PETITIONER:
SUKHDEV SINGH SODHI
Vs.
RESPONDENT:
THE CHIEF JUSTICE AND JUDGESOF THE PEPSU HIGH COURT.
DATE OF JUDGMENT:
25/11/1953
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
MUKHERJEA, B.K.
BHAGWATI, NATWARLAL H.
CITATION:
1954 AIR 186 1954 SCR 454
CITATOR INFO :
R 1963 SC 692 (16)
R 1971 SC1132 (83)
R 1972 SC 858 (5)
RF 1991 SC2176 (1-1 13,21,25)
R 1992 SC 904 (15,18,19,22,37,40)
ACT:
Contempt of court-Contempt of Judges of High Court-Power
of Supreme Court to transfer proceedings to another High
Court - Criminal Procedure Code, 1898, ss. 1(2), 527-
Constitution of India, art. 215-Contempt of Courts Act,
1952, s. 3.
HEADNOTE:
The Supreme Court has no power under section 527 of the
Criminal Procedure Code or under any other provision of law
to transfer from a High Court,. proceedings which that High
Court has initiated for contempt of itself, to another High
Court.
Section 527 of the Criminal Procedure Code does not apply
to such a case as the power of a High Court to institute
proceedings for contempt of itself and to punish the
contemner where necessary, is a special jurisdiction which
is inherent in all courts of record and section 1 (2) of the
Criminal Procedure Code excludes such special jurisdictions
'from its scope.
It-is desirable, on general principles of justice, that a
judge who has been personally attacked should not as far as
possible bear a contempt matter which, to that extent,
concerns him personally.
In re Abdool and Mahtab(8 W.R. Cr. 32),
Surendranath Banerjea v. Chief justice and Judges of the
High Court of Bengal (10 I.A. 171), Abdul Hasan Jauhar
(I.L.R. 48 All.711), In the matter of Sashi Bhushan
Sarbadhicary (I.L.R. 29 All. 95), Crown v. Sayyad Habib
(I.L.R. 6 Lah. 528 F.B1.), In re Abdul Hasan Jauhar (I.L.R
48.All 711), In the matter of Muslim Outlook, Lahore (A.I.R
1927 Lah. 610), In re Murli Manohar Prasad (I.L.R 8 Pat. 323
) Harikrishen Lal v. The Crown (I.L.R. 18 Lah. 69) Ambard v.
Attorney-Geneneral for Trinidad & Tobago ([1936] A.C. 322),
William Raini v. The Justices of Sierre Leone (8 Moo. P.C.
47), In the matter of K. L. Gauba (I.L.R. 23 Lah. 411),
Parashuram Detaram v. Emperor (A.I.R. 1945 P. C. 134),
Emperor v.
455
B. G. Horniman (A.I.R. 1945 All. 1), In re Pollard
(L. R. P. C. 106), In re Vallabhdas (I.L.R. 27 Bom.
394) and Ebrahim Mamoojee Parekh v. King Emperor (I.L.R. 4
Rang- 257) referred to,
JUDGMENT:
ORIGINAL JURISDICTION : Petition .(No. 304 of 1953)
under section 527 of the Criminal Procedure Code.
H. J. Umrigar for the appellant.
M. C. Setalvad, attorney-General for India (G. N.
loshi, with him) for the respondent.
1953. November 25. The Judgment of the Court was
delivered by
BOSE J.-This is an unusual application asking for a
transfer of certain contempt proceedings from the Pepsu High
Court to any other High Court and, in the alternative,
askinG that at least the matter should not be heard by two
-of the judges of that High Court who -are named. This at
once raises a question about our jurisdiction to order such
a transfer.
The learned counsel for the applicant relied on section
527 of the Criminal Procedure Code. Briefly his reasoning.
was this. Section 527 authorises the transfer of any “case”
from one High Court to another whenever it is made to appear
to the Supreme Court that such transfer is expedient for the
ends of justice. The word “‘case” is not defined but
“offence” is ,defined in section 4 (o) to mean “any act or
omission made punishable by any law for the time being in
-force.” Contempt is punishable under the Contempt .of
Courts Act, 1952, therefore it is an offence punish-able by
a law which is in force ; consequently, it is an offence.
Being an offence it is triable under the Criminal Procedure
Code because section 5 makes the Code applicable not only to
the trial of offences under the. Indian Penal Code but also
to the trial of offences against “other laws.” As it is a
matter triable under the Criminal Procedure Code it must be
a “case” within the meaning of section 527 and accordingly
the section can be invoked here.
We are unable to agree. In our opinion, the power ,of a
High Court to institute proceedings for contempt
456
and punish where necessary is a special jurisdiction which
is,inherent in all courts of record section 1(2) of the Code
expressly excludes special jurisdictions from its scope.
The section runs-
“In the absence of any specific provision to the
contrary, nothing herein contained shall affect any
special…… law now in force or any special jurisdiction
or power conferred by I any other law for the time be’ in
force.”
The term “special jurisdiction’ is not defined in the
Criminal Procedure Code but the words “special law” are
defined in section 41 of the Indian Penal Code to mean “a
law applicable to a particular subject.” In the absence of
any specific definition in the Criminal Procedure Code we
think that that brings out the ordinary and natural meaning
of the words “special jurisdiction” and covers the present
case. Contempt is a special subject and the jurisdiction is
conferred ‘by a special set of laws peculiar to courts of
record.
This has long been the view in India. In 1867 Peacok C.
J. laid down the rule quite broadly in these words in In re
Abdool and Mahtab (1):
“there can be no doubt that every court of record has the
power of summarily punishing for contempt.”
It is true the same learned Judge sitting in the Privy
Council in 1883 traced the origin of the power in the case I
of the Calcutta, Bombay and Madras High Courts to the common
law of England [see Surendranath Banerjea v. Chief justice
and Judges of the High Court of Bengal(2)], but it is
evident from other decisions of the judicial Committee that
the jurisdiction is broader based than that. But however
that may be, Sir Barnes Peacock made it clear that the words
“any other law” in section 5 of the Criminal Procedure Code
do not cover contempt of a kind punishable summarily by the
three Chartered High Court.
Now it is relevant to note in this connection that
whatever the origin of the jurisdiction may be in the
(1) (1867) 8 W.R. Cr. 32 at 33.
(2) (1883) 10 I.A. 171 at 179.
457
case of those three courts, the Charter of 1774 which
established the Supreme Court of Bengal, while providing in
clause 4 that its Judges should have the same jurisdiction
as the Court of, King’s Bench in England, also expressly
stated in clause 21 that the court is empowered to punish
for contempt. When the Supreme Court of Bengal was
abolished the High Courts Act of 1861 continued those powers
to the Chartered High Courts by sections 9 and 11 and clause
2 of the Letters Patent of the year 1865 continued them as
courts of record. Despite this, in 1883 the Privy Council
did not trace this particular jurisdiction of the Calcutta
High Court to clause 15 of its Charter but to the common law
of England. But what is the common law ? It is simply this:
that the jurisdiction to punish for contempt is something
inherent in every court of record. Sulaiman J. collected a
number of English authorities at pages 728 to 730 of his
judgment in In re Abdul Hasan Jauhar (I and concluded thus:
“These leading cases unmistakably show that the power of
the High Court in England to deal with the contempt of
inferior courts is based not so much on its historical
foundation as on the High Court’s inherent jurisdiction.”
Apparently, because of this the Privy Council held in
1853 that the Recorder’s Court at Sierre Leone also had
jurisdiction to punish for contempt, not because that court
had inherited the jurisdiction of the English courts but
because it was a court of record. Their Lordships’ language
was this:
“In this country every court of record is the sole and
exclusive judge of what amounts to a contempt of
court……… and unless there exists a difference in the
constitution of the Recorder’s Court at Sierre Leone the
same power must be conceded to be inherent in that
court…… we are of opinion that it is a court of record
and that the law must be considered the same there as in
this country.”
(1) (1926) I.L.R. 48 All. 711 .
458
The 1884 edition of Belchamber’s Practice of the Civil
Courts also says at ‘page 241 that-
“Every superior court of record, whether in ‘the United
Kingdom, or in the colonial’ possessions or dependencies of
the Crown has inherent’ power to punish contempts, without
its precincts, as well as in facie
curiae………………….
So also 7 Halsbury’s Laws of England (Hailsham edition)
page 2-
“The superior courts have an inherent jurisdiction to
punish criminal contempt etc…………..”
“But reverting to the developments in India. The High
Court of Allahabad was established in 1866 under the
High Courts Act of 1861 and was constituted a court of
record. In 1906 the Privy Council remarked at page 108 of
its judgment in In the matter of Sashi Bhushan Sarbadhicary
(1) that-
“There is also no doubt that the publication of this libel
constituted a contempt of court which might have been dealt
with by the High Court in a summary manner by fine or
imprisonment or both.”
After this came the Government of India Act, 1915.
Section 106 continued to all High Courts then in existence
the same jurisdiction, powers and authority as they had at
the commencement of that Act, and section 113 empowered the
establishment of new High Courts by Letters Patent with
authority to vest in them the same jurisdiction, powers and
authority “as are vested in or may be conferred on any High
Court existing at the commencement of this Act.”
The Lahore High Court was established by Letters Patent
in 1919 and was duly constituted a court of record. In the
year 1925 a Special Bench of that court punished a contempt
of itself in Crown v. Sayyad Habib(2).
After this the question was again agitated in the
Allahabad High Court in 1926 but this time in respect of a
contempt of a subordinate court. A Full Bench was convened
and the learned Judges reaffirmed their
(1) (1907) I.L.R. 29 All. 95.
(2) 1925 I.L.R. 6 Lah. 528 (F.B).
459
powers: In re Abdul Hasan Jauhar (1). Two of the Judges
based broadly on the inherent jurisdiction of a court of
record. Sulaiman J, said at page 727 that “it is not the
territorial limits of the jurisdiction of a Supreme Court”
[of Bengal] “but the very nature of its constitution that is
of importance.” Boys J. however preferred to ground on the
fact that that court “had conferred on it, by the statute
and the Letters Patent creating it, similar powers to those
conferred on the High Court of Calcutta,” and at page 733
went on to say that that applied “to every other High Court
in this country.”
In the presence of all this history the Contempt of
Courts Act, 1926, was passed. The heading states that the
Act is “to define and limit the powers of certain courts in
Punishing contempts of courts.” The preamble states-
“Whereas doubts have arisen as to the powers of a High
Court of Judicature to punish contempts of courts and
whereas it is expedient to resolve these doubts and to
define and limit the powers exercisable by High Courts and
Chief Courts in punishing contempts of court : It is hereby
enacted as follows Section 2 says :-
“Subject to the provisions of sub-section (3), 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 contempts of courts subordinate to
them as they have and exercise in respect of contempts of
themselves.”
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
(1) (1926) I.L.R. 48 All. 711.
460
Act is intended to remove doubts about the, High Coures
powers it is evident that it would have conferred those
powers had there been any doubt about the High Court’s power
to commit for contempts 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. It also limited the amount of
punishment which a High Court could inflict.
Now this recognises an existing power in all Letters
Patent- High Courts to punish and as the Letters Patent High
Courts other than the Chartered High Courts could not have
derived this power from the common law, it is evident that
the power must have been inherent in themselves because they
were courts of record.
In 1927 another Full Bench of the Lahore High Court
consisting of five judges re-examined the position: In the
matter of Muslim Outlook, Lahore(‘ They reaffirmed their
earlier decision in The Crown v. Sayyad Habib (2) and held
that this jurisdiction is inherent in every High Court and
not merely in the three Chartered High Courts.
In 1928 a Full Bench of the Patna High Court examined
the matter [In re Murli Manohar Prasad(3)] and then
committed for contempt. In 1936 another Special Bench of
the Lahore High Court [Harkishen Lai v. The Crown(4)]
followed the earlier Lahore decisions.
The Privy Council decided a case of contempt from
Trinidad in 1936 [Ambard v. Attorney-General for Trinidad &
Tobago(5)] and held that it was a quasicriminal offence and
in the course of their judgement they referred to an earlier
decision of the Be from Sierre Leone to which we have
already referred [William Rainy v. The Justices of Sierre
Leone(6)]. In the Trinidad case their Lordships did not
accept the extreme proposition that every court of record is
the
(1) A.I.R. 1927 Lah. 610.
(2) (1925) I.L.R. 6 Lah. 528.
(3) (1929) I.L.R. 8 Pat. 323.
(4) (1937) I.L.R. 18 Lab. 69.
(5) [1936] A.C. 322.
(6) 8 Moo. P.C. 47.
461
sole and exclusive judge of what amounts,to a contempt
because of their decision in Surendranath Banerjea v. the
Chief Justice and Judges of the High Court of Bengal(1), but
they did not doubt the soundness of the decision otherwise.
In 1942 the Lahore High Court examined the position in a
Full Bench for the third time and reached the same
conclusion: In the matter of K. L. Gauba(2). This time they
pointed out that the Sind, Rangoon and Nagpur High Courts
had also punished summarily for contempts. They also
referred to two American decisions where, though the power
was said to have been derived from the common law, it was
said that.
“The power to fine and imprison for contempt from the
earliest history of jurisprudence has been regarded as a
necessary incident and attribute of a court without which it
could no more exist than without a judge…………
Finally, in Parashuram Detaram v. Emperor(3 ) the Privy
Council said that “this summary power of punishing for
contempt………. is a power which a court must of
necessity possess.”
We have omitted references to the Bombay and Madras
decisions after 1883 because the judicial Committee settled
the powers of the three Chartered High Courts. What we are
at pains to show is that, apart from the Chartered High
Courts, practically every other High Court in India has
exercised the jurisdiction and where its authority has been
challenged each has held that it is a jurisdiction inherent
in a court of record from the very nature of the court
itself. This is important when we come to construe the
later legislation because by this time it Was judicially
accepted throughout India that the jurisdiction was a
special one inherent in the very nature of the court. The
only discordant note that we know of was struck in Emperor
v. B. G. Horniman(4) where a Division Bench of the Allahabad
(1) (1883) 10 I.A. 171.
(2) (1942) I.L.R. 23 Lah. 411.
(3) A.I.R. 1945 P.C. 134 at 136.
(4) A.I.R. 1945 All at 4.
462
High Court 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 because of the
words “any other law” in section 5. 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 the 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
before.
The Pepsu High Court was established in 1948 and section
33 of the Ordinance which established it recites that it
shall be a court of record and that it shall have ‘power to
punish for contempt. It will be remembered that the Charter
of 1774 which established a Supreme Court for Bengal said
the same thing of that court and yet the Privy Council did
not trace its powers about contempt from the Charter but
from the common law. In the same way, the law by this time
was so well settled in matters of contempt that the words
“court of record” and “power to punish for contempt” had
acquired a special meaning. Consequently, it is immaterial
whether in 1948 the power of the Pepsu High Court was
derived from section 33 or was inherent in the nature of the
court because whichever it is the jurisdiction is a special
one, and had the legislature desired to take it away and
confer another kind of jurisdiction it would have been
necessary to use express words in, view of the case law
which by then had become well established.
In 1950 came the Constitution of India and article 215
states that-
“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.”
Here again, whether this is a fresh, conferral of power
or a continuation of existing powers hardly matters because
whichever way it is viewed the jurisdiction is a special one
and so is outside the purview of the Criminal Procedure
Code.
463
The Contempt of Courts Act, 1926, was repealed by Act
XXXII 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, powers and authority “in accordance
with the same procedure and practice.” These words are new
and would be inappropriate if the Criminal Procedure Code
applied. In any case, so far as contempt of a High Court
itself is concerned, as distinct from one of a subordinate
court, the Constitution vests these rights in every High
Court, so no Act of a legislature could take away that
jurisdiction and confer it afresh by virtue of its own
authority. It is true section 5 expands the ambit of the
authority beyond what was till then considered to be
possible but it does not confer a new jurisdiction. It
merely widens the scope of an existing jurisdiction of a
very special kind.
On reflection it will be apparent that the Code could
not be called in aid in such cases, for if the Code applies
it must apply in its entirety and in that event how could
such proceedings be instituted ? The maximum punishment is
now limited to six month’s simple imprisonment or a fine of
Rs. 2,000 or both because of the 1952 Act. Therefore, under
the second schedule to the Code contempt would be triable by
a Magistrate and not by a High Court and the procedure would
have to be a summons procedure. That would take away the
right of a High Court to deal with the matter summarily and
punish, a right which was well established by the case law
up to 1945 and which no subsequent legislation has attempted
to remove. So also section 556 could not apply, nor would
the rule which prohibits a judge from importing his own
knowledge of the facts into the case. We hold therefore
that the Code of Criminal Procedure does not apply in
matters of contempt triable by the High Court. The High
Court can deal with it summarily and adopt its own
464
procedure. All that is necessary is that the procedure is
fair and that the contemner is made aware of the charge
against him and given a fair and reasonable opportunity to
defend himself. This rule was laid down by the Privy
Council in In re Pollard(1) and was followed in India and in
Burma in In re Vallabhdas(2) and Ebrahim Mamoojee Parekh v.
King Emperor(3) In our view that is still the law.
If the Code of Criminal Procedure does not apply, then
there is no other power which we can exercise. The
Constitution gives every High Court the right and the power
to punish a contempt of itself. If we were to order a
transfer to another court in this case we would be depriving
the Pepsu High Court of the right which is so vested, in it.
We have no more power to do that than has a legislature. As
for transfer from one judge to another, there again there is
no original jurisdiction which we can exercise. It is not a
fundamental right and so article 32 has no application and
there is no other law to which recourse can be had. This
petition is therefore incompetent and must be dismissed.
We wish however to add that though we have no power to
order a transfer in an original petition of this kind we
consider it desirable on general principles of justice that
a judge who has been personally attacked should not as far
as possible hear a contempt matter which, to that extent,
concerns him personal1y It is otherwise when the attack is
not directed against him personally. We do not lay down any
general rule because there may be cases where that is
impossible, as for example in a court where there is only
one judge or two and both are attacked. Other cases may
also arise where it is more convenient and proper for the
judge to deal with the matter himself, as for example in a
contempt in facie curioe. All we say is that this must be
left to the good sense of the judges themselves who, we are
confident, will
(1) L.R. 2 P.C. 106 at 120.
(2) I.L.R. 27 Bom. 394 at 399.
(3) I.L.R. 4 Rang. 257 at 259-261.
465
comport, themselves with that dispassionate dignity and
decorum which befits their high office and will bear in mind
the oft quoted maxim that justice must not only be done but
must be seen to be done by all concerned and most
particularly by an accused person’ who should, always be
given, as far as that is humanly possible,, A feeling of
confidence that he will receive a fair, just and impartial
trial by judges who have no personal interest or concern in
his case.
Petition dismissed.
Agent for the petitioner : Ratnaparkhi Anant Govind.
Agent for the respondent G. H. Rajadhyakska.