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PETITIONER: S. K. SARKAR, MEMBER, BOARD OF REVENUE, U.P., LUCKNOW

       Vs.

RESPONDENT: VINAY CHANDRA MISRA

DATE OF JUDGMENT12/12/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J)

CITATION:  1981 AIR  723            1981 SCR  (2) 331  1981 SCC  (1) 436  CITATOR INFO :  R          1988 SC1208  (41)  RF         1991 SC2176  (27)

ACT:      Contempt of Courts Act 1971, S. 15(2)-Scope of Contempt of Subordinate or inferior Court-Whether High Court can take suo motu cognizance of and punish.

HEADNOTE:      The Contempt  of Courts  Act,  1971  by  section  15(2) empowers the High Court in the case of any criminal contempt of a  subordinate court,  to take  cognizance on a reference made to  it by the subordinate court, or on a motion made by the Advocate-General, or in relation to a Union Territory by the notified Law Officer.      In a  proceeding under  the  U.P.  Zamindari  and  Land Reforms Act  1950, the  respondent-advocate, appeared  as  a counsel before  the appellant  who was a Member of the Board of Revenue  to oppose  the vacation  of a  stay order  filed before the Board.      The respondent, in his petition to the High Court under the Contempt  of Courts,  1971 alleged that in the course of arguments before  the appellant in the aforesaid proceeding, the appellant got infuriated, lost his temper and abused him saying "Nalayak  Gadhe Salle  ko Jail Bhijwadunga; kis Idiot Ne Advocate  Bana Diya  Hai", and that thereby the appellant had committed  contempt of  his own Court as well as that of the High  Court as  provided in  sections 15  and 16  of the Contempt of Courts Act which was punishable under section 12 of the said Act.      Before  the   High  Court,   the  appellant   raised  a preliminary objection  stating that  the High  Court was not competent to take cognizance of the alleged contempt without any reference from the subordinate Court or without a motion by the Advocate-General as envisaged by section 15(2) of the Act. The  High Court  rejected the preliminary objection and held that the application was maintainable.      In the  appeal to  this Court,  on the question whether the High  Court can  take suo motu cognizance of contempt of subordinate/inferior Court when it is not moved in either of the two modes mentioned in section 15(2) of the Act. ^

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    HELD : 1. Sub-section (2) of section 15 of the Contempt of Courts  Act 1971, does not restrict the power of the High Court to  take  cognizance  of  and  punish  contempt  of  a subordinate Court, on its own motion [339 A]      2. In  the facts of the instant case the High Court has not  acted  improperly  or  illegally  in  taking  suo  motu cognizance, on the petition of the respondent-advocate. [340 C] 332      3. Articles  129 and 215 preserve all the powers of the Supreme Court  and the  High Court, respectively, as a Court of Record  which include the power to punish the contempt of itself. Parliament  has, by  virtue of Entry 77 of List I of the Seventh  Schedule, and  Entry 14  of  List  III  of  the Seventh Schedule, power to define and limit the power of the Courts in  punishing contempt of Court and to regulate their procedure in relation thereto. [337 A-B]      Mohd. Ikram  Hussain v.  The State of U.P., A.I.R. 1964 S.C. 1625 referred to.      4. Section 15 does not specify the basis or the sources of the  information on  which the  High Court can act on its own motion.  If the  High Court  acts on information derived from its own sources, such as on a perusal of the records of a subordinate court or on reading a report in a newspaper or hearing a  public speech,  without there being any reference from the  subordinate court  or the Advocate-General, it can be said  to have  taken cognizance on its own motion. But if the High  Court is directly moved by a petition by a private person feeling  aggrieved, not  being the  Advocate-General, the High Court, has, a discretion to refuse to entertain the petition, or  to take  cognizance on  its own  motion on the basis of the information supplied to it in that petition. If the  petitioner   is  a  responsible  member  of  the  legal profession, it may act suo motu. [339B-E]      5. If  the High Court is prima facie satisfied that the information received  by  it  regarding  the  commission  of contempt of  a subordinate  court is  not frivolous, and the contempt alleged is not merely technical or trivial, it may, in its discretion, act suo motu and commence the proceedings against the contemner. However, this mode of taking suo motu cognizance of  contempt of  a subordinate  court  should  be resorted to  sparingly where  the contempt concerned is of a grave and serious nature. [339 P-G]      6. If the intention of the Legislature was to take away the power  of the  High Court to take suo motu cognizance of contempt,  there   was  no   difficulty  in   saying  so  in unequivocal language,  or  in  wording  sub-section  (2)  of section 15 in a negative form. [338 H; 339 A]      7. The  whole object of prescribing procedural modes of taking cognizance in section 15 is to safeguard the valuable time of  the High  Court or  of the Supreme Court from being wasted by frivolous complaints of contempt of court. [339 E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 294 of 1974.      From the  Judgment and  Order dated  10.4.1978  of  the Allahabad High  Court in  Criminal Misc.  Contempt Case  No. 115/73.      O. P. Rana for the Appellant.      J. P. Goyal and Pramod Swarup for the Intervener.      The Judgment of the Court was delivered by      SARKARIA, J.  This appeal is directed against an order,

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dated April  10, 1974,  of the  High Court  of Judicature at Allahabad in 333 Criminal Misc.  Contempt Case  No. 115  of 1973. It raises a question of  law as to the jurisdiction and powers of a High Court to  take action  suo motu  under  Section  15  of  the Contempt of Courts Act, 1971. The material facts giving rise to this appear are as follows:      Raj Narain alias Raja Sharma, Ram Narain, Tapesh Narain alias Trilok  Narain and Hari Narain, respondents instituted Suit No.  89/ 168  under Section 209 of the U.P. Zamindari & Land Reforms  Act (hereinafter  referred to  as the Act) for ejectment of eleven defendants.      Issue No.  6 framed  in the  case  was  referred  under Section 331A  of  the  Act  to  the  Revenue  Officer,  Sub- Divisional Office, for seeking declaration under Section 143 or 144  of that  Act, with  regard to  the  question  as  to whether  the   land  in  suit  was  abadi  land  before  the consolidation and  even thereafter.  The Revenue  Officer by his order,  dated September  3, 1970,  dismissed  the  suit. Aggrieved by  the dismissal  of their  suit, the  plaintiffs preferred an appeal before the Commissioner, Meerut, who, by his order  dated April  29, 1972,  allowed  the  appeal  and decreed the suit with costs.      Against the  decree of the Commissioner, the defendants preferred Revenue Second Appeal No. 226(2) of 1971-72 before the Revenue  Board. Along  with the petition of appeal, they made an  application  for  stay  of  the  execution  of  the ejectment decree.  The Board  of Revenue  passed an order on June 12,  1972, staying  the execution  of the  decree.  The opposite party therein, moved an application for vacation of the ex-parte  stay order.  The application  for vacation  of stay order came up for hearing before the appellant, herein, in his  capacity as  Member of the Revenue Board, on October 23, 1973.  The respondent, Shri Vinay Chandra Misra appeared as a  counsel in  that Court  on  behalf  of  the  appellant therein, to  oppose the  vacation of  the stay  order.  What happened  thereafter   on  that   day,  according   to   the allegations in the petition and affidavit, dated October 23, 1973, of  Shri V.  C. Misra,  Advocate filed before the High Court, was as follows:           "That  on   the  said   date  the  opposite  party      (appellant herein)  heard the counsel of the parties in      the case and was pleased to confirm the stay order.           6. That  even after passing of the order aforesaid      the  counsel   of  (the   respondent  in  that  appeal)      addressed the Court (opposite party) further and during      the  course   of  his  arguments,  the  opposite  party      (appellant herein)  scored the  order and  vacated  the      stay  order   and  threw   the  file  for  getting  the      signatures of the parties affixed on the same. 334           7. That  on this, the deponent (Shri V. N. Mishra)      requested the  opposite party  to hear  him and when he      resisted, the  opposite party  got infuriated, lost his      temper and  abused the  applicant and ordered the Court      peon to  throw  the  deponent  physically  out  of  the      Court....."      On the  preceding facts,  Shri Misra,  on  October  23, 1973, filed  a petition  under the  Contempt of  Courts Act, 1971, against  the appellant,  herein, in  the High Court of Judicature at  Allahabad,  alleging  that  since  the  facts stated in  the petition  and the  affidavit, supporting  it, show that  the "opposite  party (appellant herein) committed the contempt  of his  own Court as that of the High Court as

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provided under  Section 15/16  of the Contempt of Courts Act punishable under  Section 12 of the said Act, he deserves to be punished  for the  same in  order to  save  the  dignity, decorum and honour of his Court and that of the Hon’ble High Court". Shri  V. C. Misra further prayed that the High Court "be pleased  to take  suo motu action under Section 15(1) of the aforesaid Act against the contemner-opposite party or be pleased to  pass such  other and  further order as the Court deems fit."      In Annexure  ‘1’ to his petition, Shri V. N. Misra gave particulars of the alleged criminal conduct of the appellant and of  the contemptuous  words  uttered  by  him.  In  that Annexure, he  alleged, inter  alia, that  the appellant  had used these  abusive words  in respect  of him  (Shri  Misra) "Nalayak Gadhe  Sale  ko  Jail  Bhijwadunga;  Kis  Idiot  Ne Advocate Bana Diya Hai".      On receiving  this petition,  the High  Court straight- away issued  notice to  the appellant, herein, to show cause why he  be not  proceeded against for committing contempt of Court. The  appellant received  this notice  on November  5, 1973 and  filed his  reply supported  by an  affidavit dated November 8,  1973, in which he denied the allegations in the petition levelled by Shri V. C. Misra. The latter also filed a rejoinder  affidavit dated  December 10, 1973, in which he reiterated the  allegations  in  his  petition  and  in  the Annexures thereto.      A preliminary  objection was  taken  by  the  appellant before the  High Court, that the latter was not competent to take  cognizance  of  the  contempt  alleged  to  have  been committed in  the petition  moved by  Shri Misra without any reference from  the subordinate court or without a motion by the Advocate-General. Reliance in this connection was placed on sub-section  (2) of Section 15 of the Act. The High Court rejected this preliminary objection with these observations:           "Since Article  215 (of  the Constitution)  states      that every  High Court  shall be  a Court of Record and      shall have all the 335      powers of  such a  Court, it  follows that through that      Article the  Constitution preserved  to the High Courts      its power  as a  Court of  Record to punish contempt of      subordinate Courts.  No doubt  a special  reference  is      made in  Article 215  to the power of the High Court to      punish contempt  of itself.  That has only been done to      emphasise that  particular power of the High Court. The      aforesaid words  do not exclude what the preceding part      of Article  215 preserves  to or  confers on  the  High      Court.....           The result  of incorporating  Article 215  in  the      Constitution is that the power of every High Court as a      Court of  Record to  punish contempt of the subordinate      courts now  carries a constitutional sanction behind it      and that  the power  cannot be  done away  with  except      through an amendment of the Constitution.           . . Section 2 of the 1926 Act and Section 3 of the      1952 Act  do not confer any new power but recognise the      power that a High Court already possesses as a Court of      Record; it  can be  said that equal force about Section      10 of  the 1971  Act that  it does  not confer  any new      jurisdiction in  the High Court but only recognised the      jurisdiction which was initially inherent in every High      Court as  a Court  of Record  and  which  now  has  the      sanction of  the Constitution  behind it  by virtue  of      Article 215.           If Section  15, sub-section  (2) is interpreted to

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    mean that  a High  Court cannot  take cognizance of the      contempt committed  of  a  subordinate  court,  whether      committed by  the court itself or by a stranger, except      in one  of the  modes specified  therein it can lead to      anomalous results....           ". .  . Interpreting sub-section (2) of Section 15      in that manner would be inconsistent with Section 10 of      the Act  and shall  be violative  of the powers of this      Court as  a Court  of Record,  which powers  now  carry      Constitutional sanction by virtue of Article 215 of the      Constitution.           . .  Section 10 of 1971 Act explicitly states that      every High  Court shall  have  and  exercise  the  same      jurisdiction, power  and authority  in accordance  with      the same  procedure and  practice  in  respect  of  the      contempt of  Courts subordinate  to it  as it  has  and      exercises in respect of contempt of itself,....." 336      Aggrieved by  the order of the High Court rejecting the preliminary objection,  the appellant has now come in appeal before us.      At the  outset, a  preliminary objection has been taken by Shri  Goyal, learned  counsel for  the  respondent,  that under Section  19 (1) of the Act, only a final order whereby the contemner  is punished  is appealable;  that  since  the impugned  order  is  not  such  an  order,  this  appeal  is incompetent. In  this connection  Shri Goyal has referred to several decisions, including that in Purshottam Das Goyal v. Hon’ble Mr.  Justice B. S. Dhillon, whereby it has been held that it  could not  be the  intention of  the legislature to provide for  an appeal  to this  Court as  a matter of right from each  and  every  interlocutory  order  passed  in  the proceedings initiated  under Section  17 of  the Act, by the High Court.  An order  or decision in order to be appealable under Section 19(1) of the Act, must be such that it decides some  bone  of  contention  raised  before  the  High  Court affecting the  right of  the party  aggrieved. Reference has also been made to the decision of this Court in V. C. Shukla v. State.      This objection  of Shri  Goyal has been rendered merely academic, because  as a  matter  of  abundant  caution,  the appellant herein  has filed  a petition for grant of special leave under  Article 136  of  the  Constitution,  also.  The matter being important, the leave to appeal has been granted to him.      The  controversy  in  this  appeal  centres  round  the question,  whether   the  High   Court  can  take  suo  motu cognizance of  contempt of a subordinate/inferior court when it is  not moved  in either  of the  two modes  mentioned in Section 15(2) of the Act.      Before dealing with this contention, it is necessary to have a  look at  the relevant provisions of the Constitution and the Act.           Article 215 of the Constitution provides :           "Every High  Court shall  be a court of record and      shall have all the powers of such a court including the      power to punish for contempt of itself." Entry 14  of List  III of  the Seventh  Schedule is  to this effect :  "Contempt of  Court, but not including contempt of the Supreme  Court." A provision analogous to Article 215 is Article 129  which preserves  to the  Supreme Court  all the powers of  a Court  of Record  including the power to punish for contempt  of itself.  Entry 77  of List I of the Seventh Schedule is relatable to Article 129. 337

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    Articles 129  and 215  preserve all  the powers  of the Supreme Court  and the  High Court, respectively, as a Court of Record  which include the power to punish the contempt of itself. As  pointed out by this Court in Mohd. Ikram Hussain v. The State of U.P., there are no curbs on the power of the High Court  to punish  for contempt  of itself  except those contained in  the Contempt  of Courts  Act. Articles 129 and 215 do  not define as to what constitutes contempt of court. Parliament has, by virtue of the aforesaid Entries in List I and List  III of  the Seventh  Schedule, power to define and limit the  powers of  the courts  in punishing  contempt  of court and  to regulate  their procedure in relating thereto. Indeed, this is what is stated in the Preamble of the Act of 1971.      Section 2(c)  of the  Act defines  ‘criminal contempt". Section 9  emphasises that  "nothing contained  in this  Act shall  be  construed  as  implying  that  any  disobedience, breach, publication  or other  act is punishable as contempt of court  which would  not be  so punishable apart from this Act". Section 10 runs as under :           "Every High Court shall have and exercise the same      jurisdiction, powers  and authority, in accordance with      the  same   procedure  and   practice,  in  respect  of      contempts of  courts subordinate  to it  as it  has and      exercises in respect of contempts of itself." Then, there  is a  proviso which  is not  material  for  our purpose. The  provision in  Section 10  is but  a replica of Section 3 of the 1952 Act. The phrase "courts subordinate to it" used  in Section 10 is wide enough to include all courts which are  judicially subordinate  to the  High Court,  even though administrative control over them under Article 235 of the Constitution  does not  vest in  the High  Court.  Under Article 227 of the Constitution the High Court has the power of superintendence  over all courts and tribunals throughout the  territories   in  relation   to  which   it   exercises jurisdiction. The  Court of Revenue Board, therefore, in the instant case,  is a  court "subordinate  to the  High Court" within the contemplation of Section 10 of the Act.      Section 14 provides for the procedure where contempt is committed in  the face of the Supreme Court or a High Court. Section 15  is very material for our purpose. It provides in regard to  cognizance of  ‘criminal contempt’ in cases other than those falling under Section 14. The material portion of Section 15 reads thus :           "(1) In  the case  of a  criminal contempt,  other      than a  contempt referred to in Section 14, the Supreme      Court or 338      the High  Court may take action on its own motion or on      a motion made by-           (a)  the Advocate-General, or           (b)  any other person, with the consent in writing                of the Advocate-General.           (2) In  the case  of any  criminal contempt  of  a      subordinate court,  the High Court may take action on a      reference made  to it  by the subordinate court or on a      motion made  by the Advocate-General or, in relation to      a Union  Territory, by  such Law Officer as the Central      Government  may,   by  notification   in  the  Official      Gazette, specify in this behalf............." The operation  of sub-section  (1) appears to be confined to cases of  ‘criminal contempt’  of the  Supreme Court  or the High Court, itself. Criminal contempt of a subordinate court is dealt with in sub-section (2).      A comparison  between the  two sub-sections  would show

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that whereas in sub-section (1) one of the three alternative modes for  taking  cognizance,  mentioned  is  "on  its  own motion", no  such mode  is expressly provided in sub-section (2). The  only two  modes of  taking cognizance  by the High Court mentioned  in sub-section (2) are : (i) on a reference made to  it by a subordinate court; or (ii) on a motion made by the Advocate-General, or in relation to a Union Territory by the  notified Law  Officer. Does  the omission in Section 15(2) of  the mode  of taking suo motu cognizance indicate a legislative intention  to debar  the High  Court from taking cognizance in  that mode  of  any  criminal  contempt  of  a subordinate court?  If this  question  is  answered  in  the affirmative, then,  such a  construction of  sub-section (2) will be  inconsistent with Section 10 which makes the powers of the  High Court  to punish  for contempt of a subordinate court, co-extensive  and congruent  with its power to punish for its  own contempt, not only in regard to quantum or pre- requisites  for  punishment,  but  also  in  the  matter  of procedure and practice. Such a construction which will bring Section 15(2)  in  conflict  with  Section  10,  has  to  be avoided, and  the other  interpretation  which  will  be  in harmony with  Section 10  is to  be  accepted.  Harmoniously construed, subsection (2) of Section 15 does not deprive the High Court  of the  power of  taking cognizance  of criminal contempt of a subordinate court, on its own motion, also. If the intention  of the Legislature was to take away the power of the  High Court  to take  suo  motu  cognizance  of  such contempt,  there   was  no   difficulty  in   saying  so  in unequivocal language,  or by  wording the  sub-section in  a negative 339 form. We  have,  therefore,  no  hesitation  in  holding  in agreement with  the High  Court,  that  sub-section  (2)  of Section 15,  properly construed, does not restrict the power of the  High Court to take cognizance of and punish contempt of a subordinate court, on its own motion.      It is,  however, to  be noted  that Section 15 does not specify the  basis or the source of information on which the High Court can act on its own motion. If the High Court acts on information  derived from its own sources, such as from a perusal of  the records of a subordinate court or on reading a report  in a newspaper or hearing a public speech, without there being  any reference from the subordinate court or the Advocate-General, it can be said to have taken cognizance on its own motion. But if the High Court is directly moved by a petition by  a private  person feeling  aggrieved, not being the Advocate-General, can the High Court refuse to entertain the same  on the  ground that  it has  been made without the consent in writing of the Advocate-General? It appears to us that the  High Court, has, in such a situation, a discretion to refuse  to entertain  the petition, or to take cognizance on its  own motion  on the basis of the information supplied to it  in that  petition. If the petitioner is a responsible member of  the legal  profession, it  may act suo motu, more so, if  the petitioner-advocate,  as in  the  instant  case, prays that  the court  should act suo motu. The whole object of prescribing  these procedural  modes of taking cognizance in Section  15 it to safeguard the valuable time of the High Court or  the Supreme  Court from  being wasted by frivolous complaints of  contempt of court. If the High Court is prima facie  satisfied   that  the   information  received  by  it regarding the  commission of contempt of a subordinate court is not  frivolous, and  the contempt  alleged is  not merely technical or  trivial, it  may, in  its discretion,  act suo motu and  commence the  proceedings against  the  contemner.

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However, this mode of taking suo motu cognizance of contempt of a  subordinate court,  should be  resorted  to  sparingly where the  contempt concerned  is of  a  grave  and  serious nature.  Frequent   use  of  this  suo  motu  power  on  the information furnished by an incompetent petition, may render these procedural  safeguards provided  in  sub-section  (2), otiose. In such cases, the High Court may be well advised to avail of  the advice  and assistance of the Advocate-General before initiating  proceedings. The  advice and  opinion, in this connection,  expressed by  the Sanyal  Committee  is  a pertinent reminder.  "In the  case of criminal contempt, not being contempt committed in the face of the court, we are of the opinion  that it  would lighten the burden of the court, without in any way inter- 340 fering with  the sanctity  of the administration of justice, if action  is taken on a motion by some other agency. Such a course of  action would  give considerable  assurance to the individual charged  and the  public at  large. Indeed,  some High Courts  have already  made rules for the association of the  Advocate-General   in  some   categories  of  cases  at least.....the Advocate-General may, also, move the Court not only on his own motion but also at the instance of the court concerned."      In the  peculiar circumstances  of the instant case, we do not  think that  the High  Court has  acted improperly or illegally in  taking suo motu cognizance, on the petition of the respondent-advocate.      We, therefore,  dismiss this  appeal and  send the case back to the High Court for further proceedings in accordance with law.      As a  matter of  caution, we  would add that nothing in this judgment  shall be construed as an observation relating to the merits of the allegation levelled by Shri V. C. Misra against the appellant. N.V.K.                                     Appeal dismissed.

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