In Re: Vinay Chandra Mishra [1995] INSC 180 (10 March 1995)
Sawant, P.B. Sawant, P.B. Kuldip Singh (J) Verma, Jagdish Saran (J)
CITATION: 1995 AIR 2348 1995 SCC (2) 584 JT 1995 (2) 587 1995 SCALE (2)200
ACT:
HEAD NOTE:
1. On 10th March, 1994, Justice S.K. Keshote of the Allahabad High Court addressed a letter to the Acting Chief Justice of that Court as follows - "No.SKK/ALL/8/94 10.3.94 Dear brother Actg. Chief Justice, Though on 9.3.94 itself I orally narrated about the misbehaviour of Sh. B.C. Misra with me in the Court but I thought it advisable to give you same in writing also.
On 9.3.94 1 was sitting with Justice Anshuman Singh in Court No.38. In the list of fresh Cases of 9.3.94 at Sr. No.5 'U.P.F.Corp. filed by Smt. S.V. Misra was listed. Sh. B.C. Misra appeared in this case when the case was called.
Brief facts of that case M/s. Bansal Forgings Ltd. took loan from U.P. Financial Corporation and it made default in payment of instalment of the same. Corporation proceeded against the Company u/s 29 of the U.P. Financial Corporation Act. The Company filed a 596 Civil Suit against the.Corporation and it has also filed an application for grant of temporary injunction. Counsel for the Corporation suo moto put appearance in the matter before Trial Court and prayed for time for filing of reply. The learned trial court passed an order on the said date that the Corporation will not scize the factory of the Company.
The Company shall pay the amount of instalment and it will furnish also security for the disputed amount. The court directed to furnish security on 31.1.94 and case was fixed on 15.3.94.
Against said order of the trial court this appeal has been filed and arguments have been advanced that Court has no jurisdiction to pass the order for payment of instalment of loan and further no security could have been ordered.
I put a question to Shri Misra under which provision this order has been passed. On putting of question he started to shout and said that no question could have been put to him.
He will get me transferred or see that impeachment motion is brought against me in Parliament. He further said that he has turned up many Judges. He created a good scene in the court. He asked me to follow the practice of this Court. in sum and substance it is a matter where except to abuse me of mother and sister he insulted me like any thing. what he wanted to convey to me was that admission is as a course and no arguments are heard, at this stage.
It is not the question of insulting of a Judge of this institution but it is a matter of institution as a whole.
In case dignity of Judiciary is not being maintained then where this institution will stand. In case a senior Advocate, President of Bar and Chairman of Bar Council of India behaves in Court in such manner what will happen to other advocates.
Since the day I have come here I am deciding the cases on merits. In case a case has merits it is admitted but not as a matter of course. in this court probably advocates do not like the consideration of cases on their merits at the stage of admission. In case dignity of Judiciary is not restored then it is very difficult for the judges to discharge their Judicial function without fear and favour.
I am submitting this matter to you in writing to bring this mishappening in the Court with the hope that you will do something for restoration of dignity of Judiciary.
Thanking you.
Yours sincerely, Sd/- (Jus. S.K. keshote)."
2. The Acting Chief Justice Shri V.K. Khanna forwarded the said letter to the then Chief Justice of India by his letter of 5th April, 1994. The learned Chief Justice of India constituted this Bench to hear the matter on 15th April, 1994.
3. On 15th April, 1994, this Court took the view that there was a prima facie case of criminal contempt of court committed by Shri Vinay Chandra Mishra [hereinafter referred to as the "contemner"] and issued a notice against him to show cause why contempt proceedings be not initiated against him. By the same order, Shri D.P. Gupta, the learned Solicitor General of India was requested to assist the Court in the matter. Pursuant to the notice, the contemner filed his reply by affidavit dated 10th May, 1994 and also an application seeking discharge of show 597 cause notice, and in the alternative for an inquiry to be held into the incident referred to by Justice Keshote in his letter which had given rise to the contempt proceedings. It is necessary at this stage to refer to the material portions of both the affidavit and the application filed by the contemner. After referring to his status as a Senior Advocate of the Allahabad High Court and his connections with the various law organisations in different capacities to impress upon the Court that he had a deep involvement in the purity, integrity and solemnity of judicial process, he has submitted in the affidavit that but for his deep commitments to the norms of judicial processes as evidenced by his said status and connections, he would have adopted the usual expedient of submitting his unconditional regrets.
But the facts and circumstances of this case were such which induced him to "state the facts and seek the verdict of the Court" whether he had committed the alleged contempt or whether it could be "a judge committing contempt of his own court". He has then stated the facts which according to him form the "genesis" of the present controversy. They are as follows:-
"A. A Private Ltd. Co. had taken an instalment loan from U.P. Financial Corporation, which provides under its constituent Act (Sec. 29) for some sort of self help in case of default of instalments.
B. A controversy arose between the said Financial Corporation and the borrower as a result of which, the borrower had to file a civil suit seeking an injunction against the Corporation for not opting for the non-judicial sale of their assets.
C. The Civil Court granted the injunction against putting the assets to sale, but at the same time directed furnishing security for the amount due.
D. Being aggrieved by the condition of furnishing security, which in law would be tantamount to directing a mortgagee to furnish security for payment of mortgage loan even when he satisfies the Court that a stay is called for - the property mortgaged being a pre-existing security for its payment.
E.The Company filed an FAFO being No. 229793/94 against the portion of the order directing furnishing of security.
F.The said FAFO came for preliminary came hearing before Hon'ble Justice Anshuman Singh and the Applicant of this petition on 9th March, 1994, in which I argued for the debtor Company.
G. When the matter was called on Board, the Applicant took charge of the court proceedings and virtually foreclosed at- tempts made by the senior Judge to intervene. The Applicant Judge inquired from me as to under what law the unpugned order was passed to which I replied that it was under various rules of Order 39, CPC. That Applicant therefore conveyed to me that he was going to set aside the entire order, against a portion of which I had come in appeal, because in his view the Lower Court was not competent to pass such an order as Order 39 did not apply to the facts.
H. I politely brought to the notice of the Applicant Judge that being the appellant I' had the dominion over the case and it could not be made worse, just because I had come to High Court.
I. The Applicant Judge apparently lost his temper and told me in no unconcealed term that he would set aside the order in toto, disregarding what I had said.
J. Being upset over, what I felt was an 598 arbitrary approach to judicial process 1 got emotionally perturbed and my professional and institutional sensitivity got deeply wounded and I told the Applicant Judge that it was not the practice in this Court to dismiss cases without hearing or to upset judgments or portions of judgments, which have not been appealed against. Unfortunately the Applicant judge took it unsportingly and apparently lost his temper and directed the stenographer to take down the order for setting aside of the whole order.
K. At this juncture, the Hon'ble Senior Judge intervened, whispered something to the Applicant Judge and directed the case to be listed before some other Bench. It was duly done and by an order of the other Court dated 18th March, 1994 Hon'ble Justices B.M. Lal and S.K. Verma, the points raised by me before the Applicant Judge were accepted. A copy of the said order is reproduced as Annexure 1 to this affidavit.
L. I find it necessary to mention that the exchange that took place between me and the Applicant Judge got a little heated up. In the moment of heat the Applicant Judge made the following observations:- "I am from the Bar and if need be I can take to goondaism.
Adding in English - "I never opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not know why the Chief Justice of India disregarded my options and transferred me to this place, which I never liked." Provoked by this I asked him whether he was creating a scene to create conditions for getting himself transferred as also talked earlier."
4. After narrating the above incident, the contemner has gone on to deny that he had referred to any impeachment, though according to him he did mention that "a judge got himself transferred earlier on account of his inability to command the goodwill of the Bar due to lack of mutual reverence
5. The contemner has further denied the allegations made by Justice Keshote that as soon as the case was called out, he [i.e., Justice Keshotel asked him the pro vision under which the impugned order was passed and that he had replied that the Court had no jurisdiction to ask the same and should admit and grant the stay order. According to him, such a reply could only be attributed to one who is " mad" and that considering his practice, of thirty five years at the Bar and his responsible status as a member of the Bar, it is unbelievable that he would reply in such a "foolish manner". The contemner has further denied that he had abused the learned judge since according to him he had never indulged in abusing anybody. With regard to the said allegations against him, the contemner has stated that the same are vague and. therefore, "nothing definite is warranted to reply".
6. He has further contended in his affidavit that if the learned Judge was to be believed that he had committed the contempt, the senior Judge who was to direct the court proceedings would have initiated proceedings under "Article 129 of the Constitution" for committing contempt in facie curiae. He has also stated that the learned Judge himself did not direct such proceedings against him which he could have. lie has found fault that instead of doing so, the learned Judge hat: "deferred 599 the matter for the next day and adopted a devious way of writing to the Acting Chief Justice for doing something about it". He has then expressed his "uncomprehension" with the learned Judge should have come to the Supreme Court when he had ample and sufficient legal and constitutional powers to arraign him at the Bar for what was attributed to him.
7.The contemner has then gone on to complain that the "language used" by the learned Judge "in the Court extending a threat to resort to goondaism is acting in a way which is professionally perverse and approximating to creating an unfavourable public opinion about the awesomeness of judicial process, lowering or tending to lower the authority of any Court" which amounted to contempt by a Judge punish- able under Section 16 of the Contempt of Courts Act, 197 1.
He has then gone on to submit "under compulsion of" his "institutional and professional conscience" and for upholding professional standards expected of both the Bench and the Bar of this court" that this Court may order a thorough investigation into the incident in question to find out whether a contempt has been committed by him punishable under "Article 215" of the Constitution or by the Judge under Section 16 of the Contempt of Courts Act.
8. He has further stated that the entire Bar at Allahabad knows that he was unjustly "roughed" by the Judge and was being punished for taking a "fearless and non-servile stand" and that he is being prosecuted for asserting the right of audience and using "the liberty to express his views" when a Judge takes a course "which in the opinion of the Bar is ir- regular". He has also contended that any Punishment meted out to the "outspoken lawyer" will completely emasculate the freedom of the profession and make the Bar "a subservient tail wagging appendage to the judicial branch, which is an anathema to a healthy democratic judicial system".
9.He has made a complaint that he was feeling handicapped in not being provided with the copy of the letter/report of the Acting Chief Justice of the Allahabad High Court and he has also been unable to gauge the "rationale of the applicant in not having initiated proceedings"' against him either immediately or a day following, when he chose to address a letter to the Acting Chief Justice. He has then contended that he wanted to make it clear that he was seeking a formal inquiry not for any vindication of any personal hurt but to make things safe for profession which in a small way by a quirk of destiny come to his keeping also. He has also stated that he would be untrue and faithless to his office if he subordinated the larger interests of the profession and dignity of the judicial process for a small thing of seeking his little safety. The contemner goes on to state that he did not opt for filing a contempt against the learned Judge as in normal course of arguments, sometimes, altercations take place between a Judge and the arguing advocate, which may technically be contempt on either side but being no intention, provisions of contempt are not attracted. In support of his said case, he has reproduced an extract from Oswald's Contempt of Court, III Edition, by Robertson. The said extract is as follows:
"An advocate is at liberty, when addressing the Court in regular course, to combat and contest strongly any adverse views of the Judge or Judges expressed on the 600 case during its argument, to object to and protest aganist any course winch the Judge may take and winch the advocate thinks irregular or detrimental to the interests of his client, and to caution juries against any interference by the Judge with their functions, or with the Advocate when addressing them, or against any strong view adverse to his client expressed by the presiding Judge upon the facts of a case before the verdict of the jury thereon. An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client's case. It is said that a Scotch advocate was arguing before a Court in Scotland, when one of the Judges, not liking his manner, said to him, "It seems to me, Mr.
Blank, that you are endeavouring in every way to show your contempt for the Court." "No," was the quick rejoinder, "I am endeavouring in every way to conceal it."
10. In the end, he has stated that he had utmost respect and regard for the courts and he never intended nor intends not to pay due respect to the courts which under the law they arc entitled to and it is for this reason that instead of defending himself through an advocate, he had left to the mercy of this court to judge and decide the right and wrong.
He has also stated that it is for this reason that he had not relied upon the provisions of the Constitution under Articles 129 and 215 and Section 16 of the Contempt of Courts Act and to save himself on the technicality and jurisdictional competence.
11. Lastly, he has reiterated that he had always paid due regard to the Courts and he was paying the same and will continue to pay the same and he "neither intended not intends to commit contempt of any Court".
12. Along with the aforesaid affidavit was forwarded by the contemner, a petition stating therein that he had not gone beyond the legitimate limits of fearless, honest and independent obligations of an advocate and it was Justice Keshote himself who had lost his temper and extended threats to him which was such as would be punishable under Section 16 of the Contempt of Courts Act, 1971 [hereinafter referred to as the "Act"]. He has prayed that the notice issued to him be discharged and if in any case, this Court does not feel inclined to discharge the notice, he "seeks his right to inquiry and production of evidence directly or by affidavits" as this Court may direct. He has further stated in that petition that he is moving an independent application for contempt proceedings to be drawn against the, learned Judge and it would be in the interests of justice and fairplay if the two are heard together. It has to be noted that the contemner has throughout this affidavit as well as the petition referred to Justice Keshote as "ap- plicant", although he knew very well that contempt proceedings had been initiated suo moto by this Court on the basis of the letter written by Justice Keshote to the Acting Chief Justice of the High Court. His manner of reference to the learned Judge also reveals the respect in which he holds the learned Judge.
13. The contemner has also filed another petition on the same day as stated in the aforesaid petition wherein he has prayed that on the facts stated in the reply affidavit to the show cause notice for contempt proceedings against him this Court be pleased to draw proceedings under Section 16 of the Act against the learned for committing contempt of his own court and hold an inquiry. In this petition, he him stated that in his reply to the contempt notice, he has brought the whole truth 601 before this Court which according to him was witnessed by the senior Judge of the Bench, Justice Anshuman Singh and a large number of advocates. Once again referring to Justice Keshote as the applicant, he has stated that the learned Judge in open court conveyed to him [i.e., the contemner] that he can take to goondaism if need arises, that he also talked disparagingly against the Chief Justice of India for not -transferring him to the place for which he had opted and talked to the contemner scurrilously and in a manner un- worthy of a Judge and also attempted to gag the contemner from discharging his duties as an advocate. The contemner has further contended that as a common law principle relating to contempt of courts, a Judge is liable for contempt of his own Court as much as any other person associated with judicial proceedings and outside, and that the aforesaid principle has been given statutory recognition under Section 16 of the Act. He has further contended that the behaviour of the learned Judge so unworthy that the senior colleague on the Bench apart from "disregarding with the desire of the applicant to dismiss the entire order" against a part of which an appeal had been filed, released the case from the board and did not think of taking recourse to the obvious and well-known procedure of initiating contempt proceedings against him for the alleged contempt committed in the face of the Court. He has further contended that "the adoption of devious ways of reaching the Acting Chief Justice by letter and reportedly coming to Delhi for meeting meaningful people" is "itself seeking about the infirmity of the case" of the Judge. He has in the end reiterated his prayer for an inquiry into the behaviour of the learned Judge if the notice of contempt was not discharged against him in view of the denial by him of the conduct alleged against him.
14. This Court gave four weeks' time as desired by the contemner to file an additional affidavit giving more facts and details. The Court also made clear that the cause title of the proceedings was misleading since Justice Keshote had not initiated the proceedings. The proceedings were initiated suo moto by this Court. A direction was given to the Registry to correct the cause title.
15. On 30th June, 1994, the contemner filed his supplementary/additional counter affidavit in this affidavit, he raised objections to the maintainability "of initiating contempt proceedings" against him. His first objection was to the assumption of jurisdiction by this Court to punish for an act of contempt committed in respect of another Court of record which is invested with identical and independent power for punishing for contempt of itself According to him, this Court can take cognisance only of contempt committed in respect of itself He has also demanded that in view of the point of law raised by him, the matter be placed before the Constitution Bench and that notice be issued to the Attorney General of India and all the Advocate Generals of the States. He has then gone on to deny the statements made by the learned Judge in the letter written to the Acting Chief Justice of the High Court and in view of the said denial by him, he has asked for the presence of the learned Judge in the court for being cross-examined by him, i.e., the contemner. He has further stated that if the contempt proceedings are taken against him, the statement of Justice Anshuman Singh who was the senior Judge on the 602 Bench before which the incident took place, would also be necessary. He has also taken exception to Justice Keshote's speaking in the Court except through the senior Judge on the Bench, which, according to him had been the practice in the Allahabad High Court, and has alleged that the learned Judge did not follow the said convention. In the end, he has reiterated that he has utmost respect and regard for the courts and he has never intended nor intends not to pay due regard to the Courts.
16. On 15th July, 1994, this Court passed an order wherein it is recorded that on 15th April, 1994, the court had issued a notice to the contemner to show cause as to why criminal contempt proceedings be not initiated against him and notice was issued on its own motion. The Court heard the. contemner in person as well as his learned counsel.
The Court perused the counter affidavit and the additional affidavit of -the contemner and was of the view that it was a fit case where criminal contempt proceedings be initiated against the contemner. Accordingly, the Court directed that the proceedings be initiated against him. The contemner was given an opportunity to file any material in reply or in defence within another eight weeks. He was also allowed to file the affidavit of any other person apart from himself in support of his defence. Shri Gupta, learned Solicitor General was appointed as the prosecutor to conduct the proceedings. The affidavits filed by the contemner were directed to be sent to Justice Keshote making it clear that he might offer his comments regarding the factual averments in the- said affidavits.
17. In view of the said order, the Court dismissed the contemner's application No.2560/94 praying for discharge of the notice. The contemner thereafter desired to withdraw his application No.2561/94 seeking initiation of proceedings against the learned Judge for contempt of his own Court, by stating that he was doing so " at this stage reserving his right to file a similar application at a later stage". The Court without any comment on the statement made by the contemner, dismissed the said application as withdrawn.
18.Justice Keshote by a letter of 20th August, 1994 forwarded his comments on the counter affidavit and the supplementary/additional counter affidavit filed by the contemner. The learned Judge denied that he took charge of the court proceedings and virtually foreclosed the attempts made by the senior Judge to intervene, as was alleged by the contemner. He stated that being a member of the Bench, he put a question to the contemner as to under which provision, the order under appeal had been passed by the trial court, and upon that the contemner started shouting and said that he would get him transferred or see to it that impeachment motion was brought against him in Parliament. According to the learned Judge, the contemner said many more things as already mentioned by him in his letter dated 10th March, 1994. He further stated that the contemner created a scene which made it difficult to continue the court proceedings and ultimately when it became difficult to hear all the slogans, insulting words and threats, he requested his learned brother on the Bench to list that case before an- other Bench and to retire to the chamber. Accordingly, the order was made by the other learned member of the Bench and both of them retired to their chambers.
603
19. The learned judge also stated that the contemner has made wrong statement when he states "that applicant, therefore, conveyed to me that he was going to set aside the entire order, against portion of which I had come in appeal because, in his view, the lower court was not competent to pass such order as Order 39 did not apply to the facts".
The learned Judge stated that he neither made any such statement nor conveyed to the contemner as suggested by him.
He reiterates that except one sentence, viz., "that under which provision this order had been made by the trial court" nothing was said by him. According to the learned Judge, it was a case where the contemner did not permit the court proceedings to be proceeded and both the Judges ultimately had to retire to the chambers. The learned Judge alleges that the counter affidavit manufactures a defence. He has denied the contents of paragraph 6 [H] and [1] of the counter affidavit by stating that nothing of the kind as alleged therein had happened. According to the learned Judge, it was a case where the contemner lost his temper on the question being put to him by him, i.e., the learned Judge. He has stated that instead of losing his temper and creating a scene and threatening and terrorising him, the contemner should have argued the matter and encouraged the new junior Judge. The learned Judge has further denied the following averment, viz., "unfortunately, the applicant Judge took it unsportingly and apparently lost his temper and directed the stenographer to take down the order for setting aside of the whole order" made in paragraph 6 [J] of the counter affidavit, as wrong. He has pointed out that in the Division Bench, it is the senior member who dictates order/judgments. He has also denied the statements attributed to him in other paragraphs of the affidavit and in particular, has stated that he did not make the following observations: "I am from the Bar and if need be I can take to goondaism" and has alleged that the said allegations are absolutely wrong.
He has also denied that he ever made 'the statements as follows: "I never opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not know why the Chief justice of India disregarded my options and transferred me to this place which I never liked". According to him, the said allegations are manufactured with a view to create a defence. He has denied the allegations made against him in the additional/supplementary affidavits as wrong and has stated that what actually happened in the Court was stated in his letter of 10th March, 1994.
20. On 7th October, 1994, the contemner filed his unconditional written apology in the following words:
"1. In deep and regretful realization of the fact that a situation like the one which has given rise to the present proceedings and which in an ideal condition should never have arisen, subjects me to deep anguish and remorse and a feeling of moral guilt. The feeling has been compounded by the fact of my modest association with the profession as the senior advocate for some time and also being the President of the High Court Bar Association for multiple terms, (from which I have resigned a week or ten days back), and also being the Chairman of the Bar Council of India for the third five-year term. The latter two being posts convey with its holding an element of trust by my professional fraternity which expectations of setting up an example of an ideal advocate, which includes generating an intra-professional culture between the Bar and the 604 Bench, under which the first looks upon the second with respect and resignation, the second upon the first with courtesy and consideration. It also calls for cultivation of a professional attitude amongst the lawyers to learn to be good and sporting losers.
2. Guilty realizing my failure at approxi- mating these standards resulting in the present proceedings, nolo contendre 1 submit my humble and unconditional apologies for the happenings in the Court of Justice S.K. Keshote at Allahabad High Court on March 9, 1994, and submit myself at the Hon. Courts sweet will.
3. I hereby withdraw from record all my applications, petitions, counter affidavits, and prayers made to the court earlier to the presented [sic] of this statement. 1, also, withdraw all submissions made at the Bar earlier and rest my matter with the present statement alone, and any submissions that may be made in support of or in connection with statement.
21. On that day, the matter was adjourned to 24th November, 1994 to enable the learned counsel for the parties to make further submissions on the apology and to argue the case on all points, since the Court stated that it may not be inclined to accept the apology as tendered. The learned counsel for all the parties including the contemner, Bar Council of India and the State Bar Council of U.P. [who were allowed to intervene] were heard and the matter was reserved for judgment.
22. Thereafter, the State Bar Council of U.P. also submitted its written submissions on 26th November, 1994 along with an application for intervention. We have perused the said submissions.
23. We may first deal with the preliminary objection raised by the contender and the State Bar Council, viz., that this Court cannot take cognisance of the contempt of the High Courts. The contention is based on two grounds. The first is that Article 129 vests this Court with the power to punish only for the contempt of itself and not of the High Courts. Secondly, the High Court is also another court of record vested with identical and independent power of punishing for contempt of itself.
24. The contention ignores that the Supreme Court is not only the highest Court of record, but under various provisions of the Constitution, is also charged with the duties and responsibilities of correcting the lower courts and tribunals and of protecting them from those whose misconduct tends to prevent the due performance of their duties. The latter functions and powers of this Court are independent of Article 129 of the Constitution. When, therefore, Article 129 vests this Court with the powers of the court of record including the power to punish for contempt of itself, it vests such powers in this Court in its capacity as the highest court of record and also as a court charged with the appellate and superintending powers over the lower courts and tribunals as detailed in the Constitution. To discharge its obligations as the custodian of the administration of justice in the country and as the highest court imbued with supervisory and appellate jurisdiction over all the lower courts and tribunals, it is inherently deemed to have been entrusted with the power to see that the stream of justice in the country remains pure, that its course is not hindered or obstructed in any manner, that, justice is delivered without fear or favour and for that purpose all the courts and tribunals are protected while discharging their legitimate duties. To discharge this 605 obligation, this Court has to take cognisance of the deviation from the path of justice in the tribunals of the land, and also of attempts to cause such deviations and obstruct the course of justice. To hold otherwise would mean that although this Court is charged with the duties and responsibilities enumerated in the Constitution, it is not equipped with the power to discharge them.
25. This subject has been dealt with elaborately by this Court in All India Judicial Service Association, Tees Hazari Court, Delhi V. State of Gujarat & Ors. [(1991) 4 SCC 406].
We may do no better than quote from the said decision the relevant extracts:
"18. 'Mere is therefore no room for any doubt that this Court has wide power to interfere and correct the judgment and orders passed by any court or tribunal in the country. In addition to the appellate power, the Court has special residuary power to entertain appeal against any order of any court in the country .
The plenary jurisdiction of this Court to grant leave and hear appeals against any order of a court or tribunal, confers power of judicial superintendence over all the courts and tribunals in the territory of India in- cluding subordinate courts of Magistrate and District Judge. This Court has, therefore, supervisory jurisdiction over' all courts in India.
19. Article 129 provides that the Supreme 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.
Article 215 contains similar provision in respect of High Court. Both the Supreme court as well as High Courts are courts of record having powers to punish for contempt including the power to punish for contempt of itself..
The Constitution does not define "Court of Record". This expression is well recognised in juridical world. In Jowitt's Dictionary of English Law, "Court of record" is defined as :
"A court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony and which has power to fine and imprison for contempt of its authority." In Wharton's Law of Lexicon, Court of -record is defined as "Courts are either of record where their acts and judicial proceedingsare enrolled for a perpetual memorialand testimony and they havepower to fine and unpriced; or notof record being courts of inferior dignity, and in a less proper sense the King's Courts-and these are not entrusted by law with any power to fine or imprison the subject of the realm unless by the express provision of some Act of Parliament. These proceedings are not enrolled or recorded" In Words and Phrases (Permanent Edition Vol. 10 page 429) "Court of Record" is defined as under:
"Court of Record is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the 'record' of the court, and are of such high and supereminent authority that their truth is not to be questioned." Halsbury's Laws of England, 4th Edn., Vol. IO, para 709, page 3 19, states:
"Another manner of division is into courts of record and courts not of record. Certain courts are expressly 606 declared by statute to be courts of record.
In the case of courts not expressly declared to be courts of record, the answer to the question whether a court is a court of record seems to depend in general upon whether it has power to fine or imprison by statute or otherwise, for contempt of itself or other substantive offences; if it has such power, it seems that it -is a court of record...... The proceedings of a court of record preserved in its archives are called records, and are conclusive evidence of that which is recorded therein." x x x x x
23. The question whether in the absence of any express provision a Court of Record has inherent power in respect of contempt of subordinate or inferior courts, has been considered by English and Indian courts.
x x x x x the High Court to deal with the contempt of inferior court was based not so much on its historical foundation but on the High Court's inherents jurisdiction being a court of record having jurisdiction to correct the orders of those courts.
x x x x x x
24. In India prior to the enactment of the Contempt of Courts Act, 1926, High Court's jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts in the absence of statutory provision exercised power of contempt to protect the subordinate courts on the premise of inherent power of a Court of record."
26.The English and the Indian authorities are based on the basic foundation of inherent power of a Court of Record, having jurisdiction to correct the judicial orders of subordinate courts. The King's Bench in England and High Courts in India being superior Courts of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of contempt to protect the subordinate courts. The Supreme, Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exercise similar jurisdiction and power as the High courts had prior to contempt Legislation in 1926. Inherent powers of a superior Court of Record have remained unaffected even after codification of Contempt Law." x x x x x x
28....The Parliament's power to legislate in relation to law of contempt relating to Supreme Court is limited therefore the Act does not impinge upon this Court's power with regard to the contempt of subordinate courts under Article 129 of the Constitution."
29.Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself. The expression used in Article 129 is not restrictive instead it is extensive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity of inserting the expression "including the power to punish for contempt of itself".
The Article confers power on the supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression "including". The expres- 607 ion "including" has been interpreted by courts, to extend and widen the scope of power. The plain language of Article 129 Clearly indicates that this Court as a court of record has power to punish for contempt of itself and also something else which could fall within the inherent juris- diction of a court of record. In interpreting the constitution, it is not permissible to adopt a construction which would render any expression superfluous or redundant.
The courts ought not to accept any such construction. While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. Since the Supreme Court is designed by the Constitution as a court of record and as the Founding Fathers were aware that a superior court of record has inherent power to indict a person for the contempt of itself as well as of courts inferior to it, the expression "including" was deliberately inserted in the article.
Article 129 recognised the existing in her power of a court of record in its full plenitude including the power to punish for the contempt of inferior courts. If Article 129 is susceptible to two interpretations, we would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and protect the subordinate judiciary, which forms the very backbone of administration of justice.
The subordinate courts administer justice at the grassroot level, their protection is necessary to preserve the confidence of people in the efficacy of courts and to ensure unsullied flow of justice at its base level.
x x x x x x 3 1. We have already discussed a number of decisions holding that the High Court being a court of record has inherent power in respect of contempt of itself as well as of its subordinate courts even in the absence of any express provision in any Act. A fortiori the Supreme court being the Apex Court of the country and supe- rior court of record should possess the same inherent jurisdiction and power for taking action for contempt of itself as well as for the contempt of subordinate and inferior courts. It was contended that since High Court has power of superintendence over the subordinate courts under Article 227 of the Constitution, therefore, High Court has power to punish for the contempt of subordinate courts.
Since the Supreme Court has no supervisory jurisdiction over the High Court or other subordinate courts, it does not possess powers which High Courts have under Article 215.
This submission is misconceived. Article 227 confers su- pervisory jurisdiction on the High Court and in exercise of that power High Court may correct judicial orders of subordinate courts, in addition to that, the High Court has administrative control over the subordinate courts. Supreme Court's power to correct judicial orders of the subordinate courts under Article 136 is much wider and more effective than that contained under Article 227. Absence of administrative power of superintendence over the High court and subordinate court does not affect this Court's wide power of judicial superintendence of all courts in India.
Once there is power of judicial superintendence, all the courts whose orders are amenable to correction by this Court would be subordinate courts and therefore this Court also possesses similar inherent power as the High Court has under Article 215 with regard to the contempt of subordinate courts. The jurisdiction and power of a superior Court of Record to punish contempt of subordinate courts was not founded on the Court's administrative power of superintendence, instead the inherent jurisdiction was conceded to superior Court of Record on the premise of its judicial power to correct the errors of subordinate courts.
608 x x x x x x 36.Advent of freedom, and promulgation of Constitution have made drastic changes in the administration of justice necessitating new judicial approach. The Constitution has assigned a new role to the Constitutional Courts to ensure rule of law in the country. These changes have brought new perceptions. In interpreting the Constitution, we must have regard to the social, economic and political changes, need of the community and the independence of judiciary. The court cannot be a helpless spectator, bound by precedents of colonial days which have lost relevance. Time has come to have a fresh look at the old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution. "Law", to use the words of Lord Coleridge, "grows; and though the principles of law remain unchanged, yet their application is to be changed with the changing circumstances of the time". The considerations which weighed with the Federal Court in rendering its decision in Gauba and Jaitly case are no more relevant in the context of the constitutional provisions.
37.Since this Court has power of judicial superintendence and control over all the courts and tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest of inferior courts to ensure the flow of the stream of justice in the courts without any interference or attack from any quarter.
The subordinate and inferior courts do not have adequate power under the law to protect themselves, therefore, it is necessary that this court should protect them. Under the constitutional scheme this court has a special role, in the administration of justice and the powers conferred on it under Articles 32, 136, 141 and 142 form part of basic structure of the Constitution. The amplitude of the power of this Court under these articles of the Constitution cannot be curtailed by law made by Central or State legislature. If the contention raised on behalf of the contemners is accepted, the courts all over India will have no protection from this Court. No doubt High Courts have power to persist for the contempt of subordinate courts but that does not affect or abridge the inherent power of this Court under Article 129. The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Articles 32 and 226 of the Constitution, therefore this Court's jurisdiction and power to take action for contempt of subordinate courts would not be inconsistent to any constitutional scheme. 'Mere may be occasions when attack on Judges and Magistrates of subordinate courts may have wide repercussions throughout the country, in that situation it may not be possible for a High Court to contain the same, as a result of which the administration of justice in the country may be paralysed, in that situation the Apex Court must intervene to ensure smooth functioning of courts.
The Apex Court is duty bound to take effective steps within the constitutional provisions to ensure a free and fair ad- ministration of justice throughout the country, for that purpose it must wield the requisite power to take action for contempt of subordinate courts. Ordinarily the High Court would protect the subordinate court from any onslaught on their independence, but in exceptional cases, extraordinary situation may prevail affecting the administration of public justice or where the entire judiciary is affected, this Court may directly take cognisance of contempt of subordinate courts. We would like to strike a note of caution that this Court will sparingly exercise its inherent power in taking cognisance of the contempt of subordinate courts, as ordinarily matters relating to contempt of 609 subordinate courts must be dealt with by the High Courts.
The instant case is of exceptional nature, as the incident created a situation where functioning of the subordinate courts all over the country was adversely affected and the administration of justice was paralysed, therefore, this Court took cognisance of the matter.
38....It is true that courts constituted under a law enacted by the Parliament or the State legislature have limited jurisdiction and they cannot assume jurisdiction in a matter, not expressly assigned to them, but that is not so in the case of a superior court of record constituted by the Constitution. Such a court does not have a limited jurisdiction instead it has power to determine its own jurisdiction. No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of the Constitution. In the absence of any express provision in the Constitution the Apex Court being a court of record has jurisdiction in every matter and if there be any doubt, the Court has power to determine its jurisdiction. If such determination is made by High Court, the same would be subject to appeal to this Court, but if the jurisdiction is determined by this Court it would be final.
x x x x x x Court and a superior court of record has power to determine its jurisdiction under Article 129 of the Constitution and as discussed earlier it has jurisdiction to initiate or entertain proceedings for contempt of subordinate courts.
This view does not run counter to any provision of the Constitution.
26.The propositions of law laid down and the observations made in this decision conclusively negate the contention that this Court cannot take cognisance of the contempt committed of the High Court.
27.The contemner has also contended that notwithstanding the decision in Delhi Judicial Service Association Case [supra], the matter should be referred to a larger Bench because according to him, the decision does not lay down the correct proposition of law when it gives this Court the jurisdiction under Article 129 of the Constitution to take cognisance of the contempt of the High Court. Neither the contemner nor the learned counsel appearing on his behalf has pointed out to us any specific infirmity in the said decision. We are not only in complete agreement with the law laid down on the point in the said decision but are also unable to see how the legal position to the contrary will be consistent with this Court's wide ranging jurisdiction and its duties and responsibilities as the highest Court of the land as pointed out above. Hence we reject the said request.
28.The contemner has further contended that it will be necessary to hold an inquiry into the allegations made by the learned Judge by summoning the learned Judge for examination to verify the version of the incident given by him as against that given by the contemner. According to him, in view of the conflicting versions of the incident given by him and the learned Judge, it would be necessary for him to cross-examine the learned Judge. As the facts reveal, the contempt alleged is in the face of the Court.
The teamed Judge or the Bench could have itself taken action for the offence on the spot. Instead, the learned Judge probably thought that it would not be proper to be a prosecutor, a witness and the Judge himself in the 610 matter and decided to report the incident to the learned Acting Chief Justice of his Court. There is nothing unusual in the course the learned Judge adopted, although the procedure adopted by the learned Judge has resulted in some delay in taking action for the contempt [see Balogh v. Crown Court at St. Albans [(1975) QB 73, (1974) 3 All ER 283].
The criminal contempt of court undoubtedly amounts to an offence but it is an offence sui generis and hence for such offence, the procedure adopted both under the common law and the statute law even in this country has always been summary. However, the fact that the process is summary does not mean that the procedural requirement, viz., that an opportunity of meeting the charge, is denied to the contemner. The degree of precision with which the charge may be stated depends upon the circumstances. So long as the gist of the specific allegations is made clear or otherwise the contemner is aware of the specific allegation, it is not always necessary to formulate the charge in a specific allegation. The consensus of opinion among the judiciary and the jurists alike is that despite the objection that the Judge deals with the contempt himself and the contemner has little opportunity to defend himself, there is a residue of cases where not only it is justifiable to punish on the spot but it is the only realistic way of dealing with certain offenders. This procedure does not offend against the principle of natural justice, viz., Nemo judex in sua causa since the prosecution is not aimed at protecting the Judge personally but protecting the administration of justice. The threat of immediate punishment is the most effective deterrent against mis- conduct. The Judge has to remain in full control of the hearing of the case and he must be able to take steps to restore order as early and quickly as possible, The time factor is crucial. Dragging out the contempt proceedings means a lengthy interruption to the main proceedings which paralyses the court for a time and indirectly impedes the speed and efficiency with which justice is administered.
Instant justice can never be completely satisfactory yet it does provide the simplest, most effective and least unsatisfactory method of dealing with disruptive conduct in Court. So long as the contemner's interests arc adequately safeguarded by giving him an opportunity of being heard in his defence, even summary procedure in the case of contempt in the face of the Court is commended and not faulted.
29.In the present case, although the contempt is in the face of the court, the procedure adopted is not only not summary but has adequately safeguarded the contemner's interests.
The contemner was issued a notice intimating him the specific allegations against him. He was given an opportunity to counter the allegations by filing his counter affidavit and additional counter/supplementary affidavit as per his request, and he has filed the same. He was also given an opportunity to file an affidavit of any other person that he chose or to produce any other material in his defence, which he has not done. However, in the affidavit which he has filed, he has requested for an examination of the learned Judge. We have at length dealt with the nature of in facie curiae contempt and the justification for adopting summary procedure and punishing the offender on the spot. In such procedure, there is no scope for examining the Judge, or Judges of the court before whom the contempt is committed. To give such a right to the contemner is to destroy not only the raison 611 d'etre for taking action for contempt committed in the face of the court but also to destroy the very jurisdiction of the Court to adopt proceedings for such conduct. It is for these reasons that neither the common law nor the statute law countenances the claim of the offender for examination of the Judge or Judges before whom the contempt is committed. Section 14 of our Act, i.e., the Contempt of Courts Act, 1971 deals with the procedure when the action is taken for the contempt in the face of the Supreme Court and the High Court. Subsection [3] of the said Section deals with a situation where in facie curiae contempt is tried by a Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed. The provision in specific terms and for obvious reasons, states that in such cases it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, to appear as a witness and the statement placed before the Chief Justice shall be treated as the evidence in the case. The statement of the learned Judge has already been furnished to the contemner and he has replied to the same. We have, therefore, to proceed by treating the statement of the learned Judge and the affidavits filed by the contemner and the reply given by the teamed Judge to the said affidavits, as evidence in the case.
30. We may now refer to the matters in dispute to examine whether the contemner is guilty of the contempt of court.
Under the common law definition, "contempt of court" is defined as an act or omission calculated to interfere with the due administration of justice. This covers criminal contempt [that is, acts which so threaten the administration of justice that they require punishment] and civil contempt [disobedience of an order made in a civil cause]. Section 2 [a] [b] and [c] of the Act defines the contempt of court as follows:
"2.Definitions. - In this Act, unless the context otherwise requires, - [a] "contempt of court" means civil contempt or criminal contempt;
[b] "civil contempt" means wilful disobedience to any judgment decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;
[c] "criminal contempt" the publication [whether by words, spoken or written, or by signs, or by visible representations, or otherwise] of any matter or the doing of any other act whatsoever which –
[i] scandalises or tends to or lowers or tends to lower the authority of any court; or
[ii] prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings, or
[iii] interferes or tends to with, or obstructs or tends to obstruct, the administration of justice in any other manner"
31. From the facts which have been narrated above, it is clear that the allegations against the contemner, if true, would amount to criminal contempt as defined under Section 2 [c] of the Act. It is in the light of this definition of the "criminal contempt" that we have to examine the facts on record.
32. The essence of the contents of Justice Keshote's letter is that when he put a 612 question to the contemner as to under which provision the order was passed by the lower court, the contemner "started to shout and said that no question could have been put to him". The contemner further said that he would get the learned Judge transferred or see that impeachment motion was brought against him in Parliament. He also said that he had "turned up many judges". He also created a scene in the Court. The learned Judge has further stated in his letter that in sum and substance it was a matter where "except to abuse him of mother and sister", he insulted him "like anything". The contemner, according to the learned Judge, wanted to convey to him that admission was a matter of course and no arguments were to be heard at that stage. The learned Judge has given his reaction to the entire episode by pointing out that this is not a question of insulting a Judge but the institution as a whole. In case the dignity of the judiciary was not maintained then he "did not know where the institution would stand, particularly when contemner who is a senior advocate, President of the Bar and Chairman of the Bar Council of India behaved in the court in such manner which will have its effect on other advocates as well". He has further stated that in case the dignity of the judiciary is not restored, it would be very difficult for the Judges to discharge the judicial function without fear or favour. At the end of his letter, he has appealed to the learned Acting Chief Justice for "restoration of dignity of the judiciary' 33.The contemner, as pointed out above, by filing an affidavit has denied the version of the episode given by the learned Judge and has stated that when the matter was called on, the learned Judge [he has referred to him as the 'applicant'] took charge of the court proceedings and virtu- ally foreclosed the attempts made by the senior Judge to intervene. The learned Judge enquired from the contemner as to under which law the impugned order was passed to which the latter replied that it was under various rules of Order 39, CPC. The learned Judge then conveyed to the contemner that he was going to set aside the entire order although against a portion of it only he had come in appeal.
According to the contemner, he them politely brought to the notice of the learned Judge that being the appellant, he had the dominion over the case and it could -not be made worse just because he had come to High Court. According to the contemner, the learned Judge then apparently lost his temper and told him that he would set aside the order in toto disregarding what he had said. The contemner has then pro- ceeded to state that "being upset over what" he felt was an arbitrary approach to judicial process he "got emotionally perturbed" and "his professional and institutional sensitivity got deeply wounded" and he told the applicant- Judge that "it was not the practice" of that Court to dismiss case without hearing or to upset judgments or portions of judgments which have not been appealed against.
According to the contemner, "unfortunately the applicant Judge took it unsportingly and apparently lost his temper and directed the Stenographer to take down the order for setting aside of the whole order. The contemner has then stated that he "found it necessary to mention that the exchange that took place between him and the applicant-Judge got a little heated up". In the moment of heat the applicant-Judge made the following observations: "I am from the Bar and if need be I can take to goondaism.
613 never opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not know why the Chief Justice of India disregarded my options and transferred me to this place, which I never liked". According to the contemner, he was "provoked by this" and asked the learned Judge "whether he was creating a scene to create conditions for getting himself transferred as also talked earlier". The contemner has denied that he had referred to any impeachment although according to him, he did say that "a Judge got himself transferred earlier on account of his inability to command the goodwill of the Bar due to lack of mutual reverence".
He has also denied that when the learned Judge asked him as to under which provision the order was passed, he had replied that the Court had no jurisdiction to ask the same and should admit and grant the stay order. He has added that such a reply could only be attributed to one who is mad and it is unbelievable that "he would reply in such a foolish manner". He has also denied that he had abused the learned Judge and the allegations made against him in that behalf were vague. According to the contemner, if he had committed the contempt, the senior member of the Bench would have initiated proceedings under "Article 129" of the Constitution for committing contempt in facie curiae. He has also stated that even the learned Judge himself could have done so but he did not do so and deferred the matter for the next day and "adopted a devious way of writing to the acting Chief Justice for doing something about it" which shows that the version of the episode was not correct. The contemner has also then expressed his " uncomprehension" why the learned Judge should have come to this Court when he had ample and sufficient legal and constitutional powers to arraign the contemner at the "Bar for what was attributed" to him.
34.Before we refer to the other contentions raised by the contemner, the question is which of the two versions has to be accepted as correct. The contemner has no doubt asked for an inquiry and an opportunity to produce evidence. For reasons stated earlier, we declined his request for such inquiry, but gave him ample opportunity to produce whatever material he desired to, including the affidavits of whomsoever he desired. Our order dated 15th July, 1994 is clear on the subject. Pursuant to the said order, the contemner has not filed his further affidavit or material or the affidavit of any other person. Instead he tendered a written apology dated 7th October, 1994 which will be considered at the proper place. In his earlier counter and additional counter, he has stated that it is not he who had committed contempt but it is the learned Judge who had committed contempt