J.M.L. Sinha, J.
1. Learned Counsel for the opposite party has raised a preliminary point challenging the jurisdiction of this Court.
Learned Counsel pointed out that one part of the utterance i.e. kis idiot ne Advocate banwa diya hai alleged to have been made by the contemner opposite party, is said to constitute contempt of this Court, while the other part of the utterance alleged to have been made and the conduct displayed by the opposite party is said to constitute contempt of his own Court. Placing reliance on Section 15 of the Contempt of Courts Act, 1971, learned Counsel for the opposite party urged that this Court cannot take cognizance of either of the two natures of contempts on the application moved by Sri V. C. Misra. Learned Counsel for the opposite party referred to the case Gurcharan Dass v. State of Rajasthan and insisted that the question regarding jurisdiction should be decided before entering into the facts of the case. Learned Counsel for the petitioner has also agreed that the point of jurisdiction raised on behalf of the opposite party may be decided first.
2. In support of his first Dart of the argument namely that this Court cannot take cognizance of its own contempt said to have been committed by the opposite party, on the application made by the petitioner, reliance has been placed on Section 15(1) of the Contempt of Courts Act, 1971, hereafter to be called 1971 Act. which reads thus:
COGNIZANCE OF CRIMINAL CONTEMPT IN OTHER CASES-- (1) In the case of a criminal contempt other than a contempt referred to in Section 15, the Supreme Court or the High Court, may take action on its own motion or on a motion made by--
(a) the Advocate General or
(b) any other person, with the consent in writing of the Advocate General." It is not controverted on either side that the part of the utterance alleged to have been made by the opposite party and quoted earlier in this order, if at all constitutes a 'criminal contempt' within the meaning of that expression used in Subsection (1) of Section 15. It is also not controverted on either side that this Court can suo motu take action to punish contempt of itself. The argument that has been raised by learned Counsel for the opposite party however is that the Court cannot make use of the application moved by Sri V. C. Misra (petitioner) for even suo motu taking cognizance of the contempt. The argument fails to impress us.
In order to take cognizance of its own contempt committed outside, the Court has to receive information from one source or another. The information in the instant case has been conveyed by Sri V. C. Misra, a lawyer who happened to be present before the O. P., when the contempt is said to have been committed. All that Sri Misra has done by moving the present petition is to have brought to the notice of this Court the alleged contempt and leave it to the Court to take such action as it may like. The prayer contained in the application reads as follows:
It is therefore, prayed that this Hon'ble Court be pleased to take suo motu action under Section 15(1) of the aforesaid Act against the contemner-op-posite party, or be pleased to pass such other and further order as the Court deems fit.
3. A reading of the application along with the prayer contained therein leaves no room for doubt that the petitioner has only conveyed information to the Court of the contempt alleged to have been committed by the opposite party. Once the information has reached this Court, it is open to it to take cognizance of it. This part of the argument raised by learned Counsel for the respondent is, therefore wholly devoid of substance and is turned down.
4. For the second part of his argument, namely that this Court cannot take cognizance of the contempt committed by the opposite party of its own Court, on the application moved by the petitioner, reliance has been placed by learned Counsel on Section 15. Sub-section (2) of the 1971 Act. which reads thus:
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." Learned Counsel for the opposite party contended that the way in which subsection (2) of Section 15 is drafted leaves no room for doubt that Sub-section (1) of Section 15 relates to the contempt of High Court and Supreme Court only and that it is only Sub-section (2) of Section 15 which relates to the Criminal contempt of a subordinate Court. It was urged that the mandate contained in Sub-section (2) of Section 15 is that "cognizance of Criminal contempt of a subordinate Court cannot be taken by the High Court except--
(i) on a reference made by the subordinate Court itself, or
(ii) on a motion made by the Advocate-General, or
(iii) in relation to a Union territory, on a motion made by such Law Officer as the Central Government may by notification in the Official Gazette, specify in this behalf.
5. Learned Counsel contended that in the case before us there is neither any reference by the subordinate Court nor by any other authority referred to in Sub-section (2) of Section 15 and. consequently, this Court cannot take cognizance of the contempt said to have been committed by the O. P. of his own Court. It was vehemently urged that this Court cannot act suo motu for taking cognizance of the contempt committed by a subordinate Court.
6. As opposed to the above argument raised on behalf of the respondent, learned Counsel for the petitioner has urged that this Court, as a Court of Record possesses the power to punish contempt not only of itself but also of the subordinate Court and nothing contained in Section 15(2) of the 1971 Act restricts that power. According to learned Counsel for the petitioner. Section 15 subsection (2) should be interpreted as merely conferring an authority on the Advocate-General of the State and in relation to the Union territory on such other authority as may be authorised in that behalf by the Central Government, to move this Court for punishing contempt of a subordinate Court. Learned Counsel for the petitioner contended that if Section 15 Sub-section (2) is interpreted in any other manner, it would offend against Article 215 of the Constitution and shall be ultra vires.
7. Since the question of the vires of Section 15(2) was raised we issued notice to the Attorney-General and have also heard Sri B. N. Sapru on his behalf.
8. In view of the contentions raised on either side, it is necessary to examine the Precise nature of the authority of this Court to punish contempt of a subordinate Court. The point came up directly for consideration before a Special Bench of this Court consisting of Walsh. Sulaiman and Boys, JJ. in case of
It follows that the High Court of Calcutta has power to deal with contempts affecting the administration of justice whether those contempts be committed in regard to the proceedings in the High Court or in a Court subordinate to the High Court.
The learned Judge then proceeded to examine the powers of this Court, and after making a reference to Statutes 24 and 25 Vict. C. 104 and Clauses (9) and (10) summed up thus:
It follows that this Court at Allahabad has the same common law summary jurisdiction to punish contempt as I have held to be possessed by the Calcutta Court. I therefore hold--
(1) that the King's Bench had by virtue of the common law summary jurisdiction to punish as for contempt all offences against the administration of justice, whether or not the offence was committed in face of the Court or outside the Court and whether the Court was sitting or not sitting and whether concerning the King's Bench directly or in relation to proceedings concerning in an inferior Court and whether in the latter case those proceedings might or might not in some way have come at some stage before the King's Bench:
(2) that the Supreme Court had conferred on it by the Statute and the Charter creating it the above named powers of the King's Bench:
(3) that the Calcutta High Court by virtue of the Statute and the Charter creating it obtained similar powers not limited to the area within the territorial jurisdiction of the Supreme Court but in relation to all the Courts subject to the control of the High Court:
(4) that this Court at Allahabad had conferred on it by the Statute and the Letters Patent creating it similar powers to those conferred on the High Court of Calcutta;
(5) that this Court is, as is the King's Bench Division as successor to the King's Bench, and I may add as I see no reason to the contrary every other High Court in this country in a special manner the guardian and protector of public justice and that it has power to deal with all contempts directed asainst the administration of justice, whether those contempts are committed in face of the Court or outside it and independents of whether the particular Court is sitting or not sitting and whether those contempts relate to proceedings directly concerning it or whether they relate to proceedings concerning an inferior Court and in the latter case whether those proceedings might or might not at some stage come before this Court.
Lest it should be understood that the other two Judges deciding the case did not share the same view a reference may be made to the relevant part of the observations made by them as well. Walsh, J. in his judgment said:
This High Court is a Court of Record and has general power of superintendence and control over the Courts subordinate to it, and I agree with the view taken in the Bombay case reported in Mohandas Karamchand Gandhi in re) (1920) 22 Bom LR 368 : 21 Cri LJ 835 : AIR 1920 Bom 175 (FB), and in a case decided by three Judges in Madras report in matter of K. Venkata Row (1911) 12 Ind Cas 293 : 12 Cri LJ 525 Mad) that the High Courts in India have such power.
9. Sulaiman, J., after making a reference to a number of decisions expressed his opinion on the point in the following words:
This High Court is in an equal degree the guardian and protector of public justice throughout these provinces and has superintendence over the inferior Civil Courts and must therefore have a duty cast upon it to protect such Courts, otherwise their independence and usefulness would be considerably in paired. I have therefore no hesitation in holding that such a power exists.
Reference was made before us by Mr. B. N. Supru to the case
(1) Whether this Court has the power to order a legal practitioner in appropriate circumstances to pay personally the cost of an application or suit.
(2) If the High Court has such a power, whether it should be exercised in the present case.
Three of the Judges answered the question in the affirmative and four in the negative. From the above it would appear that the point for consideration before the Full Bench was widely different from the point involved for consideration before us. It is true that in the leading judgment of the majority it was observed:
It is, therefore, very difficult to hold either that the Allahabad High Court has inherited the jurisdiction of the Supreme Court of Calcutta or that all the inherent powers of the Supreme Court had been conferred on it by statute.
They however proceeded on to say:
But there can be no question that a High Court by virtue of its very constitution as the highest Court of justice in the Province established by Royal Charter must possess inherent jurisdiction over its own officers particularly such as has been recognised to vest in the High Court of England. Advocates are undoubtedly officers of the Court, and unless the power is limited or regulated by Statute, the inherent disciplinary jurisdiction similar to that exercised in England would exist. That such inherent power can exist was recognised in the Full Bench case of
Because of the provision contained in Bar Council's Act of 1926 the Court expressed the view that it could not exercise its disciplinary jurisdiction to punish an Advocate for professional or other misconduct. It was, however, not ruled that anything contained in the Bar Council's Act affected the jurisdiction of this Court to even punish an Advocate for Contempt of Court. This would be evident from the following observation (at page 240):
It has next been suggested that because the original foundation of disciplinary jurisdiction in remote antiquity was the doctrine of contempt, and the statement of the objects and reasons shows that the power to deal with contempt of Court was left untouched by the Bar Council's Act, the High Court still possessed such jurisdiction. The language of the statement is inadmissible, but even without regard to that statement, we have not the least hesitation to say that the Bar Council's Act was never intended to and did not itself take away any inherent jurisdiction to punish for contempt of inferior Courts that might be possessed by the High Court. That such an inherent jurisdiction existed before 1926 is clear from AIR 1926 All 623 (SB) (supra).
Referring to the punishment provided in the Bar Council's Act of 1926 the Court held that it was not possible to pass an order for costs against an Advocate and in favour of the opposite party capable of execution by the latter on the supposed around for punishing him for contempt.
10. Thus from what has been stated above, it is clear that the view expressed by this Court in the case of
11. The point also came up for consideration before the Supreme Court, though in a different context in the case
What we are at pains to show is that apart from the chartered High Courts, particularly every other High Court in India has exercised the jurisdiction and where its authority has been challenged each has held that it has a jurisdiction inherent in a Court of Record from the very nature of the Court itself." In the year 1926 come the first Act on the subject known as the Contempt of Courts Act (Act XII of 1926). Nothing therein restricted the power that the High Court possessed as a Court of Record to punish the contempt of the subordinate Court, On the contrary Section 2(1) was incorporated therein to clear the doubt that the High Court did possess the power to punish contempt of a subordinate Court. This section reads as follows:
Subject to the provisions of subsection (iii) the High Courts of Judicature established by Letters Patent shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice in respect of contempt of Courts subordinate to them as they have and exercise in respect of contempt of themselves.
12. Sulaiman. J. in AIR 1926 All 623 (SB) (supra) making a reference to the Contempt of Courts Act, 1926 said
I might add that the new Contempt of Courts Act has been enacted in order to remove doubts which had arisen as to the powers of a High Court. That enactment does not imply that the Legislature has recognised that no such power did in fact exist.
The Supreme Court also in AIR 1954 SC 186 : 1954 Cri LJ 460 (supra) referred to the 1926 Act and observed:
This recognises an existing jurisdiction in all Letters Patent High Courts to punish for contempts of themselves and the only limitation placed on those powers is the amount of punishment which they could thereafter inflict. It is to be noted that the Act draws no distinction between one Letters Patent High Court and another, though it does distinguish between Letters Patent High Courts and Chief Courts: also as the Act is intended to remove doubts about the High Court's power, it is evident that it would not have conferred those powers had there been any doubt about the High Courts' power to punish for contempt of themselves. The only doubt with which the Act deals is the doubt whether a High Court could punish for a contempt of a Court subordinate to it. That doubt the Act removed,
Reference was also made by the Supreme Court in the same case to a decision of this Court in case Emperor v. B. G. Horniman AIR 1945 All 1 : 46 Cri LI 272 wherein it was held that after the Act of 1926 the offence of contempt was punishable under an Indian Penal Statute and so the Code of Criminal Procedure applied to it. The Supreme Court expressly disagreed with that view, as would appear from the following observation contained in the body of the judgment.
In our opinion this is wrong because the Act of 1926 does not confer any jurisdiction and does not create the offence. It merely limits the amount of punishment which can be given and removes a certain doubt. Accordingly, the jurisdiction to initiate the proceedings and take seisin of the matter is as be-fore.
(Underlining is by us)
13. The Constitution came into force in 1950 and by incorporating Article 215 therein the makers of the Constitution preserved to the High Court all its powers as a Court of Records. Article 215 reads as follows:
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.
14. We have already referred to the Special Bench decision of this Court in AIR 1926 All 623 (SB) (supra) and to the decision of the Supreme Court in AIR 1954 SC 186 (supra) wherein it has been held that this Court as a Court of Record also possessed the power to punish the contempt of subordinate Courts. Since Article 215 states that every High Court shall be a Court of Record and shall have all the 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 If the intention of the makers of the Constitution while enacting Article 215 were to preserve to the High Court only its power to punish its own contempt it would not have stated in the first part thereof that the High Court shall have all the powers of a Court of Record.
15. 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.
A reference may now be made to the Contempt of Courts Act 1952, which came after the commencement of the Constitution and which replaced the Contempt of Courts Act XII of 1926. Section 3 thereof shows that power of the High Court to punish contempt of the subordinate Courts was preserved by that Act as well. It reads as follows:
POWER OF HIGH COURT TO PUNISH CONTEMPTS OF SUBORDINATE COURTS.-- (1) Subject to the provisions of Sub-section (2) 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.
16. It would appear that the wordings of Section 3 of the 1952 Act are similar to those that were contained in Section 2 of the 1926 Act. It can, therefore, be safely said that Section 3 of the 1952 Act also does not confer any new power on the High Court. It only recognises the power of the High Court initially possessed as a Court of Record and which power has been preserved to the High Court by Article 215 of the Constitution. In case AIR 1954 SC 186 (supra) the Supreme Court considered this point and said;
The Contempt of Courts Act. 1926 was repealed by Act 32 of 1952. Section 3 of the new Act is similar to Section 2 of the old and, far from conferring a new jurisdiction assumes, as did the old Act the existence of a right to punish for contempt in every High Court and further assumes the existence of a special practice and procedure for it says that every High Court shall exercise the same jurisdiction and authority in accordance with the same procedure and practice.
17. In case
The law of contempt, as observed by this Court in the case of E.M.S. Namboodripad v. T.N. Nambiar stems from the right of the Courts to punish by imprisonment or fines persons guilty of words or acts which either obstruct or tend to obstruct the administration of justice. This right is exercised in India by all Courts when contempt is committed in facie curiae and by the superior Courts on their own behalf or on behalf of Courts subordinate to them even if committed outside the Courts. Formerly it was regarded as inherent in the powers of a Court of Record and now by the Constitution of India, it is a Dart of the powers of the Supreme Court and the High Court.
18. In case R. L. Kapoor v. State of Tamil Nadu while considering the nature of an offence of contempt vis-a-vis Section 70 of the Penal Code the Supreme Court observed:
The question is: does the power of the High Court of Madras to punish contempt of itself arise under the Contempt of Courts Act, 1952 or under Section 25 of the General Clauses Act, 1897, Sections 63 to 70 of the Penal Code and the relevant provisions of the Code of Criminal Procedure would apply ? The answer to such a question is furnished by Article 215 of the Constitution and the provisions of the Contempt of Courts Act, 1952 themselves. Article 215 declares that every High Court shall be a Court of Record and shall have all powers of such a Court, including the power to punish for contempt of itself. Whether Article 215 declares the power of the High Court already existing in it by reason of its being a Court of Record or whether the Article confers the power as inherent in a Court of Record, the jurisdiction is a special one not arising or derived from the Contempt of Courts Act, 1952.
19. Even in the Contempt of Courts Act, 1971 there is a provision which corresponds with the provision contained in Section 2 (1) of the Contempt of Courts Act, 1926 and Section 3 (1) of the Contempt of Courts Act, 1952. That provision is to be found in Section 10, the relevant Dart of which reads as follows:
Every High Court shall have and exercise the same jurisdiction, powers 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.
In view of the earlier mentioned decisions, in which it has been said that 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 with equal force about Section 10 of the 1971 Act that it does not confer any new jurisdiction on the High Court but only recognises 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.
20. If Section 15, Sub-section (2) is interpreted to 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. For illustration, let us take a case in which a person may have committed contempt of the grossest type of the subordinate Court and the High Court may be aware of that contempt. The High Court as a Court of Record is the guardian and protector of all subordinate Courts. Despite, it, however, the Court cannot suo motu take action to punish contempt unless the Court concerned makes a reference or any of the law officers specified in that section make such a reference.
Taking another illustration, contempt of the grossest type may be committed by a presiding officer of a subordinate Court of his own Court Now it would be too much to expect that the presiding officer will himself make a reference about it to the High Court. It would, therefore, follow that in such a case the High Court cannot proceed to take notice of the contempt unless one of the law officers specified in Section 15(2) makes a reference. That again is very much restrictive of the power of the High Court. 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. In case
observed:
The Court ought not to interpret statutory provisions, unless compelled by their language, in such a manner as would involve its constitutionality because the Legislature is presumed to enact a law which does not contravene or violate the constitutional provision.
21. In case
It is settled law that where two constructions of a legislative provision are possible, one consistent with the constitutionality of the measure impugned and the other offending the same, the Court will lean towards the first if it be compatible with the object and purpose of the impugned Act the mischief which it sought to prevent ascertaining from relevant factors its true scope and meaning.
As already stated earlier 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 contempt of Courts subordinate to it as it has and exercises in respect of contempt of itself. There is no controversy before me that under Section 10 of the new Act the High Court can act suo motu to punish its own contempt. Section 10 confers the same jurisdiction on the High Court to punish the contempt of subordinate Court as it possesses to punish its own contempt. Section 10 is therefore consistent with the powers of this Court as a Court of Record preserved by Article 215.
22. Sub-section (2) of Section 15 is not worded in a negative form. If it had contained any negative words such as in the case of a criminal contempt of a subordinate Court, action shall not be taken by High Court except on a reference made by ... there could be no choice but to interpret Sub-section (2) as restricting the power of the High Court regarding taking cognizance of the contempt of the subordinate Courts. Since no such words find place in Sub-section (2) of Section 15 it may not be inappropriate to interpret it in a manner so that it stands in harmony with Section 10 of the Act and Article 215 of the Constitution. Interpreting Section 15(2) in that manner, it should mean that it also confers a power on the Court concerned, on the Advocate General and, in relation to Union territory, on such Law Officer as the Central Government may notify, to move this Court to take cognizance of the contempt of the inferior Court. As already stated earlier, the High Court already possessed power by virtue of Article 215 of the Constitution to take cognizance of the contempts of the Subordinate Court as well and Section 10 of the 1971 Act recognised that power. It was, therefore, not necessary for the Legislature to repeat in Section 15(2) that a High Court can also take action suo motu for punishing contempt of the subordinate Court. On the other hand nothing contained in Article 215 of the Constitution or Section 10 of the Act gave any right to a subordinate Court, of which the contempt is committed or to a Law Officer of the Government to move the Court for punishing the contempt of a subordinate Court. The Legislature, therefore enacted Section 15(2) merely to confer that power on the Court of which the contempt is committed as also on the Principal Law Officer of the Government.
23. A reference was made by learned Counsel for the opposite party to Article 225 of the Constitution and urged that by necessary implication Article 215 gives a power to the appropriate Legislature to make laws regarding the jurisdiction of and the law administered in any existing High Court. Learned Counsel urged since a provision contained in the. Constitution itself conferred such a power on the appropriate Legislature, it was not beyond the competence of the Parliament to enact Section 15(2) of the 1971 Act in the shape in which it exists. Learned Counsel further urged that if this argument is correct, there should be no difficulty in Section 15(2) being interpreted to mean that, in the case of any criminal contempt of a subordinate Court the jurisdiction of the High Court has been restricted inasmuch as it cannot take cognizance of it except on a reference made by the Court concerned or on a reference made by an Advocate General and, in relation to Union territory, by such other Law Officer as may be notified by the Central Government.
We have given our careful thought to this argument, but we are not impressed with it. Article 225 only means that every existing High Court shall exercise the same jurisdiction and power as exercised or possessed immediately before the announcement of the Constitution, but if there is any provision to the contrary in the Constitution or if the appropriate Legislature makes any law in regard thereto, the existing jurisdiction of the High Court shall stand modified in accordance with the provision contained in the Constitution or with the law made by the appropriate Legislature as the case may be. We fail to read anything in Article 225 of the Constitution conferring power on the Legislature to make a law which may restrict the power that a High Court now possesses under Article 215 of the Constitution. In fact learned Counsel for the opposite party himself conceded that if the words 'on its own motion' did not exist in Sub-section (1) of Section 15, or there were any other words disabling the High Court to take cognizance of its own contempt except on a motion made by the Advocate General or by any other person with the consent of the Advocate General, it would have run counter to Article 215 of the Constitution and would have rendered the provision illegal. We have however, already stated that Article 215 not only confers on the High Courts the power to punish its own contempt but also preserves to it or confers the power to punish the contempt of a subordinate Court. Therefore, if anything contained in Section 15 disabling the High Court from taking cognizance of its contempt on its own motion would have rendered the provision illegal there is no reason why such a restriction on the power of the High Court to take cognizance of the contempt of a subordinate Court, if read in Section 15(2) of the Act, should not be held to be illegal and ultra vires.
24. The argument raised by learned Counsel for the opposite party that Article 225 confers a power on the Parliament to enact a law restricting the power of the High Court to take cognizance of the contempt of the subordinate Court and that Section 15(2) of the 1971 Act should be interpreted to be imposing such a restriction on the power of the High Court cannot therefore be accepted.
25. We have however already held that Section 15(2) of the 1971 Act properly interpreted, does not restrict the power of the High Court to punish contempt of the subordinate Court on its own motion and that it merely confers a power on the Court of which the contempt is committed and on the Principal Law Officer of the Government concerned also to move the Court for punishing such a contempt.
26. The result, therefore, is that the contention raised by learned Counsel for the opposite party challenging jurisdiction of this Court to suo motu take cognizance of its own contempt and of the contempt alleged to have been committed by the O. P. of his own Court is rejected.
