Delhi High Court
Court On Its Own Motion vs Dsp Jayant Kashmiri & Ors on 9 March, 2017
$~
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 21st February, 2017
Date of decision : 9th March, 2017
+ CCP(REF)No.3/2016
COURT ON ITS OWN MOTION ..... Petitioner
Through: Mr. Darpan Wadhwa, Amicus
Curiae with Ms. Aditi Mohan,
Adv.
versus
DSP JAYANT KASHMIRI & ORS ..... Respondents
Through: Mr. Maninder Singh, ASG with
Mr. Sanjeev Bhandari, Spl.PP
for the Central Bureau of
Investigation.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
GITA MITTAL, J.
" ... We ought never to forget that the power to punish for
contempt large as it is, must always be exercised cautiously,
wisely and with circumspection. Frequent or indiscriminate use
of this power in anger or irritation would not help to sustain the
dignity or status of the court, but may sometimes affect it
adversely. Wise Judges never forget that the best way to sustain
the dignity and status of their office is to deserve respect from
the public at large by the quality of their judgments, the
fearlessness, fairness and objectivity of their approach, and by
the restraint, dignity and decorum which they observe in their
judicial conduct..."
(Ref: Powers, Privileges and Immunities of
State Legislatures, Re.
Special Reference No.1 of 1964
(1965) 1 SCR 413 : AIR 1965 SC 745)
1. By this judgment, we propose to decide the criminal contempt
reference, made by the Special Judge-01(CBI), Patiala House Courts,
New Delhi, which has its genesis in the case entitled 'CBI v. M/s
Endeavour Systems Pvt. Ltd & Ors.' pending before him arising out of
FIR No. RC-DAI-2015-A-0042 under Section 120B of the Indian
Penal Code ("IPC" hereafter ) and Section 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988.
2. During the course of investigation in the case, the Central
Bureau of Investigation ("CBI" hereafter) seized seven accounts held
by one of the companies being investigated i.e M/s Endeavour
Systems Pvt. Ltd. with the Oriental Bank of Commerce. An
application dated 27th February, 2016 came to be filed seeking
defreezing of seven of these bank accounts.
3. In opposition, the CBI filed a written reply dated 11th of March
2016 making a detailed factual assertion and finally summing up its
submissions in para 10 of the reply (wherein it was replying to para
16 of the application). Inasmuch as one sub-para of para 10 of the
CBI's reply dated 11th March, 2016 is the basis of the reference made
by the ld. Special Judge CBI which is being considered by us herein
under the Contempt of Courts Act, 1971, we deem it appropriate to
extract hereunder this portion of para 10 of the CBI reply which reads
thus :
"...It is humbly submitted that while assessing the previous
order dated 20.01.2016 passed by this Court, the Hon'ble High
Court of Delhi vide its order dated 10.02.2016, passed in
Criminal Revision no. 251/2016 filed by CBI has held that "the
impugned order is full of either exceeding of jurisdiction or
failure to exercise the jurisdiction. The issuance of directions to
return the documents at the time of initial investigation despite
having consistent stand of the CBI to retain the documents for
the purpose of investigation to reach to a logical conclusion;
making the unnecessary observations in para 55 with regard to
conducting the proceedings by the petitioner; having
contradictory views in paras 58-59 and 44; directing to return
the documents in original selected by the respondent no. 1 in
para 8 of the application and having failed to exercise the
jurisdiction to consider the application for retention of
documents by the CBI, culminates into the impugned order not
sustainable in the eyes of law"."
(Emphasis by us)
4. The extract of the reply resulted in the passing of an order dated
5th April, 2016 by the ld. Special Judge objecting to the insertion of
the above in the reply. In the order dated 5th April, 2016, the ld. Trial
Judge has found above sub-para objectionable for reasons which can
be summed up as under :
(i) The paragraph has no bearing whatsoever on the issue to
be adjudicated i.e. defreezement of bank accounts of the
applicant.
(ii) It contains no reasons in support of the opposition of the
application which is intended.
(iii) It has been placed as warning and intended to vilify a
judicial office. It is wanting altogether in fearness and
justification and not only interferes in the legal process
but has clear tendency to scandalize.
(iv) The paragraph contains no principle of laws;
observations therein relate to different issue altogether
and reproduction thereof was unnecessary and
unwarranted.
(v) The reproduction was a "calculated psychological
offence and mind game to intimidate the judge" to seek
orders in their favour.
(vi) Intended to pre-empt a decision on the application.
(vii) In the absence of any justification for the incorporation,
it is clearly without good faith.
(viii) It was a friendly assault on the independence,
impartiality and integrity of the judicial process.
(ix) The paragraph does not fall in the category of fair
criticism in good faith.
5. The reference was accompanied by a previous order dated 20 th
January, 2016 passed by the ld. Special Judge, CBI-01 allowing an
application dated 21st December, 2015 filed by the Government of
NCT of Delhi for release of documents seized during investigation. It
appears that this order of the trial court was challenged by the CBI by
way of Crl.M.C.No.257/2016 before this court. The ld. Single Judge
had accepted CBI's challenge to the order dated 21st December, 2015
of the ld. Special Judge, CBI-01 and set it aside by an order dated 10th
February, 2016 with the observations which were extracted in para 10
of CBI's reply dated 11th of March 2016. The ld. Special Judge CBI-
01 has also forwarded the copy of the order dated 10th February, 2016
passed in Crl.M.C.No.257/2016 with the reference.
6. The order of reference dated 5th of April 2016 also makes
reference to the pronouncements of the Supreme Court in Brahma
Parkash Sharma & Ors. v. The State of UP, AIR 1954 SC 10; Dr. DC
Saxena v. Hon'ble the Chief Justice of India, 1996 (5) SCC 216; In Re
Vinay Chandra Mishra, 1995 (2) SCC 584; Arundhati Roy, In Re,
2002 (3) SCC 343; Subrata Roy Sahara v. Union of India, 2014 (8)
SCC 470.
7. It has been observed in order of reference that the above portion
of the order in the reply dated 11th March, 2016 was published by the
investigating officer DSP Jayant Kashmiri which stood approved by
the competent authority in the CBI who were to be implicated as
contemnors. The Public Prosecutor was absolved of liability for
contempt for the reason that, though the reply was submitted by him,
however, he did not appear to have applied his mind when preparing a
reply.
8. In view of these observations, the ld. Judge by the reference
dated 5th of April 2016 has sought initiation of contempt of court
proceedings against the investigating officer DSP Jayant Kashmiri and
other officials of competent authority of CBI who had approved the
reply dated 11th March, 2016 containing the aforenoticed reproduction
of the ld. Single Judge's order in para 10 of its reply. In view of
Section 15 of the Contempt of Courts Act, 1971, this reference was
forwarded by the District and Sessions Judge, Patiala House Courts on
6th of April 2016 to this court.
9. The matter was treated as a civil contempt reference by the
Registry of this court and therefore, pursuant to the orders of Hon'ble
the Chief Justice, on the Administrative Side, directed to be placed
before the roster Bench. Consequently, it came to be registered as
CCP (Ref) No. 3/2016 and listed before the ld. Single Judge on the
18th of May 2016. An advance copy of the reference had been
directed to be served by the Registry upon the Standing Counsel for
the CBI. CBI was therefore represented before the court.
10. The record shows that though notice was not issued by the ld.
Single Judge, however, the respondent filed a parawise reply dated
26th September, 2016 to the reference as well as written submissions
dated 15th November, 2016.
11. The ld. Single Judge appointed Mr. Darpan Wadhwa, Advocate
as amicus curiae in the matter. On the 17th of November 2016, on a
consideration of the reference, the learned Single Judge was of the
view that the matter was to be treated as Criminal Contempt. It was
observed that Section 18 of the Contempt of Courts Act, 1971
provides that a criminal contempt under Section 15 shall be heard and
determined by a Bench of not less than two Judges. Consequently, the
ld. Single Judge directed the Registry to seek appropriate orders from
Hon'ble the Chief Justice for placing the matter before the Division
Bench. Pursuant to these orders, the matter has been placed before us.
12. The issuance of notice to show cause for appropriate action for
criminal contempt under the Contempt of Courts Act, 1971 is a
serious matter and hence we are required to consider as to whether the
conduct of the respondent prima facie warranted initiation of
proceedings under the Contempt of Courts Act against them.
We, consequently, have first heard arguments on this aspect of
the matter.
13. Mr. Darpan Wadhwa, ld. amicus curiae and Mr. Maninder
Singh, ld. ASG on behalf of the respondents have taken us through the
application dated 27th February, 2016 before the ld. Special Judge as
well as CBI's reply dated 11th March, 2016, placed the legal
provisions as well as the judicial precedents on the issue and made
oral submissions at great length.
Statutory provisions
14. Before examining the factual position in the light of the legal
principles as brought out in the several judgments on the issue, it may
be useful to extract the relevant provisions of the statute defining the
expressions "civil contempt" and "criminal contempt".
15. So far as Civil Contempt is concerned, it is defined in Section
2(b) of the Contempt of Courts Act, 1971 thus :
"2(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;"
16. Criminal Contempt is defined in Section 2(c) of the Contempt
of Courts Act, 1971 thus :
"2(c) "criminal contempt" means 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 scandalise, 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 proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends
to obstruct, the administration of justice in any other
manner;"
Contentions
17. It is submitted at length by both Mr. Maninder Singh, ld. ASG
and Mr. Darpan Wadhwa, ld. amicus curiae that the trial court has
taken offence to the reproduction of an extract of a judgment of the
High Court by the CBI which would not be covered within the
meaning of the expression "criminal contempt". It is further
submitted that the CBI and its officials have no intention to and have
not done any act which could scandalize or tend to scandalize or tend
to or lower the authority of the court so as to invite proceedings under
the Contempt of Courts Act, 1971 against them. Ld. ASG would
submit that objected portion of para 10 of the CBI's reply dated 11 th
March, 2016 would not be covered under any of the acts specified in
Section 2(c)(ii) or (iii) as well and that the reference is completely
unjustified.
18. It is contended that the action of the CBI, pointing out in para
10 of the reply dated 11th March, 2016, CBI has merely attempted to
emphase the critical stage of investigation pointing out that the
accounts ought not to be released at this stage pending further
investigation and in support thereof placing reliance on the order
dated 10th February, 2016 of the ld. Single Judge which could not
constitute criminal contempt under Section 2(c) of the Contempt of
Courts Act.
19. Mr. Darpan Wadhwa, ld. amicus curiae has urged at length that
the extract of the judgment dated 10th February, 2016 in
Crl.M.C.No.257/2016 was in support of the CBI's basic contention
regarding the inappropriateness of defreezing bank accounts at that
juncture.
20. It is submitted by Mr. Darpan Wadhwa, ld. amicus curiae that it
is every party's right to assail an order of a trial court by way of the
statutory remedy of appeal or revision. The contention is that no trial
court can take offence to correction of its previous order by the
appellate or revisional court or to a reference to the order of the High
Court setting aside the trial court's order. Placing reliance on the
pronouncements in AIR 1969 Del 304, Banarsi Lal v. Smt. Neelam &
Ors., (1978) 3 SCC 339, In Re: S. Mulgaokar, (1999) 8 SCC 308,
Narmada Bachao Andolan v. Union of India & Ors. it is urged before
us that courts should not react hypersensitively.
Whether a case for proceeding for civil contempt made out?
21. So far as the present case is concerned, there is no willful
disobedience of any order of the court or any undertaking alleged
against the respondents. The present case was therefore, clearly not
covered under the definition of civil contempt or within the meaning
of the expression as contained in Section 2(b) of the Contempt of
Courts Act. The registration of the reference as civil contempt
proceedings was clearly misconceived.
Whether citation or reproduction of an order of the appellate court
by a litigant before the trial court constitutes criminal contempt
under Section 2(c)(ii) of the Contempt of Courts Act?
22. We find that in the order of reference dated 5 th April, 2016,
apart from the observation that the assertions of the CBI regarding
order dated 10th February, 2016 passed by the ld. Single Judge in
Crl.M.C.No.257/2016 (wrongly referred to as Crl.Ref.No.251/2016),
were irrelevant, the ld. trial judge has perceived the same as intended
to intimidate and overawe him and thereby intimidated him from
passing orders in accordance with law.
23. The question which is thus posed for consideration in the
present reference is as to whether reproduction of a portion of a
judgment of the High Court in the CBI reply or its placing reliance on
a judgment of the High Court, could constitute criminal contempt as
defined under Section 2(c) of the Contempt of Courts Act and render
the person citing and reproducing the judgment as liable for criminal
contempt?
24. So far as criminal contempt as defined under Section 2(c) of the
statute is concerned, it requires publication of any matter or doing of
any other act which scandalizes or tends to scandalize or lower
authority of any court, prejudices, interferes, or tends to interfere with
judicial proceedings or administration of justice.
25. On this aspect, so far as unnecessary and objectionable
pleadings in civil proceedings are concerned, the Legislature has
provided Rule 16 of the Order VI of the C.P.C. which states thus :
"Rule 16. Striking out pleadings.- The court may at any
stage of the proceedings order to be struck out or
amended any matter in any pleading--
(a) which may be unnecessary, scandalous, frivolous or
vexatious, or
(b) which may tend to prejudice, embarrass or delay the
fair trial of the suit, or
(c) which is otherwise an abuse of the process of the
court."
Therefore, unnecessary, scandalous, frivolous or vexatious
pleadings which may tend to prejudice, embarrass or delay the fair
trial of the suit or which is otherwise an abuse of the process of the
civil court, can be ordered to be struck down of the record either suo
motu or by an application by the party taking objection in civil
proceedings. The legislature has thus anticipated the possibility of
such pleadings so far as cases tried in accordance with the Code of
Civil Procedure are concerned.
26. It is to be remembered that pleadings are really the foundation
of a civil case whereas it may not necessarily be so in criminal law
given the protections afforded to the accused regarding confidentiality
attached to his defence. However, the Code of Criminal Procedure
does envisage making of complaints, applications and objections
thereto before the appropriate court by the parties. Therefore, the
issue of maintenance of propriety by a party in its pleadings, though
not formally structured by legislative mandate, would remain relevant
even while considering them in criminal law.
27. Let us, in this context, examine the jurisdiction and role of an
appellate court. The same has been succinctly described by the
Supreme Court in (2015) 6 SCC 158, K. Anbazhagan v. State of
Karnataka. Speaking for the Bench, Dipak Misra, J. has clearly laid
down the parameters of the examination which has to be conducted by
the appellate court in the following terms :
"36. It needs no special emphasis that the appellate court
has the sacrosanct duty to evaluate, appreciate and
consider each material aspect brought on record before
rendering the judgment. That is sacred duty of a Judge;
and the same gets more accentuated when the matter is in
appeal assailing the defensibility of the conviction in a
corruption case.
xxx xxx xxx
39. ...The appellate court has a duty to make a complete
and comprehensive appreciation of all vital features of the
case. The evidence brought on record in entirety has to be
scrutinised with care and caution. It is the duty of the
Judge to see that justice is appropriately administered, for
that is the paramount consideration of a Judge. ..."
(Emphasis by us)
Thus, while referring to the scrutiny of an impugned order by
an appellate court, the appellate court conducts an "evaluation" or
"consideration" of the record, the appellate court effects a
"comprehensive appreciation" of all aspects of the case.
28. In this regard, reference may usefully be made to the exercise of
jurisdiction by the High Court under Article 227 of the Constitution of
India. What is the nature of the scrutiny by the High Court? We may
usefully refer to the pronouncement of the Supreme Court in (2003) 6
SCC 675, Surya Dev Rai v. Ram Chander Rai wherein the court held
thus :
"38. Such like matters frequently arise before the High
Courts. We sum up our conclusions in a nutshell, even at the
risk of repetition and state the same as hereunder:
xxx xxx xxx
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate
courts within the bounds of their jurisdiction. When a
subordinate court has assumed a jurisdiction which it
does not have or has failed to exercise a jurisdiction
which it does have or the jurisdiction though available is
being exercised by the court in a manner not permitted by
law and failure of justice or grave injustice has
occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction.
xxx xxx xxx
(9) In practice, the parameters for exercising jurisdiction
to issue a writ of certiorari and those calling for exercise
of supervisory jurisdiction are almost similar and the
width of jurisdiction exercised by the High Courts in India
unlike English courts has almost obliterated the distinction
between the two jurisdictions. While exercising jurisdiction
to issue a writ of certiorari, the High Court may annul or
set aside the act, order or proceedings of the subordinate
courts but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the High
Court may not only give suitable directions so as to guide
the subordinate court as to the manner in which it would
act or proceed thereafter or afresh, the High Court may
in appropriate cases itself make an order in supersession
or substitution of the order of the subordinate court as
the court should have made in the facts and
circumstances of the case."
(Emphasis by us)
29. The exercise of power of superintendence of the High Court
over trial courts under Article 227 and the jurisdiction of the High
Court is circumscribed by the limits which have been authoritatively
summed up in para 49 of the judgment of the Supreme Court reported
at (2010) 8 SCC 329, Shalini Shyam Shetty v. Rajendra Shankar
Patel, the relevant portion whereof reads thus :
"49. On an analysis of the aforesaid decisions of this Court,
the following principles on the exercise of High Court's
jurisdiction under Article 227 of the Constitution may be
formulated:
xxx xxx xxx
(d) The parameters of interference by High Courts in
exercise of their power of superintendence have been
repeatedly laid down by this Court. In this regard the High
Court must be guided by the principles laid down by the
Constitution Bench of this Court in Waryam Singh [AIR
1954 SC 215] and the principles in Waryam Singh [AIR
1954 SC 215] have been repeatedly followed by
subsequent Constitution Benches and various other
decisions of this Court.
(e) According to the ratio in Waryam Singh [AIR 1954 SC
215] , followed in subsequent cases, the High Court in
exercise of its jurisdiction of superintendence can interfere
in order only to keep the tribunals and courts subordinate
to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such
tribunals and courts by exercising jurisdiction which is
vested in them and by not declining to exercise the
jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High
Court can interfere in exercise of its power of
superintendence when there has been a patent perversity
in the orders of the tribunals and courts subordinate to it
or where there has been a gross and manifest failure of
justice or the basic principles of natural justice have been
flouted.
(h) In exercise of its power of superintendence High Court
cannot interfere to correct mere errors of law or fact or
just because another view than the one taken by the
tribunals or courts subordinate to it, is a possible view. In
other words the jurisdiction has to be very sparingly
exercised.
xxx xxx xxx
(l) On a proper appreciation of the wide and unfettered
power of the High Court under Article 227, it transpires
that the main object of this article is to keep strict
administrative and judicial control by the High Court on
the administration of justice within its territory.
xxx xxx xxx"
(Emphasis by us)
30. It is to be noted that while referring to the orders of the trial
court which are impugned before the High Court in the grounds of
appeal, parties are known to refer to the trial court having erred on
facts and law and having ignored statutory provisions. There are
several precedents setting aside and interfering with the trial court
orders on these very grounds.
31. The judgments of the High Court would bind the trial courts. If
an unnecessary reference to a judicial precedent or erroneous
submission in law is made, the judge considering the matter would
reject the reliance thereon or the submission made. However,
certainly reference to a judicial precedent cannot be termed a
contumacious act.
Distinction between libel and contempt of court
32. Mr. Darpan Wadhwa, ld. amicus curiae has urged that courts
have often erred in mistakenly initiating contempt action whereas the
correct legal action was that of libel by the respondent. We may
briefly examine the submissions in this regard also.
33. In the judgment of the Supreme Court reported at AIR 1954 SC
10, Brahma Prakash Sharma & Ors. v. The State of Uttar Pradesh,
the six appellants were members of the Executive Committee of the
District Bar Association at Muzaffar Nagar who passed certain
resolutions in April, 1949 relating to the conduct of two judicial
officers functioning at Muzaffar Nagar stating that several complaints
had been received by the Bar Association regarding the manner of
disposal of cases by the two judicial officers and their behavior
towards the litigant public as well as lawyers, stating the opinion of
the Committee with regard to the incompetence of the officers as well
as their working. It was resolved to send a copy of the resolution to
several government authorities as well as the District Magistrate. The
District Magistrate wrote a letter dated 20th July, 1949 to the Registry
of High Court of Allahabad drawing attention of the court to the
resolution made by the committee. On 16th November, 1949, the High
Court directed issuance of show cause notices to the members of the
Committee of the Bar Association. The case was heard by the Bench
of three judges and by the order dated 5th May, 1950, it was concluded
that with the exception of two of the opposite parties who were not
members of the executive committee at the relevant date, the
remaining six were guilty of contempt of court. The statement of the
two of the appellants that they were not actuated by any personal or
improper motives; their object was not to interfere with but to
improve the administration of justice was accepted by the Court.
However, it was observed that the terms used in the resolution were
little removed from personal abuse and whatever be the motive, they
were clearly likely to bring the Magistrate into contempt and lower
their authority. As the appellants had tendered their unqualified
apology, the court accepted the same but still directed them to pay
costs to the government advocate. This judgment was assailed before
the Supreme Court. The observations of the Supreme Court are
important and we therefore, extract them in some detail :
"9. There are indeed innumerable ways by which attempts
can be made to hinder or obstruct the due administration
of justice in courts. One type of such interference is found
in cases where there is an act or publication which
"amounts to scandalising the court itself" an expression
which is familiar to English lawyers since the days of Lord
Hardwicke [ Vide In re Read and Huggonson (1742) 2 Atk.
469, 471] . This scandalising might manifest itself in
various ways but, in substance, it is an attack on
individual Judges or the court as a whole with or without
reference to particular cases casting unwarranted and
defamatory aspersions upon the character or ability of the
Judges. Such conduct is punished as contempt for this
reason that it tends to create distrust in the popular mind
and impair confidence of people in the courts which are of
prime importance to the litigants in the protection of their
rights and liberties.
10. There are decisions of English courts from early time
where the courts assumed jurisdiction in taking committal
proceedings against persons who were guilty of publishing
any scandalous matter in respect of the court itself. In the
year 1899, Lord Morris in delivering the judgment of the
Judicial Committee in MacLeod v. St. Aubin [ (1899)
Appeal Cases 549] observed that "Committals for
contempt by scandalising the court itself have become
obsolete in this country. Courts are satisfied to leave to
public opinion attacks or comments derogatory or
scandalous to them." His Lordship said further: "The
power summarily to commit for contempt is considered
necessary for the proper administration of justice. It is
not to be used for the vindication of a Judge as a person.
He must resort to action for libel or criminal
information."
11. The observation of Lord Morris that contempt
proceedings for scandalising the courts have become
obsolete in England is not, strictly speaking, correct; for,
in the very next year, such proceedings were taken
in Reg. v. Gray [ (1900) 2 QB 36] . In that case, there was
a scandalous attack of a rather atrocious type on Darling,
J. who was sitting at that time in Birmingham Assizes and
was trying a man named Wells who was indicted inter alia
for selling and publishing obscene literature. The Judge, in
the course of the trial, gave a warning to the newspaper
press that in reporting the proceeding of the court, it was
not proper for them to give publicity to indecent matters
that were revealed during trial. Upon this, the defendant
published an article in the Birmingham Daily Argus,
under the heading "An advocate of Decency", where
Darling, J. was abused in scurrilous language. The case
of Wells was then over but the Assizes were still sitting.
There can be no doubt that the publication amounted to
contempt of court and such attack was calculated to
interfere directly with proper administration of justice.
Lord Russell in the course of his judgment, however, took
care to observe that the summary jurisdiction by way of
contempt proceedings in such cases where the court itself
was attacked, has to be exercised with scrupulous care
and only when the case is clear and beyond reasonable
doubt. "Because", as His Lordship said, "If it is not a
case beyond reasonable doubt, the court should and ought
to leave the Attorney-General to proceed by criminal
information." In 1943, Lord Atkin, while delivering the
judgment of the Privy Council in Devi Prashad v. King
Emperor [70 IA 216] observed that cases of contempt,
which consist of scandalising the court itself, are
fortunately rare and require to be treated with much
discretion. Proceedings for this species of contempt should
be used sparingly and always with reference to the
administration of justice. "If a Judge is defamed in such a
way as not to affect the administration of justice, he has
the ordinary remedies for defamation if he should feel
impelled to use them."
12. It seems, therefore, that there are two primary
considerations which should weigh with the court when it
is called upon to exercise the summary powers in cases of
contempt committed by "scandalising" the court itself. In
the first place, the reflection on the conduct or character
of a judge in reference to the discharge of his judicial
duties, would not be contempt if such reflection is made
in the exercise of the right of fair and reasonable
criticism which every citizen possesses in respect of
public acts done in the seat of justice. It is not by stifling
criticism that confidence in courts can be created. "The
path of criticism", said Lord Atkin [ Ambard v. Attorney-
General for Trinidad & Tobago, (1936) AC 322, at p. 335]
"is a public way. The wrong-headed are permitted to err
therein; provided that members of the public abstain from
imputing motives to those taking part in the administration
of justice and are genuinely exercising a right of criticism
and not acting in malice, or attempt to impair the
administration of justice, they are immune."
13. In the second place, when attacks or comments are
made on a Judge or Judges, disparaging in character and
derogatory to their dignity, care should be taken to
distinguish between what is a libel on the Judge and what
amounts really to contempt of court. The fact that a
statement is defamatory so far as the Judge is concerned
does not necessarily make it a contempt. The distinction
between a libel and a contempt was pointed out by a
Committee of the Privy Council, to which a reference was
made by the Secretary of State in 1892 [ In the matter of a
special reference from the Bahama Islands, 1893 App.
Cases, p. 138] . A man in the Bahama Islands, in a letter
published in a colonial newspaper criticised the Chief
Justice of the Colony in an extremely ill-chosen language
which was sarcastic and pungent. There was a veiled
insinuation that he was an incompetent Judge and a
shirker of work and the writer suggested in a way that it
would be a providential thing if he were to die. A strong
Board constituting of 11 members reported that the letter
complained of, though it might have been made the subject
of proceedings for libel, was not, in the circumstances,
calculated to obstruct or interfere with the course of
justice or the due administration of the law and therefore
did not constitute a contempt of court. The same principle
was reiterated by Lord Atkin in the case of Devi
Prashad v. King Emperor referred to above. It was
followed and approved of by the High Court of Australia
in King v. Nicholls [12 Commonwealth Law Reports, p.
280] , and has been accepted as sound by this Court
in Reddy v. State of Madras [1952 Supreme Court
Reports, p. 452] . The position therefore is that a
defamatory attack on a Judge may be a libel so far as the
judge is concerned and it would be open to him to
proceed against the libellor in a proper action if he so
chooses. If, however, the publication of the disparaging
statement is calculated to interfere with the due course of
justice or proper administration of law by such court, it
can be punished summarily as contempt. One is a wrong
done to the Judge personally while the other is a wrong
done to the public. It will be an injury to the public if it
tends to create an apprehension in the minds of the
people regarding the integrity, ability or fairness of the
Judge or to deter actual and prospective litigants from
placing complete reliance upon the court's
administration of justice, or if it is likely to cause
embarrassment in the mind of the Judge himself in the
discharge of his judicial duties. It is well established that
it is not necessary to prove affirmatively that there has
been an actual interference with the administration of
justice by reason of such defamatory statement; it is
enough if it is likely, or tends in any way, to interfere with
the proper administration of law [ Mr Mookerjea, J. In re
Motilal Ghosh and others, ILR 45 Cal 269, at 283] .
19. The only portion of the resolution to which prima facie
objection can be taken is that which describes these
officers as thoroughly incompetent in law and whose
judicial work does not inspire confidence. These remarks
are certainly of a sweeping nature and can scarcely be
justified. Assuming, however, that this portion of the
resolution is defamatory, the question arises whether it
can be held to amount to contempt of court. To answer
this question, we have to see whether it is in any way
calculated to interfere with the due administration of
justice in these courts, or, in other words, whether such
statement is likely to give rise to an apprehension in the
minds of litigants as to the ability of the two judicial
officers to deal properly with cases coming before them, or
even to embarrass the officers themselves in the discharge
of their duties.
20. We are unable to agree with the learned counsel for
the respondent that whether or not the representation
made by the appellants in the present case is calculated to
produce these results, is to be determined solely and
exclusively with reference to the language or contents of
the resolutions themselves; and that no other fact or
circumstance can be looked into for this purpose, except
perhaps as matters which would aggravate or mitigate the
offence of contempt, if such offence is found to have been
committed. It may be that pleas of justification or
privilege are not strictly speaking available to the
defendant in contempt proceedings. The question of
publication also in the technical sense in which it is
relevant in a libel action may be inappropriate to the law
of contempt. But, leaving out cases of ex facie contempt,
where the question arises as to whether a defamatory
statement directed against a Judge is calculated to
undermine the confidence of the public in the capacity or
integrity of the Judge, or is likely to deflect the court itself
from a strict and unhesitant performance of its duties, all
the surrounding facts and circumstances under which
the statement was made and the degree of publicity that
was given to it would undoubtedly be relevant
circumstances . xxx xxx xxx
What is material is the nature and extent of the publication
and whether or not it was likely to have an injurious
effect on the minds of the public or of the judiciary itself
and thereby lead to interference with the administration
of justice. ..."
(Emphasis by us)
34. On the facts of the case and consideration of the Bar resolution,
the court held thus :
"20. ... On the materials before us, it is difficult to say
that the circumstances under which the representation
was made by the appellants was calculated to have such
effect. There might have been some remote possibility but
that cannot be taken note of. We are clearly of the opinion
that the contempt, if any, was only of a technical
character, and that after the affidavits were filed on behalf
of the appellants before the High Court, the proceedings
against them should have been dropped. The result,
therefore, is that the appeal is allowed and the judgment of
the High Court is set aside. There will be no order for
costs either here or in the court below in favour of either
party."
(Emphasis by us)
35. It would therefore, appear that it is not the language of the
contents of the publication alone which would be determinative of the
issue as to whether the same was effected to interfere with the due
administration of justice but surrounding facts and circumstances
under which the publication or the representation was made are
required to be considered. The remote possibility of the impact
thereof would not invite action under the Contempt of Courts Act,
1971. It has further been clearly laid down that a defamatory attack
on a judge may be libel qua the judge and so actionable at his instance
but may not be contumacious. However, publication of a disparaging
statement calculated to interfere with due course of justice or proper
administration of law by the court would render the person liable for
summary proceedings under the Contempt of Courts Act, 1971.
Comment on the judgments of the court - permissibility and
parameters
36. In the judgment reported at JT 2005 (4) SC 548, Rajendra Sail
v. Madhya Pradesh High Court Bar Association & Ors., the
Supreme Court was concerned with a newspaper report dated 4 th July,
1998 in the newspaper Hitavada about the decision of the High Court
reversing the trial court judgment whereby in the murder trial of
Shankar Guha Niyogi, a trade union leader, the accused were found
guilty and sentenced to imprisonment for life except one who was
awarded death sentence. The judgment was criticized in the said
article. This newspaper article led to initiation of contempt action on
an application filed by Madhya Pradesh Bar Association, with the
consent of the Advocate General, against the Editor, Printer and
Publisher, Chief Sub-Editor and Desk In-charge of the newspaper at
Bhilai. So far as the principles and parameters within which
judgments could be commented upon or criticized, the Supreme Court
observed as follows:
"32. The reach of the media, in the present times of 24-hour
channels, is to almost every nook and corner of the world.
Further, large number of people believe as correct that which
appears in media, print or electronic. It is also necessary to
always bear in mind that the judiciary is the last resort of
redressal for resolution of disputes between State and the
subject, and high and low. The confidence of the people in the
institution of judiciary is necessary to be preserved at any
cost. That is its main asset. Loss of confidence in institution of
judiciary would be end of rule of law. Therefore, any act
which has such tendency deserves to be firmly curbed. For
rule of law and orderly society, a free responsible press and
independent judiciary are both indispensable. Both have to
be, therefore, protected.
33. The judgments of courts are public documents and can
be commented upon, analysed and criticised, but it has to be
in dignified manner without attributing motives...
xxx xxx xxx
43. ... Undoubtedly, judgments are open to criticism. No
criticism of a judgment, however vigorous, can amount to
contempt of court, provided it is kept within the limits of
reasonable courtesy and good faith. Fair and reasonable
criticism of a judgment which is a public document or which
is a public act of a judge concerned with administration of
justice would not constitute contempt. Such a criticism may
fairly assert that the judgment is incorrect or an error has
been committed both with regard to law or established
facts."
xxx xxx xxx
45. When there is danger of grave mischief being done in
the matter of administration of justice, the animadversion
cannot be ignored and viewed with placid equanimity. If the
criticism is likely to interfere with due administration of
justice or undermine the confidence which the public
reposes in the courts of law as courts of justice, the criticism
would cease to be fair and reasonable criticism but would
scandalise courts and substantially interfere with
administration of justice. ..."
(Emphasis by us)
37. So far as the facts of the case in Rajendra Sail are concerned,
the court held thus :
"43. The issue as to whether the alleged statements
amount to contempt or not does not present any difficulty
in the present case. If the conclusions reached by the High
Court are correct, there can be little doubt that it is
serious case of scandalising the Court and not a case of
fair criticism of a judgment....
xxx xxx xxx
45. ...Having perused the record, we are unable to
accept the contention urged on behalf of Mr Rajendra Sail
that on facts the conclusions arrived at by the High Court
are not sustainable. Once this conclusion is reached,
clearly the publication amounts to a gross contempt of
court. It has serious tendency to undermine the
confidence of the society in the administration."
(Emphasis by us)
38. It needs no further elaboration that the judgments of courts are
public documents which are open to comment, analysis and criticism
in a dignified manner without attributing motives and that no criticism
of the judgment, however, vigorous, could amount to contempt of
court provided it is fair, kept within the limits of reasonable courtesy
and good faith. Therefore, citation of a judgment in the same case,
certainly would not invite contempt of court action.
39. An editorial in the issue of the Excise Law Times dated 1st
June, 2009 by the editor of the law journal resulted in a contempt
petition being filed by the Indirect Tax Practitioners' Association
against him in the case reported at (2010) 8 SCC 281, Indirect Tax
Practitioners' Association v. R.K. Jain alleging that it amounted to
criminal contempt under Section 2(c) of the Contempt of Courts Act.
The respondent had made a detailed reference to orders by a member
of CESTAT which had been set aside by the High Courts of
Karnataka and Kerala with scathing criticism (paras 35 and 36 of the
judgment). The petitioners had projected the editorial as a piece of
writing intended to demean CESTAT as an institution and scandalize
its functioning. In para 37 of the judgment, the Supreme Court
however, noted that there was nothing in the editorial which could be
described as an attempt to lower the authority of CESTAT or to
ridicule it in the eyes of public, rather the object of the editorial was to
highlight the irregularities of the appointment, posting and transfer of
the members of CESTAT and instances of abuse of quasi-judicial
powers. No oblique motive on the part of the respondent was pointed
out nor were the orders of Karnataka and Kerala High Courts referred
to were reversed by the Supreme Court. As such, the court rejected
the submission that by writing the editorial in question, the respondent
had tried to scandalize the functioning of CESTAT or made an
attempt to interfere with the administration of justice.
40. The Supreme Court has thus, rejected the prayer for invocation
of contempt action also premised on the finding that there was no
oblique motive on the part of the respondents.
Hypersensitivity of courts - ought not lead to initiation of contempt
41. Several judicial precedents are brought to our notice wherein
the Supreme Court and the High Courts have commented upon
unwarranted hypersensitivity and undue peevishness of courts leading
to initiation of contempt of court action against parties. These judicial
precedents shed valuable light on the manner in which courts ought to
proceed. We feel compelled to note the important judicial precedents
on this aspect so that the contours of contempt jurisdiction are
appreciated in their true spirit, purpose and intendment.
42. We may usefully also refer to a pronouncement of Division
Bench of this court reported at ILR (1968) Del 493, A.N. Jindal v.
P.L. Chhabra on this aspect. In this case, Shri A.N. Jindal,
Magistrate First Class, Delhi made a reference under Section 3 of
Contempt of Courts Act for taking action against Shri P.L. Chhabra,
Provincial Transport Controller, Haryana Government, at Chandigarh
on the basis of a D.O. letter dated 4th April 1968 written by him to
Shri C.G. Suri, District & Sessions Judge, Delhi requesting the
superior court to see and verify as to what is the real position on the
facts and circumstances disclosed in the letter. The ld. Sessions Judge
did not consider anything objectionable in the letter addressed to him
and took no action against the author of the letter. Instead, the letter
was forwarded to the District Magistrate in due course so that this
officer may go into the matter. The officer Incharge (Judicial) acting
on behalf of the District Magistrate, Delhi, on 25 th April, 1968,
forwarded it to Shri A.N. Jindal, Magistrate First Class with a request
to seek his comments thereon immediately. Instead of offering his
comments thereon to the District Magistrate, Shri Jindal forwarded to
the Registry of this court an application dated 31 st May, 1968 under
Section 3 of Contempt of Courts Act with a covering letter dated 3rd
June, 1968 suggesting action to be taken against Shri P.L. Chhabra for
having written the letter. The observations of the court on the issue as
to whether writing of the letter was contumacious shed valuable light
on the present consideration and are extracted hereunder :
"Contempt of Court can be said to be constituted by
any conduct that tends to bring the authority and the
administration of law into disrespect and disregard, or to
interfere with or prejudices parties, litigants or their
witnesses during the litigation. Proceedings by way of
contempt being summary, and the Court being both the
accuser and the Judge of the accusation, such proceedings
have to be initiated in exceptional cases where there is a
serious interference with the proceedings of the Court. The
jurisdiction for committing for contempt being practically
arbitrary and unlimited, must be most jealously and
carefully watched and exercised with the greatest
reluctance and the greatest anxiety on the part of the
Judges. We are confining ourselves to the category of
contempt of Court which unduly interferes with the judicial
process because we are only concerned with such category
in the case in hand. Administration of justice by an
impartial and independent judiciary, which is trained to
administer justice objectively, is the basis of our system of
jurisprudence, as it is the basis of the jurisprudence of all
the civilised societies. Any undue interference with
pending proceeding is, therefore, looked at with disfavour
and is treated as contempt of the Court. But at the same
time, the concept of contempt does not imply that Courts
should get unduly touchy and take action in respect of
anything that may appear as ignoring their authority.
Judicial function is no doubt one of the most ancient
and most persistent functions of Government and the
methods employed to fulfil these functions are of central
importance in any political system. In our system, there is
hierarchy of Courts of law and justice and they are
enjoined to function in accordance with and under the law.
Illegalities and errors of judgment are subject to
supervision by the higher Courts. In certain cases, in the
larger interests of justice, the superior Courts can also
act suo motu in exercise of the power of superintendence
and revision to see that the subordinate Courts keep
themselves within the bounds of law. It is in this
background that we propose to examine the present
problem facing the Court. In the case in hand, all that the
letter written by Shri Chhabra to the learned Sessions
Judge purports, broadly speaking, to do is to request the
superior Court to see and verify as to what is the real
situation on the facts and circumstances as disclosed in the
letter. It is noteworthy that the learned Sessions Judge did
not consider anything objectionable in the letter addressed
to him and took no action on the lines on which the
learned Magistrate has proceeded. The letter was
forwarded to the District Magistrate in due course so that
the latter officer may go into it. The learned District
Magistrate also, it is worth-noting did not consider that
the letter amounted to any interference with the judicial
duties of the learned Magistrate. He urgently asked for
comments from the learned Magistrate as he was fully
empowered to do. In these circumstances, one would have
expected the learned Magistrate to forward his comments
to the learned District Magistrate and leave it to that
officer or to the learned Sessions Judge to take whatever
steps they considered proper and necessary for the
purpose of maintaining and preserving the dignity of the
Courts of justice subordinate to them. This important
aspect seems to have been ignored by the learned
Magistrate. The present application by him to this Court
direct, may suggest that he is anxious to discourage
approach to his superior Courts with request to scrutinise
the proceedings of cases pending and dealt with by his
Court, which, if true, seems to us to be somewhat difficult
to commend or encourage. An impression of this kind
should have been avoided at all costs by the learned
Magistrate in the larger interests of our judicial process.
The learned Magistrate has perhaps, in his official
zeal, adopted too doctrinaire an approach to the matter
ignoring the essential and basic purpose of the law of
contempt. He seems to have been led away by excessive
sensativeness and he did not deal with the problem in a
cool manner behoving experienced judicial officers.
Assuming Shri Chhabra, who is a very senior I.A.S. Officer
of Haryana, had done something improper in approaching
the learned Sessions Judge by means of a letter, it was by
no means a fit case for starting contempt of Court
proceedings on its peculiar facts and circumstances. The
Court in contempt proceedings, has to act with great
circumspection, making all allowances for errors of
judgment, keeping in view the recognised and known
difficulties arising from inveterate practices in Courts,
particularly in traffic cases. The facts of the various cases,
as disclosed on the record, quite clearly justify the anxiety
felt by Shri Chhabra in the interest of proper functioning
of his department in approaching the learned Sessions
Judge, though it would have been better if the matter had
been brought to the notice of the learned Sessions Judge
by a formal judicial application. There was, quite clearly,
no contumacious conduct on the part of Shri Chhabra,
nor could it be said that he tried unduly to interfere with
the normal course of judicial process which called for
invoking the drastic machinery of proceedings for
contempt of Court. It would have been a matter of great
satisfaction to us if the learned Magistrate had, instead of
approaching this Court for contempt of Court proceedings,
looked at the record of the proceedings before him and
tried to set right whatever was found wrong or unjust with
those proceedings. ..."
(Emphasis by us)
43. On the question of whether pleadings could invite contempt
action, our attention is drawn to pronouncement of the ld. Single
Judge of this court reported at AIR 1969 Del 304, Banarsi Lal v. Smt.
Neelam & Ors. wherein the ld. Additional Sessions Judge had
forwarded a petition moved by the petitioner Banarsi Lal against the
respondent and her counsels for action for contempt of court on the
ground that in the grounds of revision filed before the ld. Additional
Sessions Judge from the order of the SDM, paras 4 and 5 were
couched in language which amounted to contempt of court. Paras 4
and 5 of the revision stand extracted in para 4 of the judgment which
reads thus :
"4. It is noteworthy that when the revision application was
presented in the Court of the learned Additional Sessions
Judge, the office did not find anything objectionable with the
grounds of revision and the revision was duly entertained
without any objection. The two paragraphs in the grounds of
revision, which formed the basis of the application for
contempt of Court, read as under:--
"4. That the whole conduct of the learned Magistrate
previously in issuing search warrants for the recovery and
production of a minor child from the mother and the
present proceedings smacks of the partisanship to the utter
disregard of the judicial considerations of the case.
5. That these proceedings are a result of evident misuse of
the process of the Criminal Court and are in
contraventions to the provisions of the law as laid down in
Chapter VIII of the Cri PC motivated to harass and coerce
the petitioner to come to terms with the respondent who
claims to be a Community and Caste fellow of the learned
Magistrate."
44. In the reference order, the ld. Additional Sessions Judge
strongly disapproved the conduct of the two lawyers. On a
consideration of the matter, the ld. Single Judge of this court inter alia
observed thus :
"8. ... I consider it appropriate to point out once again
that committal for contempt of Court is a weapon to be
used sparingly and it is intended to be used with
scrupulous care with reference to the interests of the
administration of justice only, must not be allowed to be
used by the litigants as a lever for putting pressure on their
opponents. That is a misuse of this power and the Courts
have a duty to be vigilant in guarding against it. It is
unnecessary to add that a deliberate or reckless Contempt
of Court, which is actionable, would not go unnoticed. I
have emphasised this caution because it is not infrequently
that this aspect is not given the importance it deserves.
9. Adverting to the recommendation of the learned
Additional Sessions Judge for taking action against the
two learned Advocates, I should like to point out that
forceful advocacy and even use of strong language in
criticising on appeal or revision the impugned decisions
of subordinate Courts is no contempt, but forceful
advocacy and use of strong language does not mean that
an Advocate can scandalise the Court or impute to it
unjudicial motives for which there is no reasonable basis
on the circumstances of the case. It is undeniable that no
judiciary can function with the requisite efficiency in a set
up like ours unless there is strong, efficient, conscientious
and independent Bar and a weak, inefficient and
unconscientious Bar is a somewhat ineffective corrective
to an erring Court. The practice of law is not a business
which is open to all those who desire to engage in it. It is a
personal right and privilege of an Advocate to represent
his client, and claim audience, in Court in order to plead
for him. An advocate's is an exalted and a learned
profession in which privilege and duty coincide: the
professional lawyer's privilege being also his duty and his
duty being also his privilege. This indeed is essential if the
quality of justice in our country is to be of the expected
high order as contemplated by our Constitution.
10. An Advocate in our set-up practices not only law, but
also the science of the correct use of language. The words
are indeed his tools with which he works. His is
accordingly a word-bound profession. The language he
uses must, therefore, be precise, dignified, respectful and
persuasive, free from injudicious annoyance or offence.
Being entrusted with the duty and privilege of securing
for his client justice according to law an Advocate is
entitled to appropriate freedom and scope in criticising
the impugned judgments and orders and in addressing
arguments and making submissions on behalf of his
client Oral arguments by an Advocate, from their very
nature, are relatively speaking, accorded greater latitude
than written memorandum of appeal or revision. But this
privilege, which is also his duty, does not extend to
imputing extraneous unsjudicial motives to the
subordinate Courts which cannot be substantiated or
held to be reasonably justified on the record. If, however,
they can be so substantiated, then I am unable to accede
that such a submission or pleading would amount to
actionable contempt of Court. Being an officer of the
Court, it seems to be an Advocate's duty to uphold the
dignity and prestige of the Courts in which he practices as
also of the Courts, the orders of which it is his professional
privilege and duty to criticise, consistently with his loyalty
to his client's cause, which he is engaged to plead in
accordance with law. The administration of justice
cannot be impaired by clothing the professional Advocate
with the freedom to fairly and temperately criticise in
good faith the impugned judgments and orders."
(Emphasis by us)
45. Mr. Maninder Singh, ld. ASG has placed before us the
pronouncement of a ld. Single Judge of the Allahabad High Court
reported at AIR 1919 All 46, Kadhory & Anr. v. Emperor with regard
to an objection having been taken by the Munsif to an application for
restoration of a plaint contending that the application had been utilized
as a vehicle for criticising and threatening him and, having rightly
remarked that if he, the Judge had neglected his duty he must be dealt
with elsewhere, he proceeded to stigmatize the remarks and so called
threats as "contempt of court" and gave notice to the minor plaintiffs
to show cause as to why they should not be committed for contempt
of court. This application was considered by the High Court in a
criminal revision matter. The observations of the High Court in paras
2 and 3 of the pronouncement shed valuable light on the consideration
before us and read as follows :
"2. I am inclined to think that whatever the contents of the
application, the Munsif could not have made the order he
did but except that an expression is used in the application
which is somewhat cumbersome and forcible for describing
the order dismissing the suit which was objected to but
which is not unusual or unfamiliar in style having regard to
the language frequently used in pleadings in the mofussil,
there is nothing in the application to which exception can
possibly be taken. The expression to which I have referred is
to the following effect, that the order which had been made
the day before and which was objected to, was "against rules
and against law." I really do not know what the Munsif meant
by what he said.
3. It is one of the commonest grounds adopted in a
memorandum of appeal objecting to a decree or an order to
say that it is contrary to rule or that the decision is contrary
to law, and the codes in this country in more than one place
speak of matters being contrary to some rule having the
force of law and how as application based upon the ground
that the previous order of the Court had been contrary to
rule, or contrary to law, can be regarded as a threat or as
improper, I am at a loss to understand. People sitting to
administer justice and to hear the complaints of contending
parties and alleged grievances of all sorts and kinds which
come into Courts of law, and liable to have their own
decisions challenged, and sometimes severely criticized, in
the Courts of appeal, must not be too thin skinned. If the
Munsif really thought that the vakil had said anything in the
application beyond what the occasion demanded, the proper
course was for him to deal with the application on the
merits, and to communicate privately with the vakil as to any
personal matter which, he thought arose. As a matter of fact I
cannot see that there was anything personal in the
application from first to last, and it is extremely unfortunate
that the Munsif should from time to time somewhat
impetuously jump to the conclusion that some offence is
meant where none is intended. The order is a perfectly
childish one and must be quashed."
(Emphasis by us)
46. On this aspect, our attention has been drawn by Mr. Darpan
Wadhwa, ld. amicus curiae to the pronouncement of the Supreme
Court reported at (1978) 3 SCC 339, In Re: S. Mulgaokar wherein
Krishna Iyer, J. laid down judicial norms for exercising contempt
jurisdiction by a court. Six principles were laid down from paras 27 to
33 of the pronouncement. However, the rules laid down by the court
as first, second, third, fifth and sixth principles provided the contours
within which the courts would act as well as the necessary guidelines
for the court considering action under the Contempt of Courts Act.
We extract hereunder paras 27 to 30, 32 and 33 :
"27. The first rule in this branch of contempt power is a
wise economy of use by the Court of this branch of its
jurisdiction. The Court will act with seriousness and
severity where justice is jeopardised by a gross and/or
unfounded attack on the Judges, where the attack is
calculated to obstruct or destroy the judicial process. The
Court is willing to ignore, by a majestic liberalism,
trifling and venial offences -- the dogs may bark, the
caravan will pass. The Court will not be prompted to act
as a result of an easy irritability. Much rather, it shall
take a noetic look at the conspectus of features and be
guided by a constellation of constitutional and other
considerations when it chooses to use, or desist from
using, its power of contempt.
28. The second principle must be to harmonise the
constitutional values of free criticism, the Fourth Estate
included, and the need for a fearless curial process and its
presiding functionary, the Judge. A happy balance has to
be struck, the benefit of the doubt being given generously
against the Judge, slurring over marginal deviations but
severely proving the supremacy of the law over
pugnacious, vicious, unrepentant and malignant
contemners, be they the powerful press, gang-up of
vested interests, veteran columnists of Olympian
establishmentarians. Not because the Judge, the human
symbol of a high value, is personally armoured by a regal
privilege but because "be you -- the contemner -- ever so
high, the law -- the People's expression of justice -- is
above you". Curial courage overpowers arrogant might
even as judicial benignity forgives errant or exaggerated
critics. Indeed, to criticise the Judge fairly, albeit fiercely,
is no crime but a necessary right, twice blessed in a
democracy For, it blesseth him that gives and him that
takes. Where freedom of expression, fairly exercised,
subserves public interest in reasonable measure, public
justice cannot gag it or manacle it, constitutionally
speaking A free people are the ultimate guarantors of
fearless justice. Such is the cornerstone of our
Constitution; such is the touchstone of our Contempt
Power, oriented on the confluence of free speech and fair
justice which is the scriptural essence of our Fundamental
Law. Speaking of the social philosophy and philosophy of
law in an integrated manner as applicable to contempt of
court, there is no conceptual polarity but a delicate
balance, and judicial "sapience" draws the line. As it
happens, our Constitution-makers foresaw the need for
balancing all these competing interests. Section 2(1)(c) of
the Contempt of Courts Act, 1971 provides:
"'Criminal contempt' means 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 scandalise, or lowers or
tends to lower the authority of any court"
This is an extremely wide definition But, it cannot be read
apart from the conspectus of the constitutional provisions
within which the Founding Fathers of the Constitution
intended all past and future statutes to have meaning. All
laws relating to contempt of court had, according to the
provisions of Article 19(2), to be "reasonable restrictions"
on the exercise of the right of free speech. The courts were
given the power--and, indeed, the responsibility-- to
harmonise conflicting aims, interests and values. This is in
sharp contrast to the Phillimore Committee Report on
Contempt of Court in the United Kingdom [ (1974) bund.
S. 794. paras 143-5, pp. 61-2] which did not recommend
the defence of public interest in contempt cases.
29. The third principle is to avoid confusion between
personal protection of a libelled Judge and prevention of
obstruction of public justice and the community's
confidence in that great process. The former
is not contempt, the latter is, although overlapping spaces
abound.
30. Because the law of contempt exists to protect public
confidence in the administration of justice, the offence will
not be committed by attacks upon the personal reputation
of individual Judges as such. As Professor Goodhart has
put it [ See Newspapers on Contempt of Court, (1935) 48
Harv LR 885, 898] :
"Scandalising the court means any hostile criticism of
the Judge as Judge; any personal attack upon him,
unconnected with the office he holds, is dealt with
under the ordinary rules of slander and libel"
Similarly, Griffith, C.J. has said in the Australian
case of Nicholls [(1911) 12 CLR 280, 285] that:
"In one sense, no doubt, every defamatory publication
concerning a Judge may be said to bring him into
contempt as that term is used in the law of libel, but it
does not follow that everything said of a Judge
calculated to bring him into contempt in that sense
amounts to contempt of court".
xxx xxx xxx
32. The fifth normative guideline for the Judges to observe
in this jurisdiction is not to be hypersensitive even where
distortions and criticisms overstep the limits, but to
deflate vulgar denunciation by dignified bearing, con-
descending indifference and repudiation by judicial
rectitude.
33. The sixth consideration is that, after evaluating the
totality of factors, if the Court considers the attack on the
Judge or Judges scurrilous, offensive, intimidatory or
malicious beyond condonable limits, the strong arm of
the law must, in the name of public interest and public
justice, strike a blow on him who challenges the
supremacy of the rule of law by fouling its source and
stream."
(Emphasis by us)
47. Mr. Wadhwa, ld. amicus curiae has also drawn our attention to
the judgment reported at (1999) 8 SCC 308, Narmada Bachao
Andolan v. Union of India & Ors., the extract whereof, relevant for
the present consideration reads thus :
"6. While hypersensitivity and peevishness have no place
in judicial proceedings -- vicious stultification and
vulgar debunking cannot be permitted to pollute the
stream of justice. Indeed under our Constitution there are
positive values like right to life, freedom of speech and
expression, but freedom of speech and expression does
not include freedom to distort orders of the court and
present incomplete and a one-sided picture deliberately,
which has the tendency to scandalise the court. Whatever
may be the motive of Ms Arundhati Roy, it is quite obvious
that she decided to use her literary fame by misinforming
the public and projecting in a totally incorrect manner,
how the proceedings relating to resettlement and
rehabilitation had shaped in this Court and distorting
various directions given by the Court during the last about
5 years. The writings referred to above have the tendency
to create prejudice against this Court. She seems to be
wholly ignorant of the task of the Court. The manner in
which she has given a twist to the proceedings and orders
of the Court is in bad taste and not expected from any
citizen, to say the least.
7. We wish to emphasise that under the cover of freedom of
speech and expression no party can be given a licence to
misrepresent the proceedings and orders of the court and
deliberately paint an absolutely wrong and incomplete
picture which has the tendency to scandalise the court and
bring it into disrepute or ridicule. ..."
(Emphasis by us)
The court expressed displeasure but refrained from initiating
proceedings of contempt of court in this case.
48. The observations by S.P. Bharucha, J. in the above judgment
while recording disapproval of the statements complained of and not
initiating action for contempt because "the Court's shoulders are
broad enough to shrug off their comments", have been cited before us
in support of the basic submission that the order of reference dated 5th
April, 2016 in fact reflects hypersensitivity of the ld. Judge which had
no basis in fact or in law.
49. The observations on this aspect in AIR 1969 Del 304, Banarsi
Lal v. Smt. Neelam & Ors. are topical and deserve to be considered in
extenso and read as follows :
"11. When the judicial impartiality and prestige of Courts
has solid foundations in their traditional judicious
objectivity and efficiency, as illustrated by their day-to-
day functioning in the public gaze, the mere strong
language in criticising their orders, cannot mar their
image. Such Courts should not be hyper-sensitive in this
matter. Examined according to this test, I am disinclined
to hold that the paragraphs reproduced above constitute
any actionable contempt of Court on the part of the
Advocates. A fortiori there can be no actionable contempt
by the petitioner. It was of course possible for the
Advocates concerned to use more sober and restrained,
though equally effective and persuasive, language, but
then that is a question more of propriety than of contempt
of Court. In this connection, it would not be right for this
Court to be completely unmindful of the progressively
decreasing standard of the teaching of English language in
our country. I do not consider it proper to say anything
more on this subject on this occasion except to emphasise
once again that the summary power of punishing for
contempt has to be used sparingly and only in serious
cases. This Court must of necessity possess this power in
the larger interest of sustaining the authority and
impartiality of our judicial process, but its usefulness
depends on the wisdom and restraint with which it is
exercised. To use it against professional lawyers, when
there is no malice and no attempt to impair or obstruct the
administration of justice, but when they seem to have
genuinely exercised their professional right of criticism
(may be in somewhat ill-advised language) in seeking
justice for their clients, is to use it for a purpose for which
it does not seem to have been intended. ..."
(Emphasis by us)
50. Our attention has been drawn to the Privy Council decision
reported at AIR 1936 PC 141, Andre Paul Terence Ambard v. The
Attorney-General of Trinidad and Tobago. In this case, the appellant
had taken as a theme for his writing, the inequality of punishments
under the caption "The Human Element" using as the basis for his
article, two punitive sentences that were imposed by the two Judges of
a particular Court, pointing out that the sentences in apparently similar
circumstances did vary with the habit of mind of the particular Judge
and that human element entered into the awarding of punishments.
The writer had expressly disclaimed the suggestion that one of the
said Judges was habitually severe or the other habitually lenient? It
was held by the Privy Council that in the published article, it was
mentioned that "statements and comments which tend to bring the
authority and administration of the law into disrepute and disregard".
For these actions, the appellant was punished for contempt of court to
pay a fine of 25 pounds or in default for an imprisonment of one
month.
In appeal, the Privy Council considered the matter and held
thus:
"Any act done or writing published calculated to bring
a Court or a Judge of the Court into contempt, or to lower
his authority, is a contempt of Court. That is one class of
contempt. Further any act done or writing published
calculated to obstruct or interfere with the due course of
justice or the lawful purpose of the Courts is a contempt of
Court. The former class belongs to the category which
Lord Hardwicke, L.C. characterised as 'scandalising a
Court or a Judge' In re Read and Huggonson(1). That
description of that class of contempt is to be taken subject
to one and an important qualification. Judges and Courts
are alike open to criticism, and if reasonable argument or
expostulation is offered against any judicial act, as
contrary to law or the public good, no Court could or
would treat that as contempt of Court. In other words,
whether the authority and position of an individual
Judge or the due administration of justice is concerned,
no wrong is committed by any member of the public who
exercises the ordinary right of criticising in good faith in
private or public the public act done in the seat of justice.
The path of criticism is a public way: the wrong-headed
are permitted to err therein: provided that members of the
public abstain from imputing improper motives to those
taking part in the administration of justice, and are
genuinely exercising a right of criticism land not acting
in malice or attempting to impair the administration of
justice, they immune. Justice is not a cloistered virtue;
she must be allowed to suffer the scrutiny and respectful,
though outspoken, comments of ordinary men.
xxx xxx xxx
That the writer was perfectly justified in pointing out
what was obvious and inevitable, namely, the part which
the human element in a particular Judge plays in the
award of sentences by him and that the writer therefore
was not guilty of any contempt of Court in respect of
what he wrote. Some very conscientious Judges have
thought it their duty to visit particular crimes with
exemplary sentences and others equally conscientious
have thought it their duty to view the same crimes with
leniency, and if to say that the human element enters into
the awarding of sentence be contempt of Court, few in or
out of the profession would escape."
(Emphasis by us)
51. On the issue of when is jurisdiction under the contempt to
punish for criminal contempt to be exercised, in AIR 1969 Delhi 6,
Uma Dutt v. R.K. Sardana, the Division Bench of this court best
summed up the boundaries of exercise of the jurisdiction thus :
"3. Contempt of Court, it must never be forgotten, is a
summary and a drastic process which this Court is very
slow to resort to, except in cases of gross affront to the
dignity of the Court or in cases where the judicial process
has been sought intentionally to be seriously interfered
with illegally It is resorted to only in the interest of the
sanctity of the judicial process and the dignity and majesty
of the Court of justice and not merely because a private
party to a litigation, feeling aggrieved, seems to be
inspired by a desire to settle his own scores with his
opponent througt contempt proceedings. ..."
52. It is therefore, trite that contempt jurisdiction has to be carefully
invoked upon a deep consideration of inter alia the impact of the act
complained of on the dignity and majesty of the court, its tendency to
or interference and obstruction in the judicial process and not merely
for gratification of the desire of an individual to settle scores or on
account of undue sensitivity of an individual judge.
The present reference has to be considered in the light of the
above statutory and binding principles.
Factual analysis
53. Let us examine the present case in the light of the above
principles.
54. It is trite that the averments made in CBI's reply especially para
10 thereof, in which the objected sub-para is contained, has to be seen
in the context of the entire reply as well as the case set out by the
parties.
55. We find that the above extract relied upon by the ld. trial judge
is only the last part of the paragraph and has to be considered in the
light of the other assertions made in the remaining portion of the para
of the reply. We therefore, extract hereunder the remaining portion of
para 10 of the CBI's reply :
"10. That, the averments made in para no. 16 are general in
nature and hence require no comments. However, it is
submitted that the investigation conducted so far has revealed
that the present applicant received huge amounts from various
Govt. Departments, for which the said company was not legally
entitled as the works were awarded either without calling the
tender/quotations or by manipulating the tender conditions just
to favour the applicant company. Moreover, the questioned
account of the applicant company has been used for collecting
the commission amounts from various firms/companies by the
accused persons.
It is further submitted that day-to-day investigation is in
progress and at a very crucial stage and as such the present
request of the applicant company cannot be accepted at this
stage. It is further submitted that there is enough evidence to
establish that the huge amount emanating from M/s Endeavour
Systems Pvt. Ltd. were siphoned out by accused persons. It is
necessary to preserve and protect the property from
dissemination, depletion or destruction by any mode. It is not
only in the interest of investigation of the case but also in the
interest of public at large that money obtained by fraudulent
means is not permitted to be siphoned off or allowed to be used
by accused persons for their benefit. The Hon'ble High Court of
Bombay in the matter of Adarsh Co-operative Housing Society
Ltd. vs UOI (Criminal Writ No. 570/2011, decided on
27.07.2011) in similar set of facts while disallowing to interfere
with freezing of accounts interalia has observed:-
"We are unable to accept the submission that retention of
money in the accounts is not necessary for investigation into the
source of funds or to determine whether any account is benami.
It is improper at this stage to draw such conclusions.
Investigating agency must be given a free hand to determine the
course of its investigation. We cannot trench upon its domain".
This Hon'ble court would appreciate that once the
investigating agency has prima facie reasons to suspect that
money lying in the bank account of applicant company may
have connection with the alleged offence then the same needs to
be protected during investigation until it comes to a final
conclusion. The provision of Section 102 Cr.P.C. is wide
enough and gives such power of seizure to investigating agency
during investigation. The provision cannot be given a restricted
meaning by ordering release of property especially when
investigation is in progress and at a crucial stage.
It is humbly submitted that the transaction of money is
suspected to be the proceeds of crime, which may have been
shared by the accused persons in the subject matter of further
probe to nail the perpetrator of crime and statutory provisions
for dealing with such aspects of corruption as provided under
PC Act. Even the Hon'ble Supreme Court in Mirza Iqbal
Hussain Vs. State of UP has held that the proceeds of crime
should be confiscated by the Court at the appropriate time.
Keeping in view the facts and circumstances of this case, it
would not be appropriate to pass any order order to defreeze
the accounts in question at this crucial stage."
(Underlining by us)
56. The CBI has made extensive factual assertions premised on its
investigations in paras 2 to 9 of the reply wherein CBI has replied to
(the paras 3 to 15 of the application) with regard to the manner in
which the amounts which were under investigation had been
deposited in the seized bank accounts and the operation of the
accounts was under investigation. Finally, in para 10 of the reply
(wherein the CBI was replying to para 16 of the application), the
CBI's has summed up its stand and it was specifically objected that
the "day-to-day investigation is in progress and at a very crucial
stage and as such the present request of the applicant company
cannot be accepted at this stage". Reference was made to the
pronouncement of the Bombay High Court dated 27th July, 2011 in
Crl. Writ No.570/2011 in the matter of Adarsh Co-Operative Housing
Society Ltd. v. UOI to support the CBI's primary submission that it
must be given a free hand to determine the course of its investigation
and that the court could not trench upon its domain. The CBI
specifically submitted that once it had prima facie reasons to suspect
that money lying in the bank account of the applicant company may
have a connection with the alleged offence, the amount needed to be
protected till investigation comes to a final conclusion. In other words,
the CBI was asserting that it was legally entitled to proceed with its
investigation in accordance with law and preservation of status quo of
the bank accounts was essential.
57. It appears that the ld. Special Judge (CBI) had passed a
previous order dated 20th of January 2016 permitting return of
documents to the alleged offenders at the stage of initial investigation
itself, without the CBI having reached a logical conclusion thereon.
This order was challenged by the CBI before this court by way of
Crl.M.C.No.257/2016 which petition had been allowed by this court
by the order dated 10th February, 2016.
58. We have scrutinized the entire reply dated 11th March, 2016
passed by the CBI very closely. While referring to the order dated 10 th
February, 2016 of the ld. Single Judge (in Crl. M.C. No. 257/2016),
the CBI has averred that the ld. Single Judge has made observations in
the order while examining the previous order dated 20th January, 2016
passed by the trial court.
59. Read as a whole, the reply shows that it was because of this
primary submission of CBI regarding inappropriateness of release of
accounts, before a final view was taken by the CBI and the stage of its
investigation, that reliance was placed in para 10 on the judgment of
this court dated 10th of February 2016 whereby the ld. Single Judge
had allowed Crl.MC.No.257/2016 setting aside the trial court order of
20th January, 2016.
60. In the perception of the CBI, the order of the ld. Single Judge
dated 10th of February 2016 was thus to support the stand that the
investigation by the CBI was still underway and that it would not be
appropriate to defreeze the bank accounts at this critical juncture of
the investigation inasmuch as this very argument had been accepted so
far as return of seized documents pending investigation.
61. There is even an instance of the court considering the question
as to whether citing overruled precedent would amount to contempt
was considered by a ld. Single Judge of the Punjab & Haryana High
Court in the pronouncement reported at AIR 2001 P&H 49 Balbir
Singh Wasu v. Parbhandak Committee Gurudwara Sahib . It was
held thus:
"25. It was further submitted that the plaintiff's counsel
committed contempt of the trial Court as well as that of the
appellate Court and he committed contempt of this court also
by relying on AIR 1954 Pb. 125 which was overruled in AIR
1984 P&H 439. I do not think any contempt was committed by
the plaintiff if he cited AIR 1954 Pb. 125. After going through
both the judgments, the court could come to know that AIR
1954 Pb. 125 had been over-ruled in AIR 1984 P&H 439.
Even otherwise no contempt is made out if the plaintiff did not
intend duping the court. He had relied upon 1990 Civil Court
Cases 406 in which AIR 1984 P&H 439 had been relied upon.
By going through AIR 1984 P&H 439, the court would have
known that AIR 1954 Pb. 125 had been overruled. No
contempt was thus committed by the plaintiff/counsel."
Therefore, unless the intention was to mislead the court, erroneous
citing of an overruled judgment may not ipso facto and per se be
considered contumacious.
62. Let us also examine as to whether the extracted para of the
CBI's reply dated 11th March, 2016 could be held to scandalize the
court within the meaning of the expression in Section 2(c)(i) of the
Contempt of Courts Act. In the pronouncement reported at (1981) 1
All ER 244 : Chokolingo v. Attorney General of Trinidad & Tobago,
Lord Diplock held thus:
"'Scandalising the court' is a convenient way of describing
a publication which, although it does not relate to any
specific case either past or pending or any specific judge,
is a scurrilous attack on the judiciary as a whole, which is
calculated to undermine the authority of the courts and
public confidence in the administration of justice"
63. Can it be said that mere reliance on a paragraph of the judgment
passed by a Single Judge of this Court, a court exercising
superintendence over the court of the learned Trial Judge, tantamounts
to scandalizing the court or lower its authority or tends to interfere
with judicial proceedings or administration of justice? In our
considered view, it certainly cannot.
64. As it has rightly been pointed out by Mr. Maninder Singh,
learned ASG that our judicial system is one of strict hierarchy and the
consideration of a lower court, is indubitably, bound by the law and
dicta laid down by a higher court. The referral letter discloses that the
learned Trial Judge felt that his authority was undermined by
reference to the order passed by a learned Single Judge of this court
and its reproduction.
65. The authority of the learned Special Judge, cannot be said to be
so undermined, primarily for two reasons; the first being that placing
reliance on judicial pronouncements is the very essence of the
doctrine of precedent (stare decisis) and it is certainly open to the
learned Trial Judge to accept or reject misconceived reliance on any
precedent giving reasons in his own wisdom as to the applicability (or
non-applicability) of such precedent to the facts of the case. The other
reason is that it cannot be said that the reliance by the Central Bureau
of Investigation on the order passed by the learned Single Judge was
perverse or irrelevant for the simple reason that the learned Single
Judge of this court had, in fact, adjudicated on an application made
under Section 482 of the CrPC pertaining to the same case at a stage
in the investigation. Even then, there was no impediment or
obstruction to the examination by the ld. Trial Judge who was bound
to consider the relevance and applicability thereof and, if not
appropriate, to reject such reliance and rule otherwise. The
reproduction of an extract of the judgment of this court cannot
"scandalize or tends to scandalize, or lowers or tends to lower the
authority of any court".
66. We also fail to see as to how the reference to the court order
could intimidate a judge from discharge of judicial functions or
obstruct him from proceeding in a case in accordance with law.
67. The other objections of the ld. trial judge (as summed in para 4
above) was that the extracted portion of the reply had been placed as a
warning intended to vilify judicial office; wanting in fearness and
justification, had a clear tendency to scandalize; was calculated
psychological offence and mind game to intimidate the judge to seek
orders in their favour or intended to pre-empt the decision on the
application or that it was a friendly assault on the independence,
impartiality and integrity of the judicial process. These observations
are unsupported by the record, as discussed above. Certainly
reference to a judgment of a higher court setting aside a previous
judgment in the same case could not be criticized on any of these
counts.
68. So far as the objection of the ld. Special Judge-01(CBI) that the
objected para had no bearing whatsoever on the issue to be
adjudicated; contains no reasons in support of the opposition of the
application; contains no principle of laws or that the observations
therein related to the different issue altogether and reproduction
thereof was unnecessary and unwarranted are concerned or that there
is lack of justification for incorporating of the same, these relate to the
discussion of the applicability of the judgment on the merits of the
case. These observations could have only been made if the court had
considered the application on its merits and the parties had the
opportunity to make submissions thereon. This stage has not arisen
69. Given the stand of CBI, the observation by the ld. Special
Judge-01(CBI) that the reference to the judgment dated 10 th February,
2016 was irrelevant without considering the other submissions of the
parties is premature and made without application of mind. A party
has a right to place reliance on as well as cite any judicial
pronouncement during the course of proceedings. It is thereafter upon
the judge to opine on their relevancy after considering the context in
which the judgment has been cited.
In the present case, as a matter of abundant caution, instead of
merely orally citing the judgment, CBI has extracted a portion thereof
in the reply dated 11th of March 2016 filed on court record.
70. Clearly, the learned trial judge has proceeded in the matter
oblivious of the aforenoticed legal position regarding initiation of
contempt proceedings against litigants and has misdirected himself in
making the reference by the order dated 5th November, 2016 for
initiation of proceedings under Section 15 of the Contempt of Courts
Act, 1971.
71. In the case in hand, CBI has not criticized any order of the ld.
trial judge. The reproduction of an extract of a judgment of the higher
court, even if irrelevant, would not per se be treated as contumacious.
72. The above case also highlights the strong need to undertake
judicial education on the procedural aspects as well as nuances of
Contempt of Courts Act, 1971 as well as the fine and clear distinction
between libelous and contumacious conduct. We are of the view that
this aspect deserves to be brought to the notice of the Delhi Judicial
Academy for initiating an intensive programme in this area of law.
73. Before parting with the case, we would like to record our deep
appreciation with the in-depth research conducted by both Mr.
Maninder Singh, ld. ASG as well as Mr. Darpan Wadhwa, ld. amicus
curiae and the meticulous assistance rendered by them to us in the
present case.
Result
74. In view of the above discussion, clearly the reference was
misconceived and untenable. No proceedings under the Contempt of
Courts Act, 1971 against the officials of the CBI as recommended by
the reference order dated 5th April, 2016 are warranted.
The reference is answered accordingly.
Additionally, the Registry shall forward a copy of this judgment
to the Delhi Judicial Academy which would consider designing and
implementing a programme on the procedural aspects as well as
nuances of the Contempt of Courts Act, 1971 for judicial officers at
all levels.
GITA MITTAL, J
ANU MALHOTRA, J
MARCH 09, 2017
aj
