REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO…………………. OF 2009 (D22040/2008)

LEILA DAVID    PETITIONER VS.

STATE OF MAHARASHTRA & ORS.          RESPONDENTS

WITH

WRIT PETITION (CRL.) NO……………………..OF 2009

(D24281/2008)

WITH

WRIT PETITION (CRL.) NO………………….. OF 2009

(D25985/2008)

WITH SUO MOTU CONTEMPT PETITION (CRL.) NO. 3/2008

@ WRIT PETITION (CRL.) NOS………………………………. OF 2009 (D22040, 24281 & 25985/2008)

WITH

Suo Motu Cont. Pet. © No.225/2008 in SLP(C) 8573/2006 Suo Motu Cont. Pet. © No.226/2008 in SLP(C) 9434/2006 Suo  Motu  Cont.  Pet.  ©  228/2008  in  SLP(Crl.)  ....... CRLMP553/2007

O R D E R

Today in open Court when Item No. 37 was called on,

the  petitioners  appeared  in  person.  Several  ladies

appeared along with a gentleman and they addressed the

Court in very intemperate and offensive language. The

address was more against the Members of the Bench than on 1

the  merits  of  the  case.  To  say  the  least,  this  is

unfortunate.  The  persons  who  appeared,  became  very

agitated and one of them threw a footwear at the Bench.

At the time the learned Solicitor General of India was

present  in  Court  and  two  other  learned  Additional

Solicitors General were also present along with a large

number of advocates. Ultimately, those agitated persons

were  actually  taken  out  of  the  Court  by  some  other

Advocates and by security personnel.

To my mind this is prima facie an incident where

provisions of Section 14 of the Contempt of Courts Act,

1971 (hereinafter the Act) can be invoked.

Learned  Justice  Pasayat  called  for  the  Registrar

(Judl.) of this Court and was pleased to pass an order to

the following effect:

“Today when these matters were taken up  suddenly  the  contemnors  started shouting  and  used  very  offensive, intemperate and abusive language and even one had gone to the extent of saying that the  Judges  should  be  jailed  for  having initiated  proceedings  against  them.  They said that Judges are not interferring with orders  by  various  Judges  of  the  Bombay High  Court,  are  to  be  punished  for  not taking care of their so-called fundamental rights. Even one of them threw a chappal at  the  Judges.  This  happened  in  the presence of the learned Solicitor General of India, two learned Additional Solicitor

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General  and  a  large  number  of  learned counsel  including  the  President  of  the Supreme  Court  Advocate  of  Record Association.

This conduct is contemptuous. There is no  need  for  issuing  any  notice  as  the contemnors stated in open Court that they stand by what they have said and did in Court. The Registrar is directed to take the  following  four  persons  into  custody from the Court premises:

1. Annette  Kotian  D/o  A.  Kotian,  R/o  1. Madhav Baug, Brahim Society, Naupada Thana – 400602; (aged 23 years)

1. Dr, Sarita Parikh D/o Kishore Bansilal R/o  F.16,  Juhu Apartments, Juhu Road,  Juhu Mumbai -49; (aged 31 years)

1. Leila David W/o Neil David R/o 22, West View 1st Pastalane, Colaba, Mumbai -5; (aged 75 years)

1. Pavithra  Murali  D/o  Murli  R/o  Jeevan Akash  Forjett  Street,  Tardev,  Mumbai  -36 ( aged 23 years)

They  shall  suffer  three  months  simple imprisonment.

Rest of the matters shall be listed after three weeks.”

His Lordship by this order directed the Registrar

(Judl.)  to  send  persons  named  above  to  prison,  as

according to His Lordship, they have acted in an indecent

manner which is apparently contumacious in the face of

the  Court.  His  Lordship  thus  also  sentenced  them  as

above.

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Just before that, the learned Solicitor General has

addressed the Court and suggested that instead of taking

those persons into custody, the Court may restrain them

from entering any Court premises except in cases where

they have to answer any charge or defend themselves. In

support  of  the  said  contention  the  learned  Solicitor

General of India relied on Arlidge, Eady and Smith on

Contempt, Second Edn. 1999 paragraph 14- 106:

“14-106:  Against  that  background,  the Vice-  Chancellor  concluded  that  it  would  be quite inappropriate to deal with the matter by way of imprisonment, the purpose of which in such a case “would be to mark the displeasure of the Court about the contempt that had been committed and to punish the perpetrator””. He said that a person suffering from the mental infirmity  in  question  did  not  require punishment,  and  the  Court’s  displeasure  had been  connoted  by  the  judgments  the  Vice- Chancellor  had  given.  He  focused  therefore rather upon the need to protect court officials in the future, both in the High Court and in county  courts  generally,  and  granted injunctions  restraining  the  bringing  of  any action of making any claim in an action already brought except by a next friend, the persons were  also  restrained  by  injunction  from “entering any court premises save as may be necessary to answer subpoenas.”

To that suggestion of the learned Solicitor General,

I pointed out in open Court that in our country the law

of  contempt  is  not  dependent  solely  on  Common  law

principles, but the exercise of contempt jurisdiction in

India is regulated in accordance with the provisions of

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the said Act. It is of course true that the Supreme Court

has its inherent power. Apart from the power conferred on

it under the said Act, it has inherent power under Art.

129 of the Constitution to punish for contempt of itself.

This  Court  also  has  power  under  Article  142  of  the

Constitution.

In  matters  of  initiating  a  contempt  proceeding

against erring litigants and where contempt takes place

in  the  face  of  the  court,  the  procedure  has  been

statutorily prescribed under Section 14 of the said Act.

The said Section is based on the Recommendation of the

Sanyal Committee and paragraph 4 of the Recommendation on

which  Section  14  has  been  modelled  may  be  very

instructive and is set out hereunder:

“4. From what we have stated, it is clear that it is not wise to modify in any manner the summary powers of Courts to deal with contempts committed  in  their  presence.  We,  therefore, feel  that  the  Court  should,  in  cases  of criminal contempt committed in its presence, be able to deal with the contempt forthwith or at any time convenient to it  after informing the person  charged  with  contempt  orally  of  the charge  against  him  and  after  giving  him  an opportunity to make his defence to the charge, pending determination of the charge, the person charged with contempt may be detained in such custody as the Court deems fit. Wherever the matter is not disposed of forthwith, we also feel that the person charged should be enlarged on bail pending determination on the execution of a bond for due appearance for such sum and with or without sureties as the Court considers

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proper.  We  are  happy  to  note  that  this  is generally the practice.”

(emphasis supplied)

The relevant provisions of Section 14(1) of the Said

Act run as under:

“S. 14. Procedure where cotempt is in the face of the Supreme Court or a High Court. - (1)  when  it  is  alleged,  or  appears  to  the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the court may  cause  such  person  to  be  detained  in custody, and, at any time before the rising of the court, on the same day, or as early as possible thereafter, shall-

(a) cause him to be informed in writing of the contempt with which he is charged;

(a) afford him an opportunity to make his defence to the charge;

(a) after taking such evidence as may be necessary or as may be offered by such person and  after  hearing  him,  proceed,  either forthwith  or after  adjournment, to  determine the matter of the charge; and

(a) make such order for the punishment or discharge of such person as may be just.”

It is clear from a perusal of Section  14(1)  of

the   said   Act  that  in   initiating    a  contempt

proceeding and when  contempt  is allegedly committed  in

the  face  of  the  Court,  the  Court  has  to  inform  the

alleged contemnors in writing the charge of contempt and

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then afford them an opportunity to make their defence to

the charge and thereafter on taking such evidence as may

be necessary or as may be offered by the persons and

after hearing them, proceed either forthwith or after

adjournment to determine the matter of the charge and may

make such order for the punishment or discharge of such

persons as may be just.

These four steps provided under Section 14(1) of the

Act are mandatory in nature.

These steps have been engrafted under the Statute

following Common Law traditions in other countries and

also possibly keeping in view the age old principle that

in contempt proceedings, the Court acts both as Judge and

an accuser, rolled into one, and the Court must act with

utmost  restraint  and  caution  and  must  follow  all  the

procedural requirements since the liberty of persons is

involved.

Under  Section  14(4)  of  the  Act,  the  Court  may

temporarily take the alleged contemnor in custody but it

cannot  imprison  him/her  by  way  of  punishment  without

following the safeguards under sub-section 14(1) of the

Act.

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Mere  unilateral  recording  in  the  order  that  the

contemnors stand by what they said in Court is not a

substitute for compliance with the aforesaid mandatory

statutory requirement.

Apart  from  that  at  that  time  when  the  alleged

offending  acts  were  committed  by  those  persons  the

Court’s atmosphere was so surcharged that no such offer

could be validly made.  

In other Common law jurisdictions where such clear

statutory provisions are not there, same principles of

caution which is akin to Section 14 of the said Act have

been  judicially  evolved  while  dealing  with  a  case  of

contempt in the face of the Court. Reference in this

connection may be made to the decision of the High Court

of Australia where in a case it has been laid down:

“It  is  well-recognised  principle  of  law that no person ought to be punished for cotempt of Court unless the specific charge against him be  distinctly  stated  and  an  opportunity  of answering is given to him……..The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations.  The  charge  having  been  made sufficiently explicit, the person accused must then  be  allowed  a  reasonable  opportunity  of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplifications of his evidence and any submissions of fact of law,

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which  he  may  wish  the  Court  to  consider  as bearing either upon the charge itself or upon the question of punishment. Resting as it does upon  accepted notions  of elementary  justice, this  principle  must  be  rigorously  insisted upon.  (Coward V. Stapleton (1953) 90 CLR 573, 579-80).

Similar  principles  have  been  laid  down  by  the

Supreme Court of Canada in B.K. Vs. The Queen:

“There is no doubt in my mind that he was amply  justified  in  initiating  the  summary contempt  procedures.  I,  however,  find  no justification  for foregoing  the usual  steps, required  by  natural  justice,  of  putting  the witness  on  notice  that  he  or  she  must  show cause why they would not be found in contempt of court, followed by an adjournment which need be no longer than that required to offer the witness an opportunity to be advised by counsel and, if he or she chooses, to be represented by counsel.  In  addition,  upon  a  finding  of contempt there should be an opportunity to have representations made as to what would be an appropriate  sentence.  This  was  not  done  and there was no need to forego all these steps.” (1996) 129 DLR (4th) 500)

Reference  in  this  connection  may  be  made  to  a

decision of this Court in Dr.L.P. Misra Vs. State of U.P.

reported in (1998) 7 SCC 379.

A  somewhat  similar  incident,  may  be  of  a  graver

import, happened in Allahabad High Court on 15.7.1994

when  a  group  of  Advocates  entered  the  Court  room,

shouting  slogans  and  asking  the  Court  to  stop  its

proceedings. As the Court continued, the advocates went 9

on to the dais and tried to manhandle the Judges and

uttered very abusive language against one of the Members

of the Bench. The abusive utterances were:

“Tum sale with jaao nahien to jann se maar daalenge. Tumne Chief Justice se kaha hai ki Lucknow ke Judges 5000 rupya lekar stay grant karte hain aur stay extend karte hain. Aaj 2 baje  tak  agar  tum  apan  boriya  bistar  lekar yahan se nahien bhag jaate ho to tumhe jann se maar daalenge.”

The  learned  Judges  retired  to  their  Chambers  and

then  re-assembled  and  passed  an  order  holding  the

Advocates guilty by imposing sentence of imprisonment and

fine. In doing so, the learned Judges invoked the High

Court’s  power  under  Article  215  of  the  Constitution.

Against that order, an appeal was filed to this Court.

It may be noted that power of the High Court under

Article 215 of the Constitution is in similar terms as

the power of the Supreme Court under Article 129 of the

Constitution.

The learned three Judge Bench of this Court in L.P.

Misra (supra) set aside the order of Allahabad High Court

as the same was passed without following the procedure

prescribed under the law. In doing so the learned Judges

referred to Section 14 of the said Act and the rules of

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Allahabad  High  Court  Rules  (para  6  page  381  of  the

report).  Those rules and the provisions of Section 14

(1)(a)(b)(c)(d) of the said Act are almost similar in

terms. This Court also held that the power of the High

Court under Article 215 has to be exercised in accordance

with the procedure prescribed by law (Para 12 page 382 of

the report).

The safeguards statutorily engrafted under Section

14 of the Act are basically reiterating the fundamental

guarantee given under Article 21 of the Constitution.

This guarantee which possibly protects the most precious

fundamental  right  is  against  deprivation  of  one’s

personal  liberty  “except  according  to  procedure

established by law”.  This Court, being the guardian of

this right, cannot do anything by which that right is

taken away or even abridged and especially when the Court

is acting suo motu.

For these reasons in the instant case, with great

respect to His Lordship Justice Pasayat, I cannot agree

with  His  Lordship’s  view  of  sending  these  persons  to

prison for having allegedly committed contempt in the

face of the Court without following the mandate of Law

under Section 14(1) (a) (b) (c) and (d) of the Act.

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I  am  of  the  view  that  this  Court’s  power  under

Article  142  of  the  Constitution  is  not  meant  to

circumvent clear statutory requirements.

The  opening  words  of  Article  142  shows  that  the

Supreme Court shall exercise its power under the said

Article “in exercise of its jurisdiction”.  Therefore,

the  jurisdiction  of  the  Supreme  Court  in  initiating

proceeding for contempt under Section 14 of the said Act

must be exercised following the statutory dispensation.

In other words, Supreme Court cannot, while exercising

its  jurisdiction  under  Article  142,  render  salutary

provisions  of  Statute  nugatory  and  otiose.  These

provisions as noted above give effect to the fundamental

guarantee under Article 21 of the Constitution.

Therefore,  in  this  view  of  the  matter,  I  cannot

agree  with  the  view  expressed  in  the  order  of  His

Lordship,  Justice  Pasayat,  for  sending  the  alleged

contemnors  to  prison  for  allegedly  committing  the

contempt in the face of the Court without following the

mandate of the Statute under Section 14. I, therefore,

cannot at all agree with His Lordship’s order by which

sentence has been imposed. I am of the view that the

liberty  of  those  persons  cannot  be  affected  in  this

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manner without proceeding against them under Section 14

of the Act. In my opinion Section 14 is in consonance

with a person’s fundamental right under Article 21.

...................J

(ASOK KUMAR GANGULY)

New Delhi 20/03/2009.

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