Contempt of Courts Act, 1971 - Sections 9, 15, 16 - Contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court.
Question of Law
1. Whether a contempt petition is at all maintainable against a Judge of a High Court, where the allegations are that he has committed a contempt “of his own Court”.
2. Whether a contempt petition can be entertained by this Court under Section 15 of the Contempt of Courts Act, where the learned Advocate General of the State has not granted his “consent”, on a motion made by a person under sub-section (1)(b) of Section 15 of the Act.
3. Whether this Court can proceed in the matter where the Advocate General has refused to grant his consent.
It is a statutory requirement of getting the consent of the Advocate General in a motion made by “any other person”. Until then it cannot be treated as a contempt petition. The statute mandates the inclusion of such a provision in the interest of justice and fair play, for obvious reasons as a motion for criminal contempt is a serious matter. It has penal consequences. Therefore unless the motion is made by the Advocate General himself, or the matter is taken suo motu, (or an act is committed in its presence or during hearing, i.e. under Section 14 of the Act), it must be accompanied by the consent of the Advocate General. The Advocate General is a Constitutional Authority. He is the leader of the Bar and therefore Parliament in its wisdom thought it best that a motion of criminal contempt must be screened by a proper and unbiased authority, before it becomes a motion for criminal contempt.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Coram: Hon’ble Mr. Justice Rajiv
Sharma, J. & Hon’ble Mr. Justice Sudhanshu Dhulia, J.
Criminal Contempt Petition No. 03 of 2018
Chhitij Kishore Sharma ….Petitioner
Versus
Mr. Justice Lok Pal Singh ….Respondent
Present: Mr. Akhilesh Kalra, Advocate for
the petitioner.
Hon’ble Sudhanshu Dhulia, J.
This petition before us has been filed by a practicing
Advocate of this Court, bringing to our notice an alleged “Contempt of Court”,
said to be committed by a sitting Judge of this Court, who is the present respondent.
2. The allegations are that on 09.05.2018 and 11.05.2018, while
the petitioner was in the Court of the learned Judge, the learned Judge lost
his temper and used intemperate language against the petitioner, his client,
and even made sarcastic comments against his brother Judges.
3. The petitioner states that the learned Judge commented that “unlike
other Judges he is not in a habit of changing orders in his chamber”. The
petitioner gives two references of dates where such unsavory innuendos were allegedly used. On
09.05.2018, the petitioner was intimidated and threatened, and warned that he
would be sent to jail.
4. There is also an allegation that the learned Judge passed
similar remarks against a Senior Advocate,who was also a former Judge of a High
Court. These remarks were made in “Hindi”, but if loosely translated would read
“Yes, I know what kind of a lawyer he is, and what kind of a Judge he was”!
5. There are also allegations that the learned Judge had used
strong language against a high government official, and threatened to send him
to jail.
6. Lastly there is an allegation that the respondent had
dismissed a writ petition on 25.01.2018, in which was arrayed as one of the
respondents, a former client of the present respondent. Instead of recusing
from the case, the matter was heard and dismissed. The argument of the petitioner
is simply that the learned Judge should not have heard the matter but still he
did.
7. The alleged behaviour of the learned Judge, according to the
petitioner, tends to scandalize this Court and at least lowers the authority of
the Court, such utterances and behaviour of the learned Judge also amount to an
obstruction in the administration of justice, says the petitioner.
8. We must record that this whole exercise has not been pleasant for us. It is a very unusual
case, to say the least. Still we must give a decision and we do that “with
malice towards none, with charity for all, we must strive to do the right, in
the light given to us to determine that right.”*
* We found this reference of Abraham Lincoln’s speech in the
seminal judgment of Justice Sabyasachi Mukharji in the case of P.N. Duda v. P. Shiv Shanker reported in (1988) 3 SCC 167, and that is to be taken as our source.
9. We have not sent any notice to the learned Judge, as before
we do that, two questions must be answered. First question is whether a
contempt petition is at all maintainable against a Judge of a High Court, where
the allegations are that he has committed a contempt “of his own Court”. The second question, which is equally
important, is whether a contempt petition can be entertained by this Court
under Section 15 of the Contempt of Courts Act, where the learned Advocate General
of the State has not granted his “consent”, on a motion made by a person under
sub-section (1)(b) of Section 15 of the Act.
10. This criminal contempt petition has been filed under Section
15 of the Contempt of Courts Act, 1971. Save a case which is under Section 14
of the Contempt of Courts Act i.e. a contempt in the face of the Court, in all
other matters of criminal contempt Section 15 is the relevant provision, which
reads as under:
“15. Cognizance of criminal contempt in other cases. – (1) 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 to 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.
(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.
(3) Every motion or reference made under this section shall
specify the contempt of which the person charged is alleged to be guilty.
Explanation. – In this section, the expression “Advocate-General”
means –
(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;
(b) in relation to the High Court, the Advocate-General of the State of any of
the States for which the High Court has been established;
(c) in relation to
the Court of a Judicial Commissioner, such Law Officer as the Central
Government may, by notification in the Official Gazette, specify in this
behalf.”
11. A Full Bench of Patna High Court has held that a criminal
contempt would not lie against a Judge of a Court of Record. The reference here
is of the majority opinion in Shri Harish Chandra Mishra and others v. The Hon’ble Mr.
Justice S. Ali Ahmed (AIR 1986 Patna 65 Full Bench). A similar view was taken late by a
Division Bench of Rajasthan High Court in the case of Sikandar Khan v. Ashok Kumar Mathur reported in 1991 (3) SLR 236. This aspect was later settled by the Hon’ble
Apex Court in the case of State
of Rajasthan v. Prakash Chand and others, (1998) 1 SCC 1, where a three-Judges Bench of Apex
Court has held that a contempt petition does not lie against a Judge of Court
of Record.
12. We must reproduce here in full Section 16 of the Contempt of
Courts Act, 1971 as a very heavyreliance has been placed on this provision.
Section 16 of the Contempt of Courts Act reads as under:
“16.
Contempt by Judge, Magistrate or other person acting judicially.— (1) Subject to the provisions of any law
for the time being in force, a Judge, Magistrate or other person acting judicially
shall also be liable for contempt of his own court or of any other court in the
same manner as any other individual is liable and the provisions of this Act
shall, so far as may be, apply accordingly.
(2) Nothing in this section shall apply to any observations or
remarks made by a Judge, Magistrate or other person acting judicially,
regarding a subordinate court in an appeal or revision pending before such
Judge, Magistrate or other person against the order or judgment of the
subordinate court.”
13. The Full Bench of Patna High Court in Harish Chandra Mishra (supra) gives precise reasons as to why contempt
petition will not lie against a Judge of Court of Record. What the learned
Judges in this Full Bench have held is that Section 9 and Section 16 of the Contempt
of Courts Act, 1971 have to be read together, and when we do that we find that
though Section 16 says that even a Judge or a Magistrate “or other person acting
judicially” is also liable for contempt of his own Court, yet this provision
has to be seen alongwith Section 9 of the Act. Section 9 of the Contempt of Courts
Act, 1971 reads as under:
“9.
Act not to imply enlargement of scope of contempt. – 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.”
14. The reasoning of the majority opinion in the said Full Bench
was based on an interpretation of Section 9 and Section 16 of the Act.
According to the Full Bench, Section 9 of the Act makes only such acts punishable
for contempt, which have been stated in the Act itself. Section 16 of the Act
makes the provision “applicable subject to the provisions of any law for the time
being in force”. Thus, since on the day the Contempt of Courts Act, 1971 came
into force, there was no law or decision of the Supreme Court or the High Court
which made a Judge of Court of Record answerable to a charge of contempt of
court, therefore logically a Judge of Court of Record is not liable to be punished
for committing a contempt of his own court. The Full Bench of Patna High Court
while doing this also distinguished the position as it was with the judges of
the subordinate courts, who were at the relevant time in any case liable to be
punished for having committed a contempt of either superior court or of their
own court. In the words of the Hon’ble Judges, it was said as follows:
“In view of section 9 nothing contained in the Act shall be
construed as implying to make an act punishable as contempt of Court which
would not have been so punishable apart from the Act. In other words an act or action
which was not contempt of Court before the Act came into force shall not be punishable
as contempt of Court under theAct. The provision incorporated in the Act are supplemental
to already existing law of contempt as interpreted by the Supreme Court and different
High Courts. Now in this background can it be said that section 16 has purported
to enlarge the scope of the Act to cover even the acts and actions of the Supreme
Court and High Court Judges while administering justice to make them punishable
under the provisions of the Act, having said in section 9 that, nothing shall
be punishable as contempt of Court which would not be so punishable apart from
the Act? In this connection it may also be pointed out that section 16 opens
with the words “subject to the provisions of any law for the time being in
force”, which means that section 16 is subject to the existing law which was in
force before the Act was enacted. On the day the Act came into force neither
the Supreme Court nor any High Court had held that even a Judge of Supreme
Court or High Court was answerable to a charge of contempt of Court. If the framers of the Act wanted to make a change in this
respect they should have introduced a non obstante clause in section 16 by saying ‘notwithstanding anything contained
in any other law’, instead of making it ‘subject to the law for the time being
in force’. The Judges of the subordinate Courts were liable to be punished for
having committed contempt of superior Courts or of their own Court even before
the act came in force in view of series of judgments of different Courts.
Reference in this connection may be made to a Full Bench judgment of the Lahore
High Court in the case of Mohd. Shafi v. Chowdhary Quadir Baksh AIR 1949 Lah
270 and Bar Association and Library, Moradabad v. Kothari S.D.M. 1966 All LJ
953. IN view of Section 9 and the language of section 16 itself it has to be
held that section 16 does not purport to enlarge the scope of the Act by including
even the Judges of the Courts of Record….it only gives statutory recognition in
respect of contempt of Court committed by Judges and Magistrates presiding over
subordinate Courts.”
15. The learned counsel for the petitioner Mr. Akhilesh Kalra,
would, all the same, argue that in view of the recent Supreme Court judgment by
a Constitution Bench of seven Judges in the case of In re, Hon’ble Sri Justice C.S.
Karnan (Reported in (2017) (7) SCC 1), the position would now be different, as in the aforementioned
case the Hon’ble Apex Court had held a sitting Judge of a High Court for
committing a contempt of court and had sentenced him for six moths imprisonment.
16. We, however, have not been able to accept this proposition of
the learned counsel for the petitioner.
17. We must first look closely to the facts of Justice Karnan’s
case. The series of events, which ultimately led to the unenviable task for the
Hon’ble Apex Court, where a suo motu cognizance of the matter was taken under
Article 129 of the Constitution of India, actually falls under the rarest of
rare cases. A sitting Judge of a High Court was held for contempt of Court and
was sentenced for six months of imprisonment! This had never happened before.
In our most humble view, while doing so, the Hon’ble Judges of the Apex Court have
purposely refrained from laying down a law of universal application. This is
evident from the cautioning note used at the beginning of the order, by the Hon’ble
Chief Justice J.S. Khehar, which explains everything. The opening lines of the
judgment read as under:
“The task at our hands is unpleasant. It concerns actions of a
Judge of a High Court. The instant proceedings pertain to allegedactions of
criminal contempt, committed by Shri Justice C.S. Karnan. The initiation of the
present proceedings suo motu, is unfortunate. In case this Court has to take the
next step, leading to this conviction and sentencing, the Court would have undoubtedly
traveled into virgin territory. This has never happened. This should never happen….”
(Emphasis provided)
18. But then even assuming for the sake of argument that we are
wrong in our above assessment, yet before we accept the proposition of the
learned counsel for the petitioner that the case is a binding precedent, we
must examine this on the facts of the two cases. The case before the Hon’ble
Apex Court, we find was not of the nature as the one before us. Unlike the situation
before us, the charge against Justice Karnan was not of committing a contempt “of
his own Court”. Moreover, the sentence in that case was awarded, as there the
learned Judge had also committed a contempt “on the face of the Court”, apart
from the fact that the Apex Court had also taken the matter suo motu. On the other
hand, we are dealing with a completely different situation. Firstly, we have a
case where the allegations are that a Judge of a Court of Record has committed
a contempt “of his own Court”, and secondly, it is not a case where a contempt
has been committed “on the face of the Court”, nor is it being taken up suo
motu by this Court. Therefore, in our most humble opinion, the Constitution
Bench Judgment of the Hon’ble Apex Court would not be applicable to the facts
of the present case.
19. In our opinion, the reasoning given by the Full Bench of
Patna High Court referred above, gives the correct position of law, and we
wholly agree with it.
20. The duty of a Judge after all is to dispense justice – without
fear or favour, affection or ill will, without passion or prejudice. It is not
a part of his duty to please litigants, or keep lawyers in good humour. The principal
requirement for all Judges, and particularly for a Judge of Court of Record, is
to maintain his independence. Often a times, he has to deal with cases having
high stakes, which are fiercely contested by both sides. Lawyers and litigants
sometimes can be cantankerous, even unruly. Unpleasant situations and angry
exchange of words at the Bar, are not uncommon. A Judge can also be very
helpless in situations like this. Irresponsible accusations may be thrown against
a Judge by a disgruntled lawyer or litigant. Therefore, for the sake of the
independence of judiciary, a Judge has to be protected, from vexatious charges
and malicious litigations.
21. It is for this reason that common law also does not permit
prosecution of a Judge of Court of Record for committing a contempt of his own
Court. Oswald* refers to a case** in order to elaborate this point. We must
give a brief summary of the fact of this case.
* Oswald’s contempt of court: Committal, attachment, and arrest upon civil process: with an appendix of forms – James Francis Oswald.
** Anderson Vs. Gorrie and others [Court of Appeal] (1895 1 QB, 668
It starts with an action which
brought against three Judges of the Supreme Court of Trinidad and Tobago,
which was then a British colony. The Court gave its decision in favour of the
defendants on grounds that no action can lie against a judge of a Court of
Record in respect of act done by him in his judicial capacity. Against this the
plaintiff filed an appeal before the Court of Appeal in England, which was
dismissed by a Three-Judges Bench, where the leading judgment is of Lord Esher
M.R. It is a short order and the relevant portion of this needs to be stated :
“The defendants were judges of a Supreme
Court in a colony, and the first question is whether these matters were matters
with which they had jurisdiction to deal. As to the contempt of Court, it cannot
be denied that they had jurisdiction to inquire whether a contempt had been
committed, and further, it cannot be denied that they had power to hold a
person to bail in the cases provided for by the colonial statute which
expressly gives that power. These two matters were obviously within the
jurisdiction of the Court. No one can doubt that if any judge exercises his
jurisdiction from malicious motives he has been guilty of a gross dereliction
of duty; but the question that arises is what is to be done in such a case. In
this country a judge can be removed from his office on an address by both
Houses of Parliament to the Crown. In a colony such an address is not necessary. The governor of
the colony represents the Sovereign, and over him is the Secretary of State for
the Colonies, who represents Her Majesty, and can direct the removal of the
judge. But the existence of a remedy would not in either of these cases of
itself prevent an action by a private person; so that the question arises
whether there can be an action against a judge of a Court of Record for doing
something within his jurisdiction, but doing it maliciously and contrary togood
faith. By the common law of England it is the law that no such action will lie. The ground alleged from the earliest times as that on which
this rule rests is that if such an action would lie the judges would lose their
independence, and that the absolute freedom and independence of the judges is
necessary for the administration of justice.”
(Emphasis provided)
At another place in the order, Lord Esher
emphasising the point further states as under:
“To my mind there is no doubt that the proposition is true to
its fullest extent, that no action lies for acts done or words spoken by a
judge in the exercise of his judicial office, although his motive is malicious
and the acts or words are not done or spoken in the honest exercise of his
office. If a judge goes beyond his jurisdiction a different set of considerations
arise. The only difference between judges of the Superior Courts and other
judges consists in the extent of their respective jurisdiction.” (Emphasis provided)
22. The underlying principle behind this “immunisation" of
Judges, is the ‘independence of judiciary’. This independence, we must add, is absolutely
essential in a constitutional democracy. It is for this reason then that the
findings given in the majority opinion of Full Bench of Patna High Court (referred
earlier), becomes even more relevant, and in our humble opinion these findings
are well supported by strong reasoning and common law principles.
23. The philosophy as referred above also lies at the root of the
principle which gives immunity to the Judges in India, under the Judges
(Protection) Act,1985, which is an immunity from any civil or criminal action
in the judicial work of a Judge. The Statement of Objects and Reasons for
introducing the Bill, when introduced read as under:
“Judiciary in one of the main pillars of parliamentary
democracy as envisaged by the Constitution. It is essential to provide for all immunities
necessary to enable Judges to act fearlessly and impartially in the discharge
of their judicial duties. It will be difficult for the Judges to function if
their actions in court are made subject to legal proceedings, either civil or criminal.”
24. The question whether a Judge of Court of Record is liable for
a contempt of his own court stands settled now by a Three Judge Bench decision
of the Apex Court in State
of Rajasthan v. Prakash Chand & others (1998) 1 SCC, pg 1. The above judgment arose out of
proceedings from the Rajasthan High Court. A learned Judge of the High Court
had issued a contempt notice to his Chief Justice, as in his view the Chief Justice
had committed a contempt of court as a writ petition, which was part heard
before the learned Judge was assigned to a Division Bench, which finally
decided the matter after its assignment. While issuing notices a detail order
was passed by Justice Shethna, making certain remarks against the Chief
Justice, the Judges of the Division Bench who had decided the case, as well as against
former Chief Justice of the High Court.
25. A special appeal was thus filed by the State of Rajasthan
against this order. The Hon’ble Apex Courtwhile deciding the case had set up
the following four questions before itself.
“Did Shethna, J. have any judicial or administrative authority
to send for the record of a writ petition which had already been disposed of by
a Division Benchthat too while hearing a wholly unconnected criminal revision
petitionand pass “comments” and make “aspersions” against the Chief Justice of the
High Court and the Judges constituting the Division Bench regarding the merits
of the writ petition and manner of its disposal?
Can a Single Judge of a High
Court itself direct a particular roster for himself, contrary to the
determination made by the Chief Justice of the High Court? Is not such an
action of the Single Judge subversive of judicial discipline and decorum
expected of a puisne Judge?
Could a notice to show cause as to why contempt
proceedings be not initiated against the Chief Justice of the High Court for
passing a judicial order on the application of the Additional Advocate General
of the State in the presence of counsel for the parties transferring Writ Petition
No.2949 of 1996, heard in part by Shethna, J., for its disposal in accordance with
law to a Division Bench be issued by the learned Single Judge?
Did Shethna, J.
have any power or jurisdiction to case “aspersions” on some of the former Chief
Justices of that Court, including the present Chief Justice of India, Mr.
Justice J.S. Verma, behind their backs and that too on half-baked facts and
insinuate that they had “illegally” drawn daily allowances at the full rate of “Rs.
250” per day, to which “they were not entitled”, and had thereby committed “criminal
misappropriation of public funds” while making comments on the merits of the
disposed of writ petition?
26. For our purposes what was essential is the following
observation of the Hon’ble Apex Court.
“Even otherwise it is a fundamental principle of our
jurisprudence and it is in public interest also that no action can lie against
a Judge of a Court of Record for a judicial act done by the Judge. The remedy
of the aggrieved party against such an order is to approach the higher forum
through appropriate proceedings. Their immunity is essential to enable the Judges of the Court
of Record to discharge their duties without fear or favour, though remaining
within the bounds of their jurisdiction. Immunity from any civil or criminal
action or a charge of contempt of court is essential for maintaining
independence of the judiciary and for the strength of the administration of
justice.”
27. In arriving at the above findings, the Hon’ble Apex Court,
inter alia, also referred to Salmond and Heuston*. The reference to Salmond and
Heuston here would be relevant. It says:
“A Judge of one of the superior courts
is absolutely exempt from all civil liability for acts done by him in the
execution of his judicial functions. His exemption from civil liability is absolute, extending not
merely to errors of law and fact, but to the malicious, corrupt or oppressive
exercise of his judicial powers. For it is better that occasional injustice
should be done and remain unaddressed under the cover of this immunity than
that the independence of the judicature and the strength of the administration
of justice should be weakened by the liability of judges
to unfounded and vexatious charges of errors, malice, or incompetence brought
against them by disappointed litigants- ‘otherwise no man but a beggar, or a
fool, would be a judge’.”
*Salmond and Heuston on the Law of Torts, 21st Edn., 1996 in Chapter XIX.
28. In view of the above position of law, we hold that
contempt proceedings cannot be initiated against a Judge of Court of Record, on
allegations of committing a contempt of his own Court.
29. In the light of our answer to the first question, we may not
be required to answer the second question, but we are doing that nevertheless,
for two reasons. Firstly for the peculiar facts of the case, and secondly to set
the procedure right, as we are also of the view that in these matters (matter
relating to criminal contempt), the Registry has not followed the correct
procedure. We would elaborate on this aspect in a while.
30. In a case where allegations are in the nature of obstruction
to the administration of justice, or of scandalizing the Court, then an
approval of the Advocate General of the State is a statutory requirement under sub-section
(1) of Section 15 of the Act. Though we may add that in exceptional cases, the
Court may dispense with it, but till it is done i.e. until such a requirement
is dispensed with and a suo motu cognizance is taken by the Court, what is
there before the Court is strictly speaking not even a contempt petition. We
can call it merely an “information”.
31. Referring again to the Full Bench decision of Patna High
Court, we find that one of the grounds taken by the majority Judges of Patna
High Court for rejecting the petition which was before it was that in that case
too there was no approval of the Advocate General, and hence it was not
maintainable.
32. Since the present ‘contempt petition’, has been filed before
us by a person other than the Advocate General of the State, it had necessarily
to be accompanied by the consent of the Advocate General. There is no clear consent of the Advocate General before us.
For the records, though we have to state here that on 27.06.2018, when the
matter was first taken up before this Court, a pointed question was put to the learned
Advocate General who was present in the Court, about his consent, to which the
reply of the learned Advocate General was that under peculiar facts and circumstances
of the case he has not granted his consent. The reason for putting this
question to the learned Advocate General Sri Babulkar was essential, as the
letter of the Advocate General is not a clear statement as to his consent. Let
us see the language of the letter which has been annexed to the petition by means
of a supplementary affidavit by the petitioner, which is said to be written by
the learned Advocate General in reply to the request for his consent. The
letter dated 30.05.2018 states as under:
“I have gone through the contents of
the contempt petition and the affidavit and I find that the instance of 11th May, 2018 occurred with myself and consequently the Hon’ble
Judge haspassed an order against me and the Government Advocate, hence,
although the facts as mentioned do make out a case of sanction, yet in order to
avoid any allegations of bias, I am not in a position to accord formal
sanction.”
33. According to the learned Advocate General, he was a witness
to the incident which occurred in the courtroom on 11.05.2018, as he was
present in the courtroom of Justice Lok Pal Singh on that fateful day. Later he
was not allowed to appear in the matter and the behaviour of the Court towards
him was rude, even offensive. Under these circumstances he is not giving his consent
in the matter in order to avoid any allegation of bias against him.
34. Be that as it may, the nature of the opinion given by the
learned Advocate General in any case does not make this task any easier for us.
The opinion is neither here nor there. The Advocate General has chosen to
vacillate in the matter, rather than give a clear opinion. We are of the view,
that if under the facts and circumstances of the present case, the learned
Advocate General had reached a conclusion that he should not give his consent,
then he should have simply said so. He would have been perfectly justified in
not giving his consent on the facts and circumstances of the case, as his
apprehensions for any allegation of bias are not unreasonable. All the same, he
has not done that, instead he has recused himself by saying that he is not giving
his consent as the remarks of the learned Judge were addressed against him as
well. Till this point he was right, but he does not stop here as he adds, thatthough
he is not giving his consent, the facts of the case do make out a case for
consent! What do we do with this!
35. It is a statutory requirement of getting the consent of the
Advocate General in a motion made by “any other person”. Until then it cannot
be treated as a contempt petition. The statute mandates the inclusion of such a
provision in the interest of justice and fair play, for obvious reasons as a
motion for criminal contempt is a serious matter. It has penal consequences.
Therefore unless the motion is made by the Advocate General himself, or the
matter is taken suo motu, (or an act is committed in its presence or during
hearing, i.e. under Section 14 of the Act), it must be accompanied by the consent
of the Advocate General. The Advocate General is a Constitutional Authority. He
is the leader of the Bar and therefore Parliament in its wisdom thought it best
that a motion of criminal contempt must be screened by a proper and unbiased
authority, before it becomes a motion for criminal contempt.
36. We do understand the compulsions of the learned Advocate
General in the present matter, who is a senior and respected member of the Bar.
Yet we are not very happy in the manner in which the opinion has been given to
us. It would have been better if a clear opinion had come, one way or the
other. An Advocate General may be justified in simply recusing himself, as there
is no rule of necessity here, since the petitioner can always persuaded the
court to take the matter suo motu in absence of a consent of the learned
Advocate General. But this has not happened.
37. The fact of the matter, however, is that the petition before
us is not accompanied with the “consent” of the Advocate General, as is the
requirement of law. We say this both from the language of the letter of the Advocate
General and the statement of the learned Advocate General before us in the
Court.
38. The question now remains whether this Court can proceed in the
matter where the Advocate General has refused to grant his consent.
39. The Hon’ble Apex Court in the case of Bal Thackrey v. Harish Pimpalkhute
and others reported
in (2005) 1 SCC 254 has held that there are three channels
for initiating proceedings of a criminal contempt under Section 15 of the
Contempt of Courts Act – (a) either it can be done suo motu by a Court or (b) on
a motion by the Advocate General or (c) by any other person with the consent in
writing of the Advocate General. All three procedures have been clearly prescribed
in law and though the earlier practice was that a Court of Record having the
power to punish for its contempt under Article 215 of the Constitution of India
could draw a procedure on its own, which had to be fair and reasonable, after
the Contempt of Courts Act in the year 1971, a procedure has been laid down
which has to be followed. This is not a case where a suo motu cognizance has
been taken in the matter, nor is it a proceeding initiated by the learned
Advocate General. Any other person, can only initiate a proceeding for a criminal
contempt with the consent in writing of the Advocate General.
40. In the case of
S.K. Sarkar, Member, Board of Revenue,
U.P. v. Vinay Chandra Misra, reported in (1981) 1 SCC 436, the Hon’ble Apex Court has held as follows:
“…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 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 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.”
41. Therefore, though a petition moved by any other person,
without the consent of the Advocate General, can still be treated as a contempt
petition, depending upon the nature of the “information”, and discretion of the
Court, but till a suo motu cognizance is taken by the Court, the petition is
merely in the nature of an “information”.
42. As far back as in the year 1973, a Division Bench of Delhi
High Court in the case of Anil
Kumar Gupta v. K. Suba Rao and Ors. (Criminal Original Appeal No. 51 of 1973) (1974) ILR, Delhi, 1 had in fact directed that such matters
(matter as we have before us), should not be listed as a criminal contempt
straightway but should be placed first before the Chief Justice on the administrative
side. The directions given by the Division Bench are as follows:
“(10) The
office is to take note that in future if any information is lodged even in the
form of a petition inviting this Court to take action under the Contempt of
Courts Act or Article 215 of the Constitution, where the informant is not one
of the persons named in section 15 of the said Act, it should not be styled as
a petition and should not be placed for admission on the judicial side. Such a
petition should be placed before the Chief Justice
for orders in Chambers and the Chief Justice may decide either by himself or in
consultation with the other judges of the Court whether to take any cognizance
of the information. The office is directed to strike off the information as “Criminal
Original No. 51 of 1973” and to file it.”
43. The above procedure was approved by the Hon’ble Apex Court in
the Case of P.N.
Duda v. P. Shiv Shanker reported
in (1988) 3 SCC 167, and in Bal Thackrey (supra).
44. The whole object of prescribing a procedure in such matters,
particularly in cases of criminal contempt is also to safeguard the valuable
time of the Court from being wasted by frivolous contempt petitions.* Therefore, the requirement of obtaining consent in writing of
the Advocate General for contempt proceeding by any person is necessary. A
motion under Section 15 which is not in conformity with the requirement of that
section is not maintainable.”**
*Bal Thackrey v. Harish Pimpalkhute and others reported in (2005) 1 SCC 254
**State of Kerala v. M.S. Mani reported in (2001) 8 SCC 22 and Bal Thackrey v. Harish Pimpalkhute and others reported in (2005) 1 SCC 254
In
Bal Thackrey, therefore, it was held as follows:
“23. In these matters, the question is not about compliance or
noncompliance of the principles of natural justice by granting adequate
opportunity to the appellant but is about compliance with the mandatory requirements of
Section 15 of the Act. As already noticed the procedure of Section 15 is required
to be followed even when petition is filed by a party under Article 215 of the
Constitution, though in these matters petitions filed were under Section 15 of
the Act. From the material on record,it is not possible to accept the
contention of the respondents that the Court had taken suo motu action. Of
course, the Court had the power and jurisdiction to initiate contempt
proceedings suo motu and for that purpose consent of the Advocate- General was
not necessary. At the same time, it is also to be borne in mind that the Courts
normally take suo motu action in rare cases. In the present case, it is evident
that the proceedings before the High Court were initiated by the respondents by
filing contempt petitions under Section 15. The petitions were vigorously
pursued and strenuously argued as private petitions. The same were never
treated as suo motu petitions. In absence of compliance with mandatory
requirement of Section 15, the petitions were not maintainable.”
45. In view of the above position, this petition which is before
us cannot be treated as a contempt petition, as in the absence of a consent of
the learned Advocate General, it is only in the nature of an “information”. It
is not a contempt petition, at least not yet. Consequently, we direct the
Registry of this Court that it shall henceforth follow the following procedure
in such matters:
If any other person (i.e. any other person except the Advocate
General of the State), moves a petition under Section 15 of the Act or under
Article 215 of the Constitution of India, alleging a case of criminal contempt
against any person, and if such a petition is not accompanied by the consent of
the Advocate General then the Registry shall not list the case as a criminal contempt
petition, as at this stage the petition is only in the nature of an “information”.
Such matters shall always be captioned as “in Re…….(the name of the alleged
contemnor)”, and be placed before the Hon’ble Chief Justice in chamber. The
Chief Justice may either himself or in consultation with other Judges of the Court
may take further steps in the case as deem to be necessary.
46. Hypothetically speaking therefore it is always open for a
Court to proceed with the matter, even where the Advocate General has refused
to grant his consent, since powers are given to the Court to take a suo motu cognizance,
but this can be done only after the due procedure is first followed – procedure
as referred above.
47. Although in the absence of a consent of the Advocate General,
this Court can take action on its own motion, but presently this channel is not
open to us here, as proceeding of contempt cannot be initiated against a Judge
of a Court of Record, on a charge of “committing a contempt of his own court”.
48. We therefore dismiss the present petition, being not
maintainable.
49. We have made the above determination and dismissed the
petition on pure questions of law, without having to go in detail to the facts
of the case. We say nothing on facts. We have, inter alia, held that henceforth
a petition like the one at hand shall not be listed as a ‘contempt petition’,
unless so ordered by the Hon’ble Chief Justice. This is so as it is easy to
make baseless allegations against a Judge, who ironically due to the office he
holds, does not enjoy the same liberty and freedom, as compared to the
petitioner who is pointing fingers at him. In this case a practicing lawyer of
this Court, of reasonable standing, has filed the present petition. In our
considered opinion he should have shown more restrain and circumspection before
resorting to this course; a course which is not open to him in any case, as
clearly held by the Apex Court in State of Rajasthan v. Prakash Chand and others (supra).
50. We have dismissed this petition, but we must end this case
with a note of caution made by the Hon’ble Apex Court in a case arising out of
a decision of Madhya Pradesh High Court. The case came to be known as “M.P.
Liquor Case”. The subject was grant of new distilleries, which was being done
under a policy decision of the Government of Madhya Pradesh. This decision was
challenged before the High Court in several writ petitions. These writ
petitions were allowed by the Division Bench. The two Hon’ble Judges, however,gave
concurrent, but separate judgments. While allowing the writ petition, Justice B.M. Lal made certain
observations attributing mala fide, corruption and underhand dealing against
the State Government officials. The decision of the High Court was challenged by
the State of Madhya Pradesh before the Hon’ble Apex Court in appeal (in State of M.P. and others v. Nandlal Jaiswal
and others, (1986) 4 SCC 566), which was allowed and the judgment of the High Court was set
aside, and while doing so, Justice P.N. Bhagwati (C.J.) observed that the remarks
made by B.M. Lal, J. “were clearly unjustified”. While doing so, the Hon’ble
Apex Court observed:
“We may observe in conclusion that judges should not use
strong and carping language while criticising the conduct of parties or their
witnesses. They must act with sobriety, moderation and restraint. They
must have the humility to recognise that they are not infallible and any harsh
and disparaging strictures passed by them against any party may be mistaken and
unjustified and if so, they may do considerable harm and mischief and result in
injustice. Here, in the present case, the observations made and strictures
passed by B.M. Lal, J. were totally unjustified and unwarranted and they ought
not to have been made.”
The matter, however, did not end here. After the
judgment of Hon’ble Apex Court and a delay of 738 days, one Mr. Pramod Kumar
Gupta, Advocate, who had no connection with the earlier litigation, filed a
review petition before the Madhya Pradesh High Court. The matter was listed for
admission before the Division Bench on 29.10.1988 and one of the Hon’ble Judges dictated
the order in open Court dismissing the review petition on grounds of locus
standi as well as inordinate delay. The other Hon’ble Judge (B.M. Lal, J.) did
not pass the order on 29.10.1988, but on a later date. Ultimately, Justice B.M. Lal also dismissed the review petition,
but while doing so made certain comments on the Senior Advocate and the former
Advocate General of Madhya Pradesh as follows:
“It is the moral duty of a
lawyer, much less the Advocate General, to act faithfully for the cause of his
client and to furnish information about the court’s proceedings correctly. In
the past the chair of Advocate General was adorned by glorious and eminent lawyers
who never showed any sycophancy and never suffered from mosaifi. As such, the action
on the part of the Advocate General, was not befitting to the status of the
high office.”
It was also remarked that the said Advocate General had “skillfully
succeeded in his attempt to abstain himself from the case on August 28, 1988, presumably,
he had no courage to face the situation”.
An appeal was filed before the Hon’ble Apex Court, which was
allowed and all the remarks made by Justice B.M. Lal against the appellant were
expunged from the impugned order. The Hon’ble Apex Court in A.M. Mathur v. Pramod Kumar Gupta
and others, (1990) 2 SCC 533, in para 13 and 14 said as follows:
“13. Judicial restraint and
discipline are as necessary to the orderly administration of justice as they
are to the effectiveness of the army. The duty of restraint, this humility of function
should be constant theme of ourjudges. This quality in decision making is as much
necessary for judges to command respect as to protect the independence of the judiciary.
Judicial restraint in this regard might better be called judicial respect, that
is, respect by the judiciary. Respect to those who come before the court as
well to other coordinate branches of the State, the executive and the
legislature. There must be mutual respect. When these qualities fail or when litigants
and public believe that the judge has failed in these qualities, it will be
neither good for the judge nor for the judicial process.
14. The Judge’s Bench is a seat of power. Not only do judges have
power to make binding decision, their decisions legitimate the use of power by
other officials. The judges have the absolute and unchallengeable control of
the court domain. But they cannot misuse their authority by intemperate comments,
undignified banter or scathing criticism of counsel, parties or witnesses. We concede
that the court has the inherent power to act freely upon its own conviction on
any matter coming before it for adjudication, but it is a general principle of
he highest importance to the proper administration of justice that derogatory
remarks ought not to be made against persons or authorities whose conduct comes
into consideration unless it is absolutely necessary for the decision of the case
to animadvert on their conduct. [See (i) R.K. Lakshman v. A.K. Srinivasan,
(1975) 2 SCC 466, 9ii) Niranjan Patnaik v. Sashibhusan Kar, (1986) 2 SCC 569).”
51. Intemperate comments and undignified banter, as the Hon’ble
Apex Court refers above, also undermines the public confidence in a judge.
Public confidence, which is an absolutely essential condition for realizing the
judicial role*. Public confidence does not mean being popular in the eyes of
the public or *
The Judge in a Democracy – Aharon Barak Princeton
University Pressbeing
pleasant. “On the contrary, public confidence means ruling according to the law
and according to the judge’s conscience, whatever the attitude of the public may
be. Public confidence means giving expression to history, not to hysteria”*.
Public confidence is also the ultimate strength of a judge. Eugen Ehrlich, the
noted sociologist had famously said “there is no guarantee of justice except
the personality of the judge”. This personality we must remember, is always
under a close watch of a litigant, who quietly sits in a corner of a courtroom,
judging the justice!
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