http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: THE COMMISSIONER, AGRA & ORS.

       Vs.

RESPONDENT: ROHTAS SINGH & ORS

DATE OF JUDGMENT:       09/12/1997

BENCH: SUJATA V. MANOHAR, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar, J      Leave granted.      These appeals are from a judgment of the Allahabad High Court holding that Government Advocates and Standing Counsel for the  State of  Uttar Pradesh cannot be allowed to appear and defend  Government officials  against  who  notices  for contempt of  court are  issued.  In the Allahabad High Court advocates for  the State  appearing in  criminal matters are designated as Government Advocates while advocates on behalf of the  State appearing  in civil  matters are designated as Standing Counsel.   The  High Court  has held  that  neither category of  advocates can appear in contempt proceedings on behalf of  an alleged  contemnor who  is an  official of the State Government.  The Allahabad High Court has further held that no  monetary help  from  the  State  Exchequer  can  be extended to  such Government  officials  towards  litigation expenses in  contempt proceedings.  These expenses are to be incurred personally  by the  Government officials  concerned which can  be subsequently  reimbursed to  them if  they are honourably exonerated  in contempt  proceedings.   The  High Court has  also struck  down a Government Order date 12th of September,  1996   issued  by   the  Special  Secretary  and Additional Legal  Remembrancer,  Government  of  U.P.  under which a panel of Advocates has been nominated for Government of U.P.  and its  officers and/or employees.  The High Court has struck  down the names of the two It has also held as of no  consequence,   the  relevant  provisions  in  the  Legal Remembrancer’s Manual permitting Government Advocates and/or Standing Counsel to appear in such matters.      The impugned judgment has been pronounced in the course of contempt  proceedings for alleged violation of the orders of the  Allahabad High Court dated 6.9.1996 in Civil (Misc.) Writ Petition  No.28721 of  1996  -  Rohtas  Singh  vs.  The Commissioner, Agra Division & Ors. and the order of the High Court  dated   11.7.1996  in  Civil  (Misc.)  Writ  Petition No.21843 of  1996 -  Gaon Panchayat  of Village  Bhavokara & Ors. vs.  District Panchayat  Raj Adhikari, Bulandshaher and Ors. In  these proceedings,  Shri S.M.A.  Kazmi,  Additional Chief Standing  Counsel appeared  for the alleged contemnors

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

who were  Government officials  and who were alleged to have violated  the  respective  orders  in  the  above  two  writ petitions.   When the  court raised  an objection  that  the State Law  Officers cannot appear in contempt proceedings to defend the  contemnors, Shri  S.M.A. Kasmi, Additional Chief "Standing Counsel  drew the  attention of  the court  to the above  Government  Order  No.D/2714/7-Nyay-3-96-83/96  dated 12th September,  1996 under  which six State Law Officers as aforesaid had  been appointed  by the  State  Government  to appear in all contempt cases in the High Court of Judicature at Allahabad  and its  Bench at  Lucknow for  the purpose of defending the  State Government  Officers/employees who  wee charged with  contempt.   Mr. Kazmi  contended that he being one of  the six State Law Officers so  named, was authorised to appear for the alleged contemnors.      The attention  of the  High Court was also drawn to the Legal Remembrancer’s  Manual  of  1975.    Under  the  Legal Remembrancer’s Manual  of 1975  Chapter V  deals with  Chief Standing Counsel  and Standing Counsel in the High Court who are responsible  for the  conduct of  all civil cases in the High Court  to which the State Government is a party.  Under Court to  which the  State Government  is a  party.    Under Clause 5.04 of Chapter V the Standing Counsel is entitled to represent the  State or  any authority  within the  state in such other  civil cases  in which  he might  be required  or directed to appear by the Government, the Legal Remembrancer or the  High  Court.    Chapter  IV  deals  with  Government Advocate, his deputies and assistants.  Under Clause 4.07 of Chapter IV,  the Government  Advocate, Additional Government Advocate, Deputy Government Advocate or Assistant Government Advocate shall  have the right of private practice but shall not, except  under special  permission  of  the  Government, appear for  the defence  in any  criminal or  quasi-criminal case or  proceedings nor  can be  advise any  private  party regarding any  criminal case  which might  be pending  or be likely to be instituted in Uttar Pradesh.      It  was  contended  by  Shri  Kazmi,  Additional  Chief Standing Counsel  for the  State of U.P. that the Government order  of   12th  of  September,  1996  constituted  special authorisation  entitling   him   to   appear   in   contempt proceedings on  behalf of  an alleged  contemnor  when  that alleged contemnor  was an  employee or officer of the State. The High  Court, however,  rejected  this  contention  while holding that  the Government  Advocates and Standing Counsel cannot be allowed to so appear.      The High  Court seems  to have  proceeded on  the basis that  it   is  for   the  state   to  prosecute  contemnors. Therefore, counsel  for the  State  cannot  appear  for  the "accused" contemnor.  This foundation  of the  High  Court’s reasoning is unfortunately not sound.  A contempt proceeding is often described as a quasi-criminal proceeding because it results in  punishment for  the contemnor.   The proceeding, however,  cannot  be  equated  with  the  prosecution  of  a criminal by the State.  Contempt proceedings are essentially a matter  between the  court and  the contemnor.    Contempt jurisdiction   enables    the   court   to   ensure   proper administration of  justice and  maintenance of  the Rule  of Law.   It is  meant to  ensure that  the courts  are able to discharge their functions properly, unhampered and unsullied by wanton attacks on the system of administration of justice or on  officials who  administer it,  and to  prevent wilful defiance of orders of the court or undertakings given to the court.   That is  why the  Supreme Court  and the High Court have an  inherent power  to punish  for contempt even dehors legislation pertaining to contempt of court.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

    This is apparent also from the definition of "contempt" under the  Contempt  of  Courts  Act,  1971.  Two  types  of contempt are  defined.   Under Section  2(b), Civil Contempt means  wilful   disobedience  to   any   judgment,   decree, direction, order, writ or other process of a court or wilful breach of  an undertaking  given to a court.  While criminal contempt  is   defined  under   Section  2(c)  to  mean  the publication (whether  by words,  spoken or  written,  or  by sings, 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. From  this definition it  is clear that the courts’ power to punish for contempt is  a power  which is  required in  furtherance  of proper  administration   of  justice   and  preserving   the authority of  the court.   This power is expressly preserved under Articles 129 and 215 of the Constitution.  That is why the question  of contempt is a question which is essentially between the court and the contemnor.      Explaining this  position, this  court in  the case  of D.N. Taneja  v. BhajanLal  (1988 [3]  SCC 26)  observed,  "A contempt is  a matter  between the  court  and  the  alleged contemnor.   Any person who moves the machinery of the court for contempt  only brings to the notice of the court certain facts constituting contempt of court.  After furnishing such information he  may still   assist  the court  but  it  must always be  borne in mind that in a contempt proceeding there are only  two parties, namely, the court and the contemnor." In that  case this Court held that the person who had lodged the complaint  was not  entitled  to  any  right  of  appeal because  he   was  not   a  necessary   party  in   contempt proceedings.      It is  on account of the mistaken notion that the State has to prosecute an action for contempt of court against the contemnor that  the High Court, in the present case, came to the conclusion  that the Advocates appointed by the State to represent it  in courts  of law cannot appear for an officer of the sTate who is charged with contempt. It is, therefore, open to  the State  to nominate  its advocates to appear for its officials in contempt proceedings.  In fact, in the case of the  highest law  officer of  the State  -  the  Advocate General, this  Court, in  the case of T.C. Hingorani v. G.P. Misra (1967  Law Reports  Lucknow, page  662), held that the State Government  could assign  to the  Advocate General the duty to appear in a contempt proceeding for a contemnor, and the Advocate  General was  entitled to  so appear.  This has been reiterated in Mohd. Iqbal Khandey v. Abdul Majid Rather [(1994) 4  SCC 34]  where the  Court held  that there was no justification for  the court  to direct  the counsel for the appellant, namely  the Additional  Advocate General,  not to appear for  the  appellant  or  to  direct  that  he  should instead, assist the court.      It is possible that there might be situations where the Advocate General  may  decline  to  appear  for  an  alleged contemnor who  is an  officer  or  employee  of  the  State. Section 15,  for example,  of the  Contempt of  Courts  Act, 1971, which  deals with  cognizance  of  criminal  contempt, provides that in the case of a criminal contempt, other than a contempt  referred to  in Section 14, the Supreme Court or the High  Court may  take action  on its  own motion or on a motion made  by (a)  the Advocate  General, or (b) any other

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

person with  the consent in writing of the Advocate General, or (c) in relation to the High Court for the Union Territory of Delhi,  such   law officer as the Central Government may, by notification  in the  Official Gazette,  specify in  this behalf, or  any other person, with the consent in writing of such law officer.  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, such  law officer  as the Central Government may, by notification  in the  Official Gazette,  specify in  this behalf.   The Advocate  General or the law officer concerned many in  such a  case decline  to  appear  for  the  alleged contemnor in a criminal contempt case.      Our attention was also drawn to Rule 6 of the Allahabad High Court  Rules framed under Section 23 of the Contempt of Courts Act  which  provides  for  a  notice  of  a  criminal contempt being served on the Government Advocate an interested party in the contempt proceedings.  Moreover, the present case deals not with criminal contempt but with civil contempt.      The state  is, therefore,  entitled to authorise an law officer to  appear in  cases where  the contempt consists of disobedience of  an order  of the  court by  an official  or employee of  the State.  The further directions given by the High Court  that in all such cases the legal expenses should be borne  personally by the alleged contemnor except when he is honourably  acquitted also appear to be unwarranted.  The High Court  seems to  have been  moved into  issuing such  a direction because  of the  large number  of  contempt  cases pending in  that court against the officers of the State for their failure  to carry  out the orders of the Court.  It is indeed a  disturbing situation.  Where the  conduct  of  the concerned official is contumacious, the court can direct him to pay  costs personally,  if the facts and circumstances of the case  so warrant.   But  a general direction of the kind given by the High Court cannot be sustained.      Hence, the  impugned order  of the  High Court  is  set aside and  the appeals are allowed.  There will, however, no order as to costs.