http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14  

PETITIONER: BRAJNANDAN SINHA

       Vs.

RESPONDENT: JYOTI NARAIN.

DATE OF JUDGMENT: 08/11/1955

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER

CITATION:  1956 AIR   66            1955 SCR  (2) 955

ACT: Public  Servants  (Inquiries) Act, 1850 (XXXVII  of  1850)-A Commissioner appointed thereunder-Whether a court within the meaning of Contempt of Courts Act, 1952 (XXXII of 1952).

HEADNOTE: Held,  that  a  Commissioner  appointed  under  the   Public Servants  (Inquiries)  Act, 1850 (XXVII of 1850)  is  not  a court within the meaning of the Contempt of Courts Act, 1952 (XXXII of 1952). Shell  Co. of Australia v. Federal Commissioner of  Taxation ([1931] A.C. 275), Huddart,Parker & Co. v. Moorehead ([1909] 8  C.L.R. 330), Rex v. Electricity Commissioners  ([1924]  1 K.B.  171), Bharat Bank Limited v. Employees of Bharat  Bank Ltd.  ([1950] S.C.R. 459), Maqbool Hussain v. The  State  of Bombay ([1953] S.C.R. 730), Cooper v. Wilson ([1937] 2  K.B. 309),  S. A, Venkataraman v. The Union of India and  Another ([1954]  S.C.R. 1150), Royal Aquarium and Summer and  Winter Garden  Society  Ltd.  v. Parkinson  ([1892]  1  Q.B.  431), Dawkins v. Lord Rokeby ([1873] L.R. 8 Q.B. 265), Kapur Singh v.   Jagat Narain (A.I.R. 1951 Punjab 49) and M. V.  Bajwade v. Dr. S. M. Hassan, (A.I.R. 1954 Nag. 71), referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 25  of 1954. Appeal under Article 134(1) (c) of the Constitution from the judgment and order dated the 12th January 1954 of the  Patna High Court in Criminal Miscellaneous Case No. 10 of 1953. M.  C.  Setalvad,  Attorney-General  of  India  and  Mahabir Prasad,  Advocate-General of Bihar (Balbhadra  Prasad  Sinha and P. G. Gokhale, with them) for the appellant. Purshottam  Prikamdas,  (R.   Patnaik,  with  him)  for  the respondent. 1955.   November 8. The Judgment of the Court was  delivered by BHAGWATI  J.-This  appeal  with  certificate  under  article 134(1)(c)  of the Constitution arises out of an  application under section 2 of the Contempt of Courts

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14  

121 956 Act  (XXXII  of 1952) and section 8 of the  Public  Servants (Inquiries)  Act (XXXVII of 1850) read with article  227  of the  Constitution  filed  by  the  respondent  against   the appellant  in  the  High Court of Judicature  at  Patna  and raises an important question as to whether the  Commissioner appointed under Act XXXVII of 1850 is a Court. The  respondent  is  a Member of  the  Bihar  Civil  Service (Executive  Branch).  The State Government received  reports to the effect that the respondent bad been guilty of serious misconduct  and  corrupt practices in the discharge  of  his official duties while employed as Sub-Divisional Officer  at Aurangabad and they accordinly decided that an inquiry  into the truth of. the various charges against him should be made under the provisions of the Public Servants (Inquiries) Act, 1850  (Act  XXXVII of 1850, hereinafter referred to  as  the Act) and Mr. Anjani Kumar Saran who was the then  Additional District  and Sessions Judge, Gaya, and was  thereafter  the District  and  Sessions Judge of that  place  was  appointed Commissioner under the Act for making the inquiry.  Gaya was fixed  as the venue of the inquiry and the State  Government also  ordered that, during the pendency of the inquiry,  the respondent  will  remain under suspension.   The  Government made   the   appointment  aforesaid  after   obtaining   the concurrence  of  the High Court on its  administrative  side which was obtained on the condition that an  extra-temporary post  of Additional District and Sessions Judge was  created by the Government for the period Mr. Saran was occupied with the inquiry.  The appointment was made on the 2nd June  1952 and it was expected that Mr. Saran would be able to complete the   inquiry  during  a  period  of  three   months.    The respondent,  however,  adopted dilatory  tactics.   He  made various  representations to the Government, one on  the  6th June  1952  demanding  that a Judge of  the  High  Court  be appointed as Commissioner under the Act to make the  inquiry against  him  and that inquiry be made at Patna and  not  at Gaya,  another on the 10th July 1952 protesting against  the appointment of Mr. Saran 957 as  Commissioner  to  hold  the  inquiry  against  him   and demanding  that a’ confirmed District and Sessions Judge  be appointed as Commissioner in his place, and’ a third on  the 17th  November 1952 in which he requested the Government  to appoint  three Commissioners instead of one for holding  the inquiry  against him and also to pay the entire cost of  his defence  at  the  same rates at  which  the  Special  Public Prosecutor engaged by the Government was being paid and also to  reimburse  other incidental expenses to be  incurred  by him.   All  these representations were turned  down  by  the Government.  Being thus thwarted in his attempts to put  off the  inquiry  on some pretext or the other,  the  respondent tried to evade the same and failed and neglected to reply to the  queries  made  from  him  by  the  Commissioner.    The Commissioner  also could not communicate to him  the  orders passed  by him from time to time because the respondent  did not  stay at the headquarters and did not leave  his  proper address for communication either at Gaya or at Motihari.  On the  24th  November 1952 the Commissioner  passed  an  order calling  upon  the  parties to attend  the  hearing  of  the proceedings  before  him  on  the  8th  December  1952   and forwarded  a  copy  of  this  order  to  the  appellant  for communication  to the respondent.  The District  Magistrates of  Champaran  and Gaya who were requested-to serve  a  true copy of the order upon the respondent could not do so as  he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14  

was  available  neither at Motihari nor at Gaya and  it  was with  great difficulty that he could be traced at Patna  and the  order served upon him.  On the 18th December 1952,  the Commissioner  passed  another order recording  that  he  was feeling great difficulty in contacting the respondent and in communicating -his orders to him.  He observed that this was a  highly  undesirable  state of affairs  and  that  it  was necessary that his orders should be communicated to the res- pondent  as  early as possible.  A copy of  this  order  was forwarded  by the Commissioner to the appellant  along  with his letter dated the 20th December 1952 for information  and doing  the  needful.   The appellant  thereafter  wrote  the letter complained against to 958 the  Commissioner on the 26th December 1952 being  D.O.  No. II/3C-306/52A-11614 which ran as under:-- "Dear Mr. Saran,    I  am  desired to refer to your memo No. 8266  dated  the 26th  November 1952 and to say that Government  are  anxious not to allow Mr. Jyoti Narayan to adopt dilatory tactics and delay  the  progress of the inquiry against him.   I  am  to request  you to be vigilant against such tactics adopted  by Mr. Narayan.                                Yours sincerely,                                (Sd.) B. N. Sinha". The Commissioner acknowledged receipt of this letter by  his D.O. letter No. 244, dated the 5th January 1953 stating that he  would  not allow the respondent to  adopt  any  dilatory tactics and delay the progress of the inquiry against him. On  the 2nd February 1953, the respondent filed  a  petition before  the Commissioner stating inter alia that he had  not been  able  to  engage any lawyer or  counsel  for  want  of necessary papers and copies and prayed for an adjournment of the  inquiry.   He also prayed for starting  a  contempt  of Court proceeding against the appellant but the  Commissioner rejected  both his prayers.  The order which was  passed  by the  Commissioner on these applications may as well  be  set out in extenso inasmuch as it has a bearing on the  question whether  the appellant was guilty of contempt of  Court  for having addressed the letter complained against to him:- "3-2-53.  Another point raised in the first petition of  the accused  was  that  Mr.  B.N.  Sinha,  Deputy  Secretary  to Government  in addressing his D.O. letter No.  11614,  dated the 26th of December, 1952, was guilty of contempt,  because he had interfered in my judicial discretion.  I do not  find anything  in this letter from which it can be inferred  that the  author  of the letter intended to influence me  in  the exercise  of my judicial function.  This letter was sent  to me  in reply to my memo No. 8266 dated 26-11-1952 whereby  I had  forwarded  a  copy of my  order  dated  24-11-1952  for communication to Mr. Narayan.  Mr. 959 B.N.  Sinha wrote in his letter dated the 26th  of  December 1952  that  Government are anxious not to  allow  Mr.  Jyoti Narayan to adopt dilatory tactics and to delay the  progress of  the inquiry.  Now it is to be noted that Mr. Narayan  in paragraph  11 of his petition has himself charged the  State Government  for  delaying the inquiry  and  thereby  causing harassment  to  him.   Therefore, it is  obvious  that  both parties, that is, the State and the accused are anxious that the inquiry should be expedited so what Mr. B.N. Sinha meant by  writing  the  D.O.  was  that  the  inquiry  should   be expedited.   This  cannot by any stretch of  imagination  be construed  to  mean that the aforesaid officer  in  any  way tried  to  influence  me in the  discharge  of  my  judicial

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14  

functions.   For  these reasons I rejected the  two  prayers contained in the first petition of Mr. J. Narayan". The  respondent thereafter started proceedings in,  contempt against  the  appellant in the High Court of  Judicature  at Patna.   A  Rule was issued by the High  Court  against  the appellant  which  was heard and finally disposed of  on  the 12th June 1954.  The High Court was of the opinion that  the Commissioner appointed under Act XXXVII of 1850 was a Court, that  the Court was subordinate to the High Court, that  the letter  complained against amounted to a contempt  of  Court and  that  the appellant was guilty of  such  contempt.   It accordingly sentenced the appellant to pay a fine of Rs. 250 and  in default to undergo simple imprisonment for a  period of  one month.  The appellant obtained a  Certificate  under Article 134(1), (e) of the Constitution from the High Court. The Certificate was, however, limited to the question as  to whether the Commissioner appointed under the Act is a Court.  At  the hearing before us, the appellant filed  a  petition for urging additional grounds which included inter alia  the ground  that  the  High  Court erred  in  holding  that  the Commissioner appointed under the Act is a Court  subordinate to  the  High Court within the meaning of  the  Contempt  of Courts  Act for the mere reason that its orders are open  to be reviewed 960 judicially in exercise of the power vested in the High Court under  article 227 of the Constitution and also  the  ground that  the  High  Court  erred in  holding  that  the  letter complained against tended to interfere with or obstruct  the course of justice and constituted contempt of Court. The learned Attorney-General for the appellant contended  in the first instance that the Commissioner appointed under the Act is not a Court.  He next contended that even if he is  a Court,  he  is  not a Court subordinate to  the  High  Court within the meaning of the Contempt of Courts Act.  He lastly contended that the letter complained against did not tend to interfere with or obstruct the course of justice and did not constitute contempt of Court. Prior to the enactment of the Contempt of Courts Act,  1952, there was in existence in India the Contempt of Courts  Act, 1926  (XII  of  1926).  The various States  also  had  their corresponding enactments.  The Contempt of Courts Act,  1926 (XII of 1926) and the corresponding enactments in the States of  Hyderabad, Madhya Bharat, Mysore, Pepsu,  Rajasthan  and Travancore-Cochin  and the Saurashtra Ordinance II  of  1948 were  repealed  by the Contempt of Courts Act,  1952  and  a uniform Act to define and limit the powers of certain Courts in punishing contempts of Courts was enacted which  extended to the whole of India except the State of Jammu and Kashmir. In section 2 of the Act, "High Court" was defined as meaning the  High  Court for a Part A State or a Part  B  State  and including the Court of the Judicial Commissioner in a Part C State.  Section 3 of the Act enacted:- "3.  (1) Subject to the provisions of sub-section (2)  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. (2)  No  High  Court  shall take cognisance  of  a  contempt alleged  to  have  been  committed in  respect  of  a  Court subordinate to it where such contempt is an 961 offence  punishable under the Indian Penal Code (Act XLV  of 1860)".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14  

The  word  "Court"  was  not defined in  the  Act  and’  the expression  "Courts  subordinate to the High  Courts"  would prima  facie mean the Courts of law subordinate to the  High Courts  in  the  hierarchy of  Courts  established  for  the purpose of administration of justice throughout the Union. It would be relevant, however, to notice the definitions  of "Court" available elsewhere. Coke on Littleton and Stroud defined the word "Court" as the place where justice is judicially administered. According  to  Stephen, "In every Court, there  must  be  at least three constituent parts-the actor, reus and judex; the actor  or  plaintiff, who complains of an injury  done;  the reus, or defendant, who is called upon to make  satisfaction for  it;  and  the judex, or judicial  power,  which  is  to examine  the  truth of the fact, and to  determine  the  law arising  upon that fact, and if any injury appears  to  have been  done, to ascertain, and by its officers to apply,  the remedy". Section  3  of the Indian Evidence Act (I of  1872)  defines "Court"  as  including all Judges and Magistrates,  and  all persons,  except  arbitrators. legally  authorised  to  take evidence.  This definition, however, has been held to be not exhaustive  but  framed  only  for  the  purpose  of  Indian Evidence  Act  and  is  not to be  extended  where  such  an extension is not warranted. Sections  19  and 20 of the Indian Penal Code  (Act  XLV  of 1860) define the words "Court" and the "Court of Justice" as under:- "Section 19.  The word ’Judge’ denotes not only every person who  is  officially designated. as a Judge, but  also  every person-who  is  empowered  by  law to  give,  in  any  legal proceeding,  civil or criminal, a definitive judgment, or  a judgment which, if not appealed against would be definitive, or  a judgment which, if confirmed by some  other  authority would be definitive, or who  is one of a body of persons, which body of  persons  is empowered by law to give such a judgment. 962 Section 20.  The words "Court of Justice" denote a Judge who is  empowered by law to act judicially alone, or a  body  of Judges  which  is empowered by law to act  judicially  as  a body,   when  such  Judge  or  body  of  Judges  is   acting judicially". The   pronouncement  of  a  definitive  judgment   is   thus considered the essential sine qua non of a Court and  unless and  until  a  binding and  authoritative  judgment  can  be pronounced  by  a  person or body of persons  it  cannot  be predicated that he or they constitute a Court. The  Privy Council in the case of Shell Co. of Australia  v. Fedral  Commissioner of Taxation(1) thus  defined  "Judicial Power" at page 295:- "Is this right?  What is "judicial power"?  Their  Lordships are  of  opinion that one of the best  definitions  is  that given  by  Griffith,  C.  J. in Huddart,  Parker  &  Co.  v. Moorehead(2) where he says: "I am of opinion that the  words judicial  power’ as used in section 71 of  the  Constitution mean  the  power  which every sovereign  authority  must  of necessity have to decide controversies between its subjects, or  between  itself  and its subjects,  whether  the  rights relate  to life, liberty or property.  The exercise of  this power does not begin until some tribunal which has power  to give  a binding and authoritative decision (whether  subject to appeal or not) is called upon to take action". Their  Lordships  further  enumerated at  page  297  certain negative  propositions  in relation to  this  subject:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14  

"1.  A  tribunal is not necessarily a Court in  this  strict sense because it gives a final decision; 2.   Nor because it hears witnesses on oath; 3.   Nor  because  two  or more  contending  parties  appear before  it between whom it has to decide; 4. Nor because it gives decisions which affect the rights of subjects; 5.   Nor because there is an appeal to a Court; 6.   Nor because it is a body to which a matter is  referred by another body. See Rex v. Electricity Commissioners(3)" (1) [1931] A.C. 275.         (2) [1909] 8 C.L.R. 330, 357. (3)  [1924] 1 K.B. 171. 963 and observed at page 298: "An  administrative tribunal may act judicially,  but  still remain  an administrative tribunal as distinguished  from  a Court,  strictly  so-called.  Mere externals do not  make  a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of Judicial power". The  same principle was reiterated by this Court  in  Bharat Bank Limited v. Employees of Bharat Bank Ltd.(1) and Maqbool Hussain  v.  The  State of Bombay(1) where  the  test  of  a judicial  tribunal as laid down in a passage from Cooper  v. Wilson(1) was adopted by this Court:- "A  true judicial decision presupposes an  existing  dispute between  two  or  more  parties,  and  then  involves   four requisites:--(I)  The presentation (not necessarily  orally) of  their  case by the parties to the dispute;  (2)  if  the dispute   between   them  is  a  question   of   fact,   the ascertainment  of the fact by means of evidence  adduced  by the parties to the dispute and, often with the assistance of argument by or on behalf of the parties on the evidence; (3) if  the  dispute  between them is a  question  of  law,  the submission  of  legal arguments by the parties;  and  (4)  a decision  which  disposes of the whole matter by  a  finding upon  the facts in dispute and an application of the law  of the  land to the facts so found, including where required  a ruling upon any disputed question of law". Maqbool  Hussain’s case, above referred to, was followed  by this Court in S. A. Venkataraman v. The Union of India  and, Another(4)  where  a Constitution Bench of this  Court  also laid down that both finality and authoritativeness were  the essential tests of a judicial pronouncement. It is clear, therefore, that in order to constitute a  Court in  the strict sense of the term, an essential condition  is that  the Court should have, apart from having some  of  the trappings  of a judicial tribunal, power to give a  decision or   a   definitive   judgment  which   has   finality   and authoritativeness which are (1) [1950] S.C.R. 459.         (2) (1953] S.C.R. 730. (3) [1937] 2 K.B. 309, 340.    (4) [1954] S.C.R. 1150. 122 964 the essential tests of a judicial pronouncement. It was, however, urged by Shri Purshottam Tircamdas for  the respondent that the word "Court" should not be limited to  a Court  of Justice or a Court of law but should be  construed in  a  wide sense, including within the  connotation,  other Courts   which,   though  not  Courts   of   Justice,   were nevertheless  Courts according to law and be relied  upon  a decision of the Court of Appeal in England in Royal Aquarium and  Summer and Winter Garden Society Ltd.  v.  Parkinson(1) and the observations of Fry, L.J. at page 446 therein: "I do not desire to attempt any definition of a "court".  It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14  

is  obvious that, according to our law, a court may  perform various functions.  Parliament is a court.  Its duties as  a whole are deliberative and legislative: the duties of a part of it only are judicial.  It is nevertheless a court.  There are  many other courts which, though not Courts of  Justice, are  nevertheless courts according to our law.   There  are, for  instance, courts of investigation, like  the  coroner’s court.   In  my judgment, therefore, the  existence  of  the immunity  claimed does not depend upon the question  whether the  subject-matter of consideration is a Court of  Justice, but whether it is a Court in law.  Wherever you find a Court in  law, to that the law attaches certain privileges,  among which is the immunity in question". The question involved in that case was whether the defendant was  entitled to absolute immunity from action for  anything done  by  him while performing his duty as a member  of  the County Council in dealing with the applications for licences for  music  and dancing. It was contended on behalf  of  the defendant that he was exercising a judicial function when he spoke the words complained of and therefore was entitled  to absolute  immunity  in  respect of anything  he  said.   The argument that "wherever you find a Court in law, to that the law attaches certain privileges among which is the  immunity in question" was used on behalf of the defendant and Fry, L. J. dealt with the same as under at page 447:- 965 "It was said that the existence of this immunity is based on considerations  of public policy, and that, as a  matter  of public policy, wherever a body has to decide questions,  and in  so  doing has to act judicially, it must  be  held  that there is a judicial proceeding to which this immunity  ought to attach.  It seems to me that the sense in which the  word "judicial"  is used in that argument is this: it is used  as meaning  that  the  proceedings  are such  as  ought  to  be conducted   with   the  fairness  and   impartiality   which characterize  proceedings  in  Courts of  Justice,  and  are proper to the functions of a judge, not that the members  of the supposed body are members of a Court.  Consider to  what lengths  the  doctrine would extend, if this  immunity  were applied to every body which is bound to decide judicially in the  sense  of deciding fairly and  impartially.   It  would apply to assessment committees, boards of guardians, to  the Inns  of Court when considering the conduct of one of  their members,  to  the General Medical Council  when  considering questions  affecting the position of a medical man,  and  to all  arbitrators.   Is it necessary, on  grounds  of  public policy,  that the doctrine of immunity should be carried  as far  as  this?   I  say not.  I  say  that  there  is  ample protection  afforded  in such cases by the ordinary  law  of privilege.  I find no necessity or propriety in carrying the doctrine so far as this argument requires". Lord Esher, M. R. expressed himself as follows while dealing with this argument at page 442:- "It  is  true  that, in respect of statements  made  in  the course of proceedings before a Court of Justice, whether  by judge,  or  counsel,  or witnesses,  there  is  an  absolute immunity  from liability to an action.  The ground  of  that rule  is  public policy.  It is applicable to all  kinds  of Courts  of  Justice;  but  the  doctrine  has  been  carried further;  and it seems that this immunity  applies  wherever there  is an authorized inquiry which, though not  before  a Court  of  Justice, is before a tribunal which  has  similar attributes.   In the case of Dawkins v. Lord  Rokeby(1)  the doctrine was extended (1)  L.R. 8 Q.B. 255; L.R. 7 H.L. 744,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14  

966 to  a military court of inquiry.  It was so extended on  the ground that the case was one of an authorized inquiry before a tribunal acting judicially, that is to say, in a manner as nearly  as  possible  similar to that in which  a  Court  of Justice  acts  in  respect of an inquiry  before  it.   This doctrine  has never been extended further than to Courts  of Justice and tribunals acting in a manner similar to that  in which  such Courts act.  Then can it be said that a  meeting of   the  county  council,  when  engaged   in   considering applications  for licences for music and dancing, is such  a tribunal?   It is difficult to say who are to be  considered as judges acting judicially in such a case". The  case  of  Dawkins v. Lord Rokeby(1) was  a  case  where immunity  was  claimed by a witness who had  given  evidence before  a military Court of inquiry.  The case went  to  the House  of Lords and the Lord -Chancellor, in his  speech  at page 754, in 7 H.L. 744 observed:- "Now,  my  Lords, adopting the expressions  of  the  learned Judges  with regard to what I take to be the settled law  as to  the protection of witnesses in judicial  proceedings,  I certainly  am  of  opinion that  upon  all  principles,  and certainly  upon  all considerations of  convenience  and  of public  policy, the same protection which is extended  to  a witness  in a judicial proceeding who has been  examined  on oath  ought  to  be extended, and must  be  extended,  to  a military man who is called before a Court of Inquiry of this kind  for the purpose of testifying there upon a  matter  of military discipline connected with the army". Both these cases, the one before the Court of Appeal and the other  before  the House of Lords, were concerned  with  the extension  of  the  principle of immunity of  members  of  a tribunal or witnesses in judicial proceedings and the Courts logically  extended  the principle of  immunity  beyond  the Courts  of  Justice  to  tribunals  or  bodies  of   persons functioning in a manner and according to procedure which was assimilated to a judicial inquiry.  The extension of the (1)  L.R. 8 Q.B. 255; L.R. 7 H.L. 744. 967 immunity  to  such tribunals or bodies would  not,  however, constitute them Courts of Justice or Courts of law. The position is thus summarised in the following passage  in Halsbury’s Laws of England, Hailsham Edition, Volume 8, page 526:- "Many  bodies are not courts, although they have  to  decide questions,  and in so doing have to act judicially,  in  the sense  that the proceedings must be conducted with  fairness and  impartiality, such as assessment committees,  guardians committees,,  the  Court of referees constituted  under  the Unemployment  Insurance  Acts to decide claims made  on  the insurance funds, the benchers of the Inns of Court when con- sidering  the conduct of one of their members,  the  General Medical  Council, when considering questions  affecting  the position of a medical man". We must, therefore, fall back upon the tests laid down above for  determining what is a Court strictly  so-called  within the  connotation  of  the term as used in  the  Contempt  of Courts  Act.  It would be appropriate at this stage to  note the  relevant provisions of the Public Servants  (Inquiries) Act  (XXXVII of 1850) which would fall to be considered  for determining whether the Commissioner appointed under the Act is a Court or not. The  Act  was  passed  for  regulating  inquiries  into  the behaviour of public servants and the preamble runs:- "Whereas  it  is expedient to amend the law  for  regulating

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14  

inquiries   into  the  behaviour  of  public  servants   not removable  from their appointments without the  sanction  of Government,  and to make the same uniform throughout  India; It is enacted as follows:-" Section  2 requires the articles of charges to be drawn  out and  a formal and public inquiry to be ordered whenever  the Government  shall be of opinion that there are good  grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any such person.  The  inquiry may be committed under section 3 either to the Court, 968 Board  or other authorities to which the person  accused  is subordinate  or  to any other person  or  persons  specially appointed by the Government, Commissioners for the  purpose. Sections 4 to 7 contain provisions in regard to the  conduct of  the prosecution and section 8 prescribes the  powers  of the  Commissioners.   This  section  has  been  particularly relied  upon as constituting the Commissioners a Court,  and runs as under:- "Section  8. The commissioners shall have the same power  of punishing  contempts and obstructions to their  proceedings, as  is  given to Civil and Criminal Courts by  the  Code  of Criminal Procedure, 1898, and shall have the same powers for the summons of witnesses, and for compelling the  production of documents, and for the discharge of their duty under  the commission, and shall be entitled to the same protection  as the  Zila and City Judges, except that all process to  cause the  attendance  of witnesses or other  compulsory  process, shall  be  served through and executed by the Zila  or  City Judge  in  whose jurisdiction the witness  or  other  person resides,  on  whom the process is to be served,  and  if  he resides within Calcutta, Madras or Bombay, then through  the Supreme  Court of Judicature thereto.  When  the  commission has  been  issued  to a Court, or other  person  or  persons having power to issue such process in the exercise of  their ordinary authority, they may also use all such power for the purposes of the commission". Section  9 prescribes a penalty for disobedience to  process issued  as aforesaid for the purpose of the  commission  and sections 10 to 20 prescribe the procedure to be followed  in the  conduct  of the inquiry.  It ,may be  noted  that  this procedure  is assimilated as far as possible to the  conduct of  a prosecution in a Criminal Court of law and the  person accused  is given the fullest opportunity to enter upon  his defence  and lead evidence in order to clear himself of  the charges  levelled against him.  Sections 21 and 22 lay  down the  functions of the Commissioners in regard to the  report to  be made by them to the Government of  their  proceedings under the commission and the powers of 969 the Government to pass final orders on such reports.   These sections have an important bearing on the question before us and they enact:- "Section   21.-After   the   close  of   the   inquiry   the commissioners  shall  forthwith report to  Government  their proceedings  under the commission, and shall send  with  the record  thereof their opinion upon each of the  articles  of charge separately, with such observations as they think  fit on the whole case. Section  22.-The Government, on consideration of the  report of  the  commissioners,  may  order  them  to  take  further evidence, or give further explanation of their opinions.  It many also order additional articles of charge to be  framed, in which case the inquiry into the truth of such  additional articles  shall  be  made in the same manner  as  is  herein

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14  

directed with respect to the original charges.  When special commissioners have been appointed, the Government may  also, if  it thinks fit, refer the report of the commissioners  to the Court or other authority to which the person accused  is subordinate, for their opinion on the case; and will finally pass such orders thereon as appear just and consistent  with its powers in such cases". These  provisions were considered by this Court in the  case of  S.A. Venkataraman v. The Union of India and  Another(1). The question that arose for consideration there, was whether an  inquiry  made and concluded under the  Act  amounted  to prosecution  and punishment for an offence  as  contemplated under article 20(2) of the Constitution.  Articles of charge bad  been  framed against the petitioner in  that  case  and evidence  had  been led both by the prosecutor  and  by  the defence  and witnesses on both sides were examined  on  oath and cross-examined and re-examined in the usual manner.  The Commissioner bad found, on a consideration of the  evidence, that  some  of  the  charges had  been  proved  against  the petitioner and had submitted a report to that effect to  the Government.   The President had accepted the opinion of  the Commissioner and, in view of the findings on (1)  [1954] S.C.R. 1150. 970 the  several  charges  arrived at by the  latter,  was  pro- visionally  of  the opinion that the  petitioner  should  be dismissed.   Opportunity was given to the  petitioner  under Article 311(2) of the Constitution to show cause against the action  proposed  to  be taken in regard to  him  and  after considering  his representation and after consultation  with the  Union Public Service Commission, the President  finally decided  to impose the penalty of dismissal upon him and  he was accordingly dismissed.  After his dismissal, the  police submitted  a  charge-sheet against him  before  the  Special Judge,  Sessions  Court, Delhi, charging him  with  offences under  sections  161 and 165 of the Indian  Penal  Code  and section  5(2) of the Prevention of Corruption Act  and  upon that summons were issued by the learned Judge directing  the petitioner  to  appear  before his  Court.   The  petitioner thereupon  challenged the legality of this proceeding  in  a writ petition contending, that the proceedings were  without jurisdiction  inasmuch as they amounted to a fresh  prosecu- tion,  for  offences for which he had  been  prosecuted  and punished already. While considering whether under the circumstances there  had been a violation of the fundamental right of the  petitioner under  Article  20(2)  of  the  Constitution,  this   Court, scrutinised  the provisions of the Act and the  position  of the Commissioner appointed, thereunder.  Justice  Mukherjea, as  he  then was, delivered the judgment of  the  Court  and observed at page 1159:- "As  the law stands at present, the only purpose, for  which an  enquiry under Act XXXVII’ of 1850 could be made,  is  to help  the  Government  to  come  to  a  definite  conclusion regarding  the  misbehaviour of a public  servant  and  thus enable  it to determine provisionally the  punishment  which should be imposed upon him, prior to giving him a reasonable opportunity  of showing cause, as is required under  article 311(2)  of the Constitution.  An enquiry under this  Act  is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses.  It is a  matter of convenience merely and 971 nothing  else.  It is against this background that  we  will have  to  examine  the material  provisions  of  the  Public

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14  

Servants  (Inquiries) Act of 1850 and see whether  from  the nature and result of the enquiry which the Act  contemplates it  is at all possible to say that the proceedings taken  or concluded under the Act amount to prosecution and punishment for a criminal offence."; and at page 1160:- "A  Commissioner  appointed under this Act has  no  duty  to investigate any offence which is punishable under the Indian Penal  Code or the Prevention of Corruption Act and  he  has absolutely no jurisdiction to do so.  The subject-matter  of investigation  by  him  is the truth  or  otherwise  of  the imputation of misbehaviour made against a public servant and it  is  only as instances of misbehaviour that  the  several articles of charge are investigated, upon which disciplinary action  might be taken by the Government if it  so  chooses. The  mere  fact that the word "prosecution" has  been  used, would  not make the proceeding before the  Commissioner  one for  prosecution of an offence.  As the Commissioner has  to form his opinion upon legal evidence, be has been given  the power to summon witnesses, administer oath to them and  also to  compel production of relevant documents.  These  may  be some  of  the  trappings of a judicial  tribunal,  but  they cannot  make the proceeding anything more than a  mere  fact finding  enquiry.  This is conclusively established  by  the provisions  of sections 21 and 22 of the Act.  At the  close of  the enquiry, the Commissioner has to submit a report  to the  Government  regarding his finding on each  one  of  the charges  made.  This is a mere expression of opinion and  it lacks  both  finality and authoritativeness  which  are  the essential tests of a judicial pronouncement.  The opinion is not even binding on the Government.  Under section 22 of the Act,  the Government can, after receipt of the report,  call upon  the  Commissioner  to take further  evidence  or  give further   explanation   of  his   opinion.    When   Special Commissioners are appointed, their report could be  referred to the court or other authority 123 972 to  which the officer concerned is subordinate  for  further advice  and  after  taking  the  opinion  of  the  different authorities  and  persons,  the  Government  has  to  decide finally what action it should take". The  Court was no doubt concerned in that case with  finding whether  the inquiry before the Commissioner was  tantamount to  a prosecution of the petitioner.  While considering  the same,   however,  the  position  of  the  Commissioner   was discussed  and  the conclusion to which the Court  came  was that  he was a mere fact finding authority, that the  report made  by the Commissioner to the Government was  merely  his expression of opinion and it lacked both finality and  auth- oritativeness  which are the essential tests of  a  judicial pronouncement.   This conclusion is sufficient to  establish that  the  Commissioner appointed under the Act  was  not  a Court  and  his  report or findings were  not  a  definitive judgment  or a judicial pronouncement inasmuch as they  were not  binding and authoritative and lacked finality.  We  are also   of   the  same  opinion.   Apart   from   the   above considerations which weighed with the Court in that case, we have  also  the provisions of section 8 of  the  Act  itself which  go to show that the Commissioners are  given  certain powers  ’of  the  Civil and Military  Courts  in  regard  to punishing  contempts and obstruction to  their  proceedings, summoning   of  witnesses,  compelling  the  production   of documents and for service of their process as also the  same protection as Zila and City Judges.  The very fact that this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14  

provision  had got to be enacted shows that the position  of the Commissioners was not assimilated to that of Judges  and that they did not constitute Courts of Justice or Courts  of law  but were mere fact finding tribunals deriving  whatever powers  they could exercise under the very terms of the  Act which  created them.  The power of punishing  contempts  and obstruction  to their, proceedings as is given to Civil  and Criminal Courts by the Code of Criminal Procedure, 1898  was also similar in its nature and the very nature and extent of the  power  indicated  that  they were  not  Courts  in  the ordinary  sense of the term.  No such provision  would  have been 973 uted  Courts  of  Justice  or Courts of law  and  it  is  no argument  to  say that these provisions  were  enacted  even though they were not strictly necessary merely for the  sake of  abundant caution or clarification of the  position.   We are of the opinion that the Commissioner appointed under the Act, having regard to the circumstances above set out,  does not  constitute  a Court-within the meaning of the  term  as used in the Contempt of Courts Act. Our  attention  was,  however,  drawn  by,  Shri  Purshottam Tricamdas  to a decision of a Division Bench of  the  Punjab High  Court in Kapur Singh v. Jagat Narain(1).  That  was  a case directly in point and on all fours with the case before us.  The learned Chief Justice of the Punjab High Court  bad been appointed a Commissioner under the Act in the matter of an  inquiry  against Sardar Kapur Singh,  I.C.S.,  and  Lala Jagat Narain, the editor, printer and publisher of ail  Urdu Daily  newspaper  published at Jullundur  called  The  Hindu Samachar, was called upon to show cause why he should not be punished  under  section 3 of Contempt of  Courts  Act  with regard  to a leading article which appeared in his  name  in the  issue  of  the  paper dated the  12th  March  1951.   A preliminary objection was taken on his behalf that the Court had  no  jurisdiction to take proceedings  against  him  for contempt  and  the  argument  was  that  the  Court  of  the Commissioner appointed to hold an inquiry under the Act  was not a Court and in any event was not a Court subordinate  to the  High  Court.   Mr. Justice Falshaw  who  delivered  the judgment of the Court observed at page 50 in connection with this  argument: "The Public Servants (Inquiries) Act  itself seems   clearly   to  indicate  that   a   Commissioner   or Commissioners appointed under the Act constitute a Court  as they  are  given  all the powers of a  Court  regarding  the summoning  of  witnesses  and other matters,  and  the  only ground on which the learned counsel for the respondent could base his argument that the Commissioner does not  constitute a Court was that he can (1)  A.I.R. 1951 Punjab 49. 974 give  no final decision, but merely has to draw up a  report giving  his  findings on the charge or charges  against  the respondent, which is to be forwarded to the Government.   In my  opinion, however, this fact alone is not  sufficient  to make the Commissioner or Commissioners any thing other  than a  Court and it is to be noted that the definition of  Court in section 3, Evidence Act, is very wide indeed as it reads: "’Court’ includes all Judges and Magistrate and all persons, except  arbitrators, legally authorised to  take  evidence". The learned Judges there relied upon the definition of Court given in section 3 of the Indian Evidence Act which, as  has already  been noted, is framed only for the purposes of  the Act and is not to be extended where such an extension is not warranted.    This   definition  does  not   help   in   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14  

determination  of  the question  whether  the  Commissioners appointed under the Act constitute a Court and the attention of  the  learned Judges was not drawn to the  position  that finality and authoritativeness are the essential tests of  a judicial  pronouncement.   We are of the  opinion  that  the decision  reached by the learned Judges of the  Punjab  High Court in that case was wrong and cannot help the respondent. Our  attention  was also drawn to another  decision  of  the Nagpur High Court in M. V. Rajwade v. Dr. S. M.   Hassan(1). The  question  which came to be considered by the  Court  in that  case  was  whether a commission  appointed  under  the Commissions  of  Inquiry Act, 1952 was a, Court  within  the meaning  of section 3 of the Contempt of Courts  Act,  1952, and,  while  considering  the provisions of  that  Act,  the learned  Judges  of  the  Nagpur  High  Court   incidentally considered the provisions of the Public Servants (Inquiries) Act, 1850.  They rightly observed that "the term ’Court’ has not  been defined in the Contempt of Courts Act, 1952.   The Act, however, does contemplate a ’Court of Justice’ which as defined  in section 20, Indian Penal Code, 1860, denotes  ’a judge who is empowered by law to act judicially’.  The least that  is  required of a Court is the capacity to  deliver  a "definitive judg- (1)  A.I.R. 1954 Nag. 71. 975 ment"  and  unless  this power vests in a  tribunal  in  any particular case, the mere fact that the procedure adopted by it  is  of  a  legal  character and  it  has  the  power  to administer  an  oath will not impart to it the status  of  a Court",  and  came  to the conclusion  that  the  commission appointed under the Commissions of Inquiry Act, 1952 is  not a  Court within the meaning of the Contempt of ’Courts  Act, 1952.   The  learned  Judges  were  merely  considering  the provisions of the Commissions of Inquiry Act, 1952 and  were not concerned with the construction of the provisions of the Public   Servants   (Inquiries)  Act,  1850   and   whatever observations  they made in regard to the provisions  of  the latter Act by way of comparing the same with the  provisions of  the former which they were there considering  would  not have  the effect of putting on the provisions of the  latter Act  a  construction  which  would  be  any  avail  to   the respondent  before us.  The ratio which was adopted  by  the learned  Judges was quite correct but it appears  that  they digressed  into  a consideration of the  provisions  of  the Public Servants (Inquiries) Act, 1850 in order to  emphasize the character and position of the commission appointed under the Commissions of Inquiry Act, 1952 even though it was  not strictly  necessary  for the purpose of  arriving  at  their decision, though it must be mentioned that while  discussing the  nature  and function of the commission  they  expressed themselves correctly as under:- "The Commission governed by the Commissions of Inquiry  Act, 1952   is  appointed  by  the  State  Government  "for   the information  of its own mind", in order that it  should  not act, in exercise of its executive power, "otherwise than  in accordance  with  the  dictates  of  justice  &  equity"  in ordering  a departmental enquiry against its  officers.   It is,  therefore, a fact finding body meant only  to  instruct the mind of the Government without producing any document of a judicial nature". We are of the opinion that neither of these cases which have been relied upon by Shri Purshottam Tricamdas is of any help to the respondent or detracts 976 from the true position as we have laid down above.  The only

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14  

conclusion  to which we can come on a consideration  of  all the relevant provisions of the Act is that the  Commissioner appointed under the Act is not a Court within the meaning of the Contempt of Courts Act, 1952. In view of the conclusion reached above, we do not think  it necessary  to go into the question whether the  Commissioner appointed  under the Act is a Court subordinate to the  High Court within the meaning of the Contempt of Courts Act.  Nor do  we  think  it necessary to express  any  opinion  as  to whether the letter complained against constituted a contempt of Court.  We may, however, note in passing that the circum- stances  under which the letter came to be addressed by  the appellant  to  the Commissioner, the terms thereof  and  the order   which  was  passed  by  the  Commissioner   on   the application  made by the respondent to proceed  against  the appellant  in  contempt on date the 2nd February  1953  lend support to the argument which was advanced on behalf of  the appellant  that  the  letter  complained  against  did   not constitute contempt of Court. The  result, therefore, is that the appeal will be  allowed, the  order passed against the appellant by the  Court  below will  be set aside and the original  Criminal  Miscellaneous Petition No. 10 of 1953 filed by the respondent in the  High Court of Judicature at Patna will stand dismissed.  The fine if paid will be refunded. 977