JUDGMENT
Swatanter Kumar, C.J.
Page 1493
1. Undisputedly contempt is a matter primarily between the court and the contemnor. Contempt proceedings under the Contempt of Courts Act, 1971, can be initiated against the contemnor through any of the specified modes with and/or without consent of the specified authorities, depending upon the facts and circumstances of each case. The contempt jurisdiction vested in the court by development of law as well as under statutory provisions, has very wide and pervasive magnitude and scope. It is now well settled that independently, apart from the Contempt of Courts Act, or other statutory laws relating to the contempt, the Supreme Court and High Courts in terms of Article 215 of the Constitution, have also inherent powers to punish for contempt. In the case of R.L. Kapur v. State of Madras , the Supreme Court has pointed out that such inherent powers or jurisdiction was not derived from the statutory law relating to the contempt. The purpose of the contempt jurisdiction is primarily to ensure enforcement of orders of the court and to maintain the dignity of the judicial administrative system. The court may have to evolve its own procedure to be adopted by it for initiating or dealing with the contempt proceedings and punishing the contemnor. In the case of Dr. L.P. Mishra v. State of UP A.I.R. 1998 S.C. 337 the Supreme Court held that the powers and jurisdiction vested in the High Court has to be exercised in accordance with the procedure prescribed by law. The view then was expanded to say that the courts can evolve its own procedure, of course not contrary to the rules or principles of natural justice. The rule of law is the foundational feature of our Constitution of India and right to obtain judicial redress is the feature of this basic structure. It is through the court that the rule of law reveals its meaningful content. Protection of administrative justice was thus considered to be imperative for the civilised functioning of free and egalitarian social order. The law of contempt secures public respect and confidence. In the interest of judiciary, court can initiate proper process and conduct it in the administration of justice. The acts and conduct primarily actus reus, which are likely to destroy or impair such respect and confidence, need to be dealt with sternly in accordance with the percept of correct procedure. Tangled in the complexity of the procedural law and while examining the divergent views Page 1494 in relation to this procedural law of contempt, the learned Single Judge of this Court vide his order dated 24.1.2007 referred the matters to the larger Bench (Division Bench). The order of reference reads as under:
The question that arises in this application is : whether this Court has power to recall its own order and restore the main contempt petition, which was dismissed for non-appearance of the petitioner and his advocate.
2. According to the counsel for respondent Nos. 1 to 3, it is not open to this Court to recall the order dismissing the contempt petition for default or non-appearance, though. To buttress this submission, reliance is placed on three decisions of the single Judge of this Court reported in Panjabrao Sadashiorao Wankhede v. Rajeev Agrawal ; Damodar Sadashiv Agre v. K.K. Prasad and Ors. ; and Priti Karmarkar v. S.S. Bharasme and Ors. . On the other hand, counsel for the applicant has relied on another decision to which I was party in the case of Zynab Hydari v. State of Maharashtra and Ors. contend to the contrary.
3. In the present case, the order in question is simpliciter dismissing contempt petition for non-appearance of the petitioner and his advocate.
4. In the case of Panjabrao (supra), however, the contempt petition was not only dismissed for non-appearance, but the Court went on to drop the contempt proceedings as noted in the order dated 6th February 2003, reproduced in paragraph-4 of the said reported decision. In that sense, the Court expressed its mind not to precipitate the matter, which decision is inevitably on merits of the contempt action. In the case of Damodar Agre (supra) also, as noted in paragraph-2 of the reported judgment, it is obvious that the contempt petition was disposed of on the finding noted by the Court that no case of wilful disobedience on the part of the contemnors was established which, obviously, means that the decision was on merits. If the matter was to be decided on merits, it was not open to the court to review such order. This view has been taken by me in Metal Box India Ltd. v. State of Maharashtra and Ors. .
5. To my mind, if it is a case of dismissing the contempt petition simpliciter for default or for non-appearance of the petitioner, it would stand on a different footing. In that case, it will not be a review of the order passed on merits as such, but of exercising of inherent or plenary powers of the Court ex debito justitiae to undo the injustice or correct the mistake of the Court. However, difficulty arises on account of another decision of this Court in the case of Priti Karmarkar (supra). In that case, the petition was dismissed for want of prosecution as noted in first paragraph of the said judgment. The decision in the case of Priti Karmarkar (supra) as well as in the case of Damodar Agre (supra) both have been rendered by the same learned Judge on the same day i.e. 12th December 2005. But, the distinction of power to review and of Page 1495 recall has not been addressed – perhaps because the learned Judge was of the view that the decision in Zynab’s case (supra) was per incuriam. On perusal of both the reported decisions, it appears that except in paragraph-1 and the penultimate paragraph, remaining part of the said judgments are verbatim.
6. The proper course, to my mind, is to invite an authoritative decision on the point in issue, for which reason I am inclined to refer this matter to a larger bench.
7. Office to forthwith place the papers before the learned Chief Justice for necessary directions.
2. Thus all the matters specified in the title of the judgment raise a common question of law as to whether the contempt petitions, in some of which the court had issued notices and the others which were pending pre-notice stage, which were dismissed for default of appearance, can be restored to their original number and proceeded in accordance with the law or not. At the very outset we may refer to the order dated 17th July 2006 passed by the court while dismissing the contempt petitions in default. The order reads as under:
None appears for the petitioner. Dismissed for non-prosecution.
3. The submissions made on behalf of the applicants who have taken out civil applications for restoration of their petitions, can be summed up as follows:
The court has no power to dismiss a contempt petition for default of appearance, particularly when the court has applied its mind and issued notice to the contemnor. Even if above issue is answered in the negative, still if the court has power to dismiss, it obviously has power to restore. The procedure in contempt petition being procedure formulated by the court itself, the power to dismiss and restore should be read into the procedure and in any case would fall within the inherent powers of the court.
4. The inherent powers could be exercised to meet the ends of justice in so far as they were not violative or opposed to any statutory provisions even in contempt jurisdiction. In the case of dismissal for default the doctrine of double jeopardy has no application in as much as the contemnor is neither tried nor convicted or acquitted on the merits of the case. In some of the cases petitions were dismissed for negligence of the counsel for which the applicant should not be made to suffer and in any case the matter being contempt between the court and the contemnor, the order of dismissal is uncalled or in any case there has to be an inbuilt power for the court to direct restoration of the case. Rule 23 of the Rules framed by the High Court of Bombay contemplates that the Appellate Side Rules will mutatis mutandis be applicable to contempt proceedings.
5. As against the above, it was contended by the respondents that the contempt jurisdiction being special jurisdiction, the court, at best, can dismiss a contempt petition but would have no power to restore the petition. There is no specific power vested in court to pass an order of restoration. Thus as a principle of law dismissal of a contempt petition should put an end and, in fact, it amounts to discharge of contemnor or proceedings being Page 1496 dropped against the contemnor and restoration would be hit by the principles of double jeopardy.
6. The jurisdiction of contempt is very wide and, to certain extent, vests discretion in the court. This discretion has to be exercised with great caution and in consonance with the judicially settled canons of law. Abuse of process of the court is even punishable as a contempt. A person who misuses the court process, including forging or altering documents, deliberate suppression of facts to mislead the court, may be punishable as contempt. Even under English law jurisdiction contempt proceedings, criminal and/or civil, are regulated by the court in consonance with the various judicial dictum on the subject. It requires that the jurisdiction to commit a person for disobedience of judgment or order vests in the court whose judgment or order has been disobeyed and an application for committal must be made to the appropriate court. The power for committal in law is again a matter of power to be exercised with great care and the court in its discretion may decline to commit, if the contempt was of minor or technical nature. On the question of procedure and even punishment, where the order of imprisonment or imposition of other punishment is contemplated in law, in a given case discretion has been vested in court. It may grant injunction in lieu of committal. Elliot v. Klinger (1067) 3 All. E.R. 141. Even in the case where the rule is prima facie applicable, the court appears to retain a discretion whether or not to hear the party in contempt, and may in its discretion refuse to hear a party only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing his obedience.(Refer Halsbury’s Laws of England, 4th edition, volume 9 page 53). Dismissal for want of prosecution or for default is a matter which has been treated to be in the discretion of the court. Where a party is in default and there are express provisions, still the court may prescribe time limits for future conduct of any plaintiff and in non-compliance thereof, action can be dismissed. The court would take into consideration all circumstances, intent and hampering of course of justice, before dismissing an action for non-prosecution. An order dismissing an action for want of prosecution is not a decision on merits and does not operate as res-judicata( Halsbury’s Laws of England, 4th edition, vol 37).
7. In India, the jurisdiction of the court in contempt matters is again very wide. However, such jurisdiction would be exercised in terms of the procedure that the Court may specify or evolve. Such evolved process has to be in conformity with the principles of natural justice and basic rule of law, unless specific rules have been framed in accordance with the Contempt of Courts Act. A contemnor has a right to be heard. The concept which has emerged by consistent view of the Courts over a long period is that the contempt petition should be disposed of first and thereafter proceedings, out of which contempt arises should be dealt with. The Bench of the Madras High Court in the case of G.G. Suryakant and Ors. v. Leena Resorts Pvt. Ltd. and Anr. 1995 Criminal Law Journal 724, while referring to the discretionary powers vested in court, stated that in contempt proceedings an order of striking defence could not be passed by the court. The courts have also emphasised need to comply with the rules as the contempt jurisdiction involves liberty of subject, but Page 1497 every procedural defect or irregularity, not causing any prejudice to the person, the order need not be set aside. If there has been procedural irregularity or some other conduct in contempt proceedings, which has occasioned injustice, the court will consider exercising its power to order new trial unless there are circumstances which indicate that it would not be just to do so.(1997 2 All England Reports 97).
8. The Court’s power to punish for contempt is a power which is required in furtherance of proper administration of justice and preservation of authority of the court. This is one of the basic reasons that contempt is said to be a question which is essentially between the court and the contemnor. Equally settled is the principle that the court may evolve and adopt a procedure for initiation and decision of the contempt petition, whether civil or criminal. Such a procedure may be summary procedure, not strictly controlled by the laws of Criminal Procedure Code and/or for that matter Civil Procedure Code. The procedure adopted should be in consonance with the basic rule of law and principles of natural justice and essentially should not offend or be in contradiction to any specific rules framed by the legislature. In the case of D.N. Taneja v. Bhajanlal (1988) SCC 26 the court held as under:
10. There can be no doubt that whenever a court, tribunal or authority is vested with a jurisdiction to decide a matter, such jurisdiction can be exercised in deciding the matter in favour or against a person. For example, a civil court is conferred with the jurisdiction to decide a suit; the civil court will have undoubtedly the jurisdiction to decree the suit or dismiss the same. But when a court is conferred with the power or jurisdiction to act in a particular manner, the exercise of jurisdiction or the power will involve the acting in that particular manner, and in no other. Article 215 confers jurisdiction or power on the High Court to punish for contempt. The High Court can exercise its jurisdiction only by punishing for contempt. It is true that in considering a question whether the alleged contemner is guilty of contempt or not, the court hears the parties and considers the materials produced before it and, if necessary, examines witnesses and, thereafter, passes an order either acquitting or punishing him for contempt. When the High Court acquits the contemnor, the High Court does not exercise its jurisdiction for contempt, for such exercise will mean that the High Court should act in a particular manner, that is to say, by imposing punishment for contempt. So long as no punishment is imposed by the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt under Article 215 of the Constitution.
12. …A contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of th court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely ,the court and th contemnor. It may be one of the reasons which weighed with the Legislature in not conferring any right of appeal on the petitioner for contempt. The aggrieved party under Section 19(1) can only be the contemnor who has been punished for contempt of court.
Page 1498
9. The nature of the summary procedure again would be in the discretion of the court. The power to try and punish for contempt emerges from different sources, particularly before the High Court. It may relate to Article 215 of the Constitution of India, Sections 13 and 14 of the Contempt Courts Act and even under the provisions of Order 39 Rule 2A of Code of Civil Procedure. Whatever be the source of power, in all cases the procedure is regulated by the court in conformity with the statutory provisions, if any framed, and the basic rule of law. In the case of Pritam Pal v. High Court of M.P. Jabalpur though Registrar , the court, while considering larger question of the power of the High Court as stated in Article 215 of the Constitution and also the provisions of Cri.P.C. held as under:
Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a contempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the contemnor to defend himself. But the procedure has now been prescribed by Section 15 of the Act in exercise of the powers conferred by Entry 14, List III of the Schedule of the Constitution. Though the contempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by appropriate Legislature under Entry 77 of List I and Entry 14 of List III in exercise of which the Parliament has enacted the Act, 1971, the contempt jurisdiction of the Supreme Court and the High Court is given a constitutional foundation by declaring to be `Courts of Record’ under Article 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment. In fact, Section 22 of the Act lays down that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law relating to Contempt of Courts. It necessarily follows that the constitutional jurisdiction of the Supreme court and the High Court under Articles 129 and 215 cannot be curtailed by anything in the Act of 1971. The above position of law has been well settled by this Court in Sukhdev Singh Sodhi v. The Chief Justice and Judges of the Pepsu high Court 1954 S.C.R. 454 : A.I.R. 1954 SC 186, holding thus:
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
16. It has been further observed:
The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemnor is made aware of the charge against him and given a fair and reasonable opportunity to defend himself.
22. Yet another question whether the provisions of the Code of Criminal Procedure are applicable to such procedure has been negatively Page 1499 answered by this Court in Sukhdeo Singh Sodhi case A.I.R. 1954 SC 186 at p. 190 (supra) stating thus:
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 procedure. All that is necessary is that the procedure is fair and that the contemnor is made aware of the charge against him and given a fair and reasonable opportunity to defend himself.
As rightly pointed out by the High Court, these contentions in our opinion do not merit any consideration sine every High Court which is a court of Record is vested with `all powers’ of such court including the power to punish for contempt of itself and has inherent jurisdiction and inalienable right to uphold its dignity and authority.
The Full Bench of the Delhi High Court in the case The Court on its own motion v. Rajiv Khosla and Ors. Contempt Case (Cri) No. 2/2006 decided on 27th July 2006,with reference to the provisions of the Act, held as under:
It is a settled principle of law that the Court is at liberty to evolve and follow its own procedure while dealing and disposing of contempt petitions, unless specific rules in that regard have been framed under Section 23 of the Contempt of Courts Act (hereinafter referred to as the Act). The Delhi High Court as yet, has not framed any rules. Thus, the Court has to provide a procedure, which would be in conformity with the principle of natural justice, basic rule of law and would help in expeditious disposal of such matters. Provisions of Section 14 of the Act indicates what kind of procedure broadly the Court has to follow where in the view of the Court a person is guilty of contempt.
It is settled principles of law, which we have also noticed in our previous order dated 30th May 2006 that it is the seriousness of the irresponsible acts of the contemnors and degree of harm caused to the administration of justice, which would decisively determine whether the matter should be tried as a criminal contempt or not Aligarh Municipal Board v. Ekka Tonga Mazdoor Union A.I.R. 1970 SC 176.
In the case of Delhi Judicial Service Association v. State of Gujarat and Ors. , it was stated that the power to punish for contempt is vested in the Judges not for their personal protection only, but for the protection of public justice, whose interest requires that decency and decorum is preserved in Courts of Justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties. Any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognisance of such conduct.
The jurisdiction of contempt is an extraordinary jurisdiction and normally equated to quasi-criminal proceedings. Before a person can be punished Page 1500 for contempt there has to be definite material before the court to show his direct involvement in the offence of contempt except where the contempt is committed in the face of the court. The Act being the Code in itself provides full leverage to the court to adopt its own procedure particularly when no rules are framed and would equally apply to the standard of proof as well. The material before the court should be such so as to show reasonable, if not beyond doubt, the involvement of the contemnor and his intent to interfere with the administration of justice.
10. The court has to keep in mind a distinction, well accepted in law, of mandatory and directory provisions of Rules. Every sections of the Act or Rules cannot be mandatory, it will always depend upon the language of the provision, unless non compliance of such provision is of a nature which statutorily imposes obligation upon the court or tribunal to comply with the same and failure of which is prejudicial to the affected party. Wherever the provisions are directory and not mandatory, substantial compliance with such requirements would be sufficient compliance of law. See Messers Fedders Lloyd Corporation v. B.A. Lanxminarayana Swami and Anr. Again, whether an action under a statute is permissive or mandatory will depend upon the context as well. Strict compliance of mandatory provisions would depend upon the use of the language in a provision as well as objectives sought to be achieved by enforcement of the provisions. Noncompliance of mandatory provisions may invalidate the procedure, while non-compliance of directory provisions may not result in invalidation on the premise of substantial compliance. This needs to be discussed primarily for the reason that the provisions of the Contempt of Courts Act do not spell out any specific procedure to be adopted and the power in court is backed by the constitutional authority. This extends the scope of the power vested in court by exercising the self evolved procedure. Broad interpretative approach would show that the court is vested with discretionary power but with restrictions of law; exercise of power should not offend any statutory provision or rule and must be exercised with the intent to further the cause of justice, providing fair opportunity to the parties affected.
11. In the case of Dr D.V.K. Kesava Raju v. S.R. Govinda Rajan and Anr. 1990 Cri. L.J. 209, the Andhra Pradesh High Court took the view as under:
4. The word ‘procedure’ is comprehensive to encompass in its ambit-the manner of proceeding acting and conduct in relation to the action in question. The word `procedure’ “denotes-“the rule that make or guide the cursus cursise, and regulates the proceedings in a cause within the walls, or limits of the court itself.” It includes all steps which might be taken in the prosecution or defence thereof, including the necessary and incidental steps to render substantive justice. The rules of procedure are steps in aid and handmaid to render substantial justice. But it is not an end in itself.
6. Where there is no express provision under the Civil P.C. To meet a particular situation, either to render justice or to prevent miscarriage of justice or to prevent abuse of its process, Courts have interpreted that Page 1501 S 151 of the Civil Procedure Code preserves in the Civil Court inherent power to be exercised in diverse situation consistent with the provisions of the Code. It is needless to recount several decisions of various High courts, but suffice it to state the law laid down by the Supreme Court in this regard which is a binding law under Article 141. In Padam Sen v. State of Uttar Pradesh Raghubar Dayal J speaking for the Court was to consider the power of a court to appoint a Commissioner to seize the account books in the possession of the plaintiff when there is no express power conferred in that regard on the Court and the defendant apprehends tempering thereof. While dealing with such situation, it was held that:
The inherent powers of the court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purpose mentioned in Section 151 of the Code when the exercie of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the Legislature. It is also well recognised that the inherent power is not to be exercised in a matter which will be contrary to or different from the procedure expressly provided in the Code
It is thus settled law that inherent powers of the court could be exercised where there is no express provision conferred in this regard but the exercise of the power thereof should be consistent with but not in derogation of the express provisions of the Act or the Rules to do justice or to prevent miscarriage of justice. The rules of procedure are not an end in themselves. They are merely aids to the end produce viz. rendering substantive justice. It is neither possible nor practicable to lay down any express guidelines as to under what circumstances the inherent powers could be exercised. When the court is possessed of inherent power it must be held to be of wide import analogous to unlimited residuary power to do substantial justice in all appropriate cases or to prevent miscarriage of justice or to prevent abuse of its process. The inherent power must be construed broadly in that perspective. A narrow or a pedantic approach must be eschewed to avoid hardship or to prevent injustice, the scope of interjacency depends upon procedural effectivity to assuage the efficacy of rule of law. In other words, to prevent the procedure wagging its tail to undermine substantive law, the Founding Fathers of the Constitution preserved under Articles 129 and 215, all the powers of the Supreme court and of the High Courts as court of record including power to punish for contempt of itself, employing language of wide amplitude to exercise sound judicial discretion imbued with overwhelming passion to do that which is just, fair and proper. The construction of such wide language of inherent power would be to elongate the constitutional purposes viz., in an appropriate case, to exercise the inherent power inconsistent with the provisions of the Act and the Rules to do substantial justice or to prevent miscarriage of Page 1502 justice. As stated earlier, the rules of procedure are only handmaid to render substantial justice. Entertaining a contempt application is a step in the process of adjudicating whether the contemnor has committed the offence of civil or criminal contempt punishable under the Act undermining the dignity of justice. Power to punish the contemnor for contempt of itself which is inherent in the Court of record includes power to dismiss the case for contempt. When it has power to dismiss on merits it has the power to dismiss for default. Equally as an adjunct or incidental thereto, it has also inherent power to restore the application dismissed for default. Considered from this perspective, I have no hesitation to conclude that this Court, in exercise of the power under Article 215, has inherent power to restore the contempt case dismissed for default. In view of the averments made by the counsel for the petitioner putting squarely the blame on himself, I accept his averment and thereby I find that there is sufficient cause for his absence when the case was called on the two days. Accordingly the application is allowed and the contempt case is restored.
12. The power of the High Court to punish is de hors the rules pertaining to contempt proceedings and is always available to court, despite under what provisions the contempt proceedings were initiated. Any order passed upon proper application of mind on merits of the case resulting in dropping of the proceedings against the contemnor or dismissing the contempt petition would be an order determining the merits of the case and as such may attract the principle of double jeopardy in respect of re-initiation of contempt proceedings, but where the court has passed an order of simpliciter dismissal for default, in that event such a bar would not be attracted. Restoration of a contempt petition, which was dismissed in default, would be squarely covered, in the absence of any specific power, under the inherent powers of the court. Consistently a view has been taken that the inherent powers of the court are complimentary to its powers which are vested by a specific provision and inherent powers cannot be exercised in conflict with the expressly provided provisions.
13. The exercise of inherent powers in consonance with the principles of natural justice and to achieve the ends of justice, without conflict with the specific provisions, cannot be faulted with. The court should exercise such power without demur to do justice and to ensure maintenance of dignity of the court which is the very essence of the judicial administration. Somewhat similar question had also arisen before the Delhi High Court in relation to restoration of income tax reference dismissed as a result of non filing of paper book and absence. The High Court took the view that the reference could not be answered as there was no sufficient reason for non-appearance and the reference had already been dismissed. The Supreme Court, while interfering with the order of the High Court, applied the above basic principle of inherent powers of the court, found that the High Court in that case was not functus officio. The Supreme Court in the case of J.M.D. Syndicate v. I.T. Commissioner, New Delhi held as under:
A party or its counsel may be prevented from appearing at the hearing of a reference for a variety of reasons. In case such a party shows, Page 1503 subsequent to the order made by the High Court, declining to answer the reference, that there was sufficient reason for its nonappearance, the High Court, in our opinion, has the inherent power to recall its earlier order and dispose of the reference on merits. We find it difficult to subscribe to the view that whatever might be the ground for nonappearance of a party, the High Court having once passed an order declining to answer the question referred to it because of the non-appearance of that party, is functus officio or helpless and cannot pass an order for disposing of the reference on merits. The High Court in suitable cases has, as already mentioned, inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. There is nothing in any of the provision of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident. Suppose, further, min such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, ,even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the Courts cannot override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for its non – appearance on the date of hearing.
14. The essence of the contempt proceedings is to ensure compliance and implementation of the orders of the court in letter and spirit on the one hand and while on the other ensure that the dignity of the court is not undermined by the public at large.
15. It may also be noticed that the contempt of court is not stricto senso a cause or matter between the parties inter-se but a matter between the court and the contemnor, and as such the same cannot be at the discretion or benefit of the parties. Even in relation to matters of punishment, discretion is vested in court alone, keeping in mind the gravity of the offence of contempt. It can safely be stated that the parties may be able to initiate contempt proceedings in accordance with law but would have no legal right to withdraw or compromise such proceedings. It would always be in the exclusive domain of the court. In S. Sher Singh v. Raghu Pati Kapur , Page 1504 the Full Bench of the Punjab and Haryana High Court took the view that matters of contempt are in exclusive domain of the court and the object of contempt is never to place a party at an advantage, but is limited to ensure the prevalence of twin essentials of judicial administration i.e. dignity of the court and proper implementation of the courts orders. Even the Bench of this Court in the case of Venubai Savleram Songaonkar v. Gajanan Savleram @ Sawleram Songaonkar and Ors. 1992 Criminal Law Journal 1160, took a view that the contempt proceedings would not be affected on the death of the petitioner during the pendency of the contempt proceedings and must be culminated to their logical end for ensuring compliance of the orders of the court and legal representatives are brought on record and possession of the premises were directed to be handed over to them. This is so, despite the fact that there is no specific provision either in the Act or Rules, which would permit bringing on record the legal representatives of the deceased applicant. The obvious reasoning behind this approach is that the inherent power of the court are invoked to ensure compliance and implementation of the Court orders.
16. The powers of this kind are procedural based, and as such are capable of being construed liberally. The Courts’ attitude would tilt in favour of liberal interpretation of procedural law with intent to achieve ends of justice as opposed to the interpretation which will result in frustrating the object of the statute. The provisions of the Contempt of Courts Act are to protect the majesty of justice and ensure compliance of the orders of the Court. Where the Court, without touching upon the merits of the case, dismisses a matter for default in its discretion, then it would, but natural, have the power to restore the same as an order of dismissal for default is passed in exercise of the inherent powers of the Court. A Full Bench of the Punjab and Haryana High Court, in the case of Courts on its own motion v. Kasturi Lal and Ors. , stated the principle is that no provision of statute should be construed in isolation but must be so done harmoniously. The words “heard and determined” appearing in Section 18 of the Act are not to be read in isolation and it obviously would mean application of mind and mere issuance of notice by two Judges in a criminal contempt would not mean effective trial of the contemnor. A balanced and analytical view would support the proposition that in exercise of its special contempt jurisdiction the Court is not divested, by rule of procedure, of its inherent powers. The exercise of inherent powers in conformity with the principles of natural justice would achieve the object of proper adjudication. The contention that dismissal of contempt petition in default would divest court of its power to restore or the Court would have become functus officio so as to debar entertainment of the subsequent application for restoration is without substance and contrary to the very scheme underlining the Contempt of Courts Act. The Courts have also taken the view that the principles of natural justice is no unruly horse or no lurking landmine nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and fundamentals of such essential procedural propriety being conditioned by the facts and Page 1505 circumstances of each case, no breach can be complained of. Reference in this regard can be made to the decision in the case of The Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee . As we have already noticed, the Contempt of Courts (Bombay High Court) Rules, 1994 are the Rules enacted by this Court in exercise of powers vested in it under Section 23 of the Act. Certain procedures have been provided under these Rules. Part-II deals with the procedure to be followed by the Court and how the affidavits, etc. are to be filed in such proceedings. Under Rule 17, the Court is empowered to issue bailable or non-bailable warrant in its discretion wherever the contemnor is absconding. Rule 20 empowers the Court to issue a notice for personal attendance of the contemnor while Section 22 empowers the Court to conduct enquiry and punish in its discretion, the contemnor even if he pleads guilty or otherwise. Rule 23 of the said Rules reads as under.
The Rules contained in Bombay High Court Rules pertaining to grant of copies, process fees and translation of documents and such other matters in respect of which no provision is made in the Rules shall mutatis mutandis apply to the proceedings in the High Court and designated Court.
17. A bare reading of the above Rule clearly shows that the Rules of the Court pertaining to various acts shall mutatis mutandis apply to the proceedings in the High Court and the designated Court. The Rules of the Appellate Side thus would have application to the contempt proceedings before the Court. The Rules, of course, in turn are silent about restoration petitions being filed in the cases which are dismissed for default of appearance. No part of the procedural law applicable to the contempt jurisdiction of the Court has been brought to our notice which specifically or by necessary implication debars the Court from exercising such inherent power. The contempt could be civil and/or criminal. The method of their trial and quantum of punishment is postulated to be distinct and different.
18. If the Court has exercised its power, which it certainly has to dismiss a contempt petition in default, then it could exercise the same power to restore. The learned single Judges of this Court in the cases of Panjabrao Sadashiorao Wankhede v. Rajeev Agrawal and Damodar Sadashiv Agre v. K.K. Prasad and Ors. stated the principle that once the proceedings for contempt are dropped, they cannot be restored. The reasoning given in these two judgments is that applying the provisions of Section 300(2) and (5) of the Code of Criminal Procedure, an order of dropping the proceedings must be treated on the same footing as an order of acquittal and thus there will be no jurisdiction to restore the petition. It is a settled rule of law that the provisions of the Criminal Procedure Code are not applicable or do not control contempt proceedings. Secondly the expressions “dropped, dismissed, discharged” are distinct and different expressions having different connotations and consequences in law. Where the petition is Page 1506 dismissed for default or because the applicant was not interested in pursuing, it cannot be held to be an order equivalent to an order of dropping the proceedings and/or discharge and/or acquittal. The order dismissing a contempt petition for default cannot be equated to any of these provisions. It will not be permissible to draw a deeming fiction in law to equate them to discharge or acquittal. Even if for the sake of argument it is assumed that principles of Criminal Procedure Code are applicable, even then, the view taken by the learned Judges is not correct in law inasmuch as explanation to Section 300 specifically notices that dismissal of a complaint or even the discharge of an accused is not an acquittal for the purposes of the Section. In other words, the entire reasoning is founded on a misconception of law.
19. Applying the principles stated by different Courts in regard to the offences under the Indian Penal Code, procedurally controlled under the Code of Criminal Procedure,it can safely be said that it would not be in consonance to the doctrine of ratio decidendi. In the above referred criminal cases, the facts are different. The law is nowhere comparable. With respect, we may also notice that the judgment of the Supreme Court, in the case of State of Maharashtra v. Mahboob S. Alibay and Co. , stated the principle that no appeal lies against an order discharging a person from the contempt proceedings. This could not be taken as an argument for holding that the Court had no power to restore a petition dismissed in default. Misconstruction of the word “dropped” in contradistinction to “dismissed for default” can lead to consequences which would not be in line with the scheme of the Act as well as compatible to the contempt jurisdiction of the High Court where inherent powers are inbuilt ingredients. We are unable to concur with the view taken by the Court in these cases. However, we are inclined to hold that the view taken in the case of Zynab Hydari v. State of Maharashtra and Ors. is correct statement of law, though for the additional reasons that we have noticed above.
20. The other main plank of the submission on behalf of the non-applicants is that restoration of a contempt petition would not be permissible as it would amount to double jeopardy. This argument is without any substance and in fact is misconceived in law. The contempt proceedings under the Contempt of Courts Act are not proceedings which are controlled by the provisions of the Criminal Procedure Code. As already noticed the High Court being a court of record has the power to summarily punish for contempt of court and the provisions of Section 15 of the Act is a procedural section. The plea of double jeopardy derived from Article 20 of the Constitution of India provides that a person cannot be punished for the second time for the same offence, for which he has already been acquitted. It is a settled principle of law that proceedings under the Contempt of Courts Act do not attract the doctrine of double jeopardy merely on the ground that the person was also tried for the same offence before a court of competent jurisdiction and was even punished. The proceedings under the Contempt of Courts Act are Page 1507 sui generis and have peculiar features which are not found in the criminal proceedings. In other words, the concept of powers, procedure, consequence and purpose, for which the jurisdiction is exercised by a court under criminal jurisprudence, has markable distinction from the contempt jurisdiction. Such a jurisdiction is pervasive in its scope but has a limited object of maintaining the majesty of justice including enforcement of courts’ orders. The Supreme Court, in the case of Delhi Judicial Service Association (supra) while rejecting the plea of violation of Article 20(3) of the Constitution raised on behalf of the contemnors in those proceedings, held as under:
Proceedings for Contempt of Court are of a peculiar nature; though it may be that in certain aspects they are quasi-criminal, but in any view taken are not exercised as part of the original criminal jurisdiction of the Court, as was held in re. Tushar Kanti Ghosh . The High Court held that since the proceedings for Contempt for Court do not fall within the original criminal jurisdiction of the Court no leave could be granted for appeal to Privy Council under Clause 41 of the Letters Patent of that Court.
13. In Sukhdev Singh Sodhi v. Chief Justice and Judges of the PEPSU High Court 1954 SCR 454 : A.I.R. 1954 SC 186 Sukhdev Singh Sodhi approached this Court for transfer of contempt proceedings from PEPSU High Court to any other High Court under Section 527 of the Criminal Procedure Code,1898. This Court rejected the application holding that Section 527 of the Criminal Procedure Code did not apply to the contempt proceedings as the contempt jurisdiction is a special jurisdiction which is inherent in all Courts of record and the Cr. P.C. Excludes such a special jurisdiction from the Code. The Court further held that notwithstanding the provisions contained in the Contempt of Courts Act, 1926 (1952) making an offence of contempt, punishable, the Act does not confer any jurisdiction or create the offence, it merely limits the amount of the punishment which could be awarded and it removes a certain doubt. The jurisdiction to initiate the proceedings and take action of the contempt is inherent in a Court of record and the procedures of the Criminal Procedure Code do not apply to contempt proceedings. Section 5 of the Code of Criminal Procedure lays down that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special form of procedure prescribed, by any other law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to take proceedings for the Contempt of Court is an inherent power of a Court of record, the Criminal Procedure Code does not apply to such proceedings. Since, the contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency of contempt proceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemner. A contemner is not in the position of an accused, it is open to the Court to cross-examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal Page 1508 offence. This peculiar feature distinguishes contempt proceedings from criminal proceedings. In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prosecution against the accused but in contempt proceedings the Court is both the accuser as well as the Judge of the accusation as observed by Hidayatullah, C.J. In Debatrata Bandopadhyaya’s case . Contempt generation is sui generis, it has peculiar features which are not found in criminal proceedings. In this view the contemners do not stand in the position of a “person accused of an offence” merely on account of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority to record the testimony of the contemners. Commission issued notice and directed Sharma, Police Inspector and other Police Officials to place there version of the incident before it and there was no element of compulsion. In this view there has been no violation of Article 20(3) of the Constitution and Commission’s findings are not vitiated.
21. The Bench of the Delhi High Court in the case of Court on its own Motion v. Kuldeep Kapoor in C.C.P. No. 93 of 2005 dated 16.1.2006 held as under:
The contentions raised on behalf of the contemnors is that the present petition could not continue as it would amount to double jeopardy as the suit itself is pending final adjudication. This argument is without any basis. The acts of the contemnors prima facie justify initiation of such proceedings and would not, in any way, attract principles of double jeopardy. The contempt proceedings is sui generis. It has peculiar features which are not found in criminal proceedings and even if a person is accused of an offence and merely on account that the court issues notice of contempt and a Commission is appointed by the court to record the testimony of the contemnors and the Commission issues notices in turn to the police officers, would not offend Article 20(3) of the Constitution and there would be no element of compulsion. This was held by the Supreme Court in the case of Delhi Judicial Service Association, Tis Hazari Courts, Delhi v. State of Gujarat and Ors. . Furthermore, there is no compulsive element against the contemnors in as much as they have filed the documents o record from their own records, and it is only in view of the report of the Forensic Laboratory, submitted as per orders of the Court, that tampering of the documents has come to the notice of the court, besides other misdeeds and acts of disrespect of the contemnors during the judicial proceedings.
8. The other argument that the initiation of contempt proceedings is vitiated procedurally and in law as it was obligatory upon the court to place the matter before the Chief Justice, is equally without any basis. The present proceedings were initiated under the orders of the Court and not at the instance of any party. A notice to show cause was issued to the contemnors as to why proceedings under the contempt of courts Act and Article 215 be not initiated against them. In the case of Page 1509 Bal Thackrey v. Harish Pimpalkhute and Ors. (supra) the Supreme Court had clearly held that the directions contained in P.N. Duda’s case to place contempt petition before the Chief Justice for orders, prescribe the procedure to be followed by the High Court to ensure smooth working and streamlining of such contempt actions as are intended by the Court suo moto on its own motion. Those directions have no effect of curtailing or denuding the powers of the High Court. More over, a complete distinction was made in regard to the proceedings which are initiated by the Court suo moto. The judgment relied upon by the learned Counsel appearing for the respondents has no application to the present case. The proceedings were initiated by the Court suo moto keeping in view the offending acts of the contemnors.
22. The above noticed canons are predicted legal principles and do not admit of any dissent. The consistent view of the Supreme Court and various High Courts, which is amply clear, is that the Court can evolve its own procedure, not opposed to any prescribed law under the Contempt of Courts Act or the principles of natural justice. This discretion is vested in the Court for doing justice. Equally true that the contempt proceedings do not attract the principles of double jeopardy. The contempt jurisdiction being a special jurisdiction, vests wide powers in court to adopt a procedure, which it deems fit, in the facts and circumstances of the case and wherever necessary to conclude the contempt proceedings by adopting summary procedure. The provisions of the Code of Criminal Procedure and Contempt of Courts Act neither overlap nor are in conflict with each other. They operate in different fields and jurisdiction. To trace out commonality by an interpretative process, in these two jurisdictions, is an approach not quite in consonance with the scheme of the respective legislations.
23. In view of the above analysis of law, we have no hesitation in coming to the conclusion that the judgments of this Court in the cases Panjabrao and Damodar (supra) is not correct exposition of law. The dictum of law laid down in these judgments is not in conformity with the scope of contempt jurisdiction exercisable by the High Court in furtherance to Constitutional mandate contained in Article 215 of the Constitution and the Contempt of Courts Act. The court exercising contempt jurisdiction has the power to dismiss for default simpliciter a contempt petition and equally has the power to restore the same. While answering the reference as above we direct the Registry that these cases be listed before the learned Single Judge for appropriate orders.
24. Thus it is necessary to evolve and follow a procedure, which not only is in conformity with the basic rule of law but also meets the ends of justice. Unlike the provisions of Criminal Procedure Code, which describe a procedure for punishing a codified offence under the Indian Penal Code, the Contempt of Courts Act leaves it much to the discretion of the Court to find out and form an opinion, in consonance with the settled canons of law as to whether the complaint/committed act constitutes a contempt. The court in its discretion has to determine whether it is a civil or criminal contempt, is it a wilful disobedience of orders of the court, interference with the administration of justice so as to undermine the dignity and majesty of the judicial process. Once the legislation has left so much to the discretion Page 1510 of the court, it is necessary that the concept of inherent powers would be applied to the contempt jurisdiction in its wide magnitude. It would subserve the purpose and object of Constitutional mandate under Article 215 or even under the provisions of the Contempt of Courts Act, if the view taken by the Court in the case of Zynab Hydari (supra) is to be accepted. Once the matter is between the court and the contemnor, then it is best judged by the court whether the contempt petition dismissed in default should or should not be restored. Most essential feature and requirement of law would be to ensure that the orders of the court are complied with and the dignity of the court is not undermined. This is not part of an adverse litigation but in its proper perspective and wholesomeness, is a matter relating to proper administration of justice. The courts are expected to act with great caution and keeping in mind the interest of administration of justice. So it must be left to the discretion of the court. To hold that the courts have no power either to dismiss a matter in default or restore a matter so dismissed, shall be narrowing the jurisdiction, which is not so intended either by the Legislature or by interpretative law of judicial pronouncements. In the cases in hand the contempt petitions were moved primarily for not complying with the order or violating the orders passed by the court at different stages of the legal proceedings. For example in Contempt Petition No. 229 of 2006 the court had passed order in Civil Writ Petition No. 2360 of 2006-confirming the order of the tribunal dated 1st January 2006 and the management was directed to pay entire salary due to the complainant. This order was violated, despite requests in the court notice. We are not called upon to determine the merit of the contempt petition but we merely shall indicate that wherever there is violation of court’s order, it is the prime duty of the court to ensure compliance thereof. The essence of offence of contempt of court consists of doing an act and not complying with the orders of the court or publishing a writing, which is calculated to interfere with the due course of justice.
25. In view of the above analysis of law, we have no hesitation in coming to the conclusion that the judgments of this Court in the cases of Panjabrao Sadashiorao Wankhede v. Rajeev Agrawal and Damodar Sadashiv Agre v. K.K. Prasad and Ors. is not correct exposition of law. The dictum of law laid down in these judgments is not in conformity with the scope of contempt jurisdiction exercisable by the High Court in furtherance of the Constitutional mandate contained in Article 215 of the Constitution and the Contempt of Courts Act. The Court exercising contempt jurisdiction has the power to dismiss for default simpliciter a contempt petition and equally has the power to restore the same.
26. While answering the reference as above, we direct the Registry that these cases be listed before the learned Single Judge for appropriate orders.
