Full Judgment Text
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PETITIONER:
S. K. SARKAR, MEMBER, BOARD OF REVENUE, U.P., LUCKNOW
Vs.
RESPONDENT:
VINAY CHANDRA MISRA
DATE OF JUDGMENT12/12/1980
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION:
1981 AIR 723 1981 SCR (2) 331
1981 SCC (1) 436
CITATOR INFO :
R 1988 SC1208 (41)
RF 1991 SC2176 (27)
ACT:
Contempt of Courts Act 1971, S. 15(2)-Scope of Contempt
of Subordinate or inferior Court-Whether High Court can take
suo motu cognizance of and punish.
HEADNOTE:
The Contempt of Courts Act, 1971 by section 15(2)
empowers the High Court in the case of any criminal contempt
of a subordinate court, to take cognizance 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 by
the notified Law Officer.
In a proceeding under the U.P. Zamindari and Land
Reforms Act 1950, the respondent-advocate, appeared as a
counsel before the appellant who was a Member of the Board
of Revenue to oppose the vacation of a stay order filed
before the Board.
The respondent, in his petition to the High Court under
the Contempt of Courts, 1971 alleged that in the course of
arguments before the appellant in the aforesaid proceeding,
the appellant got infuriated, lost his temper and abused him
saying "Nalayak Gadhe Salle ko Jail Bhijwadunga; kis Idiot
Ne Advocate Bana Diya Hai", and that thereby the appellant
had committed contempt of his own Court as well as that of
the High Court as provided in sections 15 and 16 of the
Contempt of Courts Act which was punishable under section 12
of the said Act.
Before the High Court, the appellant raised a
preliminary objection stating that the High Court was not
competent to take cognizance of the alleged contempt without
any reference from the subordinate Court or without a motion
by the Advocate-General as envisaged by section 15(2) of the
Act. The High Court rejected the preliminary objection and
held that the application was maintainable.
In the appeal to this Court, on the question whether
the High Court can take suo motu cognizance of contempt of
subordinate/inferior Court when it is not moved in either of
the two modes mentioned in section 15(2) of the Act.
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HELD : 1. Sub-section (2) of section 15 of the Contempt
of Courts Act 1971, does not restrict the power of the High
Court to take cognizance of and punish contempt of a
subordinate Court, on its own motion [339 A]
2. In the facts of the instant case the High Court has
not acted improperly or illegally in taking suo motu
cognizance, on the petition of the respondent-advocate. [340
C]
332
3. Articles 129 and 215 preserve all the powers of the
Supreme Court and the High Court, respectively, as a Court
of Record which include the power to punish the contempt of
itself. Parliament has, by virtue of Entry 77 of List I of
the Seventh Schedule, and Entry 14 of List III of the
Seventh Schedule, power to define and limit the power of the
Courts in punishing contempt of Court and to regulate their
procedure in relation thereto. [337 A-B]
Mohd. Ikram Hussain v. The State of U.P., A.I.R. 1964
S.C. 1625 referred to.
4. Section 15 does not specify the basis or the sources
of the information on which the High Court can act on its
own motion. If the High Court acts on information derived
from its own sources, such as on a perusal of the records of
a subordinate court or on reading a report in a newspaper or
hearing a public speech, without there being any reference
from the subordinate court or the Advocate-General, it can
be said to have taken cognizance on its own motion. But if
the High Court is directly moved by a petition by a private
person feeling aggrieved, not being the Advocate-General,
the High Court, has, a discretion to refuse to entertain the
petition, or to take cognizance on its own motion on the
basis of the information supplied to it in that petition. If
the petitioner is a responsible member of the legal
profession, it may act suo motu. [339B-E]
5. If the High Court is prima facie satisfied that the
information received by it regarding the commission of
contempt of a subordinate court is not frivolous, and the
contempt alleged is not merely technical or trivial, it may,
in its discretion, act suo motu and commence the proceedings
against the contemner. However, this mode of taking suo motu
cognizance of contempt of a subordinate court should be
resorted to sparingly where the contempt concerned is of a
grave and serious nature. [339 P-G]
6. If the intention of the Legislature was to take away
the power of the High Court to take suo motu cognizance of
contempt, there was no difficulty in saying so in
unequivocal language, or in wording sub-section (2) of
section 15 in a negative form. [338 H; 339 A]
7. The whole object of prescribing procedural modes of
taking cognizance in section 15 is to safeguard the valuable
time of the High Court or of the Supreme Court from being
wasted by frivolous complaints of contempt of court. [339 E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
294 of 1974.
From the Judgment and Order dated 10.4.1978 of the
Allahabad High Court in Criminal Misc. Contempt Case No.
115/73.
O. P. Rana for the Appellant.
J. P. Goyal and Pramod Swarup for the Intervener.
The Judgment of the Court was delivered by
SARKARIA, J. This appeal is directed against an order,
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dated April 10, 1974, of the High Court of Judicature at
Allahabad in
333
Criminal Misc. Contempt Case No. 115 of 1973. It raises a
question of law as to the jurisdiction and powers of a High
Court to take action suo motu under Section 15 of the
Contempt of Courts Act, 1971. The material facts giving rise
to this appear are as follows:
Raj Narain alias Raja Sharma, Ram Narain, Tapesh Narain
alias Trilok Narain and Hari Narain, respondents instituted
Suit No. 89/ 168 under Section 209 of the U.P. Zamindari &
Land Reforms Act (hereinafter referred to as the Act) for
ejectment of eleven defendants.
Issue No. 6 framed in the case was referred under
Section 331A of the Act to the Revenue Officer, Sub-
Divisional Office, for seeking declaration under Section 143
or 144 of that Act, with regard to the question as to
whether the land in suit was abadi land before the
consolidation and even thereafter. The Revenue Officer by
his order, dated September 3, 1970, dismissed the suit.
Aggrieved by the dismissal of their suit, the plaintiffs
preferred an appeal before the Commissioner, Meerut, who, by
his order dated April 29, 1972, allowed the appeal and
decreed the suit with costs.
Against the decree of the Commissioner, the defendants
preferred Revenue Second Appeal No. 226(2) of 1971-72 before
the Revenue Board. Along with the petition of appeal, they
made an application for stay of the execution of the
ejectment decree. The Board of Revenue passed an order on
June 12, 1972, staying the execution of the decree. The
opposite party therein, moved an application for vacation of
the ex-parte stay order. The application for vacation of
stay order came up for hearing before the appellant, herein,
in his capacity as Member of the Revenue Board, on October
23, 1973. The respondent, Shri Vinay Chandra Misra appeared
as a counsel in that Court on behalf of the appellant
therein, to oppose the vacation of the stay order. What
happened thereafter on that day, according to the
allegations in the petition and affidavit, dated October 23,
1973, of Shri V. C. Misra, Advocate filed before the High
Court, was as follows:
"That on the said date the opposite party
(appellant herein) heard the counsel of the parties in
the case and was pleased to confirm the stay order.
6. That even after passing of the order aforesaid
the counsel of (the respondent in that appeal)
addressed the Court (opposite party) further and during
the course of his arguments, the opposite party
(appellant herein) scored the order and vacated the
stay order and threw the file for getting the
signatures of the parties affixed on the same.
334
7. That on this, the deponent (Shri V. N. Mishra)
requested the opposite party to hear him and when he
resisted, the opposite party got infuriated, lost his
temper and abused the applicant and ordered the Court
peon to throw the deponent physically out of the
Court....."
On the preceding facts, Shri Misra, on October 23,
1973, filed a petition under the Contempt of Courts Act,
1971, against the appellant, herein, in the High Court of
Judicature at Allahabad, alleging that since the facts
stated in the petition and the affidavit, supporting it,
show that the "opposite party (appellant herein) committed
the contempt of his own Court as that of the High Court as
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provided under Section 15/16 of the Contempt of Courts Act
punishable under Section 12 of the said Act, he deserves to
be punished for the same in order to save the dignity,
decorum and honour of his Court and that of the Hon’ble High
Court". Shri V. C. Misra further prayed that the High Court
"be pleased to take suo motu action under Section 15(1) of
the aforesaid Act against the contemner-opposite party or be
pleased to pass such other and further order as the Court
deems fit."
In Annexure ‘1’ to his petition, Shri V. N. Misra gave
particulars of the alleged criminal conduct of the appellant
and of the contemptuous words uttered by him. In that
Annexure, he alleged, inter alia, that the appellant had
used these abusive words in respect of him (Shri Misra)
"Nalayak Gadhe Sale ko Jail Bhijwadunga; Kis Idiot Ne
Advocate Bana Diya Hai".
On receiving this petition, the High Court straight-
away issued notice to the appellant, herein, to show cause
why he be not proceeded against for committing contempt of
Court. The appellant received this notice on November 5,
1973 and filed his reply supported by an affidavit dated
November 8, 1973, in which he denied the allegations in the
petition levelled by Shri V. C. Misra. The latter also filed
a rejoinder affidavit dated December 10, 1973, in which he
reiterated the allegations in his petition and in the
Annexures thereto.
A preliminary objection was taken by the appellant
before the High Court, that the latter was not competent to
take cognizance of the contempt alleged to have been
committed in the petition moved by Shri Misra without any
reference from the subordinate court or without a motion by
the Advocate-General. Reliance in this connection was placed
on sub-section (2) of Section 15 of the Act. The High Court
rejected this preliminary objection with these observations:
"Since Article 215 (of the Constitution) states
that every High Court shall be a Court of Record and
shall have all the
335
powers of such a Court, it follows that through that
Article the Constitution preserved to the High Courts
its power as a Court of Record to punish contempt of
subordinate Courts. No doubt a special reference is
made in Article 215 to the power of the High Court to
punish contempt of itself. That has only been done to
emphasise that particular power of the High Court. The
aforesaid words do not exclude what the preceding part
of Article 215 preserves to or confers on the High
Court.....
The result of incorporating Article 215 in the
Constitution is that the power of every High Court as a
Court of Record to punish contempt of the subordinate
courts now carries a constitutional sanction behind it
and that the power cannot be done away with except
through an amendment of the Constitution.
. . Section 2 of the 1926 Act and Section 3 of the
1952 Act do not confer any new power but recognise the
power that a High Court already possesses as a Court of
Record; it can be said that equal force about Section
10 of the 1971 Act that it does not confer any new
jurisdiction in the High Court but only recognised the
jurisdiction which was initially inherent in every High
Court as a Court of Record and which now has the
sanction of the Constitution behind it by virtue of
Article 215.
If Section 15, sub-section (2) is interpreted to
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mean that a High Court cannot take cognizance of the
contempt committed of a subordinate court, whether
committed by the court itself or by a stranger, except
in one of the modes specified therein it can lead to
anomalous results....
". . . Interpreting sub-section (2) of Section 15
in that manner would be inconsistent with Section 10 of
the Act and shall be violative of the powers of this
Court as a Court of Record, which powers now carry
Constitutional sanction by virtue of Article 215 of the
Constitution.
. . Section 10 of 1971 Act explicitly states that
every High Court shall have and exercise the same
jurisdiction, power and authority in accordance with
the same procedure and practice in respect of the
contempt of Courts subordinate to it as it has and
exercises in respect of contempt of itself,....."
336
Aggrieved by the order of the High Court rejecting the
preliminary objection, the appellant has now come in appeal
before us.
At the outset, a preliminary objection has been taken
by Shri Goyal, learned counsel for the respondent, that
under Section 19 (1) of the Act, only a final order whereby
the contemner is punished is appealable; that since the
impugned order is not such an order, this appeal is
incompetent. In this connection Shri Goyal has referred to
several decisions, including that in Purshottam Das Goyal v.
Hon’ble Mr. Justice B. S. Dhillon, whereby it has been held
that it could not be the intention of the legislature to
provide for an appeal to this Court as a matter of right
from each and every interlocutory order passed in the
proceedings initiated under Section 17 of the Act, by the
High Court. An order or decision in order to be appealable
under Section 19(1) of the Act, must be such that it decides
some bone of contention raised before the High Court
affecting the right of the party aggrieved. Reference has
also been made to the decision of this Court in V. C. Shukla
v. State.
This objection of Shri Goyal has been rendered merely
academic, because as a matter of abundant caution, the
appellant herein has filed a petition for grant of special
leave under Article 136 of the Constitution, also. The
matter being important, the leave to appeal has been granted
to him.
The controversy in this appeal centres round the
question, whether the High Court can take suo motu
cognizance of contempt of a subordinate/inferior court when
it is not moved in either of the two modes mentioned in
Section 15(2) of the Act.
Before dealing with this contention, it is necessary to
have a look at the relevant provisions of the Constitution
and the Act.
Article 215 of the Constitution provides :
"Every High Court shall be a court of record and
shall have all the powers of such a court including the
power to punish for contempt of itself."
Entry 14 of List III of the Seventh Schedule is to this
effect : "Contempt of Court, but not including contempt of
the Supreme Court." A provision analogous to Article 215 is
Article 129 which preserves to the Supreme Court all the
powers of a Court of Record including the power to punish
for contempt of itself. Entry 77 of List I of the Seventh
Schedule is relatable to Article 129.
337
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Articles 129 and 215 preserve all the powers of the
Supreme Court and the High Court, respectively, as a Court
of Record which include the power to punish the contempt of
itself. As pointed out by this Court in Mohd. Ikram Hussain
v. The State of U.P., there are no curbs on the power of the
High Court to punish for contempt of itself except those
contained in the Contempt of Courts Act. Articles 129 and
215 do not define as to what constitutes contempt of court.
Parliament has, by virtue of the aforesaid Entries in List I
and List III of the Seventh Schedule, power to define and
limit the powers of the courts in punishing contempt of
court and to regulate their procedure in relating thereto.
Indeed, this is what is stated in the Preamble of the Act of
1971.
Section 2(c) of the Act defines ‘criminal contempt".
Section 9 emphasises that "nothing contained in this Act
shall be construed as implying that any disobedience,
breach, publication or other act is punishable as contempt
of court which would not be so punishable apart from this
Act". Section 10 runs as under :
"Every High Court shall have and exercise the same
jurisdiction, powers and authority, in accordance with
the same procedure and practice, in respect of
contempts of courts subordinate to it as it has and
exercises in respect of contempts of itself."
Then, there is a proviso which is not material for our
purpose. The provision in Section 10 is but a replica of
Section 3 of the 1952 Act. The phrase "courts subordinate to
it" used in Section 10 is wide enough to include all courts
which are judicially subordinate to the High Court, even
though administrative control over them under Article 235 of
the Constitution does not vest in the High Court. Under
Article 227 of the Constitution the High Court has the power
of superintendence over all courts and tribunals throughout
the territories in relation to which it exercises
jurisdiction. The Court of Revenue Board, therefore, in the
instant case, is a court "subordinate to the High Court"
within the contemplation of Section 10 of the Act.
Section 14 provides for the procedure where contempt is
committed in the face of the Supreme Court or a High Court.
Section 15 is very material for our purpose. It provides in
regard to cognizance of ‘criminal contempt’ in cases other
than those falling under Section 14. The material portion of
Section 15 reads thus :
"(1) In the case of a criminal contempt, other
than a contempt referred to in Section 14, the Supreme
Court or
338
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.
(2) 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, by such Law Officer as the Central
Government may, by notification in the Official
Gazette, specify in this behalf............."
The operation of sub-section (1) appears to be confined to
cases of ‘criminal contempt’ of the Supreme Court or the
High Court, itself. Criminal contempt of a subordinate court
is dealt with in sub-section (2).
A comparison between the two sub-sections would show
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that whereas in sub-section (1) one of the three alternative
modes for taking cognizance, mentioned is "on its own
motion", no such mode is expressly provided in sub-section
(2). The only two modes of taking cognizance by the High
Court mentioned in sub-section (2) are : (i) on a reference
made to it by a subordinate court; or (ii) on a motion made
by the Advocate-General, or in relation to a Union Territory
by the notified Law Officer. Does the omission in Section
15(2) of the mode of taking suo motu cognizance indicate a
legislative intention to debar the High Court from taking
cognizance in that mode of any criminal contempt of a
subordinate court? If this question is answered in the
affirmative, then, such a construction of sub-section (2)
will be inconsistent with Section 10 which makes the powers
of the High Court to punish for contempt of a subordinate
court, co-extensive and congruent with its power to punish
for its own contempt, not only in regard to quantum or pre-
requisites for punishment, but also in the matter of
procedure and practice. Such a construction which will bring
Section 15(2) in conflict with Section 10, has to be
avoided, and the other interpretation which will be in
harmony with Section 10 is to be accepted. Harmoniously
construed, subsection (2) of Section 15 does not deprive the
High Court of the power of taking cognizance of criminal
contempt of a subordinate court, on its own motion, also. If
the intention of the Legislature was to take away the power
of the High Court to take suo motu cognizance of such
contempt, there was no difficulty in saying so in
unequivocal language, or by wording the sub-section in a
negative
339
form. We have, therefore, no hesitation in holding in
agreement with the High Court, that sub-section (2) of
Section 15, properly construed, does not restrict the power
of the High Court to take cognizance of and punish contempt
of a subordinate court, on its own motion.
It is, however, to be noted that Section 15 does not
specify the basis or the source of information on which the
High Court can act on its own motion. If the High Court acts
on information derived from its own sources, such as from a
perusal of the records of a subordinate court or on reading
a report in a newspaper or hearing a public speech, without
there being any reference from the subordinate court or the
Advocate-General, it can be said to have taken cognizance on
its own motion. But if the High Court is directly moved by a
petition by a private person feeling aggrieved, not being
the Advocate-General, can the High Court refuse to entertain
the same on the ground that it has been made without the
consent in writing of the Advocate-General? It appears to us
that the High Court, has, in such a situation, a discretion
to refuse to entertain the petition, or to take cognizance
on its own motion on the basis of the information supplied
to it in that petition. If the petitioner is a responsible
member of the legal profession, it may act suo motu, more
so, if the petitioner-advocate, as in the instant case,
prays that the court should act suo motu. The whole object
of prescribing these procedural modes of taking cognizance
in Section 15 it to safeguard the valuable time of the High
Court or the Supreme Court from being wasted by frivolous
complaints of contempt of court. If the High Court is prima
facie satisfied that the information received by it
regarding the commission of contempt of a subordinate court
is not frivolous, and the contempt alleged is not merely
technical or trivial, it may, in its discretion, act suo
motu and commence the proceedings against the contemner.
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However, this mode of taking suo motu cognizance of contempt
of a subordinate court, should be resorted to sparingly
where the contempt concerned is of a grave and serious
nature. Frequent use of this suo motu power on the
information furnished by an incompetent petition, may render
these procedural safeguards provided in sub-section (2),
otiose. In such cases, the High Court may be well advised to
avail of the advice and assistance of the Advocate-General
before initiating proceedings. The advice and opinion, in
this connection, expressed by the Sanyal Committee is a
pertinent reminder. "In the case of criminal contempt, not
being contempt committed in the face of the court, we are of
the opinion that it would lighten the burden of the court,
without in any way inter-
340
fering with the sanctity of the administration of justice,
if action is taken on a motion by some other agency. Such a
course of action would give considerable assurance to the
individual charged and the public at large. Indeed, some
High Courts have already made rules for the association of
the Advocate-General in some categories of cases at
least.....the Advocate-General may, also, move the Court not
only on his own motion but also at the instance of the court
concerned."
In the peculiar circumstances of the instant case, we
do not think that the High Court has acted improperly or
illegally in taking suo motu cognizance, on the petition of
the respondent-advocate.
We, therefore, dismiss this appeal and send the case
back to the High Court for further proceedings in accordance
with law.
As a matter of caution, we would add that nothing in
this judgment shall be construed as an observation relating
to the merits of the allegation levelled by Shri V. C. Misra
against the appellant.
N.V.K. Appeal dismissed.
341