings amount to abuse of process of court it would quash such proceedings to ensure justice.

Referred to.

  • State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982] 3 SCR 121
  • Madhavrao Jivajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors., [1988] 1 SCC 692

The inherent power of the Supreme Court under Article 142 coupled with the plenary and residuary powers under Articles 32 and 136 embraces power to quash criminal pro- ceedings pending before any court to do complete justice in the matter before this Court. If the court is satisfied that the proceedings in a criminal case are being utilised for oblique purposes or if the same are continued on manufac- tured and false evidence or if no case is made out on the admitted facts, it would be in the ends of justice to set aside or quash the criminal proceeding. It is idle to sug- gest that in such a situation this Court should be a helpless spectator.

The Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court has seisin of a cause or matter before it has power to issue any order or direction to do “complete justice” in the matter. This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law.

What would be the need of “complete justice” in a cause or matter would depend upon the facts and circum- stances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete justice in the matter.

Referred to

  • Prem Chand Garg v. Excise Commissioner, U.P. Allahabad, [1963] Supp. 1 SCR 885
  • A.R. Antulay v.R.S. Nayak & Anr., [ 1988] 2 SCC 602

In the instant case, the foundation of the criminal trial of CJM-NL Patel is based on facts which have been found to be false. It would be in the ends of justice and also to do complete justice in the cause to quash the criminal proceedings.

# Article 20(3) of the Constitution

Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In order to avail the protection of Article 20(3) three conditions must be satisfied. Firstly, the person must be accused of an offence. Secondly, the element of compulsion to be a witness should be there, and thirdly it must be against himself. All the three ingredi- ents must necessarily exist before protection of Article 20(3) is available. If any of these ingredients do not exist, Article 20(3) cannot be invoked.

Balkishan Devidayal v. State of Maharashtra, [1980] 4 SCC 600, referred to.

Mere issue of notice or pendency of contempt proceedings do not attract Article 20(3) of the Constitution as the contemners against whom notices were issued were not accused of any offence. A Criminal contempt is punishable by the superior courts by fine or imprisonment, but it has many characteristics which distinguishes it from an ordinary offence.

The power to take proceedings for contempt of Court is an inherent power of a Court of record. The Criminal Procedure Code does not apply to such proceedings. Since the contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency of contempt proceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemner.

A contemner it is not in the position of an accused. It is open to the Court to cross-examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence. This peculiar feature distinguishes contempt proceedings from criminal proceedings.

In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prosecution against the accused but in contempt proceedings the court is both the accused as well as the judge of the accusation.

Debabrata Bandopadhyaya’s case, AIR 1969 SC 189, referred to.

In the instant case, the contemners do no stand in the position of a “person accused of an offence” merely on account of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority to record the testimony of the contemners. There has, therefore, been no violation of Article 20(3) of the Constitution and the Commission’s finding are not violated.

# Punishment to contemners

In determining, what punishment should be awarded to contemners found guilty, the degree and the extent of part played by each of the contemners has to be kept in mind.

In the instant case, Sharma, the Police Inspector was the main actor in the entire incident and who had planned the entire episode with a view to humiliate the CJM in the public eye is the main culprit and therefore, he deserves maximum punishment. The Sub Inspector took an active part in assaulting and tying the CJM at the behest of the Police Inspector. The Head Constable and Constable also took active part in handcuffing and tying the CJM with ropes, but as subordinate officials they acted under the orders of the superior officers.

The Mamlatdar was a friend of the Police Inspector, he had no axe to grind against the CJM but he acted under the influence of the Police Inspector. So far as the DSP is concerned, he actively abetted the commission of onslaught on the CJM. The contemners are held guilty of contempt and awarded punishment.

The Police Inspector to undergo simple imprisonment for a period of six months and to pay fine of Rs.2,000. The Sub-Inspector to undergo simple imprisonment for a period of five months and pay a fine of Rs.2,000 and in default one month’s simple imprisonment. Head Constable and Constable, each to undergo simple imprisonment for two months and a fine of Rs.500 and in default 15 days simple imprisonment.

The Mamlatdar to undergo simple imprisonment for a period of two months and a fine of Rs.1,O00 and in default one month’s simple imprisonment. The DSP is sentenced to imprisonment for a period of one month and a fine of Rs.1,O00 and in default simple imprisonment for 15 days. So far as the other respondents against whom notices were issued no adequate material on record holds them guilty. The contempt notices are therefore discharged.

# The Court expressed displeasure on the conduct of the DGP.

As the head of the Police in the State, he was expected to intervene in the matter and to ensure effective action against the erring Police Officers. He was totally indifferent to the news that a CJM was arrested, handcuffed, roped, and assaulted.

He took this news as a routine matter without taking any steps to ascertain the correct facts for effective action against the erring Police Officers. If the head of the State Police Administration exhibits such indifference to a sensitive matter which shook the entire judicial machinery in the State, nothing better could be expected from his subordinate officers. The State Government should take action departmentally on the basis of the findings recorded by the Commission.

The discharge of the contempt notices does not absolve the officers of their misconduct. The State Government is directed to proceed with the disciplinary proceedings for taking appropriate action.

This Original Jurisdiction of Apex Court exercised in Writ Petition (CRL.) No. 517 of 1989 etc. etc. (Under Article 32 of the Constitution of India).

Soli. J. Sorabjee, Attorney General, Ashok H. Desai, Addl. Solicitor General, R.K. Garg, G. Ramaswamy, F.S. Nariman, Dr. L.M. Singhvi, G.A. Shah, T.U. Mehta, V.M. Tarkunde, B.K. Mehta S.S. Ray, A.K. Gupta, S.K. Dhingra, T.C. Sharma, Kishan Dutt, R.J. Trivedi, Manoj Swarup, M.N. Shroff, Sudarsh Menon, Sushil Kumar Jain, Bahl Singh Malik, Gopala Subramanium, Ms. Binu Tamta, Shahid Rizi. D.K. Singh, T. Ray, Pramod Swarup, Praveen Swarup, P.H. Parekh, Sunil Dogra, C.L. Sahu, G.L. Gupta, Brij Bhu- shan, N.S. Das Bahl, Mrs. H. Wahi, Harish Javeri and S. Ganesh. T.C. Sharma for the appearing parties.

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