Baradakanta Mishra Vs. The Registrar of Orissa High Court & ANR [1973] INSC 210 (19 November 1973)
PALEKAR, D.G.
PALEKAR, D.G.
RAY, A.N. (CJ) CHANDRACHUD, Y.V.
BHAGWATI, P.N.
KRISHNAIYER, V.R.
CITATION: 1974 AIR 710 1974 SCR (2) 282 1974 SCC (1) 374
CITATOR INFO:
R 1976 SC 727 (46) R 1976 SC 921 (11) RF 1976 SC1899 (14) RF 1988 SC1208 (17) RF 1992 SC 165 (55) RF 1992 SC 904 (9)
ACT:
Contempt of Courts Act 1971 (17 of 1971)-Ss. 2(c)(iii) & 13Scope of Contempt of Court-Disciplinary control over Subordinate judiciary-When High Court functions in a disciplinary capacity it does so in furtherance of administration of justice. What amounts to-Attack on the administrative act of a judge, if amounts to contempt Administration of justice meaning and scope of.
HEADNOTE:
The appellant, a judicial officer, was convicted and sentenced under the Contempt of Courts Act, 1971, by a Full Bench of the Orissa High Court. Registrar of Orissa High Court v. Bardakanta Mishra & Ors. I.L.R. [1973] Cuttack 134.
The appellant's career as a judicial officer was far from satisfactory. When he was working as Additional District and Sessions Judge he showed gross indiscretion and committed grave judicial misdemeanor. The contempt proceedings arose out of the representation he made to the Governor for canceling the order of suspension passed against him by the High Court and the allegation he made in a memorandum of appeal he had filed earlier in the Supreme Court. In his representation to the Governor the appellant made false insinuations that the Governor cancelled the previous disciplinary proceedings against him on the ground that the same was vitiated as the High Court prejudged the matter and the government set aside the punishment because three of the judges were biased and were prejudiced against him, that the proceeding involved the Government in heavy expenses on account of the "palpably incorrect views of the High Court", that the High Court did not gracefully accept the Government's order cancelling his demotion, that the High Court resorted to "subterfuge' to counteract the said decision of the government by taking a novel step and that the High Court's action suffered from patent mala fides. He stated that the other judges had no independent judgment of their own and were influenced by the Chief Justice to take a view different from what they bad already taken and characterised the High Court as an "engine of oppression" and his order of suspension as "mysterious". In another representation made to the Governor the appellant alleged that the High Court on the administrative side was seriously prejudiced and biased against him and it acted as if the charges stood established requiring extreme punishment and as such justice May not be meted out to him by the High Court, if it conducted the departmental inquiry. He also stated that he considered it risky to submit his explanation to the High Court and that the High Court in the best interests of justice, should not inquire into these charges against him. He suggested that "the Court was not in a position to weigh the evidence and consider the materials on record and impose a sentence commensurate with his delinquency." The action taken by the High Court was branded as "unusual". A copy of this representation was sent to the High Court with the remark that since the High Court was likely to withhold the representation it was submitted direct to the Governor. In the memo of appeal filed in the Supreme Court, the appellant alleged bias and prejudice against the High Court and its Chief Justice. He took the plea that the High Court had become disqualified to deal with the case and expressed the view that "the judges of the High Court had fallen from the path of rectitude and were vindictive" and had decided to impose substantive sentence and that "they were not in a position to mete even-handed justice'.
In appeal to this Court. it was contended : (i) that the passages about which the complaint was made did not amount to contempt of court since they did not purport to criticize any 'judicial, acts of the judges and criticism of the administrative acts of the High Court even in vilification terms did not amount 28 3 to contempt of court, and (ii) that the acts complained of were in the court of the appellant challenging his suspension and holding of disciplinary proceedings, in an appeal or representation to the Governor from the orders of the High Court and he gave expression to his grievance or had otherwise acted not with a view to malign the court or in defiance of it but with, the sole object of obtaining the reversal of the orders passed by the High Court against him.
HELD : The imputations have grossly vilified the High Court tending to affect substantially administration of justice and, therefore, the appellant was rightly convicted of the offence of criminal contempt. [304F] (i)Proceedings in contempt are always with reference to administration of justice. All the three sub-clauses of s. 2(c) of the Contempt of Courts Act, 1971, define contempt in terms of obstruction or interference with administration of justice and scandalisation within the meaning of sub-clause (1) must be in respect of the court or the Judge with reference to administration of justice. [297C-D] Debi Prasad Sharma v. The King-Emperor. 70 Indian Appeals.
216, referred to.
(a)The question whether contemptuous imputations made with reference to the administrative acts of the High Court amount to contempt of court will depend upon whether the amputations affect the administration of justice. This is the basis on which the contempt is punished and must afford the necessary test. [298E] (b)The mere functions of adjudication between the parties is not the Whole of administration of justice for any court.
The presiding judge of a Court embodies in himself the Court. and when engaged in the task of administering justice is assisted by a complement of clerks and ministerial officers. The Acts in which they are engaged are acts in aid of administration of justice. Therefore, when the Chief Justice appoints ministerial officers and assumes disciplinary control over them, that is a function which through described as administrative, is really in the course of administration of justice. Judical integrated function of Judge and cannot suffer any dissection nuance of high standards of rectitude in judical administration administration is an so far as maintain concerned. The whole set up of a court is for who' purpose of administration of justice and the control which the judge exercises over his assistants has also the object of maintaining the purity of administration of justice. [298F-H; 299A] (c)The disciplinary control over the misdemeanors of the subordinate judiciary in their judicial administration is a function which the High Court must exercise in the interest of administration of justice. It is a function Which is essential for the administration of justice in the wide connotation it has received and, therefore, when the High Court functions in a disciplinary capacity, it Only does so in furtherance of administration of justice. it is as important for the superior court to be vigilant about the conduct and behaviour of the subordinately judge as it is to administer the law, because both functions are essential administration of justice. The Judge of the superior court in whom this disciplinary control is vested functions as much as a Judge in such, matters as when he bears and disposes of cases before him. [300E; 299D] (d) What is commonly described as an administrative function has been when vested in the High Court, constantly regarded by statutes as a function in the administration of justice.
[299F-G] Letters Patent for the High Courts of Bombay, Calcutta and Madras a. 8; High Courts Act, 1861, a. 9; the Government of India Act, 1935, %. 223. 224; Constitution of India, 1950, Arts. 225, 227 235; State of West Bengal V.Nripendra Nath Bagchi [1966] 1 S.C.R. 771 referred to.
(e)Thus the courts of justice in a State froth the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice and it is the expectation and confidence of all those who have or likely to 'have business there that the courts Perform all their functions 284 on a high level of rectitude without fear or favour, affection or ill-will. And, it in this traditional confidence in the courts that justice will be administered in them which is Fought to be protected by proceedings in contempt. [300F-G] Rex v. Almon [1765] Wilmot's Notes of Opinions 243, referred to.
(f) Scandalisation of the court is a species of contempt and may take several forms. A common form is the vilification of the Judge. When proceedings in contempt are taken for such vilification the question which the court has to ask is whether the vilification is of the Judge as a Judge or it is the vilification of the Judge as an individual. If the latter, the Judge is left to this private remedies and the court has no power to commit for contempt. If the former, the court will proceed to exercise the jurisdiction with scrupulous care in cases which are clear and beyond reasonable doubt. Secondly, the court with have also to consider the degree of harm caused. as affecting administration of justice and if it is slight and beneath notice, courts will not punish for contempt. Ibis salutary practice is adopted by s. 13 of the Contempt of Courts Act, 1971. If the attack on the Judge functioning as a Judge substantially affects administration of justice it becomes a public mischief punishable for contempt, and it matters not whether such an attack is based on what a Judge is alleged to have done in the exercise of his 'administrative' responsibilities. A Judge's functions may be divisible, but his integrity and authority are not divisible in the context of administration of justice. [301D-F] Queen v. Gray, [1900] (2) Queen's Bench, 36, at page 40, referred to.
(g)"Judicial capacity" is an ambivalent term which means "capacity of or properto a Judge" and is capable of taking in all functional capacities of a Jurodge whetheradministrative, adjudicatory or any other, necessary for the administration of justice. There is no warrant for the narrow view that the offence of scandalisation of the court takes place only when the imputation has reference to the adjudicatory functions of a Judge in the seat of justice. [302D] Rex v. Almon [1765] Wilmot's Notes of Opinion 243; Moti Lal Ghose and Others, XLV-Calcutta, 169, The State of Bombay v.
Mr. P. A.I.R. 1959 Bombay, 182, Debi Prasad Sharma v. The King Emperor, 70, Indian Appeals, 216, Special Reference from the Bahama Islands, A.C. 138 at 144, Queen v. Gray [1900] 2 Q.B. 36, referred to.
Brahma Prak-ash Sharma and others v. The State of Uttar Pradesh, [1953] S.C.R.1169, Gobind Ram v. State of Maharashtra. [1971] 1 S.C.C. 740 and State v. The Editors and Publishers of Eastern Times and Prajatantra, A.I.R. 1952 Orissa, 318, held inapplicable.
(ii)If in fact the language used amounts to contempt of court it will become punishable as criminal contempt. The right of appeal does not give the right to commit contempt of court nor can it be used as a cover to bring the authority of the High Court into disrespect and disregard. [298CD] Jugal Kishore v. Sitamarhi Central Co.op. Bank. AIR 1967 S.C. 1494 referred to.
Per Bhagwati & Krishna Iyer, JJ : (Concurring in ultimate decision) : The dilemma of the law of contempt arises because of the constitutional need to balance, two great but occasionally conflicting principles-freedom of expression and f air and fearless justice. It is a moot point whether we should still be bound to the regal moorings of Rex v. Almon. [306E] (i)The emphasis in Ss. 2(c), 3 and 13 of the Contempt of Courts Act, 1971. to the interference with the course of justice or obstruction of the administration of Justice or scandalising or lowering the authority of the Court-not the Judge-highlights the judicial area as entitled to inviolability and suggests a functional rather than a personal or 'institutional' immunity. The unique power to punish for contempt of itself inheres in a Court qua court, In its essential role of dispenser of public justice. The phraseological image projected 285 by the catena of expressions in the Act, the very conspectus of the statutory provisions and the ethos and raison d'eire of the jurisdiction-point to the conclusion that the text of the Act must take its colour from the general context and confine the contempt power to the judicial-cum-para-judicial areas, including such administrative functions as are intimately associated with the exercise of judicial power.
In short the accent is on the functional personality which is pivotal to securing justice to the people. Purely administrative acts like recruitmerits, transfers and postings, routine disciplinary action against subordinate staff, executive acts in running the establishment and ministerial business ancillary to office-keeping-these are common to all departments in the public sector and merely because they relate to the judicial wing of government cannot enjoy a higher immunity from criticism. The quintessence of the contempt power is protection of the public, not judicial personnel. If the slant on judict poalisation as a functional limitation on the contempt jurisdiction is accepted, it must exclude from its ambit interference with purely administrative acts of courts and non-judicial functions of judges. This dichotomy is implicit in the decided cases. To treat as the High Court has done. "the image and personality of the lush Court as an integrated one" and to hold that every shadow that darkens it is contempt is to forget life, reason and political progress. The basic 'public duty" of a Judge in his "judicial capacity" is to dispense public justice in Court and anyone who obstructs or interferes in this area does so at his peril. Likewise, personal behaviour of judicial personnel, if criticised severally or even sinisterly. cannot be countered by the weapon of the contempt of court. [309C-E, 3 10 A-F] The paramount but restrictive jurisdiction to protect the public against substantial interference with the stream of justice cannot be polluted or diffused into an intimidatory power for the judges to strike. at adverse comments on administrative, legislative (as under articles 225, 226 and 227) and extra-judicial acts. Commonsense and principle can certainly accept a valid administrative area so closely integrated with court work as to be stamped with judicial character such as constitution of benches, transfer of cases, issue of administrative directions regarding submission of findings or disposal of cases by subordinate courts and the like. Not everything covered by art. 225, 227 and 235 will be of this texture. Thus even though Judges and courts have diverse duties functionally and historically and jurisprudentially, the value which is dear to the community and the function which deserves to be pardoned off from public molestation is judicial. Vicious criticism of personal and administrative acts of Judges may indirectly mar their image and weaken the confidence of the public in the judiciary but the countervailing good, not merely of free speech but also of greater faith generated by exposure to the acting light of bona fide even if marginally overzealous, criticism cannot be over-looked. [315B-E] In the instant case the suspension of the District Judge was so woven into and integrally connected with the administration of justice that it can be regarded as not purely an administrative act but a para-judicial function.
The appeal was against the suspension which was a preliminary to contemplated disciplinary action which was against the appellant in his judicial capacity for acts of judicial misconduct. The control was, therefore, judicial and hence the unbridled attack on the High Court for the step was punishable impugned conduct of the condemner was qua Judge and the evil a supervisory act of the High Court.
[315G-H] (ii)A large margin must be allowed for allegations in remedial representation; but extravagance forfeits the protection of good faith. [315H] In the matter of a Special Reference from the Bahama Islands, [1893] AC. 139; 149; Debi Prasad Sharma v. The King Emperor, [1942] 70 I.A. 216, Kayiath Damodaran v. Induchoodan, A.I.R. 1961 Kerala 321, K. L. Gauba's case, I.L.R. [1942] Lab. 411, 419, Rex v. B. S. Nayyar, A.I.R.
1950 All'. 549. 551. 555, In re S. B. Sarbadhicary, [1906] 14 XX I.A. 41, Brahma Prakash Sharma v. State of Uttar Pradesh, (1953) S.C.R. 1169, State V. N. Nagamani, A.I.R.
1959 Pat. 373 and In the matter of an. Advocate of Allahabad, A.T.R. 1935 All. 1, referred to.
28 6 Remedial process cannot be a mask to malign a judge.
Irrelevant or unvarnished amputations under the pretext of grounds of appeal amount of foul play and perversion of the legal process. In the instant case the appellant, a senior officer who professionally weighs his thoughts and words has no justification for the immoderate abuse he has resorted to. In this sector even truth is no defence, as in the case of criminal insult-in the latter because it May produce violent breaches and is forbidden in the name of public peace, and in, the former it may demoralise the community about courts and is forbidden in the interest of public justice as contempt of court. The Court being the guardian of the people's rights, it has been held repeatedly that the contempt jurisdiction should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt. [317C-E; 318H] State of Uttar Pradesh v. Shyam Sunder Lal, A.I.R. 1954 All.
308, Rex v. R. S. Nayyar, A.I.R. 1950 All. 549; 554, State of Madhya Pradesh v. Ravi Sharker. [1959] S.C.R. 1367;
Govind Ram v. State of Maharashtra, [1971] 1 S.C.C. 740, Swarnamayi Panigrahi v. B. Nayak, A.I.R.1959 Orissa 89, Quintin Hogg. 1968 2 W.L.R. 1204: 1206-7. C. K. Paphtary v.O. P. Gupta, A.I.R. 1971 S.C. 1132-1141 para '52, R v. Gray,, [1900] 2 Q.B. 36, Special ,Reference No. 1 of 1964, [1965] 1 S.C.R. 413. 501; referred to.
(iii)In sum, the key note word is 'justice, not 'judge'; the 'key note thought is unobstructed public justice, not the self defence of a judge; the corner-stone of the contempt law is the accommodation of two constitutional values-the right of free speech and the right to independent justice.
The ignition of con, tempt action should be substantial. and mala interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel. [319E]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 41 and 77 of 1973.
Appeals under Section 19 of the Contempt of Courts Act, 1971 from the, Judgment and Order dated the 5th February, 1973 of the Orissa High Court at Cuttack in Criminal Miscellaneous Case No. 8 of 1972.
A.K. Ser, G. L. Mukhoty and C. S. S. Rao, for the appellant (in Cr.A. 41./73).
G. Rath, and B. Parthasarathy, for the appellant (In Cr. A. 77/73).
F. S. Nariman, Additional Solicitor General, B. M. Patnaik and Vinoo Bhagat, for respondent No. 1 (in Cr. A. 41/73) and respondent NO. 2 (in Or. A. 77/73).
G. Rath and U. P. Singh,for respondent No. 2 (in Cr. A.41/73), A. K. Sen and C. S. S. Rao, for respondent No. 1 (in Cr. A.77/73).
The judgment of the Court were delivered by PALEKAR J.-This is (Criminal Appeal No. 41 of 1973) an appeal by one Baradakanta Mishra from his conviction and sentence under the Contempt of Courts Act, 1971 by a Full Bench of fiVe of them. Orissa High Court. The Judgment is reported in I.L.R. [1913] Cuttack, 134 (Registrar of the Orissa High Court v. Baradakanta Mishra and Ors.).
The appellant started his career as a Munsif in 1947. His career as a Judicial Officer was far from satisfactory. In 1956 he was promoted on trial basis to the rank of a subJudge with the observation 28 7 that if he was found incompetent, suitable action would be, taken. In due course, he, was confirmed as a Subordinate Judge. On April, 2, 1962 he was promoted, again on trial basis, to the rank of Additional District Magistrate (Judicial) which is a post in the cadre of the orissa Superior Judicial Service (Junior Branch). As his work was for unsatisfactory, he wag reverted to his substantive post of a Subordinate Judge on January 4, 1963. The order of reversion was challenged by him in a Writ Petition which was dismissible by a Bench of C.J. and , J. The case is reported in [I.L.R.] 1966, Cutback, 503. An appeal to the Supreme Court was dismissed on February 6,he 1967. While working as a Subordinate Judge, after reversion,' was suspended from service from 15th May, 1964 to 9th April, 1967 during the pendency of a disciplinary proceeding against him. that proceeding ended in a light punishment of two ofhis increments being stopped. From the. above order of punishment, the appellant filed on 10-10-1967 an appeal to the State Government. The State Government by its order dated 15-7-1970 allowed tie appeal on the ground that the Public Service Commission had not heed consulted by the High Court before imposing the punishment, and that the Charge--Sheet served on the appellant having indicated the proposed punishment vitiated the disciplinary proceedings.
After the case, Was sent back to the High Court the charges which had been earlier established, were framed again and served on him on 13-2-1971 and we are informed that the proceeding is still pending.
In the meantime, it appears, he was promoted to the post of the Additional District Maggistrate in February, 1968 though the High Court was of opinion that he was unbalanced, quarrelsome, reflect and undisciplined. The High Court specifically observed that though the appellant suffered from these defects, It was sincere and working and the other officers who had superseded him as Additional Districting Magistratres were not much better. The promotion was made on trial basis for a period of one year with the.
observation that if during that period his work was found to be unsatisfactory, he 'would be reverted to the rank of SubJudge.
In that year the High Court had to face an abnormal situation by the retirement of many District Judges on account of the decision of the Government reducing the age of retirement from 58 to '55 years Many, vacancies occurred and the appellant was then promoted as an Additional District and Sessions Judge on trial basis for six months in July, 1968. In January, 1969 he was allowed to continue on a temporary basis till further orders subject to further review of his work at the time of confirmation. It is worthy of note that this decision to continue was taken on the report of the present Chief. Justice O. K. Mishra who was at that time the Administrative Judge.
On May 12, 1969 his services were placed at the disposal of the Government in the Law Department, who appointed him as Joint Secretary. Law, till October 12, 1969. From October 13, 1960 to December 4, 1970 he was appointed by the Government as the Commissioner of Endowments. The Government was thoroughly dissatisfied with his work and on December 5, 1970 his services were replaced at the disposal of the High Court. The appellant went on leave.
288 On his return to the Judicial cadre, he functioned as Addison District and Sessions Judge, Cuttack till July 14, 1971 when he was ,posted to act as District and Sessions Judge for 12 days in the temporary leave vacancy of the permanent District Judge Mr. P. K Mohanty. When he was thus acting as District and Sessions Judge for a short period by way of stop-gap arrangement, the High Court placed several restrictions on his administrative powers,.
In the brief period that he was working as Additional District and Sessions Judge, Cuttack, the appellant showed gross indiscretion by defying a request made by the District, Judge in due course of administration. He also committed a ave juiudicial misdemeanors. He heard an appeal and posted it for judgment on June 22, 1971. The judgment was delivered on that date and the, appeal was dismissed.
The Order-Sheets of the judgment were signed by the appellant and the judgment was duly sealed. Later in the day, however, the appellant scored through his signatures both in the Order-Sheet and in the judgment and returned the record of the appeal to the District Judge for disposal by making a false statement that the judgment had not been delivered and that the parties being known to him it was not desirable that he should further hear the appeal, after taking additional evidence for which a petition had been filed. This was something quite extraordinary from a Judge of the appellant's standing. When these matters were brought to the notice of the High Court the Registrar by Order of the High Court recommended to the Government that the appellant be reverted to the post of the Additional District Magistrate (Judicial). There were already three departmental proceedings pending against the appellant and he had also been convicted in a contempt case. The High Court expressly informed the Government that these four matters had not been taken into consideration in recommending his reversion and that his reversion was solely due to the fact that his work was found unsatisfactory. The recommendation was accepted by the Government who on September 1, 1971 reverted the appellant to the post of the Additional District Magistrate.
On September 10, 1971 the appellant made a representation to the Chief Minister praying for the withdrawal of the order of reversion and, if necessary, to suspend him after drawing up a regular depart7 mental proceeding. The representation was forwarded to the Government with the comments of the High Court.
Something unusual happened. Without any further consultation with the High Court, the Governor cancelled the reversion order by notification dated March 21, 1972 And on the same day the Chief Minister wrote a confidential D.O. to the Chief Justice by name explaining the circumstances under which the reversion. order was cancelled. The Chief Minister appeared. to rely upon a decision of the Orissa High Court which had noapplication to the facts of this particular case. But any way. it would appear that by reason of the Order dated March 21, 1972: the reversion of the appellant to the post of the Additional District Magistrate stood cancelled and he continued to act in the post of the Additional District & Sessions Judge, Cuttack.
289 The D.O. letter of the Chief Minister remained unopened till the return of the Chief Justice from New Delhi where he had gone to attend the Chief Justices Conference. It was opened by the Chief Justice on return on March 26, 1972. But in the meantime, the appellant, who had gone on leave, having known about the order passed on March 21, 1972 asked for his posting. The rules required that on return from leave he should produce, a medical certificate and he was, accordingly directed to produce one.
On March 28, 1972 the Chief Justice placed the letter of the Chief Minister for consideration before the Full Court. The Full Court took the decision to start a disciplinary proceeding against the appellant and, pending the same, to place him under suspension in exercise of their powers under Article 235 of the Constitution. Accordingly on March 30 1972 the appellant was placed under suspension and his headquarters were fixed at Cuttack.
The present contempt proceedings arise out of events which took place after the suspension order. On receiving the suspension order the appellant addressed by letter an appeal to the Governor of Orissal for cancelling the order of suspension and for posting him directly under the Government. That is Annexure 8. As the High Court was of the view that no appeal lay from an order of suspension pending disciplinary charges, it did not forward the appeal to the. Governor. In fact on April 28, 1972 the Registrar of the High Court intimated the State Government that the appeal filed by the appellant to the Governor had been withheld by the High Court as no such appeal lies against the order of suspension pending disciplinary proceedings.
The appellant was also intimated accordingly.
On April 29, 1972 charges in 'the disciplinary proceeding were, framed by the High Court and communicated to the appellant and the appellant was directed to file his reply to the charges by a certain date.
On May 14, 1972 the appellant wrote three letters. One was to the Registrar and is Annexure 13. By this letter the appellant intimated that he had moved the Governor to transfer the disciplinary proceedings to the Administrative Tribunal and that he would take all other alternative stepsadministrative and judicial-to avoid the proceeding being dealt with by the High Court. The second letter was addressed to the Governor and is Annexure 15. It purports to be a representation with a prayer to direct the High Court to forward the appeal withheld by it. There was a third letter of the same date addressed directly to the Governor purporting to be a representation. That is Annexure 16. The prayer was that the departmental pro-.
seedings be reference to the Administrative Tribunal. A copy of this letter was sent to the Registrar of the High Court with the following-. remark "As the Honourable Court are likely to withhold such petitions, this is submitted direct with copy to the Honourable Court for information. Honourable Court may be,, pleased to send their comments on this petition to the Governor." 29 0 On May 22, 1972 the appellant addressed a letter (Annexure 14) to the Registrar intimating him that he would not submit any explanation to the charges framed against him until his representation to the Governor was disposed of. He also stated therein that he may file a writ application for the purpose and would take the matter to the Supreme Court, if necessary. He also stated that he cannot wait for the permission of the High Court for leaving the Headquarters.
It is the contents of these letters on which a show-cause notice for contempt was issued to the appellant under the orders of the Full Court on July 3, 1972.
On 27-7-1972 the appellant filed his preliminary objection to the show-cause notice challenging its maintainability on the ground that whatever he had said had no reference to the judicial functions of any Judge of the High Court and, therefore, no contempt proceedings would lie. He pressedfor a decision on the point. When the matter came before a Division Bench on 3-8-1972 the appellant was directed to file his full reply to the show-cause notice. Accordingly, it was filed on 7-8-1972 and the appellant again pressed for a decision on his preliminary objection. The Division Bench refused to deal with the preliminary objection and so on 308-1972 the appellant filed Criminal Appeal NO. 174 of 1972 in this Court praying for cancellation of the contempt proceedings challenging therein the maintainability of the proceeding and complaining of bias and prejudice of the High Court particularly the Honourable the Chief Justice and Mr. Justice R.N. Mishra. He said apprehended that he would not get a fair deal if the matter is disposed of by the High court On 21-11-1972 the Supreme Court appeal was withdrawn. At the instance of the Division Bench, a PM Bench of five Judges was constituted by the Chief Justice, and the case came on for hearing before the Full Bench on 4-12-1972. In the meantime the appeal memo filed by the appellant in the Supreme Court was available and since it contained matter which amounted to contempt, additional, charges were framed and a show-cause notice was issued to the appellant in respect of these additional charges. A copy of, the appeal memo containing the statements amounting to contempt is Annexure 20.
The Annexures were examined by the court with a view to consider whether the statements therein amount to a criminal contempt. On a full and prolonged consideration the Fall Bench came to, the unanimous conclusion that Annexures 8,13,14,16, and 20 contain matters which accounted to gross contempt of court and since the appellant had not even offered an apology, this was a matter in Which serious notice ought to be taken, especially, in view of previous convictions for contempt, and, accordingly sentenced the appellant to two months simple imprisonment though in their opinion he deserved the maximum sentence of six months.
The several Annexures referred to above have been extracted by the Fall Bench in its judgment and it as not necessary to reproduce them here. It will be sufficient to reproduce only those portions 29 1 which were regarded as grossly contemptuous and had been under-lined in the judgment.
Annexure 8.
As already stated this is a letter in the, form of an appeal addressed to the Governor of Orissa complaining against the suspension and praying for stay of operation of the suspension order on the basis. of the advance copy sent to the Governor for its cancellation and for posting the appellant directly under the Government. it is dated 10-41972. The appeal had been routed through the High Court but the High Court did not forward the same. In this annexure reference is made to the previous appeal filed by him against the order of the High Court stopping his two increments after a departmental proceeding and how the Governor in appeal had cancelled even the very departmental proceeding in the appeal. An interpretation was, put on that order which it did not bear and it was made out, though falsely, that the punishment had been set aside on the basis of the allegations made by the appellant that some Honourable Judges of the High Court had been biased and prejudiced against him. The appellant also asked the Governor to appreciate that by the said departmental proceedings the High Court had put the Exchequer to a very heavy loss "all on accounts of the palpable incorrect views of the High Court." Then the appellant says that the present action,. namely , the order of suspension clearly disclosed mala fides. He suggested that there were several "embarrassing events" which he could offer for consideration of the Governor but he was content at this stage to refer to only one of them. In this connection he referred to the fact that when he intimated to the High Court that he desired to join duties after his leave on March 20, 1972 he was informed by the High Court on March 23, 1972 that his re-posting after leave would be decided after the medical board reported as to his fitness. to join after leave.
This, according to the appellant, showed that the High Court had already taken a decision in the absence of the Chief Justice that the appellant should be re-posted. But on the return of the Chief Justice from New; Delhi there was a sudden change., He clearly suggested that after the Chief Justice's return, the court took the decision to suspend him and in this connection he made the following observations :
"This decision of the High Court, reached at before the Honourable the Chief Justice attended the High Court on the 27th March after his 10 days of absence, clearly indicates that no proceeding, much less suspension, against the appellant was under contemplation till that day, but on the other hand, the appellant's place of posting was under consideration of the High Court.
Circumstances clearly disclose that after the return of the Honourable Chief Justice, the Government's order, disapproving the High Court's views about the appellants demotion, was not accepted gracefully by the High Court, and so subterfuge was adopted to counteract the said decision of. the Government by a novel step, thus to deprive the appellant of the result of the said decision. In view of this patent mala fide alone, such an action 292 is liable to be quashed, by any competent Court of law." Then at a later stage the appellant says "The appellant happens to be the senior-most judicial officer in the State as regards length of service, and he has already 20 more months before attaining the age of superannuation. Hence, he may not deserve the present unwarranted, sudden and mysterious suspension. giving rise to speculations, touching his integrity." Then again he says "........ the treatment of the High Court may require that after cancellation of this order of suspension, he be brought under the direct control of the Government in a special post for the rest of his service career of hardly 20 months more." The High Court at para 61 of the judgment has observed as follows :
"In the appeal memo (Annexure-8) the condemner attributed mala fides, bias and prejudice to the High Court. He made false insinuations that the Governor cancelled the previous disciplinary proceeding against the condemner on the ground that the same was vitiated as the High Court had prejudged the matter and the Government set aside the punishment on the ground that three of the Honourable Judges were biased and prejudiced against him. He alleged that the disciplinary proceeding involved the Government in heavy expenses on account of the palpably incorrect views of the High Court. He asserted that the order of suspension as per Annexure-6 was mala fide.
He stated that he would produce more facts relating to the mala fides of the High Court before the Governor. He alleged that the High Court did not gracefully accept the Government's order cancelling his demotion, and the High Court resorted to a subterfuge to counter-act the said decision of the Government by taking a novel step, and that the High Court's action suffered from patent mala fide. He stated that there was a turn of event after return of the Chief Justice from the Chief Justices' Conference and that the High Court did not accept Government's decision. gracefully and that the other Judges had no independent judgment of their own, and were influenced by the Chief Justice to take a view, different from what they had already taken, to give a posting order to the contemner, and that the High Court resorted to a subterfuge. He wanted protection of the Govern against the High Court which he insinuates as an engine of oppression. He characterised the High Court's order of suspension as mysterious and prayed that the Government should post him directly under it." We have no doubt that the Full Bench has correctly summarized the effect of Annexure-8, and we have nothing more, to add.
29 3 Annexures 13 and 14 should go together. Annexure 13 is a letter by the appellant to the Registrar dated May 14, 1972 in which he told him that he had moved the Governor, Orissa with a prayer to refer his matter to the Tribunal under the provisions of the Disciplinary Proceedings Rules, 1951 and also that he would take all other alternative steps "administrative and judicial" to avoid this proceeding being dealt with by the High Court and for this purpose would have to consult some prominent Advocates of Calcutta and Delhi.
Annexure-14 is a further letter dated May 22, 1972 to the Registrar intimating him that he would not submit any explanation to the charges framed until his representation to the Governor was disposed of. In this letter he further pointed out that it would not be possible for him to wait for the permission of the High Court to leave headquarters, because he may be called by his legal advisers at any moment and in those circumstances he said "I hereby inform the Honourable Court that I may be absent during the entire period mentioned in my letter dated the 14th May, 1972 and the Honourable Court may kindly approve of the same." The effect of Annexares-13 and 14 has been summarised by the Full Bench in these words :
"Thus, in Annexures-13 and 14, the contemner exhibited a contemptuous defiance of the Court's order, by declaring that he would not obey the order. and would leave the station without waiting for permission from the High Court, as his first consideration was to "go out in connection with legal advice and filing applications and appeals in the Supreme Court" in matters-connocted with his suspension, and to take all steps to avoid the proceeding being dealt with by the High Court. These passages depict, in unequivocal terms, that the dispensation of justice by the Judges of the High Court on its administrative side, is most atrocious and vindictive and it is on that ground. the contemner would not obey the Court's order, could not submit any explanations, and would take all possible measures before the Supreme Court, the Governor and the Chief Minister not to surrender to the jurisdiction of the High Court. His entire attempt has been to present a lurid picture of the administration of justice, by the High Court." In the context, we are not prepared to say that this summary of the effect of Annexures 13 and 14 is far wrong.
Annexure 16.
That brings us to Annexure 16. It Is dated May 14, 1972 and purports to be a representation made by the appellant direct to the Governor without routing it through the High Court.
The following passages have been underlined by the Full Bench as being grossly contemptuous.
"...... the High Court have already contemplated in this departmental proceedings, a very heavy punishment for the petitioner." 294 "If on two such allegations, bias and prejudice of the High Court was disclosed by strongly pleading for demotion of the petitioner, the multiple number of such charges may naturally make the petitioner, apprehensive of the result of the proceedings, if conducted by the High Court." "........ the High Court even without any authority or jurisdiction in this regard and on the face of the directions of the Government in Political and Servoes Department communicated in the Government's Memo No.3559-Gen., dated the 15th March 1958, have placed the petitioner under suspension-" "The High Court have also taken unusual move in placing the petitioner under suspension in a 'contemplated proceeding' " ". . . . the High Court on the administrative side, is seriously prejudiced and biased against him, and they act, as if the charges stand established, requiring extreme punishment and as such, justice, may not be meted out to the petitioner by the High Court, if they conduct this departmental inquiry." "........ the petitioner considers it risky to submit his explanation to the High Court." "........ the High Court in-the best interest of justice,should not enquire into these charges." A copy of the above representation was sent to the Registrar and the following endorsement appears thereon.
As the Honourable Court are likely to withhold petitions this is submitted direct with copy to the Honourable Court for information. The Honourable Court may be pleased to send their comments on this petition to the Governor." The summary of the effect of Annexure-16 is given by the Full Bench in para 70 of the judgment which is as follows :
"In Annexure-16 the contemner has suggested that the Court has already prejudged the matter and has taken a previous decision to impose a heavy punishment. Bias and prejudice on the part of the Court were also alleged by the contemner. He suggested that the Court is not in a position to weigh the evidence. and consider the materials on record and to impose a sentence commensurate with his delinquency.
The action taken by the High Court has been branded as unusual............." "A copy of this Annexure 16 was sent to the High Court with a contemptuous remark that since the High Court was likely to withhold the representation it was submitted direct to the Governor. Not being satisfied with that, he issued a further directive to the court to send their comments on his representation to the Governor.
295 The above summary of the effect of Annexure-16 is, in our view, correct.
Annexure-20.
This annexure is the memo of appeal filed by the appellant in the Supreme Court in Criminal Appeal No. 174 of 1972. The appeal had been filed because the Division Bench had refused to consider his preliminary objection with regard to the maintainability of the present contempt proceedings. The grievance before the Supreme Court was that the, Orissa High Court had taken. six contempt proceedings against him and in view. of what happened in some of those proceedings, the appellant entertained apprehension that the court may impose substantive punishment and may refuse bail or time to the appellant for getting redress from the Supreme Court if the present contempt-proceedings were also to go on before the same High Court. In the first contempt proceeding though the proceedings were dropped, Adverse comments were made against his conduct thus depriving him of an opportunity to go in appeal and have the adverse comments exnged. in one of the other cases he says........ the appellant was brought down to the Court-hall, and the Honourable Judges convicted and sentenced the appellant and without affording him an opportunity to obtain stay of the sentence from this Honourable Court, executed the sentence by administering admonition in the, open court and sounding warning that, if at any time such contumacious conduct of his was noticed, a very serious view would be taken about punishment." In the other contempt matter, he alleged, a Judge wanted to add a new charge. The appellant objected to the same and went in appeal to the Suprerac, Court. The appellant says that when the appellant filed his appeal in this Court and brought this fact to the notice of the Honourable Judges,, they dropped the additional charge. In another proceeding, he says, the Honourable Judges while dropping the proceeding found out a very innocent and inconsequential mistake in the sworn counter-affidavit of the appellant and on that account ordered the filing of a criminal complaint for an offence under section 199 of the I.P.C. In ground (1) the appellant alleged that the appellant fears bias of the Honourable High Court against him in view of the facts and circumstances stated above.
The Full Bench in its judgment has considered each one of them allegations in the appeal memo and shows how the insinuations were false and how plain facts were distorted, They are entirely right in ,ummarising these facts of Annexure 20 in these words:
"Thus in Annexure-20 the contemner has, in clearest terms, alleged bias and prejudice against the High Court and its Chief Justice.
He has taken the plea that the court itself has become disqualified to deal with the caseIn his view the Judges of this Court have fallen from the path of rectitude, and are vindictive, and have already decided to impose substantive sentence and refuse bail, and they are not in a position to mete out even-handed justice., -522SCI/74 296 disrespectful fulminations of an angry insubordinate officer, there is hardly any doubt that Annexures 8, 16 and 20 contain statements which are deliberately made to grossly scandalize the High Court. The Judges of the High Court and especially the Chief Justice are charged with mala fides, improper motives, bias and prejudice. It is insinuated that they are oppressing the appellant, have become vindictive and are incapable of doing him justice. It is also suggested that they do not administer justice fearlessly because in one matter affecting the appellant, they dropped a charge against him for fear of the Supreme Court. All this, prima facie, amounts to gross scandalization of the High Court.
The law applicable to this case is the law as contained in the Contempt of Courts Act, 1971 No. 17 of 1971. Section 2 defines "Contempt of Court", as either "civil contempt" or "criminal contempt". Clause (c) defines "criminal contempt" as follows :
(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;" It will be seen that the terminology used in the definition is borrowed from the English law of Contempt and embodies concepts which are familiar to that law which, by and large, was applied in India. The expressions "scandalize", "lowering the authority of the court", "interference", "obstruction" and "administration of justice" have all gone into the legal currency of our sub-continent and have to be understood in the sense in which they have been so far understood by our courts with the aid of the English law, where necessary.
The first sub-clause generally deals with what is known as the scandalization of the court discussed by Halsbury 3rd Edition in Volume 8, page 7 at para 9 : "Scandalous attacks upon Judges are punished by attachment or committal upon the principle that they are, as against the public, not the judge, an obstruction to public justice; and a libel on a judge, in order to constitute a contempt of court, must have been calculated to cause such an obstruction...... The punishment is inflicted, not for the purpose of protecting either the court as a whole, or the individual judges of the court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the authority of the tribunal is undermined or impaired." Sub-clause (1) embodies the above concept and takes in cases when by the publication or the fact the 29 7 administration. of justice is held to ridicule and contempt.
This is regarded as an "obstruction" of public justice whereby the authority of the court is undermined. Sub clause (1) refers to one species of contempt of which "obstruction" is an important element. Sub-clause (ii) speaks of, interference with due course of judicial proceedings and is directly connected with administration of justice in its common acceptance.
While clauses (i) and (ii) deal with obstruction and interference respectively in the particular way described therein, clause (iii) is a residuary Provision by which any other type of obstruction or interference with the administration of justice is regarded as a criminal contempt.
In other words, all the three sub-clauses referred to above define contempt in terms of obstruction of or interference with administration of justice. Broadly speaking our statute, accepts what was laid down by the Privy Council and other English authorities that proceedings in contempt are always with reference to the administration of justice. It is enough for our purpose to refer to Debi Prasad Sharma-v.
The King-Emperor(1) in which Lord Atkin delivering the judgment of the Judicial Committee observed at page 223 as follows :
"In 1899 this Board pronounced proceedings for this species of contempt (scandalization) to be obsolete in this country' though surviving in other parts of the Empire, but they added that it is a weapon to be used sparingly and always with reference to the administration of Justice : McLeod v.
St. Aubyn (1) [1899] A.C. 549. In In,re a Special Referewe from the Bahama Islands-[1893] A.C. 1-38) the test applied by the, ve strong Board which heard the reference was whether the words complain of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of. the law. In Oueen v.GraY-[1900](2) Q. B. 36 it was show that the offence of scandalizing the, court itself was not obsolete in this country. A very scandal us attack had been made on a fudge for his judicial utterances while sitting in a criminalase on circuit and it was with the foregoing opinions on record that lord Russell of Killowen, C.J., adopting the expression of Wilmot, C.J. in his opinion in Rex. v. Almon-(1765 Wilmot's Notes of Opinions, 243 97 E.R. 94) ,which is the source of much of the present law on the subject, spoke of the article complained of as calculated to lower the authority of the judge.
It is, therefore, clear that scandalization within the meaning of sub clause (1) must be in respect of the court or the Judge with reference to administration of justice.
The contention of Mr. Sen on behalf of the appellant is that, in the first place', it must be remembered that the publication or acts complained of are in the course of the appellant challenging his suspension and holding of disciplinary proceedings in an appeal or representation to the Governor from the orders passed by the High Court. In Anexure-20 he was challenging the order of the High Court before (1) 70 Indian Appeals, 216.
298 the Supreme Court. The appellant in his submission, bona fide believed that he had a right to appeal and, in pursuance of the right he thus claimed he had given expression to his grievance or had otherwise acted, not with a view to malign the court or in defiance of it, but with the sole object of obtaining the reversal of the orders passed by the High Court against him. In the second place, Mr. Sen contended, the passages about which the complaint was made did not amount to contempt of court since they did not purport to criticize any judicial' acts of the judges sitting in the seat of justice. It may be that in some places disrespectful references have been made to the Judges which Mr. Sen assures us, he should have, never done. At the same time, in his submission, criticism of administrative acts of the High Court even in vilification terms did not amount to contempt of court.
So far as the first part of the argument is concerned, the same must be dismissed as unsubstantial because if, in fact the language used amounts to contempt. of court it will become punishable as criminal contempt. The right of appeal does not give the right to commit contempt of court, nor can it be used as a cover to bring the authority of the High Court into disrespect and disregard. It has been held by this Court in Jugal Kishore v. Sitamarhi Central Co-op.
Bank() that allegations of mala fides in the grounds of appeal to the Joint Registrar of Cooperative Societies from the Order of the Assistant Registrar would constitute gross contempt.
A point of some substance is in the second part of Mr. Sen's argument and it will be necessary to decide in the present case whether contemptuous imputations made with reference to "the administrative acts" of the High Court do not amount to contempt of Court.
The answer to the point raised by Mr. Sen will depend upon whether the amputations referred to above do or do not affect administration of Justice. That is the basis on which contempt is punished and must afford the necessary test.
We have not been referred to any comprehensive definition of the expression "administration of justice". But historically, and in the minds of the people, administration of justice is exclusively associated with the Courts of justice constitutionally established. Such courts have been established throughout the land by several statutes. The Presiding Judge of a court embodies in himself the court, and when engaged in the task of administering justice is assisted by a complement of clerks and ministerial officers( Whose duty it is to protect and maintain the records, prepare the writs, serve the processes etc. The acts in which they are engaged are acts in aid of administration of justice by the Presiding Judge. The power of appointment of clerks and ministerial officers involves administrative control by the Presiding Judge over them and though such control is described as administrative to distinguish it from the duties of a Judge sitting in the seat of justice such control is exercised by the Judge as a Judge, in the course of judicial administration. Judicial administration is an integrated function of the judge and cannot suffer any dissection so far as maintenance of high standards of rectitude in judicial administration is con(1) A.I.R. 1967 S.C. 14-94 299 concerned. The whole set up of a court is for the purpose of administration of justice, and the control which the Judge, exercises over his assistants has also the object of maintaining the purity of administration of justice. These observations apply to all courts of justice in the land whether they are regarded as superior or inferior courts of justice.
Courts of justice have, in accordance with their constitutions. to perform multifarious functions for due administration of 'justice. Any lapse from the strict standards of rectitude in performing these functions is bound to affect administration of justice which is a term of wider import than mere adjudication of causes from the seat of justice.
In a country which has a hierarchy of courts one above the other, it is usual to find that the one which is above is entrusted with disciplinary control over the one below it.
Such control is devised with a view to ensure that the lower court functions properly in its judicial administration. A Judge can foul judicial administration by misdemeanors while engaged in the exercise of the functions of a Judge. It is therefore as important for the superior court to be vigilant about the conduct and behavior of the Subordinate Judge as a Judge, as it is to administer the law, because both functions are essential for administration of justice. The Judge of the superior court in whom this disciplinary control is vested functions as much as a Judge in such matters as when he hears and disposes of cases before him.
The procedures may be different. The place where he sits may be different. But the powers are exercised in both instances in due course of judicial administration. If superior courts neglect to discipline subordinate courts, they will fail in an essential function of judicial administration and bring the whole administration of justice into contempt and disrepute. The mere function of adjudication between parties is not the whole of administration of justice for any court. It is important to remember that disciplinary control is vested in the court and not in a Judge as a private individual. Control, therefore, is a function as conducive to proper administration of justice as laying down the law or doing justice between the parties.
What is commonly described as an administrative function has been, when vested in the High Court, consistently regarded by the statutes as a function in the administration' of justice. Take for example the Letters Patent for the High Court of Calcutta. Bombay and Madras. Clause 8 thereof authorises and empowers the Chief Justice from time to time as occasion may require "to appoint so many and such clerks and other ministerial officers it shall be found necessary for the administration of justice End the due execution of all the powers and authorities granted and committed to the said High Court by these Letters Patent." It is obvious that this authority of the Chief Justice to appoint clerks and ministerial officers for the administration of justice implies an authority to control them in the interest of administration of justice. This Controlling function which is commonly described as an administrative function-is designed with the primary object of securing administration of justice. Therefore, 300 when the Chief Justice appoints ministerial officers and assumes disciplinary control over them, that is a function which though described a administrative is really in the course of administration of justice., Similarly section 9 of the High Court’s Act, 1861 while conferring on the High Court’s several types of jurisdictions and powers says that all such jurisdiction and powers are "for and in relation to the administration of justice in the Presidency for which it is established."Section 106 of the Government of India Act, 1915 similarly shows that the, several jurisdictions of the High Court and all their powers and authority are "in relation to the administration of justice including power to appoint clerks and other ministerial officers of the court." Section 223 of the Government of India Act, 1935 preserves the jurisdictions of the. existing High Courts and, the respective powers of the Judges thereof in relation to the administration of justice in the court.
Section 224 of that Act declares that the High Court shall have superintendence over all courts in India for the time being subject to its appellate jurisdiction and this superintendence, it is now settled, extends both to administrative and judicial functions of the subordinate courts. When we come to our constitution we find that whereas Articles 225 and 227 preserve and to some extent extend these powers in relation to administration of justice, Article 235 vests in the High Court the control over District Courts and Courts Subordinate thereto. In the State of west Bengal v. Nripendra Nath Bagchi(1) this Court has pointed out that control under Article 235 is control over the conduct and discipline of the Judges. That is a function which, as we have already seen, is undoubtedly connected with administration of justice. The disciplinary control over the mis demeanours of the subordinate judiciary in their judicial administration is a function which the High Court must exercise in the interest of administration of justice. It is a function which is essential for the administration of justice in the wide connotation it has received and, therefore, when the High Court functions in a disciplinary capacity, it only does so in furtherance of administration of justice.
We thus reach the conclusion that the courts of justice in a State from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice, and it is the expectation and confidence of all those who have or likely to have business therein that the courts perform all their functions on a high level. of rectitude without fear or favour, affection or ill-will.
And it is this traditional confidence in the courts that justice will be administered in them which is sought to be, protected by proceedings in contempt. The object, as already stated, is not to vindicate the Judge personally but to protect the public against any undermining of their accustomed confidence in the Judges' authority. Wilmot C.J.
in his opinion in the case of Rex v. Almon alreadly referred to says : "The arraignment of the justice of the Judges, is arraigning the King's justice, it is an impeachment of his wisdom and goodness in the choice of his Judges, and exci
