Advocates can move contempt petitions against improper behaviour of judges
A.I.R. 1949 Lahore-470
In this case a magistrate called an advocate, “This foolish advocate” and the magistrate was found guilty of contempt and sentenced to imprisonment. Even if a judge ill-treats a witness it amounts to contempt. Advocates should move contempt petitions against improper behaviour of judges, instead of calling for boycott of courts.It is better to make a fair comment in writing about the contemptuous behaviour of the judge and give it to the judge before filing a contempt petition. If the judge apologizes the advocate may give him a second chance. Introducing mandatory video record of all court proceedings will facilitate proof in such cases.
Harish Chandra Mishra And Ors. vs Hon'Ble Mr. Justice Ali Ahmad on 28 September, 1985
Equivalent citations: 1986 (34) BLJR 63
Author: N Singh
Bench: N Singh, S Choudhuri, U Sinha, B P Sinha, P Sahay
JUDGMENT N.P. Singh, J.
1. Three Advocates of this Court have filed this application alleging that a Judge of this Court has committed contempt of Court by making, insulting and uncharitable remarks against an Advocate Dr. Sadanand Jha. While hearing a civil revision application for admission.
2. The civil revision application had been listed before S. Ali Ahmad, J., a Judge of this Court (hereinafter to be referred to as 'the opposite party' for admission on 19.7.1985. According to the petitioners' after the luncheon interval when the opposite party took his Seat Mr. Syed Imam Ali, Advocate mentioned to the court a caveat petition and an affidavit had been filed on behalf of opposite party No. 3 of that case, and, as such, the petitioner of that civil revision application be directed to hand over a copy of the petition to the caveator so that a proper counter-affidavit may be filed. He also made a prayer for adjournment of the case for a week. On this the opposite party asked the counsel for the petitioner of that case as to whether he was agreeable to the suggestion made by Mr. Syed Imam Ali. Mr. Naseem Ahmad, who appeared for the petitioner of that application, replied that he will have no objection to the adjournment, provided the operation of the order under revision was stayed. Then Mr. Syed Imam Ali said that the opposite party No. 3 had already come in possession, and, as such, staying the operation of the impugned order shall not be fair and only an order for maintaining status quo be passed. The counsel for the petitioner did not agree to this suggestion. On that the opposite party said that he shall pass the order when the case shall be called out in its natural turn. It has been stated that apart from Mr. Syed Imam Ali, Dr. Sadanand Jha, petitioners 1 and 2 had also been engaged on behalf of opposite party No. 3 aforesaid. When the case was called out for admission Mr. Balbhadra Prasad Singh, Senior Advocate, addressed the Court on behalf of the petitioner of that application and gave the background under which the civil revision application had been filed. The opposite party then called upon Mr. Syed Imam Ali and asked him whether he wanted time in that very case which was replied in affirmative. The opposite party then observed that if he adjourned the case for a week then he shall stay the operation of the impugned order. Upon this Mr. Syed Imam Ali again requested that only an order for maintaining status quo be passed because opposite party No. 3 had already come in possession. The opposite party replied that he usually did not pass status quo orders as he himself did not know what was meant by status quo. On this Mr. Syed Imam Ali prayed that the application itself be heard on merit because it was not maintainable. Thereafter, Mr. Balbhadra Prasad Singh resumed his argument. What happened thereafter has been stated in paragraphs 14 and 15 of the present application which are as follows:
14. After Mr. Balbhadra Pd. Singh finished his arguments, S. Ali Ahmad, J. started dictating the orders that Sri Syed Imam Ali put an appearance on behalf of Opposite party No. 3, the petitioner should give a copy of the petition to him and the case be adjourned to the 30th of July, 1985 in the mean time the operation of appellate judgment shall remain stayed. Mr. Syed Imam Ali then stood up and said that the civil revision may be heard for admission matter on Tuesday or Monday itself, but the counsel for the petitioners, Sri Balbhadra Pd. Singh said that he will be at Ranchi in the coming week. At this stage Dr. Sadanand Jha, an Advocate on behalf of the opposite party No. 3 got up and prayed to the court that if stay of the operation of the order is in question, the civil revision application itself may be heard on merits for admission and it should be either admitted or dismissed. S. Ali Ahmad J. remarked that an option had already been given to Mr. Syed Imam, Ali as to whether he would like adjournment with stay or arguments on merits for admission. Upon this Dr. Jha replied that Mr. Syed Imam Ali had already stated that if stay is to be be granted then they should be heard and the civil revision may either be admitted or dismissed' and only upon his saying so Mr. Balbhadra Prasad Singh was called upon to resume his argument and therefore the revision be heard on admission matter on merits. S. Ali Ahmad, J., then remarked to Dr. Jha 'You are present in the Court physically, but mentally you are elsewhere and therefore you missed my observation". Dr. Jha then replied "My Lord, It is really uncharitable that your Lordship say that I was Present in the Court physically but was mentally some where else. I was both physically and mentally present in the Court.
15. S. Ali Ahmad, J. became very angry upon this and he stated that 'It has become your habits to insult the Court'.
Dr. Jha said upon this that 'It has never been my practice or intention to insult any judge'. S. Ali Ahmad J. was so flared up at this that he said Peshkar call the constable, I will have him arrested'. After this S. Ali Ahmad, J., spoke for about 10 minutes in which he used the following terms and expressions towards Dr. S. N. Jha advocate--
You are a small fry and I would not even like to harm you because you are such a small fry. You have no knowledge and no understanding. With your habits you are doomed. I will not harm you but you will suffer from within and be doomed. I can tolerate a lot but there is a limit to it and once the limit is reached I am a very hardnut and remember that, I tell you that you will suffer internally and be doomed. Now-a-days it has become the faishon of the Bar to insult the judges. I tell you, you will weep. You cannot call me dishonest and partial'. These words 'dishonest and partial', were used by justice S. Ali Ahmad even though these were never used or meant by the counsel. Dr. Jha at this stage said 'I am sorry'. S. Ali Ahmad, J. again said 'You should be sorry and you would be sorry and again he said that 'you will suffer and you are doomed. Do not think with this attitude you will flourish or prosper.
Many of these expression were repeated several times, and lastly at about 3.35 P. M. he ordered that the civil revision be listed before another Bench, he rose up and left the Court.
According to the petitioners, the opposite party by the aforesaid remarks made by him has committed contempt of his own court by interfering and obstructing the administration of justice.
3. It was essential to preserve the discipline, while administering justice, was realised centuries ago when Anglo Saxon Laws developed the concept of contempt of court and for punishment therefor. The acts which tend to obstruct the course of justice really threaten the very administration of justice. By several pronouncements such acts which tend to obstruct or interfere with the course of justice were identified and were grouped into 'civil contempt' and 'criminal contempt'. However, for a long time they were never defined leaving it to the courts to give their verdict whether under particular set of circumstances any such offence has been committed or not. Even in India in the earlier two Acts of the years 1926 and 1952 relating to Contempt of Courts the expression 'contempt of court' was not defined. However, in the Contempt of Courts Act, 1971 (hereinafter to be referred to as 'the Act') the Parliament has purported to define 'civil contempt' and 'criminal contempt' separately. The Act has also introduced several new provisions under different sections, including prescribing the procedure for initiating proceedings for contempt. The relevant part of Section 15(1) with which we are concerned is as follows:
15. (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 of the "Advocate General".
On a plain reading, in respect of criminal contempt, the Supreme Court or a High Court may take action on its own motion or on a motion made by the Advocate General or any other person 'with the consent in writing of the Advocate General'.
4. The present application has neither been filed by the Advocate General nor with his consent in writing. According to the petitioners the requirement of the consent in writing in Section 15(1)(b) is directory in nature and that shall not be bar to the maintainability of the application specially when the application has been filed on behalf of some of the Advocates of this Court. In this connection reference was made to a judgment of the Karnataka High Court in case of S.N. Nagaraj v. Chikkachennappa 1981 Cr.L.J. 843 where it was observed that Section 15(1) was not couched in a negative language stating that no motion by a person other than the Advocate-General shall be entertained by the High Court without the consent of the Advocate-General; as such it was not intended to preclude the High Court from entertaining a petition filed by the aggrieved person. But at the same time it was also pointed out:
By construing Section 15(1)(b) as directory, we do not mean that the provision should be ignored or that the consent of the Advocate General provided for in Section 15(1) is of no importance at all. It is well settled that a directory provision also must be given due weight and should not be rendered useless. Therefore, having due regard to the purpose with which the above provision has been made, in all cases of motions made under Section 15(1)(b) of the Act where consent of Advocate-General is not obtained or it has been refused, the Court should take that circumstace into account. The Court may reject a petition presented without consent of Advacate-General or where consent has been refused, in limine.
Relianca was also placed on a decision of the Delhi High Court in the case of Subhash Chand v. S.N. Agarwala 1984 Cr.L.J. 481 where also a view was expressed supporting the decision of the Karnataka High Court aforesaid that the requirement of Section 15(1)(b) was directory. But having said so the Bench passed the order in the following words:
But assuming the provision of Section 15 of the Contempt of Courts Act are mandatory, we are not inclined to throw out the petition on this technical ground because the issue involved is of tremendous importance. There is nothing to prevent us from treating it as an action of our own motion and we accordingly order that the petition be treated as one on our own motion.
In my view the judgment aforesaid is not of much help to the petitioners because the section in that case was ultimately initiated suo motu.
5. The counsel for the petitioners also referred to the following observations of the Supreme Court in the case of Board of Revenue, U.P. v. Vinav Chandra in support of his contention that requirement of Section 15(1)(b) can be ignored under certain circumstances:
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 or on the basis of the information supplied.(sic) 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 is to safeguard the valuable time of the High Court or the Supreme Court from being wasted by frivolous complaints of contempt of court. (emphasis supplied).
I am not able to appreciate as to how aforesaid judgment of the Supreme Court helps the petitioners. The Supreme Court only pointed out that even if an application has been filed without the consent of the Advocate-General the Court has ample power to act suo motu on basis of information supplied.
6. On the other hand, in a series of cases different High Courts have taken the view that the restriction imposed on the power of the individual to initiate proceeding without the consent of the Advocate Genetal is with a purpose and it cannot be held to be a mere directory. Reference in this connection may be made to a Full Bench decision of the Orissa High Court in the case of B.K. Mishra v. Chief Justice Orissa High Court . In that case it was held that the petition asking for initiation of proceeding for criminal contempt without the consent of the Advocate-General was not maintainable as not being in accordance with the requirement of Section 15(1). Similarly, in the case of Dr. J.N. Gupta v. Dr. O.P. Chakarvarty and Anr. 1975 Cr.L.W. 164 a Bench of Allahabad High Court while rejecting an argument that the restriction imposen under Section 15(1)(a) and (b) was violative of Article 14 of the Constitution, Pointed out--
Article 14 prohibits class legislation, but does not prohibit reasonable classification. The Advocate-Geaeral holds a High Status and is supposed to act impartially in coming to a conclusion whether or not he should move the Court under Section 15, or give his consent in writing to any other person to move it. An ordinory citizen cannot belong to that group. Parliament thought that a restraint or check should be placed upon a citizen in a matter of criminal contempt for the sake of public good so that only tenable motions come before the Supreme Court or a High Court and the intervention of the Advocate-General was provided for that purpose. There is no discrimination inter se between one citizen and another. Both suffer under the same disability.
Even a Bench of Karnataka High Court in the case of N. Venkataramnnappa v. D.K. Naikar while rejecting the contention that even where the Advocate-General has declined to give his consent sought by the complainant under Section 15 of the Act such complainant was entitled to maintain the petition on the ground that the refusal of the consent by the Advocate-General was unjustified observed.
It appears to us that absolute discretion is vested in the Advocate-General in the matter of according consent under Section 15(1)(b) of the Act. Grant or refusal of consent by the Advocate-General under Section 15 of the Act, in our opinion, is not justiciable.
In the case of Sunil Keerthi v. The Union of India and Ors. 1975 A.I.R. 224 Karnataka it was held that for maintaining an application under Section 15(1) by a private individual the consent in writing of the Advocate-General was a must. Similarly in the case of Hari Krishan v. Narotam Dutt Shastri 1975 Cr.L.J. 1359 Chief Justice R.S. Pathak (as he then was) of the Himachal Pradesh High Court pointed out:
...When Section 15(1) of the Act requires that the motion should be made by the Advocate General, or a person with the consent in writing of the Advocate-General, it is for the mere purpose of ensuring that the High Court is not flooded with frivolous motions but receives only motions of substance. The Advocate-General has been entrusted with that function by virtue of his legal training and experience and the responsibility presumed in the holder of that office.
In the case of U.N.R. Rao v. M. Sharmmugavel the High Court had dismissed the application for initiating the proceeding for contempt by a private individual saying that it had been filed without the written consent of the Advocate General. On being informed that the aforesaid order had been passed by the High Court on a wrong assumption that there was no such consent whereas in fact, written consent of the Advocate General was on the record of the case, the Supreme Court remanded the case for disposal by the High Court. While setting aside the order of the High Court the Supreme Court did not say that the requirement being directory, the application should not have been dismissed; the order, was set aside because there was already compliance of rquirement of Section 15(1)(b). In my view, this judgment of the Supreme Court indirectly, supports the view that requirement of written consent in application for initiating proceeding for criminal contempt by private individual is a must. The framers of the Act consciously wanted to put a bar on the power of private individuals while charging any person for having committed criminal contempt of a court with an object to curtail vexatious petitioners for setting personal scrores, being filed by persons who are purporting to uphold the Majesty and dignity of court. A criminal contempt is primarily a matter between the court and the contemner and not a matter between a citizen and the contemner. Every citizen has no unfettered right in this respect because in some cases he may act more out of personal prestige and vendetta than out of motive to uphold the dignity of court. In order to safeguard such a situation the framers of the Act, thought it that a restriction should be imposed on such applications being filed directly and required them to be filed with the written consent of the Advocate General who holds a constitution al position and can scrutinise any such application before coming to court. In my opinion, the application filed on behalf of the petitioners without the consent in writting of the Advocate General cannot be entertained, and, as such, is not maintainable.
7. Faced with this situation, learned Counsel for the petitioners submitted that on the allegations made in the petition, this Court should initiate proceeding against the opposite party on its own motion because the conduct of the opposite party has obstructed the administration of Justice. There cannot be any dispute that even where an application filed on behalf of an individual or a citizen for initiating a proceeding for contempt is held to be not maintainable, certainly the information supplied in the such application can form basis for intiating a proceeding for contempt suo motu; a power which has been recognised for centruries and now has been incorporated in the statutory form under Section 15(1) itself.
8. On behalf of the petitioners it was urged that whatever may be the position prior to coming in force of the Act, now in view of Section 16(1) even a Judge of a High Court or of the Supreme Court can be held liable for having committed contempt of his own court. Section 16(1) is as follows:
16(1)--Subject to the provisions of any law for the time being in force, 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 provision of this act shall, so far as may be, apply accordingly.
In support of the contention that the expression 'Judge' used in Section 16(1) shall include a judge of a High Court and the Supreme Court, our attention was drawn to Section 14 of the Act. Section 14 enables the Supreme Court or High Court to cause any person to be detained in custody 'if such a person has been guilty of having committed contempt of court in view of the Supreme Court or High Court; in other words, in presence of Judges of the Supreme Court or the High Court. Sub-sections (2) and (3) of Section 14 which laying down the procedure for trial and conviction of such a person who has been taken in custody also uses the expressions' Judge or Judges in whose presence or hearing the offence is alleged to have been committed." So it was submitetd that if the expression "Judge or Judges" used in Section 14 refers to the Judge or Judges of the Supreme Court and High Court, even the expression' "Judge' used in Section 16 should be interpreted to include not only a Judge of the subordinate court but even a Judge of a High Court or the Supreme Court.
9. Articles 129 and 215 of the Constitution of India say that the Supreme Court and High Court shall be Court of Record and shall have all powers of such a Court including the power to punish for contempt of itself. The English Courts have always treated Courts of Record in respect of contempt proceeding, on a different footing from ordinary courts because it was not expected that Judges presiding over the different courts of record shall not maintain the dignity of their own court. Oswald in his Book 'Contempt of Court' (3rd. Edition) at page 20 has said as follows:
an action will not lie against a Judge of a Court of Record for a wrongful commitment in the exercise of his judicial duties, any more than for an erroneous judgment.
In the case of Hamond against Howell 86 E.R. 1035 it was observed:
There has not been one case put which carries any resemblance with this; those of justices of the peace and mayors of Corporations are weak instances neither hath any authority been urged of an action brought against a Judge of Record for doing any thing quantenus a Judge.
Again in the case of Garnett v. Ferrand and Anr. 108 E.R. 576 it was pointed out:
If, indeed, a Judge should act corruptly, either in the exclusion of any individual, or of the public from his court, or in giving an improper judgment, or in doing any other wrongful act in his judicial situation, he is liable to punishment by proceedings of a different nature; if a Judge of the Superior Courts, be may be proceeded against by impeachment; if of the Inferior Courts, by indictment or criminal information. No action at the suit of a private individual will lie against the Judge of a Court of Record for any act done by him in the exercise of his office., In Fray v. Blacburn 3 B&S 576 Crompton J. said:
It is a principle of our law that no action will lie against a Judge of one of the Superior Courts for a Judicial act, though it be alleged to have been done maliciously--The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the Judge, and prevent their being harassed by vexatious action.
The reason for affording protection to the Judges of the Courts of Record was fully stated in Scott v. Stausfield 1868 III L.R.Ex. 220 where it was pointed out:
It is essential in all courts that the Judges who are appointed to administer the law should be permitted to administer it under the protection of the law independently and freely, without favour and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. How could a judge so exercise his office if he were in daily and hourly fear of an action being brought against him, and having the question submitted to a jury whether a matter on which he had commented judicially was or was not relevant to the case before him.
In the case of Anderson v. Gorrie and Ors. 1895 (1) Q.B.D. 668 it was said:
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 in 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.
It was also observed:
To my mind there is no doubt that the proposition is true to the 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 is the honest exercise of his office.
In Halsbury's Law of England, 4th Edition, Vol. 9, at page 30 it has been stated as follows only in respect of judges of subordinate courts:
Judges of inferior courts are punishable by committal for acting unjustly, oppressively or irregularly in the execution of their duty, or for disobeying writs issued by the High Court requiring them to proceed or not to proceed in matters before them.
So far as English Courts are concerned, it is almost settled that Judges of Courts of Record cannot be charged for having committed contempt of court while exercising their judicial duties. Even in India in the case of K.L. Gauba v. The Hon'ble the Chief Justice and the Judges of the High Court of Judicature at Lahore and Anr. A.I.R. 1942 Federal Court a question had arisen whether Federal Court could take action, for contempt of court against High Court for refusal to grant certificate of fitness of the appeal. In that context it was observed:
If we assuse for the moment that a High Court can in such circumstances be guily of a contempt of this Court, what follows ? Even Mr. Gauba does not suggest punishment by fine or imprisonment; he would be content that the High Court should be served with an order to grant the certificate hitherto perversly or maliciously withheld. But what is that but to ask this Court to do by indirect means what it is admitted that it cannot do directly? The Law of contempt of Court has at times been stretched very far in British India; but no one has ever contended that a Court could use its power to punish for contempt for the purpose of extending its jurisdiction in other matters.
It apears that the framers of the Constitution on British pattern declared the Supreme Court and High Courts, Courts of Record by saying so in clear and unambiguous terms in Articles 129 and 215 of the Constitution.
10. Now it has to be examined as to whether the framers of the Act under Section 16 purported to put Judges of the Supreme Court and High Court at par with the Judges of the subordinate courts making them also liable to be punished under certain circumstances for having committed contempt of the Supreme Court or High Court itself. In this connection it has to be borne in mind that till the Act came in force, no Court in India had taken the view that a Judge of a High Court or the Supreme Court can also be charged for having committed contempt of the High Court or the Supreme Court. As such, before it is held that the expression' Judge in Section 16 of the Act includes a Judge of High Court or Supreme Court, it has to be established that the provisions of the Act purported to enlarge the scope of the Act by including categories of persons who had always been excluded from application of the law of contempt of courts.
11. In the statement of the Object and Reasons of the Act there is no indication that the scope of the Act was being enlarged. On the other hand, in the preamble it has been stated that it is an Act.
to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto." Section 9 of the Act is as follows:
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 22 of the Act also clearly states that the provisions of the Act" shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt of courts.
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 in force shall not be punishable as contempt of court under the Act. The provisions incorporated in the Act are supplemental to already existing law of contempt as interpreted by the Supreme Court and different High Courts. How 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 whiie adminstering justice and 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 in force neither the Supreme Court nor any High Court had held that even a Judge of the 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, "Nothwithstanding 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 Muhammad Shaft v. Quadir Bakhsh A.I.R. 1949 Lahore 270 and Bar Association and Library, Moradabad v. Kothari S.DM. 1966 All. W.R. (H.C.) 197. 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. In my opinion, it only gives statutory recognition in respect of contempt of court committed by Judges and Magistrates presiding over subordinate Courts.
12. Apart from that, by reading the different provisions of the Act it appears that wherever there is a reference to the Supreme Court or High Court in respect of initiation or conviction for contempt of court, it has been stated that Supreme Court or High Court has power to enquire, try, a proceeding for conetmpt of the Supreme Court or the High Court and to convict for the same. None of the provisions say that a Judge of the High Court or the Supreme Court can enquire, try or convict a person for having committed the contempt of the court of such Judge of the High Court or the Supreme Court. Relevant part of Sub-section (1) of Section 14 is as follows:
(1) When it is alleged, or appears to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and, at any time before the rising of the court, on the same day, or as early as possible thereafter--
This section which is specifically applicable only to the Supreme Court or the High Court does not say "When it is alleged or it appears to a Judge of the Supreme Court or High Court--".The reason is obvious. Whenever a contempt is committed in presence of a Judge of the Supreme Court or High Court it is not the contempt of the particular court in which such Judge is presiding but of the Supreme Court or the High Court, as the case may be. As such, when Section 16(1) says that "a Judge--Shall also be liable for contempt of his own court "(emphasis supplied) it obviously does not refer to the Supreme Court or High Court. In respect of Supreme Court or High Court there is no question of any Judge being liable for contempt of his own court, in other words, the court room in which such Judge is presiding. Only a Judge of subordinate court can be said to have committed contempt of his own court, i.e., the court in which such judge is presiding. If the framers of the Act wanted to include even the Supreme Court and High Court Judges under Section 16, then in normal course it was expected that it should have been specifically mentioned that a Judge of the Supreme Court or a High Court can be held liable for contempt of the Supreme Court or the High Court, as the case may be.
13. This question can be examined in another context as well. The framers of the Constitution in order to maintain the independence of higher judiciary kept them immune from the criticism in respect of their conduct even in the Parliament and legislature of the State by saying so in Articles 121 and 211 of the Constitution. They prescribed a special procedure for their removal under Articles 124(4) and 217(1)(b). For removal, even on the ground of proved misbehaviour or incapacity, an address by each House of Parliament supported by a majority of total membership of the House and by a majority of not less than two third of the members of that House Present, is a must. Then should we easily infer that having provided so much immunity and protection in respect of such Judges under the Constitution, the framers of the Act be merely using the expression Judge in Section 16 purported to include even the judges of the Supreme Court and High Courts so that they may be answerable in that very court in respect of their conduct while discharging the judicial duties ?
14. Learned Advocate General, who appeared to assist the Court, submitted that when constitution provides, under Article 124(5) a procedure for investigation of misbehaviour of Judges of the Supreme Court and High Courts it by necessary implication prohibits investigation at any other forum or any other manner. In this connection reliance was placed on the well known cases of Nazir Ahmad v. King Emperor A.I.R. 1936 P.C. 253 Taylor v. Tayler 1876 1 Ch.D. 426 and State of Uttar Padesh v. Singhara Singh and Ors. . In the aforesaid case of State of Uttar Pradesh, it was observed:
The rule adopted in Taylor v. Taylor is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised it necessarily prohibits the doing of the act in any other manner than that which has been prescribed.
Learned Advocate General rightly submitted that when framers of the Constitution have prescribed under Article 124(5) that parliament may by law regulate the procedure for investigation and proof for misbehaviour of a Judge then it should not be easily inferred that the Parliament while enacting the Act conceived parallel forums in the Supreme Court and in different High Courts for the investigation of the alleged misbehaviour of Judges while discharging their judicial functions and for their conviction, in contempt proceedings. It need not be pointed out that the constitutional protections given to the Supreme Court and High Court judges are not to protect such Judges but to maintain independedce of Judiciary which is one of the important features of the Indian Constitution.
15. On behalf of the petitioners, however, reliance was placed on the following observations of Lord Renning in his Book "The Due Process of Law":
In the old days, as I have said, there was a sharp distinction between the inferior court and the superior courts. Whatever may have been the reason for this distinction, it is no longer valid. There has been no case on the subject for the last one hundred years at least. And during this time our judicial system has changed out of all knowledge. So great is this change that it is now appropriate for us to consider the principles which should be applied to judicial acts. In this new age I would take my stand on this; as a matter of principle the Judges of superior courts have no greater claim to immunity than the judges of of the lower courts, livery judge of the courts of this land--from, the highest to the lowest-should be protected to the same degree, and liable to the same degree.
On behalf of the petitioners reference was also made in the view expressed by Shri V.G. Ramchandran in his Book' 'Contempt of Court', 5th Edition at page 730, where he has said as follows:
The remedy is not lost even if the offending Judge was a judge of the High Court. The matter can be heard by a specially consituted Bench of the High Court.
Merely on basis of the aforesaid views it cannot be held that after coining in force of the Act a Judge of the Supreme Court or High Court is also answerable to a charge of having committed contempt of the Supreme Court or the High Court for having conducted the proceeding of the Court in a manner which is objectionable to the members of the Bar.
16. There cannot be two opinions that Judges of the Supreme Court and High Courts are expected to conduct the proceedings of the Court in dignified, objective and courteous manners and without fear of contradiction it can be said that by and large the proceedings of the higher courts have been in accordance with well settled norms. On rare occasions complaints have been made about some outrageous or undignified behaviour. It has always been impressed that the dignity and majesty of court can be maintained only when the members of the Bar and Judges maintain their self imposed restriction while advancing the cause of the clients and rejecting submissions of the counsel who appear for such cause. But, it is difficult to lay down any hard and fast rule as to what expression a lawyer can use while addressing a court and what should ordinarily be tolerated by the judge. It is admitted on all counts that a counsel appearing before a court is entitled to press and pursue the cause of his client to the best of his ability while maintaining the dignity of the court. The Judge has also a reciprocal duty to perform and should not be discourteous to the counsel and has to maintain his respect in the eyes of clients and general public. This is, in my view, very important because the system through which justice is being administered cannot be effectively administered unless the two limbs of the court act in a harmonious manner. Oswald on Contempt of Court, 3rd Edition at page 54 remarked "an over subservient bar would have been one of the greatest misfortune that could happen to the administration of Justice." At the same time celebrated authors on Legal Ethics have pointed out that a lawyer should not conduct in a manner which lowers the dignity of the court or interferes with the administration of justice. Warvelle, on Legal Ethics at page 182 observes:
A lawyer is under obligation to do nothing that shall detract from the dignity of the court, of which he is himself a sworn officer and assistant. He should at all time pay deferential respect to the Judges, and scrupulously observe the decorum of the court-room.
Administration of Justice in, its true spirit is only possible when members of Bar and Bench both are conscious not only of their rights but also of their limitations, when case is being heard. Hyper sensitiveness on the one side or rudeness on the other must be avoided at all cost. It is not uncommon in history of the administration of justice that tempers have risen high on either side but only for moments and the members of the Bar and Bench have forgotten what passed between them no sonner the cases are over.
17. This application is, accordingly, dismissed in limine.
S.K. Choudhuri, J.
18. I had the advantage of going through the judgment prepared by N.P. Singh, J. In my opinion, Section 15(1)(b)of the Contempt of Courts Act, 1971 cannot be ignored and the petition cannot be filed ignoring the Advocate General. A person should in the first instance approach the Advocate General for his consent, who is supposed to act judiciously. Criminal contempt is primarily a matter between the court and the contemnor. If consent is refused, then ordinarily the court will be reluctant to entertain a petition for contempt unless in the opinion of the High Court the case is of such a nature and importance that the High Court should exercise its power suo motu. This view aforesaid, in my opinion, is the resultant of several decisions discussed in the judgment of N. P. Singh, J., on the point of maintainability.
19. With the rest of the judgment, I have nothing further to add and I agree.
Uday Sinha, J.
20. I agree with the judgments just delivered by N.P. Singh, J. and S.K. Choudhuri, J.
Birendra Prasad Sinha, J.
21. With greatest of respect for my learned Brethren it is not possible for me to agree with the proposition that the Judges of the High Courts and the Supreme Court are immune from a contempt of courts proceeding nor do I agree that an application filed without the consent in writing of the Advocate General is not maintainable.
22. I do not propose, however, to elaborate the reasons for my dissent, for, I agree that the present application should be dismissed but on other ground.
23. Section 15 of the Contempt of Court Act (hereinafter referred to as the Act) provides, inter alia, that the Supreme Court or the High Courts may take action on its own motion or on a motion made by the Advocate General or any other person with consent in writing of the Advocate General. In the case of S. K. Sarkar, Member Board of Revenue U.P. Lucknow v. Vinay Chandra Mishra it was observed that if the High Court is directly moved by a petition by a private person feeling aggrieved, the High Court has, in such a situation, a discretion to refuse or entertain the petition, or take cognizance on its own motion on the basis of the information supplied to it in that petition. A Bench of Karnatka High Court in the case of S.N. Nagaraja Rao v. Chikkachennappa and Ors. 1981 Cr.L.J. 843 has rightly pointed out that while construing Section 15(1)(b) of the Act as directory it did not mean that the provision should be ignored or that the consent of the Advocate General provided for in Section 15(1) was of no importance at all. A directory provision must be given due weight and should not be rendered useles. Having due regard to the purpose for which the above provision has been made in all cases of motions made under Section 15(1)(b) of the Act where consent of the Advocate General was not obtained or it had been refused the court take that circumstance into account and the court may reject the petition presented without consent of the Advocate General or where consent had been refused, in limine.
24. In paragraph 7 of the supplementary affidavit filed on behalf of the petitioners on 16-8-1985 it has been stated thus:
That the petitioners bring on record that the day before filing the instant contempt petition i.e. on 21-7-1985 the petitioners approached Shri R.B. Mahto the Advocate General of Bihar for giving his consent for filing the instant contept petition, but the Advocate General preferred to abstain himself from giving his consent advising the petitioners to defer the filing of the petition for some time during which he would like to settle the matter at his own level.
From the above it is clear that the learned Advocate General did neither give nor refuse consent on that date and wanted the petitioners to wait for a few days so that he could settle the matter at his own level. Ignoring this advise the petitioners filed the contempt petition the next day. In all fairness they should have waited for some time and should have approached the learned Advocate General at least once again whether or not he was willing to give consent.
25. The provision of Section 15(1)(b) of the Act is not just for nothing and cannot be dealt with in the manner it has been done in the present case. This provision has been inserted with a definite purpose so that unnecessary and provolus cases are not allowed to be brought before the court. The Advocate General of a State is the leader of the bar of the State. In the pre sent case the Advocate General wanted only a few days' time to look into the matter before either giving or refusing his consent but the petitioners were not willing to heed his advise. The Bench and the bar are the two vital limbs of our judicial system and nothing should be done on either side in haste to impair the age old cordial relationship between these two limbs. It is no mean achievement of this system that inspite of stains and stresses the Bench and the bar have maintained the ideal and harmonious relationship. When the Advocate General was trying to make some effort in this behalf the petitioners were only ill advised to pre empt the whole thing. This is a circumstance which has got to be considered while exercising the discretion of the court for taking any suo motu action on an application under Section 15(1)(b) of the Act. It is not a case where consent of the Advocate General has been refused. It is also not a case where consent of the Advocate General was not sought for at all. This is a case where after applying for the consent of the Advocate General the petitioners rushed to this Court when they were told by the Advocate General that he might settle the matter outside. I would not exercise my discretion is such a case in favour of the petitioners and dismiss the application on this point alone.
P.S. Sahay, J.
26. This is rather an unfortunate case, in which a Judge and a member of the Bar after a wordy duel in the midst of a case came to a clash, resulting in filing of this application, N.P. Singh, J. has rightly abserved that such things have happened in Court rooms in the past as well but they were happily buried in the spirit of forget and forgive. We judges, and the members of the Bar are the two limbs of the Court and all of us (who constitute this Full Bench) and the opposite party were members of the Bar previously. It is an unpleasant task and we have been asked to decide a point which has not been decided by any High Court in this country previously, Whether a Judge of a High Court can be punished for committing contempt of his own court while discharging his duties as a Judge. Therefore, we have to decide in accordance with law, without fear or favour. The point is not free from difficulty and a. case of first impression and, therefore, we had called upon the Advocate General to assist us in this matter.
27. N.P. Singh, J. has elaborately dealt with the facts, the relevant provisions and the case law and I do not propose to repeat them. In absence of the consent of the Advocate General, I fully agree that this application is not maintainable in view of Section 15(1)(b) of the Act. But, at the same time in appropriate cases, when the matter comes to the knowledge of the court, cognizance can be taken under Section 15(1) of the Act. From the facts stated in this application this is one of those cases which requires consideration, more so when the matter has been brought to our notice. A Judge has every right to control the proceedings of the court in a dignified manner and in a case of misbehaviour or misconduct on the part of a lawyer proceedings in the nature of contempt can be started against the lawyer concerned. But, at the same time a Judge cannot make personal remarks and use harsh words in open Court which may touch the dignity of a lawyer and bring him to disrepute in the eyes of his colleagues and litigants. Lawyars are also officers of the court and deserve the same respect and dignity which a Judge expects from the members of the Bar. In my opinion, this application cannot be brushed aside and has been rightly contended by the learned Counsel for the petitioners that the matter can be resolved only after issuance of notice to the opposite party.
28. But, the moot question for consideration is whether such a notice can be issued to a Judge of the High Court, for committing contempt of his own Court ? Section 16 has been quoted in extenso in the main judgment and it is not necessary to reproduce the same. Deso the expression "Judge" refers to the Judge of the High Courts or the Subordinate Judge alone has to be decided in this case'. "Judge" has not been defined under the Act of 1971 and in the previous Acts of 1926 and 1956 "Judges" of the High Courts were immune from the provisions of the two Acts. There are decisions that High Courts are Courts of Records and, therefore, empowered to initiate Contempt proceedings against Subordinate Courts. Now this has been incorporated in the Constitution and under Articles 129 and 215 Supreme Court and High Courts are Courts of Records. The argument that under the Act of 1971 the position is different and the decisions will not be attracted. But much will depend on the interpretation of Section 16 of the Act. In absence of any specific provision it has to be decided on the basis of some of the provisions of the Act, observations of the Supreme Court and High Courts and some of the Articles of the Constitution of India. Section 9 of the Act says in clear terms that the provisions of the Act of 1971 is not to imply enlargement of the scope of contempt and, therefore, it can be legitimately argued that though the word "Judge" has been used in Section 16, it cannot be stretched so as to include the Judges of the High Court and refers only to the Judges of the Subordinate Court. I have given my most anxious consideration to the submissions of Mr. Rash Bihari Singh and the Advocate General and the case laws discussed by N.P. Singh, J. and, in my opinion, it is not possible to accept the contention of Mr. Singh that a Judge of the High Court will also be liable for contempt under Section 16 of the Act.
29. I am also not prepared to accept the submissions of the learned Advocate General that a contempt committed by the Judge of the High Court will amount to misconduct and misbehaviour and action can be taken only by the Parliament according to the provisions of Articles 124(4) and 127(1)(b) of the Constitution of India. Impeachment of a Judge is an extreme step to be resorted to only in extra ordinary situation and, in my opinion, it will not for the prupose of punishing a Judge for committing contempt of his own Court. In that case what happened in Court rooms will be the subject matter of discussion in the Parliament which is completely prohibited under the law. Had the founding fathers of the Constitution this in mind then the Judge of the High Court should have been given the same protection which has been given to the President of India and the Governors under Article 361 of the Constitution of India. Therefore, the contention of the Advocate General is fit to be rejected.
30. For the fore-going reasons even if an arguable case is made out for the issuance of notice to the opposite party but the word "Judge", as referred to in Section 16 of the Act, completely excludes a Judge of the High Court and, in that view of the matter, the application will be futile and has to be dismissed.
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