http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 51  

PETITIONER: DELHI JUDICIAL SERVICE ASSOCIATION TIS HAZARICOURT, DELHI ET

       Vs.

RESPONDENT: STATE OF GUJARAT AND ORS. ETC-ETC.

DATE OF JUDGMENT11/09/1991

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) KULDIP SINGH (J) KASLIWAL, N.M. (J)

CITATION:  1991 AIR 2176            1991 SCR  (3) 936  1991 SCC  (4) 406        JT 1991 (3)   617  1991 SCALE  (2)501

ACT:     Constitution of India; 1950: Articles 32, 129, 136, 141, 142, 246,374(2) and Schedule VII List 1, Entry 77.     Contempt of Court--Punishment of--Power and jurisdiction of  the  Supreme Court--Held Court has  inherent  power  and jurisdiction  to take action for contempt of subordinate  or inferior  courts also-Power to be exercised  sparingly--Only when contempt is likely to have repercussions throughout the country.     Contempt of Court--High Courts as Courts of Record  have inherent power and jurisdiction to take action for  contempt of  subordinate  or inferior  courts--Supreme  Court  having judicial. superintendence over all courts in the country has same jurisdiction.     Contempt of Court--Civil and criminal contempt--Criminal contempt--Wide enough to include any act which would tend to interfere  with  administration of justice  or  which  would lower the dignity and authority of court.     Chief Judicial Magistrate--Assaulted, arrested on flimsy grounds,  handcuffed, tied with rope, photographs taken  and published by Police Officers--Held constituted clear case of criminal contempt--Contemners-punishment--Quantum of punish- ment  determined  according  to degree and  extent  of  part played  by each contemner--Guidelines laid down  by  Supreme Court  in  case  of  arrest  and  detention  of  a  Judicial Officer--To be followed by State Governments as well as High Courts--Judicial Officer not to visit Police Station--Except in  connection  with official and judicial duties  and  with prior intimation to District and Sessions Judge.     Contempt proceedings in Supreme Court--Dispute regarding facts--High  Court Judge appointed as  Commissioner--Inquiry made,  evidence recorded and report submitted--Held  contem- ners not persons accused of an offence. 937     Supreme  Court--Supervisory and  appellate  jurisdiction of-Plenary jurisdiction unaffected by self imposed  restric- tions of the Court--From plenary jurisdiction flows supervi- sory jurisdiction over all courts and Tribunals in India.     Supreme Court’s jurisdiction and power not  limited--Can determine its own jurisdiction and it will De final. Supreme Court taking cognizance of contempt matter arising out of an 2incident   subject  matter  of  trial  before  a   criminal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 51  

court--Has  ample power to do complete justice  and  prevent abuse  of  process of court--’Cause’  or  ’matter’  includes proceeding  pending in Civil or criminal matter-Need  to  do ’complete justice’ would depend on facts and circumstances of case.     precedents--Decisions of Federal Court--Not binding  but entitled to great weight--Changes brought about by Constitu- tion  to  be kept in mind while considering  Federal  Court, Privy Council decisions.     Contempt of Courts Act, 1971---Sections 2(c), 12 and 15. Criminal contempt--Object of punishing contemner--To protect administration  of  public justice--Not  to  protect  Judges personally.     Police  Officers assaulting, arresting  and  handcuffing Chief  Judicial Magistrate--Publishing photographs in  news- papers--Held  constituted criminal  contempt--Punishment  to contemners determined having regard to degree and extent  of part  played by each contemner-Guidelines laid down  by  Su- preme  Court  to be followed by State Governments  and  High Courts while arresting Judicial Officers. Criminal contempt proceedings different from ordinary crimi- nal proceedings.      "Courts of Record’--Have power to summarily punish  for contempt  of  court--Contempt of Courts Act  1971  does  not curtail  inherent power of Supreme Court to punish for  con- tempt. Statutory Interpretation.      Constitution--Interpretation  of.  Not.permissible   to adopt  a  construction  which would  render  any  expression super-fluous  or redundant-Regard to be had to  the  social, economic  and political changes, need of the  Community  and the independence of the judiciary-- 938 Supreme Court cannot be a helpless spectator bound by prece- dents of colonial days which have least relevance. Criminal Procedure Code, 1973. Section 6 and Chapter XII.     Chief Judicial Magistrate--Position and role of--Coordi- nation,  Cooperation of police necessity for --Police to  be scrupulously  fair  to offender--Magistrate to  ensure  fair investigation  and }air trial of  offender--Magistracy   and police--Purpose    and    object--Complementary   to    each other--Judicial  officer not to visit police station  except in  connection  with official and judicial duties  and  with prior intimation to District and Sessions Judge. Words and Phrases--Meaning ’Contempt’--Contempt of Courts Act 1971: Section 2(c).. ’Court of record’--Constitution of India----Article 129. ’Persons  accused  o fan offence’---constitution  of  India, Article 20(3).     Including   the   power  to  punish  for   contempt   of itself--Constitution of India, Article 129. ’Complete Justice’--Constitution of India, Article 142 (1).

HEADNOTE:     Mr.  N.L. Patel was posted as Chief Judicial  Magistrate at  Nadiad  in October, 1988. He soon found that  the  local Police  was  not cooperating with the  courts  in  efficting service of summons, warrants and notices on accused persons, as  a result of which the trials of cases were  delayed.  He made  complaint  against the local police  to  the  District Superintendent of Police and forwarded a copy of the same to the  Director  General of Police but nothing  concrete  hap- pened.  On  account of these complaints,  Mr.  S.R.  Sharma,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 51  

Police Inspector, Nadiad was annoyed with the Chief Judicial Magistrate  and  he withdrew constables posted  in  the  CJM Court. In April 1989, the CJM filed two complaints with  the Police  against the Police Inspector and other Police  Offi- cials, Nadiad for delaying the process of the Court. On 25th July, 1989, the CJM directed the police to register a crimi- nal  case against 14 persons who had caused  obstruction  in judicial  proceedings  but subsequently   since  unqualified apology was tendered, the CJM directed the Police  Inspector to drop the cases. The Police Inspector reacted strongly  to the CJM’s direction and he made complaint against the CJM to the Registrar of the High Court through the District  Super- intendent of Police. On account of the aforesaid facts there was hostility between the Police of Nadiad and the CJM. 939     On 25th September 1989, the Police Inspector met the CJM in  his  chambers  to discuss a case where  the  Police  had failed  to  submit the charge-sheet within 90  days.  During discussion the Police Inspector invited the CJM to visit the police  station  to see the papers and assured him  that  he would  mollify  the sentiments of the police  officials.  At 8.35  p.m.  on the said date, the Police  Inspector  sent  a Police Jeep to the CJM’s residence and he went to the Police Station.     According  to  the  CJM when he arrived  in  the  Police Station  he was forced to consume liquor and on his  refusal he  was  assulted, handcuffed and tied with rope  by  Police Inspector, Sub-Inspector, Head Constable, and Constable  and that  he was sent to Hospital for Medical Examination  under handcuffs.  A photographer was arranged to take  his  photo- graph  which  was published in the  newspapers.  The  Police Inspector  disputed these allegations and according  to  him the  CJM  entered  his chamber at the Police  Station  in  a drunken  state,  shouting and abusing him and since  he  was violent,  he was arrested, handcuffed and sent  to  Hospital for  Medical  Examination. He himself wanted  to  be  photo- graphed  and that is why the photographs were taken  by  the press photographer.     As the incident undermined the dignity of courts in  the country, Judicial Officers, Judges and Magistrates all  over the country were in a state of shock, they felt insecure and humiliated. A number of Bar Associations passed  Resolutions and went on strike. The Delhi Judicial Service  Association, the  All  India  Judges Association, Bar  Council  of  Uttar Pradesh  and many others approached this Court by  means  of telegrams  and  petitions under Article 32  for  saving  the dignity  and honour of the judiciary. The CJM also filed  an application for quashing the two FIRs lodged against him and for  directing the trial of his complaint as State  case  an award  of compensation. On 29.9.1989 this Court took  cogni- zance  of  the  matter by issuing notices to  the  State  of Gujarat and other Police Officers.     Since there was serious dispute between the parties with regard  to  the  entire incident, the  Court  appointed  the senior  puisne Judge of the Allahabad High Court to  inquire into  the incident and to submit a report to the Court.  The inquiry  was held on behalf of the Court and not  under  the provisions  of  the Commission of Inquiry  Act.  A  detailed report  was submitted to this Court and the  Court  directed copies to be delivered to the concerned parties and  permit- ted the parties and the contemners to file their  objections before this Court. 940     The Learned Commissioner’s Report establised the follow- ing  facts  and circumstances: that the CJM found  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 51  

Police of Nadiad was not effective in service of summons and had  adopted  an  attitude of indifference  to  the  court’s orders, and as complaints were forwarded to the  authorities by the CJM there was confrontation between the local  police and the magistracy. When the CJM visited the police  station pursuant  to the Police Inspector’s request to  discuss  the matter,  he was forced to consume liquor and on his  refusal he  was assaulted. He was tied up with a rope by the  Police personnel  and  handcuffed deliberately in defiance  of  the state’s Police Regulations and Circulars and the decision of this Court in Prem Shankar Shukla v. Delhi  Administration., A  panchnama showing the drunken state of the CJM  was  pre- pared  by the Police Inspector and signed by two  panchas--a Mamlatdar  and a Fire Brigade Officer. A press  photographer was  brought on the scene, the police personnel  posed  with the  CJM  for the press photographer and the same  was  pub- lished in newspapers. A request made by the CJM to the Civil Hospital  doctors to contact and inform the  District  Judge about  the incident was not allowed. On examination  at  the hospital, the body of the CJM was found to have a number  of injuries.  His  blood  was taken  and  chemical  examination conducted. The Chemical Examiner submitted a report  holding that  the  blood sample contained alcohol.  At  the  initial stage  only one case was registered against the CJM  by  the Police  under the Bombay Prohibition Act, but  when  lawyers met the Police Inspector for securing release of the CJM  on bail,  the  offence being bailable,  the  Police  Inspector, registered  another case under Sections 332 and 506  IPC  in order to frustrate the attempt. The District  Superintendent of  Police did not take immediate action in the  matter  but created  an alibi that he had gone elsewhere and  stayed  in the  government Rest House there, the register of  the  Rest House  however indicating that the entry regarding the  stay was manipulated subsequently by making an interpolation.     On  behalf  of  the contemners-Police  Officers  it  was contended that: (1) this Court had no jurisdiction or  power to  indict the Police Officers even if they are found to  be guilty, as their conduct does not amount to contempt of this Court.  Articles 129 and 215 demarcate the respective  areas of  jurisdiction  of the Supreme Court and the  High  Courts respectively,  and this Court’s jurisdiction  under  Article 129  is confined to the contempt of itself only, and it  has no jurisdiction to indict a person for contempt of an  infe- rior  court subordinate to the. High Court. (2) Even if  the Supreme Court is a court of record, it has no power to  take action  for  the contempt of a Chief  Judicial  Magistrate’s court  as neither the constitution nor any statutory  provi- sion confer any 941 such jurisdiction-or power on this Court. So far as the High Court is concerned, it has power of judicial and administra- tive superintendence over the subordinate courts and Section 15  of the Contempts of Courts Act, 1971  expressly  confers power  on the High Court to take action for the contempt  of subordinate  courts.  (3) Under Entry 77 of List  I  of  the Seventh  Schedule, Parliament has legislative competence  to make a law curtailing the jurisdiction of the Supreme  Court and Section 15 of the Contempts of Courts Act 1971  curtails the inherent power of this Court with regard to contempt  of subordinate courts. Inherent powers are always preserved but they  do not authorise a court to invest itself with  juris- diction when that jurisdiction is not conferred by law.  (4) Assumption of contempt jurisdiction with regard to  contempt of subordinate and inferior courts on the interpretation  of Article  129 of the Constitution is foreclosed by the  deci-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 51  

sions of the Federal Court in K.L. Gauba v. The Honable  the Chief Justice and Judges of the High Court o]’ judicature at Lahore & Anr., AIR 1942 FC 1. This Court being the successor to  the  Federal  Court was bound by the  decisions  of  the Federal Court under Article 374(2) of the Constitution.  (5) In our country there is no court of universal  jurisdiction, as  the  jurisdiction of all courts  including  the  Supreme Court  is limited. (6) Article 142(1) does  not  contemplate any order contrary to statutory provisions. (7) The findings recorded  by the Commission cannot be taken into account  as those findings are hit by Article 20(3) of the Constitution.     The  Attorney-General  urged that the  power  to  punish contempt  is a special jurisdiction which is inherent  in  a Court of record, that a superior court of record has  inher- ent power to punish for contempt of itself and it necessari- ly  includes  and carries with it the power  to  punish  for contempt  committed  in respect of subordinate  or  inferior courts,  that  a superior court of record  having  power  to correct the order of an inferior court has power to  protect that  court  by punishing those who interfere with  the  due administration  of  justice of that court.  It  was  further urged  that the Contempt of Courts Act 1971  recognises  and preserves  the existing contempt jurisdiction and  power  of the  court of record for punishing for contempt of  subordi- nate  or inferior courts, that the Act has not  affected  or restricted the suo motu inherent power of the Supreme  Court being  a court of record which has  received  constitutional sanction under Article 129, that since this Court has  taken cognizance  of the contempt matter arising out of the  inci- dent which is the subject matter of trial before the  crimi- nal  court, this Court has ample power under Article 142  of the  Constitution to pass any order necessary to do  justice and prevent abuse of process of the court and that there  is no limitation on the power of this Court under Article 142 942 in quashing a criminal proceeding pending before a  subordi- nate court.     The basic questions that arose for consideration of  the Court  were:  (a)  whether the Supreme  Court  has  inherent jurisdiction or power to punish for contempt of  subordinate or  inferior courts under Article 129 of  the  Constitution, (b)  whether  the  inherent jurisdiction and  power  of  the Supreme  Court is restricted by the Contempt of Courts  Act, 1971,  (c)  whether  the incident interfered  with  the  due administration of justice and constituted contempt of court, and (d) what punishment should be awarded to the  contemners found guilty of contempt.     Disposing of the writ petitions, Criminal  Miscellaneous Petitions, and contempt petitions, this Court.     HELD:  1.1  Contempt of court is an  act  or  commission calculated  to  interfere  with the  due  administration  of justice. It includes civil and criminal contempt. [991D]     Bowen  L.J. in Helmore v. Smith, [1886] 35 Ch.D. 436  at 455, referred to.     1.2  The definition of criminal contempt is wide  enough to include any act by a person which would tend to interfere with the administration of justice or which would lower  the authority of court. The public have a vital stake in  effec- tive  and orderly administration of justice. The  Court  has the duty of protecting the interest of the community in  the due administration of justice and, so, it is entrusted  with the  power to commit for contempt of court, not  to  protect the  dignity of the Court against insult or injury, but,  to protect  and vindicate the right of the public so  that  the administration  of  justice is  not  perverted,  prejudiced,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 51  

obstructed  or interfered with Offutt v.U.S., [1954] 348  US 11, referred to. [991F]     1.3 The power to punish contempt is vested in the Judges not for their personal protecting only, but for the  protec- tion of public justice, whose interest, requires that decen- cy and decorum is preserved in Courts of Justice. Those  who have  to discharge duty in a Court of Justice are  protected by  the law, and shielded in the discharge of their  duties. Any  deliberate  interference  with the  discharge  of  such duties either in court or outside the court by attacking the presiding  officers of the court, would amount  to  criminal contempt and the courts must take serious cognizance of such conduct. [993B] 943       The  object  and  purpose of  punishing  contempt  for interference  with the administration of justice is  not  to safeguard or protect the dignity of the Judge or the  Magis- trate,  but the purpose is to preserve the authority of  the courts to ensure an ordered life in society. [991H]     Attorney-General v. Times Newspapers, (1974] A.C. 273 at p. 302, referred to.     1.5 The Chief Judicial Magistrate is head of the  Magis- tracy  in  the District who administers justice  to  ensure, protect  and safaguard the rights of citizens. The  subordi- nate  courts at the district level cater to the need of  the masses  in administering justice at the base level.  By  and large the majority of the people get their disputes  adjudi- cated in subordinate courts. It is, in the general  interest of the community that the authority of subordinate courts is protected.  If  the CJM is led into a trap  by  unscrupulous Police  Officers,  and if he is  assaulted,  handcuffed  and roped,  the public is bound to lose faith in  Courts,  which would  be destructive of the basic structure of  an  ordered society. If this is permitted Rule of Law shall be supplant- ed by Police Raj. [992D-E]     1.6 The conduct of Police Officers in the instant  case, in assaulting and humiliating the CJM brought the  authority and administration of justice into disrespect, affecting the public confidence in the institution of justice. [992G]     1.7 The incident is a clear interference with the admin- istration  of justice, lowering its judicial authority.  Its effect  was not confined to one District or State, it had  a tendency to affect the entire judiciary in the country.  The incident high-lights a dangerous trend that if the Police is annoyed  with the orders of a presiding officer of a  court, he  would  be arrested on flimsy  manufactured  charges,  to humiliate him publicly as has been done in the instant case. [992F]      1.8  The facts of the instant case, demonstrate that  a presiding officer of a court may be arrested and  humiliated on  flimsy and manufactured charges which could  affect  the administration of justice. In order to avoid any such situa- tion in future, it is necessary to lay down guidelines which should be followed in the case of arrest and detention of  a Judicial Officer. [1000F]      1.9  In view of’ the paramount necessity of  preserving the independence of judiciary and at the same time  ensuring that  infractions  of  law are’  properly  investigated  the following guidelines are to be 944 followed:  (a) If a judicial officer is to be  arrested  for some  offence,  it should be done under  intimation  to  the District Judge or the High Court as the case may be. (b)  If facts and circumstances necessitate the immediate arrest  of a judicial officer of the subordinate judiciary, a technical

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 51  

or  formal  arrest  may be effected. (c) The  fact  of  such arrest  should be immediately communicated.to  the  District and  Sessions Judge of the concerned District and the  Chief Justice  of  the  High Court. (d) The  Judicial  Officer  so arrested shall not be taken to a police station, without the prior  order or directions of the District & Sessions  Judge of  the  concerned  District, if  available.  (e)  Immediate facilities  shall  be provided to the Judicial  Officer  for communication  with his family members, legal  advisors  and Judicial Officers, including the District & Sessions  Judge. (f)  No statement of a Judicial Officer who is under  arrest be  recorded nor any panchnama be drawn up nor  any  medical test be conducted except in the presence of the Legal  Advi- sor  of the Judicial Officer concerned or  another  Judicial Officer  of  equal or higher rank, if available.  (g)  There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need  to effect physical arrest in order to avert danger  to life  and  limb, the person resisting arrest  may  be  over- powered and handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and  also to the Chief Justice of the High Court. But the burden would be  on the Police to establish the necessity  for  effecting physical arrest and handcuffing the Judicial Officer and  if it be established that the physical arrest and  hand-cuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally  liable for  compensation and/or damages as may be summarily  deter- mined by the High Court. [1000G-1001F]          1.10 These guidelines are not exhaustive but are the minimum  safeguards  to be observed in case of arrest  of  a Judicial  Officer. These should be implemented by the  State Governments as well as by the High Courts. [1001G]       1.  11 No judicial officer should visit a Police  Sta- tion  on his own except in connection with his official  and judicial  duties  and functions, and this  also  with  prior intimation to the District and Sessions Judge. [1002B]      2.1 The Supreme Court as the Apex Court is the  protec- tor and guardian of justice throughout the land,  therefore, it  has a right and also a duty to protect the courts  whose orders  and judgments are amenable to correction, from  com- mission of contempt against them. This 945 right  and  duty of the Apex Court is not  abrogated  merely because  the  High  Court also has this right  and  duty  of protection of the subordinate courts.  The jurisdictions are concurrent and not exclusive or antagonistic. [967G-H]     2.2 Article 136 vests the Supreme Court with wide powers to  grant special leave to appeal from any judgment,  decree determination  sentence  or  order in any  cause  or  matter passed or made by any court or tribunal in the territory  of India except a court or tribunal constituted     by or under any law relating to the Armed Forces. The Court’s  appellate power  under  Article 136 is plenary, it may  entertain  any appeal  by granting special leave against any order made  by any Magistrate, Tribunal or any other subordinate court. The width  and  amplitude of the power is not  affected  by  the practice  and  prcedure followed in  insisting  that  before invoking  the jurisdiction under Article 136  the  aggrieved party must exhaust remedy available under the law before the appellate authority of the High Court. Self imposed restric- tions  do not divest it of its wide powers to entertain  any appeal against any order or judgment passed by any court  or tribunal  in  the  country  without  exhausting  alternative

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 51  

remedy before the appellate authority or the High Court. The power of the Court under Article 136 is unaffected by  Arti- cles 132. 133 and 134(A) in view of the expression "notwith- standing anything in this Chapter" occurring in Article 136. [968E-969A] Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors.,  [1955] 1  SCR  267 and Arunachalam v. P.S.R.  Sadhananthm  &  Anr., [1979] 2 SCC 297, referred to.     2.3  In  addition to the appellate  power,  the  Supreme Court  has  special  residuary  power  to  entertain  appeal against  any order of any court in the country. The  plenary jurisdiction  of the Court to grant leave and  hear  appeals against  any order of a court or Tribunal, confers power  of judicial  superintendence over all the courts and  Tribunals in  the territory of India including subordinate  courts  of Magistrate  and  District Judge. The Court  has,  therefore, supervisory jurisdiction over all courts in India. [970F]     2.4 Article 129 provides that the Supreme 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. Article  215 contains similar provision in respect  of  High Court.  Both  the Supreme Court as well as High  Courts  are courts  of record having powers to punish for  contempt  in- cluding the power to punish for contempt of itself..[970G] 946     2.5 The Constitution does not define "Court Of  Record". A  "Court  of  Record" is a court where  acts  and  judicial proceedings are enrolled in parchment for a perpetual  memo- rial  and testimony, which rolls are called the ’record’  of the  court  and.are  conclusive evidence of  that  which  is recorded therein. [970H -971 E] ’     Wharton’s  Law Lexicon: Words & Phrases (Permanent  Edi- tion) vol. 10 p. 429: Halsbury’s Laws of England Vol. 10  p. 319.     2.6  In India prior to the enactment of the Contempt  of Courts  Act, 1926, High Court’s jurisdiction in  respect  of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts  in the  absence of statutory provision exercised power of  con- tempt  to protect the subordinate courts on the  premise  of inherent power of a Court of Record. [974F-G]     Rex v. Aimon, 97 ER 94; Rainy v. The Justices of  Seirra Leone,  8 Moors PC 47 at 54; Surendra Nath Banerjee  v.  The Chief  Justice and Judges of the High Court at Fort  William in Bengal, ILR to Calcutta 109; Rex v. Parke, [1903] 2  K.B. 432 at 442; King v. Davies, [1906] 1 K.B. 32; King v. Editor of  the Daily Mail, [1921] 2 K.B. 733; Attorney  General  v. B.B.C.,  [1980] 3 ALR 161; Venkat Rao 21 Madras Law  Journal 832;  Mohandas Karam Chand Gandhi [1920] 22 Bombay  Law  Re- porter  368; Abdul Hassan Jauhar’s AIR 1926  Allahabad  623; Shantha Nand Gir v. Basudevanand, AIR 1930 Allahabad 225 FB; Mr.  Hirabai v. Mangal Chand, AIR 1935 Nagpur 46;  Harkishan Lal  v.  Emperor,  AIR 1937 Lahore 497;  Mohammad  Yusuf  v. Imtiaz Ahmad Khan, AIR 1939 Oudh, 131 and Legal Remembrancer v. Motilal Ghosh, ILR 41 Cal. 173, referred to.     2.7 The Kings Bench in England and High Courts in  India being superior Court of Record and having judicial power  to correct  orders of subordinate courts enjoyed  the  inherent power  of  Contempt to protect the subordinate  courts.  The Supreme Court being a Court of Record under Article 129  and having  wide  power  of judicial supervision  over  all  the courts  in  the country, must possess and  exercise  similar jurisdiction  and  power  as the High Courts  had  prior  to Contempt Legislation in 1926. Inherent powers of a  superior Court of Record have remained unaffected even after  Codifi-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 51  

cation of Contempt Law. [976G-977A]     Sukhdev  Singh Sodhi v. The Chief Justice and Judges  of the PEPSU High Court, [1954] SCR 454 and R.L. Kapur v. State of Tamil Nadu, AIR 1972 SC 858, referred to. 947     2.8  The  Contempt  of Courts Act 1971  was  enacted  to define and limit the powers of Courts in punishing contempts of courts and to regulate their procedure in relation there- to.  There  is no provision therein curtailing  the  Supreme Court’s power with regard to contempt of subordinate courts, Section 15 expressly refers to this Court’s power for taking action  for  contempt  of subordinate  courts.  The  section prescribes modes for taking cognizance of criminal  contempt by the High Court and Supreme Court. It is not a substantive provision conferring power or jurisdiction on the High Court or  on the Supreme Court for taking action for the  contempt of  its subordinate courts. The whole object of  prescribing procedural  modes of taking cognizance in Section 15  is  to safeguard to valuable time of the High Court and the Supreme Court  being wasted by frivolous complaints of  contempt  of court. Section 15(2) does not restrict the power of the High Court  to the cognizance of the contempt of itself or  of  a subordinate court on its own motion although apparently  the Section does not say so. [977A-C, 978G-979A]     S.K.  Sarkar, Member, Board of Revenue, U.P. Lucknow  v. Vinay Chandra Misra, [1981] 2 SCR 331, referred to.     3.1  Under  Entry 77 of List I of the  Seventh  Schedule read  with Article 246, Parliament is competent to  enact  a law relating to the powers of the Supreme Court with  regard to ’contempt of itself’. Such a law may prescribe  procedure to be followed and it may also prescribe the maximum punish- ment  which could be awarded and it may provide  for  appeal and  for other matters. But the Central Legislature  has  no legislative  competence to abridge or extinguish the  juris- diction or power conferred on the Supreme Court under  Arti- cle 129. The Parliament’s power to legislate in relation  to the law of contempt relating to the Supreme Court is  limit- ed,  therefore the Contempt of Courts Act does  not  impinge upon  the Supreme Court’s power with regard to the  contempt of subordinate courts under Article 129. [979C-F]     3.2  Article 129 declares the Supreme Court a  court  of record and it further provides that the Supreme Court  shall have  all the powers of such a court including the power  to punish for contempt of itself The expression used in Article 129  is not restrictive, instead it is extensive in  nature. If the Framers of the Constitution intended that the Supreme Court  shall  have power to punish for  contempt  of  itself only,  there was no necessity for inserting  the  expression "including  the  power to punish for  contempt  of  itself." [979G] 3.3 Article 129 confers power on the Supreme Court to punish for 948 contempt  of itself and in addition, it confers  some  addi- tional  power relating to contempt as would appear from  the expression "including". The expression "including" has  been interpreted  by  courts, to extend and widen  the  scope  of power.  The plain language of the Article clearly  indicates that  the  Supreme Court as a Court of record has  power  to punish for contempt of itself and also something else  which could  fall within the inherent jurisdiction of a  court  of record. [979H-980A]     3.4 In interpreting the Constitution, it is not  permis- sible to adopt a construction which would render any expres- sion superfluous or redundant. [980B]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 51  

   3.5 While construing Article 129, it is not  permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. [980B]     3.6 The conferment of appellate power on the Court by  a statute  section 19 of the Contempt of Courts Act 1971  does not  and cannot affect the width and amplitude  of  inherent powers of this Court under Article 129 of the  Constitution. [981E]     K.L.  Gauba v. The Honable the Chief Justice and  Judges of the High Court of Judicature at Lahore & Anr AIR 1942  FC 1, distinguished.     4.1  Article  374(2) is in the nature  of  a  transitory provision  to  meet  the exigency of the  situation  on  the abolition of the Federal Court and setting up of the Supreme Court.  There  is no provision in the said  Article  to  the effect  that  the decisions of the Federal  Court  shall  be binding  on the Supreme Court. The decisions of the  Federal Court and the Privy Council made before the commencement  of the  Constitution  are entitled to great respect  but  these decisions  are  not binding on the Supreme Court and  it  is always open to this Court to take a different view. [983F-G]      Om  Prakash  Gupta v. The United  Provinces,  AIR  1951 Allahabad 205 and State of Bombay v. Gajanan Mahadev Badley, AIR 1954 Bombay 352, approved.      The  State of Bihar v. Abdul Majid, [1954] SCR 786  and Shrinivas  Krishnarao Kango v. Narayan Devji Kango  &  Ors., [1955] 1 SCR 1, referred to. 949     K.L.  Gauba v. The Hon’ble the Chief Justice and  Judges or  the High Court of Judicature at Lahore & Anr., AIR  1942 FC  1 and Purshottam Lal Jaitly v. The King Emperor,  [1944] FCR 364, explained and distinguished.     The  Federal  Court exercised  limited  jurisdiction  as conferred  on  it by the Government of India Act  1935.  The question  regarding the inherent power of the Supreme  Court as a Court of Record in respect of the contempt of  subordi- nate  Courts was neither raised nor discussed in  its  deci- sions. The Federal Court observed that if the High Court and the  Federal  Court  both have  concurrent  jurisdiction  in contempt matters, it could lead to conflicting judgments and anamolous consequences. That may be so under the  Government of India Act as the High Court and the Federal Court did not have  concurrent jurisdiction, but under  the  Constitution, High Court and the Supreme Court both have concurrent juris- diction  in several matters, yet no  anamolous  consequences follow. [985H-986B]     4.2 The Federal Court did not possess the wide powers as the  Supreme  Court has under the  Constitution.  There  are marked  difference in the constitution and jurisdiction  and the  amplitude  of powers exercised by the  two  courts.  In addition  to civil and criminal appellate jurisdiction,  the Supreme Court has wide powers under Article 136 over all the courts  and Tribunals in the country. The Federal Court  had no  such power, instead it had appellate power but that  too could be exercised only on a certificate issued by the  High Court. The Federal Court was a court of record under Section 203  but it did not possess any plenary or residuary  appel- late power over all the courts functioning in the  territory of India like the power conferred on the Supreme Court under Article  136  of the Constitution.  Therefore,  the  Federal Court had no judicial control or superintendence over subor- dinate courts. [986C-E]     4.3 Advent of freedom, and promulgation of the Constitu- tion  have  made drastic changes in  the  administration  of justice  necessitating new judicial approach. The  Constitu-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 51  

tion has assigned a new role to the Constitutional Courts to ensure  rule  of  law in the  country.  These  changes  have brought  new perceptions. In interpreting the  Constitution, regard  must  be had to the social, economic  and  political changes,  need of the community and the independence of  the judiciary.  The Court cannot be a helpless spectator,  bound by  precedents of colonial days which have  lost  relevance. Time  has come to have a fresh look to tile  old  precedents and to lay down law with the changed perceptions keeping  in view the provisions of the Constitution. [986F-G] 950     5.1  Courts constituted under a law enacted by the  Par- liament  or the State Legislature have limited  jurisdiction and  they  cannot assume jurisdiction in a matter,  not  ex- pressly assigned to them, but that is not so, in the case of a  superior court of record constituted by the  Constitution such  a court does not have a limited jurisdiction,  instead it has power to determine its own jurisdiction. No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of  the Constitution. In the absence of any express provision in the Constitution,  the  Apex Court being a Court of  record  has jurisdiction in every matter and if there be any doubt,  the Court  has  power  to determine its  jurisdiction.  If  such determination  is made by the High Court, the same would  be subject to appeal to this Court, but if the jurisdiction  is determined by this Court it would be final. [988C-E]     Naresh Shridhar Mirajkar & Ors. v. State of  Maharashtra JUDGMENT: [1965]  1 SCR 413 and Ganga Bishan v. Jai Narain,  [1986]  1 SCC 75, referred to.     5.2 Since the Supreme Court has power of judicial super- intendence  and  control over all the courts  and  Tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest  of inferior courts to ensure the flow of the stream of  justice in  the courts without any interference or attack  from  any quarter.  The  subordinate and inferior courts do  not  have adequate  power under the law to protect themselves,  there- fore,  it is necessary that this Court should protect  them. Under the constitutional scheme it has a special role in the administration  of  justice and the powers conferred  on  it under  Article 32, 136, 141 and 142 form part of  the  basic structure of the Constitution. The amplitude of the power of the court under these Articles of the Constitution cannot be curtailed  by  law  made by Central  or  State  Legislature. [987A-C]      5.3 The Supreme Court and the High Court both  exercise concurrent  jurisdiction under the constitutional scheme  in matters relating to fundamental rights under Articles 32 and 226  of the Constitution. Therefore, this Court’s  jurisdic- tion  and power to take action for contempt  of  subordinate courts  would  not  be inconsistent  to  any  constitutional scheme. [987D]      5.4  The  Apex Court is duty bound  to  take  effective steps within the constitutional provisions to ensure a  free and fair administration of justice through out the  country. For that purpose it must wield the 951 requisite  power to take action for contempt of  subordinate courts. Ordinarily, the High Court would protect the  subor- dinate courts from any onslaught on their independence,  but in  exceptional cases, extraordinary situation  may  prevail affecting the administration of public justice or where  the entire  judiciary is affected, this Court may directly  take

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 51  

cognizance of contempt of subordinate courts. [987F]     5.5 The Supreme Court will sparingly exercise its inher- ent  power in taking cognizance of the contempt of  subordi- nate  courts, as ordinarily matters relating to contempt  of subordinate  courts must be dealt with by the  High  Courts. The  instant case is of exceptional nature as  the  incident created  a  situation where functioning of  the  subordinate courts  all over the country was adversely affected and  the administration  of  justice was paralysed,  therefore,  this Court took cognizance of the matter. [987G-988A]     6.1 Though there is no provision like section 482 of the Criminal  Procedure  Code conferring express  power  on  the Supreme Court to quash or set aside any criminal  proceeding pending before a criminal court to prevent abuse of  process of  the  court, but the Court has power to  quash  any  such proceeding  in exercise of its plenary and residuary  powers under  Article 136 of the Constitution, if on  the  admitted facts  no change is made out against the accused or  if  the proceedings  are  initiated on concocted facts,  or  if  the proceedings are initiated for oblique purposes. [996E]     Once  the Supreme Court is satisfied that  the  criminal proceedings  amount  to abuse of process of court  it  would quash such proceedings to ensure justice. [996G]     State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982]  3 SCR 121 and Madhavrao Jivajirao Scindia & Ors.  v. Sambhajirao  Chandrojirao  Angre & Ors., [1988] 1  SCC  692, referred to.     6.2 The inherent power of the Supreme Court under  Arti- cle 142 coupled with the plenary and residuary powers  under Articles  32 and 136 embraces power to quash  criminal  pro- ceedings pending before any court to do complete justice  in the matter before this Court. If the court is satisfied that the  proceedings in a criminal case are being  utilised  for oblique  purposes or if the same are continued  on  manufac- tured  and false evidence or if no case is made out  on  the admitted  facts, it would be in the ends of justice  to  set aside  or quash the criminal proceeding. It is idle to  sug- gest  that in such a situation this Court should be a  help- less spectator. [997B-C] 952      6.3  The  Court’s  power under  Article  142(1)  to  do "complete  justice" is entirely of different level and of  a different quality. Any prohibition or restriction  contained in ordinary laws cannot act as a limitation on the constitu- tional power of this Court. Once this Court has seisin of  a cause  or matter before it has power to issue any  order  or direction  to  do  "complete justice" in  the  matter.  This constitutional power of the Apex Court cannot be limited  or restricted by provisions contained in statutory law. [997G]      6.4  What would be the need of "complete justice" in  a cause  or  matter would depend upon the  facts  and  circum- stances  of  each case and while exercising that  power  the Court  would take into consideration the express  provisions of  a substantive statute. Once this Court has taken  seisin of  a case, cause or matter, it has power to pass any  order or  issue direction as may be necessary to do complete  jus- tice in the matter. [998D]      Prem Chand Garg v. Excise Commissioner, U.P. Allahabad, [1963] Supp. 1 SCR 885 and A.R. Antulay v.R.S. Nayak & Anr., [ 1988] 2 SCC 602, referred to.      In  the  instant case, the foundation of  the  criminal trial  of  CJM-NL Patel is based on facts  which  have  been found  to be false. It would be in the ends of  justice  and also to do complete justice in the cause to quash the crimi- nal proceedings. [998F]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 51  

     7.1 Article 20(3) of the Constitution declares that no person  accused  of any offence shall be compelled to  be  a witness against himself. In order to avail the protection of Article  20(3) three conditions must be satisfied.  Firstly, the  person  must be accused of an  offence.  Secondly,  the element  of compulsion to be a witness should be there,  and thirdly  it must be against himself. All the three  ingredi- ents  must  necessarily exist before protection  of  Article 20(3)  is  available.  If any of these  ingredients  do  not exist, Article 20(3) cannot be invoked. [964E-F]       Balkishan Devidayal v. State of Maharashtra, [1980]  4 SCC 600, referred to.        7.2  Mere  issue of notice or  pendency  of  contempt proceedings do not attract Article 20(3) of the Constitution as the contemners against whom notices were issued were  not accused of any offence. A Criminal contempt is punishable by the superior courts by fine or imprisonment,     but it  has many characteristics which distinguishes it from an ordinary offence. [964G] 953     7.3 The power to take proceedings for contempt of  Court is  an  inherent power of a Court of  record.  The  Criminal Procedure Code does not apply to such proceedings. Since the contempt  proceedings  are  not in the  nature  of  criminal proceedings  for an offence, the pendency of  contempt  pro- ceedings  cannot be regarded as criminal proceedings  merely because it may end in imposing punishment on the  contemner. A  contemner it is not in the position of an accused. It  is open to the Court to cross-examine the contemner and even if the  contemner is found to be guilty of contempt, the  Court may  accept  apology and discharge the notice  of  contempt, whereas tendering of apology is no defence to the trial of a criminal  offence. This peculiar feature distinguishes  con- tempt  proceedings from criminal proceedings. In a  criminal trial  where  a person is accused of an offence there  is  a public  prosecutor who prosecutes the case on behalf of  the prosecution against the accused but in contempt  proceedings the  court is both the accused as well as the judge  of  the accusation. [966C-E] Debabrata  Bandopadhyaya’s case, AIR 1969 SC  189,  referred to.     7.4  In the instant case, the contemners do no stand  in the  position of a "person accused of an offence" merely  on account of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority  to record the testimony of the contemners.  There has,  therefore, been no violation of Article 20(3)  of  the Constitution and the Commission’s finding are not  violated. [966F-G]     8.1 In determining, what punishment should be awarded to contemners  found guilty, the degree and the extent of  part played  by  each of the contemners has to be kept  in  mind. [998G]     8.2  In the instant case, Sharma, the  Police  Inspector was  the  main  actor in the entire  incident  and  who  had planned the entire episode with a view to humiliate the  CJM in  the  public eye is the main culprit  and  therefore,  he deserves  maximum  punishment.  The Sub  Inspector  took  an active part in assaulting and tying the CJM at the behest of the Police Inspector. The Head Constable and Constable  also took  active  part  in handcuffing and tying  the  CJM  with ropes,  but  as subordinate officials they acted  under  the orders of the superior officers. The Mamlatdar was a  friend of the Police Inspector, he had no axe to grind against  the CJM  but he acted under the influence of the Police  Inspec-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 51  

tor. So far as the DSP is concerned, he actively abetted the commission of onslaught on the CJM. The contemners are  held guilty of contempt and awarded punishment. [998H-999B] 954     8.3 The Police Inspector to undergo simple  imprisonment for a period of six months and to pay fine of Rs.2,000.  The Sub-Inspector to undergo simple imprisonment for a period of five  months and pay a fine of Rs.2,000 and in  default  one month’s  simple imprisonment. Head Constable and  Constable, each  to  undergo simple imprisonment for two months  and  a fine  of Rs.500 and in default 15 days simple  imprisonment. The Mamlatdar to undergo simple imprisonment for a period of two months and a fine of Rs.1,O00 and in default one month’s simple  imprisonment. The DSP is sentenced  to  imprisonment for  a  period of one month and a fine of  Rs.1,O00  and  in default simple imprisonment for 15 days. So far as the other respondents  against  whom notices were issued  no  adequate material  on record holds them guilty. The contempt  notices are therefore discharged. [999C-E]     9.1  The Court expressed displeasure on the  conduct  of the  DGP.  As the head of the Police in the  State,  he  was expected to intervene in the matter and to ensure  effective action  against the erring Police Officers. He  was  totally indifferent to the news that a CJM was arrested, handcuffed, roped, and assaulted. He took this news as a routine  matter without taking any steps to ascertain the correct facts  for effective action against the erring Police Officers. If  the head of the State Police Administration exhibits such indif- ference  to a sensitive matter which shook the entire  judi- cial machinery in the State, nothing better could be expect- ed  from  his  subordinate officers.  The  State  Government should take action departmentally on the basis of the  find- ings recorded by the Commission. [999F-1000A]     9.2  The  discharge  of the contempt  notices  does  not absolve the officers of their misconduct. The State  Govern- ment  is directed to proceed with the disciplinary  proceed- ings for taking appropriate action. [1000B]

&     ORIGINAL  JURISDICTION: Writ Petition (CRL.) No. 517  of 1989 etc. etc. (Under Article 32 of the Constitution of India).     Soli.  J.  Sorabjee, Attorney General, Ashok  H.  Desai, Addl.  Solicitor  General,  R.K. Garg,  G.  Ramaswamy,  F.S. Nariman,  Dr.  L.M.  Singhvi, G.A. Shah,  T.U.  Mehta,  V.M. Tarkunde,  B.K.  Mehta S.S. Ray, A.K. Gupta,  S.K.  Dhingra, T.C.  Sharma, Kishan Dutt, R.J. Trivedi, Manoj Swarup,  M.N. Shroff, Sudarsh Menon, Sushil Kumar Jain, Bahl Singh  Malik, Gopala Subramanium, Ms. Binu Tamta, Shahid Rizi. D.K. Singh, T. Ray, Pramod Swarup, Praveen Swarup, 955 P.H.  Parekh, Sunil Dogra, C.L. Sahu, G.L. Gupta, Brij  Bhu- shan,  N.S.  Das Bahl, Mrs. H. Wahi, Harish  Javeri  and  S. Ganesh. T.C. Sharma for the appearing parties. The Judgment of the Court was delivered by     K.N.  SINGH,  J. On 25th September,  1989,  a  horrendus incident took place in the town of Nadiad, District Kheda in the State of Gujarat, which exhibited the berserk  behaviour of Police undermining the dignity and independence of  judi- ciary.  S.R. Sharma, Inspector of Police, with 25  years  of service  posted  at the Police  Station,  Nadiad,  arrested, assaulted  and handcuffed N.L. Patel, Chief Judicial  Magis- trate, Nadiad and tied him with a thick rope like an  animal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 51  

and  made  a public exhibition of it by sending him  in  the same condition to the Hospital for medical examination on an alleged  charge of having consumed liquor in breach  of  the prohibition  law enforced in the State of Gujarat.  The  In- spector S.R. Sharma got the Chief Judicial Magistrate photo- graphed  in handcuffs with rope tied around his body  along- with the constables which were published in the news  papers all  over the country. This led to tremors in the Bench  and the Bar throughout the whole country.     The  incident  undermined the dignity of courts  in  the country, Judicial Officers, Judges and Magistrates all  over the country were in a state of shock, they felt insecure and humiliated and it appeared that instead of Rule of Law there was  Police  Raj in Gujarat. A number  of  Bar  Associations passed  Resolutions and went on strike. The  Delhi  Judicial Service  Association, the All India Judges Association,  Bar Council  of Uttar Pradesh, Judicial Service of  Gujarat  and many others approached the Apex Court by means of  telegrams and petitions under Article 32 of the Constitution of  India for  Saving  the  dignity and honour of  the  judiciary.  On 29.9.1989,  this  Court  took cognizance of  the  matter  by issuing  notices  to the State of Gujarat and  other  Police Officers.  The Court appealed to the Members of the Bar  and Judiciary  to  resume  work to avoid  inconvenience  to  the litigant  public. Subsequently, a number of  petitions  were filed  under  Article 32 of the Constitution  of  India  for taking  action  against  the Police Officers  and  also  for quashing  the criminal proceedings initiated by  the  Police against  N.L. Patel, Chief Judicial Magistrate. A number  of Bar  Associations, Bar Councils and individuals appeared  as interveners  condemning the action of the police and  urging the Court for taking action against the Police Officers. 956     In Petition No. 5 18 of 1989 alongwith Contempt Petition No.  6  of  1989 filed by the President,  All  India  Judges Association, notices for contempt were issued by this  Court on 4.10.1989 to seven Police Officials, D.K. Dhagal, D.S.P., A.M.  Waghela,  Dy.  S.P., S.R.  Sharma,  Police  Inspector, Kuldeep Singh Lowchab, Police Inspector (Crime), K.H. Sadia, Sub-Inspector of Police, Valjibhai Kalabhai, Head  Constable and  Pratap Singh, Constable. N.L. Patel, CJM,  Nadiad  also filed  an application in W.P. No. 517 of 1989 with a  prayer to  quash  the two FIRs lodged against him,  to  direct  the trial  of  the complaint filed by him as State case  and  to award compensation.     On   13.2.1990 notices from contempt were issued to.  K. Dadabhoy,  Ex. D.G.P., Gujarat, Dr. Bhavsar, Senior  Medical Officer of Govt. Hospital Nadiad and M.B. Savant, Mamlatdar, Nadiad. The Court during the proceedings also issued notices to  R.  Bala Krishnan, Additional  Chief  Secretary  (Home), Government  of Gujarat and S.S. Subhalkar,  District  Judge, Nadiad to show cause why action be not taken against them in view of the Report of Justice Sahai.     N.L.  Patel was posted as Chief Judicial  Magistrate  at Nadiad in October, 1988. He soon found that the local Police was not cooperating with the courts in effecting service  of summons, warrants an notices on accused persons, as a result of which the trials of cases were delayed. He made complaint against  the local Police to the District Superintendent  of Police  and  forwarded a copy of the same  to  the  Director General of Police but nothing concrete happened. On  account of these complaints S.R. Sharma, Police Inspector Nadiad was annoyed  with  the Chief Judicial  Magistrate,  he  withdrew constables  posted  in the CJM Court. In April,  1989  Patel filed  two  complaints with the Police  against  Sharma  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 51  

other  Police Officials, Nadiad for delaying the process  of the  court.  On 25 July, 1989 Patel directed the  Police  to register  a criminal case against 14 persons who had  caused obstruction  in judicial proceedings but subsequently  since they  tendered  unqualified apology, the  CJM  directed  the Police  Inspector to drop the cases  against-those  persons. Sharma  reacted  strongly to Patel’s direction and  he  made complaint against the CJM to the Registrar of the High Court through District Superintendent of Police. These facts  show that  there was hostility between the Police of  Nadiad  and the  CJM. On 25.9. 1989, S.R. Sharma met Patel, CJM  in  his Chambers  to  discuss the case of one Jitu Sport  where  the Police  had  failed to submit charge-sheet within  90  days. During  discussion Sharma invited the     CJM to  visit  the Police Station to see the papers and further his visit would mollify  the sentiments of the Police Officials. It  is  al- leged that at 957 8.35  p.m. Sharma sent a Police Jeep at  Patel’s  residence, and  on that vehicle Patel went to the Police Station.  What actual happened at the Police Station is a matter of serious dispute  between the parties. According to the CJM,  he  ar- rived in the Chamber of Sharma in the Police Station, he was forced to consume liquor and on his refusal he was  assault- ed, handcuffed and tied with rope by Sharma, Police  Inspec- tor, Sadia Sub-Inspector, Valjibhai Kalajibhai, Head Consta- ble and Pratap Singh, Constable. It is further alleged  that Patal  was  sent to Hospital for Medical  examination  under handcuffs where he was made to sit on a bench in the varanda exposing  him to the public gaze. Sharma,  Police  Inspector and  other Police Officers have disputed these  allegations. According to Sharma, Patel entered his chamber at the Police Station  at  8.45  p.m. on 25.9. 1989 in  a  drunken  state, shouting  and  abusing  him, he caught hold  of  Sharma  and slapped  him,  since he was violent he was  arrested,  hand- cuffed  and sent to Hospital for medical examination.  Patel himself  wanted to be photographed while he  was  handcuffed and tied with ropes, a photographer was arranged to take his photograph which was published in the newspapers.     Since,  there  was serious dispute between  the  parties with  regard  to the entire incident,  the  Court  appointed Justice R.M. Sahai senior puisne Judge of the Allahabad High Court  (as he then was) to inquire into the incident and  to submit  report to the Court. Justice Sahai was appointed  to hold  the inquiry on behalf of this Court and not under  the provisions  of the Commission of Inquiry Act. Justice  Sahai visited Nadiad and held sittings there. The learned  Commis- sioner/Judge  invited  affidavits/statements,  and  examined witnesses  including S.R. Sharma the Police Inspector,  D.K. Dhagal,  D.S.P.  and other Police  Officers,  lawyers,  N.L. Patel,  CJM, and Doctors and other witnesses. Justice  Sahai afforded  full  opportunity  to all  the  concerned  persons including the State Government, Police Officers and  lawyers to lead evidence and to cross examine witnesses. He  submit- ted  a  detailed Report dated 28.11.1989 to  this  Court  on 1.12.1989.  On  receipt of the Report  this  Court  directed copies  to be delivered to concerned parties  and  permitted the parties and the contemners to file their objections,  if any,  before  this Court. The objections were filed  by  the Police Officers and  the  contemners disputing the  findings recorded by the Commissioner,     On 12.12.1989, when the matter came up for final dispos- al  the  Court issued notices to  the  Attorney-General  and Advocate-General  of the State of Gujarat. On 10.1.1990  the Court directed the State of Gujarat to file affidavit  stat-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 51  

ing as to what action it had taken or pro- 958 posed  to  take  against the officers in the  light  of  the Report of Justice Sahai. The Court further issued notices to R. Bala Krishnan, Additional Chief Secretary (Home), Govern- ment  of Gujarat, K. Dadabhoy, Director General  of  Police, S.S.  Sudhalkar,  District Judge, to show cause  as  to  why action  should  not  be taken against them in  view  of  the Report  of Justice Sahai. The State Government  was  further directed  to explain as to why action against  D.K.  Dhagal, DSP, S.R. Sharma, Police Inspector and other police officers had  not been taken. On 13.2. 1990 a notice for contempt  of this  Court  was issued to K. Dadabhoy on the same  date  in view of the findings recorded by Justice Sahai, notices  for contempt  of court were issued to Dr. Bhavsar and  M.B.  Sa- vant, Mamlatdar, Nadiad also. in  his affidavit, S.R. Sharma, Police Inspector has  raised a  number  of  objections to the findings  recorded  by  the Commissioner. The objections are technical in nature,  chal- lenging  the authority and jurisdiction of the  Commissioner in  collecting evidence and recording findings against  him. Sharma has further stated in his objections that the Commis- sioner acted as if he was sitting in judgment over the case. Other  Police Officers have also raised similar  objections. We  find  no  merit in the objections raised  on  behalf  of Sharma,  Police Inspector and other contemners. The  Commis- sioner had been appointed by this Court to hold inquiry  and submit his report to the Court. Justice Sahai was acting  on behalf  of  this Court and he had full authority  to  record evidence and cross-examine witnesses and to collect evidence on  behalf of this Court. Since, the main incident of  Chief Judicial  Magistrate’s  arrest,  assault,  handcuffing   and roping was connected with several other incidents which  led to  the confrontation between the Magistracy and  local  po- lice,  the learned Commissioner was justified  in  recording his  findings  on the background and genesis of  the  entire episode. The Police Inspector Sharma raised a grievance that he was denied opportunity of cross-examination of Patel, CJM and he was not permitted to produce Dr. Jhala as a  witness, Sharma’s  application  for  the recall of  CJM  for  further cross-examination  and for permission to produce Dr.  Jhala, retired Deputy Director, Medical and Health Services,  Guja- rat,  was rejected by a well reasoned order of  the  Commis- sioner  dated 9.11.1989. We have gone through the order  and we  find  that the Commissioner has given good  reasons  for rejecting  the recall of CJM for further  cross-examination, as  he  had been crossexamined by the counsel  appearing  on behalf of the Police officials including Sharma. The  Police Officers  and the State Government and CJM were  represented by counsel before the Commissioner and every opportunity was afforded to them for cross-examining the witnesses. 959 Dr.  Jhala’s  evidence was not necessary,  the  Commissioner rightly refused Sharma’s prayer.     On  behalf  of the contemners it was urged that  in  the absence of any independent testimony the Commission was  not justified in accepting interested version of the incident as given  by  the CJM with regard to his visit  to  the  Police Station and the incident which took place inside the  Police Station.  There was oath against oath and in the absence  of any  independent testimony the Commission was not  justified in accepting the sole interested testimony of Patel, CJM. We find  no merit in this objection. The  learned  Commissioner has considered the evidence as well as the circumstances  in support  of  his  findings that Patel had  been  invited  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 51  

Sharma to visit the Police Station and he had sent a  Police jeep on which Patel went to the Police Station. This fact is supported  by  independent  witnesses as  discussed  by  the Commissioner. If Patel had gone on the invitation of  Sharma on  Police jeep and not in the manner as alleged by  Sharma, Patel  could not be drunk and there appears no reason as  to why he would have assaulted Sharma as alleged by the Police. The  circumstances as pointed out by the Commissioner  fully justify  the findings recorded against the Police  Officers. It is settled law that even in a criminal trial, accused  is convicted  on circumstantial evidence in the absence  of  an eye witness, Learned Commissioner acted judicially in a fair and  objective  manner in holding the inquiry,  he  afforded opportunity  to the affected Police Officers and other  per- sons  and  submitted  his Report based on  good  reasons  in respect  of  his findings which are amply supported  by  the material  on record. The Commissioner did a commendable  job in  a record time. After hearing arguments at length and  on perusal  of the statements recorded by the Commissioner  and the  documentary  evidence submitted by the parties,  and  a careful  scrutiny of the affidavits and objections filed  in this  Court,  we find no valid ground to  reject  the  well- reasoned findings recorded by the learned Commissioner.  The Commissioner’s  Report  runs  into 140 pages,  which  is  on record. The contemners and other respondents have failed  to place  any  convincing material before the Court to  take  a different view. We accordingly accept the same.     After  hearing  learned counsel for the parties  and  on perusal of the affidavits, objections, applications and  the Report of the Commissioner, we hold that the following facts and circumstances are fully proved: (1)  N.L.  Patel, Chief Judicial Magistrate found  that  the Police of 960 Nadiad  was not effective in service of summons and  it  had adopted  an  attitude of indifference to  court  orders.  He tried to obtain the assistance of the District  Superintend- ent  of Police in February, 1989 and addressed a  letter  to the  Director General’ of Police but no response  came  from the  Police  Authorities,  even though  the  Government  had reminded  D.K.  Dhagal,  D.S.P., Kheda to  do  the  needful. Patel, the CJM filed two complaints against Police  Officers of  Nadiad Police Station and the Inspectors, and  forwarded it to the District Superintendent of Police on 19th and 24th July,  1989  for  taking action against  them.  Sharma,  the Police  Inspector  who  had by then been  posted  at  Nadiad reacted  to  the  CJM’s conduct  by  withdrawing  constables working in the courts of Magistrates on the alleged  pretext of utilising their services for service of summons. This led to confrontation between the local Police and the Magistracy commenced.     (2) On 25th July, 1989, the CJM had directed the  regis- tration  of a case against 14 accused persons  for  misbeha- viour  and causing obstruction in the judicial  proceedings. Since  the  accused persons had later expressed  regret  and tendered  unqualified apology to the court, the CJM  sent  a letter to the Police Inspector, Sharma to drop  proceedings. Sharma went out of his way, to send a complaint to the  High Court  through the D.S.P. saying that Patel was  functioning in  an illegal manner in the judicial discharge of  his  du- ties.  The  action of Sharma, Police  Inspector  was  highly irresponsible and Dhagal, D.S.P. should not have acted in  a casual manner in forwarding Sharma’s letter to the Registrar of the High Court directly.     (3)  Remand period of Jitu Sport was to expire  on  27th

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 51  

September,  1989, the CJM directed the Police  Inspector  to produce  complete papers before the expiry of the period  of remand  but  he applied for the extension  of  the  judicial remand.  The  CJM directed the Police Inspector  to  produce papers on 22.9.1989, Sharma did not appear before the CJM as directed, on the contrary he interpolated the order, sent to him indicating that he was required to appear before the CJM on 23.9.1989, which was admittedly a holiday.     (4)  On 25th September, 1989, Sharma met the CJM in  his Chamber and as a pretext requested him to come to the Police Station to see the papers which could not be brought to  the Court,  as that could satisfy him that the Police was  doing the  needful  for complying with the orders  of  the  Court. Sharma  pleaded  with CJM that his visit to  Police  Station will remove the feeling of confrontation between the  Police and  Magistracy. The CJM agreed to visit the Police  Station and 961 Sharma offered to send police jeep to CJM’s house for bring- ing him to the Police Station.     (5) On 25.9.89 after the Court hours the CJM went to the officers’  club where he remained in the company of  Sudhal- kar,  District Judge and Pande, Civil Judge till  8,30  p.m. Thereafter, he went to his residence. A Police jeep came  to his residence at about 8.40 p.m. in the Officers Colony,  he went on that Police jeep to the Police Station situated at a distance  of  about  2 kms. Patel had  not  consumed  liquor before he went to the Police Station.     (6)  The Police version that Patel had  consumed  liquor before  coming to the Police Station and that  he  assaulted the  Police Inspector Sharma and misbehaved with him at  the Police Station is a cooked up story. Patel did not go to the Police  Station  on foot as alleged by Sharma,  instead,  he went  to  the Police Station in a Police  jeep  on  Sharma’s invitation. Patel was handcuffed and tied with rope, and  he received  injuries at the Police Station, he  was  assaulted and forced to consume liquor after he was tied to the  chair on  which he was sitting, Police Inspector  Sharma,  Sub-In- spector Sadia, Head Constable Valjibhai Kalabhai and Consta- ble  Pratap  Singh took active part in  this  episode.  They actively participated in the assualt on Patel and in forcing liquor in his mouth. They acted in collusion with Sharma  to humiliate and teach a lesson to Patel.     (7) On the direction of Sharma, Police Inspector,  Patel was handcuffed at the Police Station and he was further tied up with a thick rope by the Police Inspector, Sharma, Sadia, Sub-Inspector, Valjibhai Kalabhai, Head Constable and Pratap Singh, Constable. This was deliberately done in defiance  of Police  Regulations  and  Circulars issued  by  the  Gujarat Government  and  the  law declared by this  Court  in  Prern Shankar  Shukla v. Delhi Administration., [1980] 3 SCC  526. Patel  had not committed any offence nor he was violent  and yet  he was handcuffed and tied up with rope  without  there being  any  justification  for the same.  There  were  seven police  personnel present at the Police Station and most  of them  were fully armed while Patel was empty  handed,  there was absolutely no chance of Patel escaping from the  custody or  making  any attempt to commit suicide or  attacking  the Police Officers and yet he was handcuffed and tied up with a thick rope like an animal with a view to humiliate and teach him  a lesson. For this wanton act there was  absolutely  no justification  and  pleas raised by Sharma  that  Patel  was violent  or that he would have escaped from the custody  are figment of imagination made for the purpose of the case. 962

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 51  

   (8)  The  panchnama showing the drunken state  of  Patel prepared  on the dictation of Sharma, Police Inspector,  and signed  by  Sharma as well as by two panches,  M.B.  Savant, Mamlatdar and P.D. Barot, Fire Brigade Officer, Nadiad,  did not  represent the correct facts, instead, it  was  manufac- tured for the purpose of preparing a false case against  CJM PateI, justifying his arrest and detention.     (9)  On examination at the Civil Hospital  Patel’s  body was  found to have a number of injuries. The injury  on  the left  eye was very clear which appeared to have been  caused by external force. His body had bruises and abrasions  which could  be caused by fists and blows. While in  the  casualty ward  of the Civil Hospital, Patel requested the Doctors  to contact  the District Judge and inform him about  the  inci- dent. Dr. Parashar tried’ to ring up the District Judge  but he  was prevented from doing so by Sharma and  other  Police Officers who were present there. Dr. Parashar and Dr.  Bhav- sar  found the speech of Patel normal, gait steady,  he  was neither violent, nor he misbehaved. His blood was taken  for chemical  examination but the Forms used were not  according to the rules and the blood was not taken in accordance  with procedure  prescribed by the Rules and the Circulars  issued by  the Director of Medical Services, Gujarat. The  chemical examination of the blood sample taken in the Civil  Hospital was  not correctly done. The blood sample was analysed by  a teenager  who  was not a testing officer within  the  Bombay Prohibition  Act  and necessary precautions at the  time  of analysis were not taken. The phial in which the blood sample had  been sent to the Chemical Examiner did not contain  the seal on phial and the seal was not fully legible. The Chemi- cal Examiner who submitted the report holding that the blood sample of Patel contained alcohol on the basis of the calcu- lation made by him in the report clearly admitted before the Commission  that  he had never determined  the  quantity  of liquor  by making calculation in any other case and  Patel’s case was his first case.      (10) When Patel was taken to Civil Hospital  handcuffed and  tied  with thick rope he was deliberately made  to  sit outside  in the Varanda on bench for half an hour in  public gaze, to enable the public to have a full view of the CJM in that  condition.  A Press photographer was  brought  on  the scene  and  the  Policemen posed with Patel  for  the  press photograph. The photographs were taken by the Press Reporter without  any  objection by the Police,  although  a  belated justification  was pleaded by the Police that Patel  desired to have himself photographed in that condition. This plea is totally  false. The photographs taken by the Press  Reporter were published in ‘Jan Satta’ and ’Lokmat’ on 26th 963 September. 1989 showing Patel handcuffing and tied with rope and the Policemen standing beside him. This was deliberately arranged by Sharma to show to the public that Police weilded real power and if the CJM took confrontation with Police  he will not be spared.     (11)  At  the  initial stage, one  case  was  registered against  Patel  by the Police under the  Bombay  Prohibition Act.  Two Advocates Kantawala and Brahmbhatt met  Sharma  at 11.30 p.m. for securing Patel’s release on bail, as offences under  the  Prohibition Act were bailable. The  lawyers  re- quested Sharma to allow them to meet the CJM who was in  the police lock-up but Sharma did not allow them to do so.  With a  view to frustrate lawyers’ attempt to get Patel  released on bail. Sharma registered another case against Patel  under Sections  332 and 506 of Indian Penal Code as offence  under Section 332 is non-bailable.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 51  

   (12)  D.K. Dhagal, the then District  Superintendent  of Police,  Kheda  exhibited total indifference to  CJM’s  com- plaint regarding the unsatisfactory state of affairs in  the matter  of execution of court processes.  Dhagal  identified himself with Sharma, Police Inspector who appeared to be his favourite.  Instead  of taking corrective  measures  in  the service  of processes, he became party along with Sharma  in forwarding  his complaint to the High Court against  Patel’s order in a judicial matter. The incident which took place in the  night  of  25/26 September 1989, had  the  blessing  of Dhagal.  He did not take any immediate action in the  matter instead he created an alibi for himself alleging that he had gone  to Lasundara and then to Balasinor Police Station  and stayed there in a Government Rest House. The register at the Rest  House  indicating  the entry regarding  his  stay  was manipulated  subsequently  by making interpolation.  On  the direction  of Additional Chief Secretary (Home) Dhagal  sub- mitted  his report on 27.9. 1989 but in that report  he  did not make any reference of handcuffing and roping of the  CJM although it was a matter of common knowledge and there was a great  resentment among the judicial officers and the  local public. Dhagal’s complicity in the sordid episode is further fortified  by  the fact that he permitted Sharma,  the  main culprit  of  the entire episode to  carry  on  investigation against  Patel in the case registered against him by  Sharma and also in the case registered by Patel against Sharma.     (13) Police Inspector Sharma had pre-planned the  entire incident  and he had even arranged witnesses in advance  for preparing  false case against N.L. Patel, CJM, as  M.B.  Sa- vant, Mamlatdar in the 964 Police  Station, immediately on the arrival of  PateI,  CJM, and  they acted in complicity with Sharma in  preparing  the panchnama  which falsely stated that Patel was  drunk.  M.B. Sawant and P.D. Barot both were hand in glove with Sharma to flasely implicate Patel in Prohibition Case.     Learned  Commissioner has adversely commented  upon  the conduct of various officers including K. Dadabhoy, the  then Director  General of Police, Gujarat, Kuldip Singh  Lowchab, CID Inspector, Dr. Bhavsar, Senior Medical Officer,  Nadiad, M.B. Savant, Mamlatdar, P.D. Barot, Fire Brigade Officer and A.N.  Patel, Chemical. Examiner, Nadiad.  After  considering the material on record, we agree with the view taken by  the Commissioner  that  ,their conduct was not  above  board  as expected  from responsible officers. We do not  consider  it necessary to burden the judgment by referring to the details of  the findings as the same are contained in  the   Commis- sioner’s Report.     Mr.  Nariman contended on behalf of the Po1ice  Officers that the findings recorded by the Commission cannot be taken into  account as those findings are hit by Article 20(3)  of the Constitution. Inspector Sharma and other Police Officers against  whom criminal cases have been registered were  com- pelled to be witnesses against themselves by filing  affida- vits and by subjecting them to cross examination before  the Commissioner.  Any  finding recorded on the basis  of  their evidence is violative of Article 20(3) of the  Constitution. Article  20(3) of the Constitution declares that  no  person accused  of any offence shall be compelled to be  a  witness against himself. In order to avail the protection of Article 20(3)  three  conditions  must be  satisfied.  Firstly,  the person must be accused of an offence. Secondly, the  element of compulsion to be a witness should be there and thirdly it must  be  against himself. All the  three  ingredients  must necessarily  exist  before protection of Article  20(3.)  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 51  

available. If any of these ingredients do not exist, Article 20(3) cannot be invoked see: Balkishan Devidayal v. State of Maharashtra.,  [1980]  4 SCC 600. In the instant  case  this Court  had  issued notices for contempt  to  Sharma,  Police Inspector  and  other contemners. Mere issue  of  notice  or pendency  of contempt proceedings do not attract Art.  20(3) of  the Constitution as the contemners against whom  notices were  issued  were not accused of any  offence.  A  criminal contempt  is  punishable by the superior courts by  fine  or imprisonment, but it has many characteristics which  distin- guishes  it  from  ordinary offence. An  offence  under  the criminal  jurisdiction is tried by a Magistrate or  a  Judge and  the  procedure of trial is regulated by  the’  Code  of Criminal Procedure, 1973 which provides as elaborate 965 procedure  for  flaming of charges, recording  of  evidence, crossexamination, argument and the judgment. But’ charge  of contempt  is  tried  on summary process  without  any  fixed procedure  as the court is free to evolve its own  procedure consistent  with fair play and natural justice. In  contempt proceedings unlike the trial for a criminal offence no  oral evidence is ordinarily recorded and the usual practice is to give evidence by affidavits. Under the English Law a  crimi- nal offence is tried by criminal courts with the aid of Jury but a criminal contempt is tried by courts summarily without the aid and assistance of Jury. Ordinarily, process of trial for contempt is summary. A summary form of trial is held  in the case of civil contempt and also in the case of  criminal contempt  where the act is committed in the actual  view  of the court or by an officer of justice. The summary procedure is applicable by immemorial usage when criminal contempt was committed  out of court by a stranger. The practice of  pro- ceeding  summarily  for the punishment of  contempt  out  of court  has been the subject of comment and protest, but  the practice is founded upon immemorial usage, it has, since the eighteenth  century, been generally assumed. We do not  con- sider it necessary to refer to decisions from English Courts which  have been discussed in detail in the History of  Con- tempt  of Court by Fox JC 1927. Proceedings for contempt  of Court  are  not taken in the exercise of  original  criminal jurisdiction.  Proceedings  for contempt of Court are  of  a peculiar  nature; though it may be that in  certain  aspects they are quasi criminal, but in any view they are-not  exer- cised  as part of the original criminal jurisdiction of  the Court,  as was held in re: Tushar Kanti Ghosh  and  Another. AIR  1935 Calcutta 419. The High Court held that  since  the proceedings  for  contempt of Court do not fall  within  the original  criminal jurisdiction of the Court no leave  could be  granted for appeal to Privy Council under Clause  41  of the Letters Patent of that Court.     In  Sukhdev Singh Sodhi v. The Chief Justice and  Judges of the PEPSU High Court, [1954] SCR 454. Sukhdev Singh Sodhi approached  this Court for transfer of contempt  proceedings from PEPSU High Court to any other High Court under  Section 527  of the Criminal Procedure Code, 1898. This  Court.  re- jected  the  application  holding that Section  527  of  the Criminal  Procedure Code did not apply to the contempt  pro- ceedings as the contempt jurisdiction is a special jurisdic- tion  which is inherent in all courts of record and the  Cr. P.C. excludes such a special jurisdiction from the Code. The Court  further  held  that  notwithstanding  the  provisions contained  in  the Contempt of Courts Act,  1926  making  an offence of contempt, punishable, the Act does not confer any jurisdiction or create the offence, it merely limits the 966

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 51  

amount  of  the  punishment which could be  awarded  and  it removes  a certain doubt. The jurisdiction to  initiate  the proceedings and take seisin of the contempt is inherent in a court of record and the procedures of the Criminal Procedure Code do not apply to contempt proceedings. Section 5 of  the Code of Criminal Procedure lays down that nothing  contained in  this Code shall, in the absence of a specific  provision to  the  contrary, affect any special or local law  for  the time  being in force, or any special jurisdiction  or  power conferred,  or any special form of procedure prescribed,  by any other law for the time being in force. The power to take proceedings  for the contempt of Court is an inherent  power of  a Court of record, the Criminal Procedure Code does  not apply  to such proceedings. Since, the contempt  proceedings are  not  in the nature of criminal proceedings for  an  of- fence,  the pendency of contempt proceedings cannot  be  re- garded as criminal proceedings merely because it may end  in imposing punishment on the contemner. A contemner is not  in the  position  of  an accused, it is open to  the  Court  to cross-examine  the  contemner and even if the  contemner  is found to be guilty of contempt, the Court may accept apology and  discharge the notice of contempt, whereas tendering  of apology  is no defence to the trial of a  criminal  offence. This  peculiar  feature distinguishes  contempt  proceedings from  criminal  proceedings.  In a criminal  trial  where  a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prsecution  against the  accused but in contempt proceedings the court  is  both the  accuser as well as the judge of the accusation  as  ob- served  by  Hidayatullah, CJ in  Debabrata  Bandopadhyaya’s, case AIR 1969 SC I89. Contempt proceeding is sui generis, it has  peculiar features which are not found in criminal  pro- ceedings.  In this view the contemners do not stand  in  the position  of a person accused of an offence" merely  on  ac- count  of issue of notice of contempt by this Court and  the Commission which was acting on behalf of this Court had full authority to reord the testimony of the contemners.  Commis- sion issued notice and directed Sharma, Police Inspector and other  Police Officials to place their version of the  inci- dent  before it and there was no element of  compulsion.  In this  view there has been no violation of Article  20(3)  of the Constitution and Commission’s findings are not vitiated.      Mr.  F.S.  Nariman  contended that this  Court  has  no jurisdiction or power to indict the Police Officers even  if they are found to be guilty as their conduct does not amount to contempt of this Court. He urged that Article 129 and 215 demarcate  the respective areas of jurisdiction of  the  Su- preme Court and the High Courts respectively. 967 This  COurt’s Jurisdiction under Article 129 is confined  to the  contempt of itself only and it has no  jurisdiction  to intict  a person for contempt of an inferior court  subordi- nate  to the High Court. The Parliament in exercise  of  its legislative  power under Entry 77 of List 1 read with  Entry 14  of  List III has enacted Contempt of.  Courts  Act  1971 (hereinafter referred to as the ’Act’) and that Act does not confer any jurisdiction on this Court for taking action  for contempt of subordinate courts. Instead the original  juris- diction of High Courts in respect of contempt of subordinate courts  is specificially preserved by Sections 11 and  15(2) of  the  Act. The Supreme Court has  only  appellate  powers under Section 19 of the Act read with Articles 134(1)(c) and 136  of the Constitution. The Constitutional  and  statutory provisions  confer  exclusive power on the  High  Court  for taking action with regard to contempt of inferior or  subor-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 51  

dinate  court, and the Supreme Court has no jurisdiction  in the  matter. Shri Nariman further urged that in our  country there is no court of universal jurisdiction, and the  juris- diction of all courts including Supreme Court is limited and this  Court can not enlarge its jurisdiction. Shri  Soli  J. Sorabji learned Attorney General (as he then was) urged that power to punish contempt is a special jurisdiction which  is inherent  in a court of record. A superior court  of  record has  inherent power to punish for contempt of itself and  it necessarily includes and carries with it the power to punish for contempt committed in respect of subordinate or inferior courts.  A superior court of record having power to  correct the order of inferior court has power to protect that  court by punishing those who interfere with the due administration of justice of the court. Articles 129 and 2 15 do not confer any  additional  jurisdiction on the Supreme Court  and  the High  Court.  The constitutional provisions as well  as  the legislative enactment "The Contempt of Courts Act" recognise and preserve the existing contempt jurisdiction and power of the  court of record for punishing for contempt of  subordi- nate  or  inferior courts. The Act has not affected  or  re- stricted  the suo moto inherent power of the  Supreme  Court being  a court of record which has  received  constitutional sanction  under Article 129. Mr. Sorabji further urged  that even  otherwise the Act does not restrict or affect the  suo moto  exercise of power by the Supreme Court as a  court  of record  in  view of Section 15(1) of the  Act.  The  Supreme Court  as  the Apex Court is the protector and  guardian  of justice  throughout the land, therefore, it has a right  and also a duty to protect the courts whose orders and judgments are  amenable  to correction, form  commission  of  contempt against  them. This right and duty of the Apex Court is  not abrogated merely because the High Court also has this  right and duty of protection of the subordinate courts. The juris- dictions are concurrent and not exclusive or antagonistic. 968     The  rival contentions raise the basic question  whether the  Supreme  Court has inherent jurisdiction  or  power  to punish for contempt of subordinate or inferior courts  under Article  129  of the Constitution and whether  the  inherent jurisdiction  and power of this Court is restricted  by  the Act.  The  answer  to the first question  depends  upon  the nature  and the scope of the power of this Court as a  court of  record, in the background of the original and  appellate jurisdiction  exercised  by  this Court  under  the  various provisions  of the Constitution. It is necessary to  have  a look at the constitutional provisions relating to the origi- nal  and appellate jurisdiction of this Court.  Article  124 lays  down  that  there shall be a Supreme  Court  of  India consisting  of  Chief  Justice of  India.and  other  Judges. Article  32 confers original jurisdiction on this Court  for enforcement  of  fundamental rights of  the  citizens.  This jurisdiction  can  be invoked by an  aggrieved  person  even without  exhausting his remedy before other courts.  Article 129  provides  that the Supreme Court shall be  a  court  of record and shall have all the powers of such a court includ- ing the power to punish for contempt of itself. Article 13 1 confers  original jurisdiction on the Supreme Court in  cer- tain matters. Article 132 confers appellate jurisdiction  on this  Court against any judgment, decree or final  order  of the High Courts in India. Articles 133, 134 and 134A  confer appellate jurisdiction in the Supreme Court in appeals  from High Courts in regard to civil and criminal matters  respec- tively on certificate to be issued by the High Court.  Arti- cle  136  provides for special leave to  appeal  before  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 51  

Supreme  Court, notwithstanding the provisions  of  Articles 132,  133, 134 and 134A. Article 136 vests this  Court  with wide powers to grant special leave to appeal from any  judg- ment, decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the terri- tory  of India except a court or Tribunal constituted by  or under  any  law relating to the Armed  Forces.  The  Court’s appellate power under Article 136 is plenary, it may  enter- tain any appeal by granting special leave against any  order made  by any Magistrate. Tribunal or any  other  subordinate court. The width and amplitude of the power is not  affected by  the  practice and procedure followed by  this  Court  in insisting  that  before invoking the  jurisdiction  of  this Court  under Article 136 of the Constitution, the  aggrieved party must exhaust remedy available under the law before the appellate authority or the High Court. Self imposed restric- tions  by this Court do not divest it of its wide powers  to entertain  any appeal, against any order or judgment  passed by  any court or Tribunal in the country without  exhausting alternative  remedy  before the appellate authority  or  the High  Court.  The power of this Court under Article  136  is unaffected  by Article 132, 133, 134 and 134(A) in  view  of the expression 969 "notwithstanding  anything  in this  Chapter"  occurring  in Article 136.     This Court considered the scope and amplitude of plenary power under Article 136 of the Constitution in Durga Shankar Mehta  v.  Thakur Raghuraj Singh & Ors., [1955] 1  SCR  267. Mukherjee, J. speaking for the Court observed:               "The  powers given by Article 136 of the  Con-               stitution however are in the nature of special               or  residuary  powers  which  are  exercisable               outside the purview of ordinary law, in  cases               where the needs of justice demand interference               by the Supreme Court of the land. The  article               itself is worded in the widest terms possible.               It vests in the Supreme Court a plenary juris-               diction  in  the matter  of  entertaining  and               hearing appeals, by granting of special leave,               against any kind of judgment or order made  by               a court or Tribunal in any cause or matter and               the powers could be exercised in spite of  the               specific  provisions for appeal  contained  in               the Constitution or other laws. The  Constitu-               tion for the best of reasons did not choose to               fetter or circumscribe the powers  exercisable               under this Article in any way."     In  Arunachalam v.P.S.R. Sadhanantham & Anr.,  [1979]  2 SCC  297 this Court entertained an appeal under Article  136 of  the  Constitution of India by special leave at  the  in- stance  of a complainant against the judgment and the  order of acquittal in a murder case and on appraisal of  evidence, it  set aside the order of acquittal. Objections  raised  on behalf of the accused relating to the maintainability of the special  leave petition under Article 136 of  the  Constitu- tion,  was  rejected. Chinnappa Reddy, J. speaking  for  the Court held as under:               "Article  136  of the  Constitution  of  India               invests the Supreme Court with a plentitude of               plenary,  appellate power over all courts  and               Tribunals  in India. The power is  plenary  in               the  sense that there are no words in  Article               136  itself  qualifying that power.  But,  the               very nature of the power has led the court  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 51  

             set limits to itself within which to  exercise               such  power.  It is now the  well  established               practice  of this Court to permit the  invoca-               tion  of the power under ArtiCle 136  only  in               very  exceptional  circumstances,  as  when  a               question  of law of general public  importance               arises or a decision shocks the conscience  of               the  Court. But, within the  restrictions  im-               posed by itself, this Court has the               970               undoubted  power to interfere even with  find-               ings  of fact, making no  distinction  between               judgments of acquittal and conviction, if  the               High Court, in arriving at those findings, has               acted "perversely or otherwise improperly"." With  regard to the competence of a private  party,  distin- guished  from the State, to invoke the jurisdiction of  this Court  under  Article  136 of the  Constitution,  the  Court observed:               "Appellate  power vested in the Supreme  Court               under Article136 of the Constitution is not to               be  confused  with  ordinary  appellate  power               exercised  by appellate courts  and  appellate               tribunals under specific statutes. As we  said               earlier,  it is a plenary  power,  exercisable               outside  the purview of ordinary law’ to  meet               the  pressing demands of justice  (vide  Durga               Shankar  Mehta  v.  Thakur  Raghuraj  Singh,).               Article  136 of the Constitution neither  con-               fers on anyone the right to invoke the  juris-               diction  of  the Supreme  Court  nor  inhibits               anyone from invoking the Court’s jurisdiction.               The  power is vested in the Supreme Court  but               the  right to invoke the Court’s  jurisdiction               is vested in no one. The exercise of the power               of  the Supreme Court is not circumscribed  by               any limitation as to who may invoke it."     There is therefore no room for any doubt that this Court has  wide  power to interfere and correct the  Judgment  and orders  passed by any court or Tribunal in the  country.  In addition  to  the  appellate power, the  Court  has  special residuary power to entertain appeal against any order of any court in the country. The plenary jurisdiction of this Court to grant leave and hear appeals against any order of a court or Tribunal, confers power of judicial superintendence  over all  the  courts  and Tribunals in the  territory  of  India including  subordinate  courts of  Magistrate  and  District Judge.  This Court has, therefore, supervisory  jurisdiction over all courts in India.     Article  129 provides that the Supreme 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. Article  215 contains similar provision in respect  of  High Court.  Both  the Supreme Court as well as High  Courts  are courts  of record having powers to punish for  contempt  in- cluding  the  power to punish for contempt  of  itself.  The Constitution does not define "Court of Record". This expres- sion  is  well recognised in jurisdical world.  In  Jowitt’s Dictionary of English Law, "Court of Record" is defined as: 971               "A  court whereof the acts and  judicial  pro-               ceedings are enrolled for a perpetual memorial               and testimony, and which has power to fine and               imprison for contempt of its authority." In Wharton’s Law Lexicon, Court of Record is defined as:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 51  

             "Courts are either of record where their  acts               and  judicial proceedings are enrolled  for  a               perpetual memorial and testimony and they have               power  to fine and imprison; or not of  record               being  courts  of inferior dignity, and  in  a               less proper sense the King’s Courts--and these               are  not  entrusted by law with any  power  to               fine  or  imprison the subject of  the  realm,               unless by the express provision of some Act               of  Parliament.  These  proceedings  are   not               enrolled or recorded." In  Words and Phrases (Permanent Edition) Vol. 10 page  429, "Court of Record" is defined as under:               "Court  of  Record is a court where  acts  and               judicial proceedings are enrolled in parchment               for a perpetual memorial and testimony,  which               rolls  are called the "record" of  the  court,               and are of such high and supereminent authori-               ty that their truth is not to be questioned." Halsbury’s Laws of England Vol. 10 page 319, states:               "Another manner of division is into courts  of               record  and  courts  not  of  record.  Certain               Courts are expressly declared by statute to be               courts  of record. In the case of  courts  not               expressly declared to be courts of record, the               answer  to the question whether a court  is  a               court  of  record seems to depend  in  general               upon whether it has power to fine or imprison,               by  statute  or  otherwise,  for  contempt  of               itself  or other substantive offences;  if  it               has such power, it seems that it is a court of               record........   proceedings  of  a  Court  of               record  preserved in its archives  are  called               records,  and are conclusive evidence of  that               which is recorded therein."     In England a superior court of record has been exercised power  to indict a person for the contempt of its  authority and  also for the contempt of its subordinate  and  inferior courts in a summary manner 972 without  the  aid  and assistance of Jury.  This  power  was conceded  as  a necessary attribute of a superior  court  of record  under Anglo Saxon System of Jurisprudence. The  con- cept  of inherent power of the superior court of  record  to indict  a  person  by summary procedure  was  considered  in detail  in Rex v. Almon, 97 ER 94 commonly known as  Aimon’s case.  In that case King’s Bench initiated  proceedings  for contempt against John Almon, a book-seller for publishing  a libel on the Chief Justice, Lord Mansfied. On behalf of  the contemner  objection  was  taken to  the  summary  procedure followed by the Court. After lengthy arguments judgment  was prepared  by Chief Justice Wilmot holding that a libel on  a Judge  was punishable by the process of  attachment  without the intervention of a Jury, as the summary form of procedure was  founded  upon immemorial usage. The  judgment  prepared with great learning and erudition could not be delivered  as the proceedings were dropped following the change of Govern- ment. After long interval Wilmot’s judgment was published in 1802.  The  judgment proceeded on the  assumption  that  the superior  Common Law Courts did have the power to  indict  a person for contempt of court, by following a summary  proce- dure  on  the  principle that this power  was  ’a  necessary incident to every court of justice’. Undelivered judgment of Wilmot, J. has been subject of great controversy in England’ and  Sir John Fox has severely criticised Almon’s  case,  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 51  

his celebrated book "The History of Contempt of Court’,  The Form  of Trial and Mode of Punishment: In spite  of  serious criticism  of  the judgment of Wilmot, J.  the  opinion  ex- pressed  by him has all along been followed by  the  English and Commonwealth Courts. In Rainy v. The Justices of  Seirra Leone,  8 Moors PC 47 at 54 on an application for  leave  to appeal  against the order of the Court of Seirra  Leone  for contempt of court, the Privy Council upheld the order on the ground  that  the  court of Seirra Leone being  a  Court  of Record was the sole and exclusive judge of what amounted  to contempt of court.     In India, the courts have followed the English  practice in  holding  that a court of record has power  of  summarily punishing  contempt  of  itself as well  as  of  subordinate courts.  In Surendra Nath Banerjee v. The Chief Justice  and Judges  of the High Court at Fort William in Bengal, ILR  to Calcutta  109 the High Court of Calcutta in  1883  convicted Surendra  Nath  Banerjee, who was Editor and  Proprietor  of Weekly newspaper for contempt of court and sentenced him  to imprisonment for two months for publishing libel  reflecting upon  a Judge in his judicial capacity. On appeal the  Privy Council upheld the order of the High Court and observed that the High Courts in Indian Presidencies were superior  courts of record, and the powers of the High 973 Court  as superior courts in India are the same as  in  Eng- land.  The  Privy Council further held that  by  common  law every  court of record was the sole and exclusive  judge  of what  amounts  to  a contempt of  court.  In  Sukhdev  Singh Sodhi’s  case this Court considered the origin, history  and development  of  the concept of inherent jurisdiction  of  a court of record in India. The Court after considering  Privy Council  and High Courts decisions held that the High  Court being  a  court of record has inherent power to  punish  for contempt of subordinate courts. The Court further held  that even after the codification of the law of contempt in  India the High Court’s jurisdiction as a court of record to initi- ate  proceedings  and  take seisin of  the  matter  remained uneffected by the Contempt of Courts Act, 1926.     Mr. Nariman contended that even if the Supreme Court  is a  court of record, it has no power to take action  for  the contempt  of a Chief Judicial Magistrate’s court as  neither the Constitution nor any statutory provision confer any such jurisdiction  or power on this Court. He further urged  that so  far  as  the High Court is concerned, it  has  power  of judicial and administrative superintendence over the  subor- dinate  courts and further Section 15 of the  Act  expressly confers  power  of  the High Court to take  action  for  the contempt of subordinate courts. This Court being a court  of record has limited jurisdiction to take action for  contempt of  itself under Article 129 of the Constitution, it has  no jurisdiction to indict a person for the contempt of subordi- nate or inferior courts.     The  question  whether  in the absence  of  any  express provision a Court of Record has inherent power in respect of contempt of subordinate or inferior courts, has been consid- ered by English and Indian Courts. We would briefly refer to some  of  those  decisions. In the leading case  of  Rex  v. Parke, [1903] 2 K.B. 432 at 442. Wills, J. observed:               "This  Court exercises a vigilant  watch  over               the  proceedings of inferior courts  and  suc-               cessfully  prevents them from usurping  powers               which they do not possess, or otherwise acting               contrary to law. It would seem almost a  natu-               ral corollary that it should possess  correla-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 51  

             tive powers of guarding them against  unlawful               attacks and interferences with their independ-               ence on the part of others." In King v. Davies, [1906] 1 K.B. 32. Wills, J. further  held that  the Kings Bench being a court of record  must  protect the inferior courts 974 from  unauthorised  interference,  and this  could  only  be secured  by    action  of the Kings Bench  as  the  inferior courts  have  no power to protect themselves  and  for  that purpose  this power is vested in superior court  of  record. Since the Kings Bench is the custos morum of the kingdom  it must  apply  to  it with the necessary  adaptations  to  the altered  circumstances  of  the present day  to  uphold  the independence  of the judiciary. The principle laid  down  in Rex  v. Davies, was followed in King v. Editor of the  Daily Mail, [1921] 2 KB 733 where it was held that the High  Court as a court of record has inherent jurisdiction to punish for contempt  of  a court martial which was an  inferior  court. Avory, J. observed:               "The result of that judgment (Rex v. Davies  )               is to show that wherever this Court has  power               to  correct  an inferior court,  it  also  has               power to protect that court by punishing those               who  interfere  with  Due  administration   of               ,justice in their court." In Attorney--General v. B.B.C., [1980] 3 ALR 16 1 the  House of Lords proceeded on the assumption that a court of  record possesses  protective  jurisdiction to indict a  person  for interference  with  the  administration of  justice  in  the inferior  courts  but it refused to indict as it  held  that this protection is available to a court exercising  judicial power  of  the State and not to a Tribunal even  though  the same may be inferior to the court of record. These  authori- ties  show  that in England the power of the High  Court  to deal  with the contempt of inferior court was based  not  so much  on its historical foundation but on the  High  Court’s inherent jurisdiction being a court of record having  juris- diction to correct the orders of those courts.      In  India  prior to the enactment of  the  Contempt  of Courts  Act, 1926, High Court’s jurisdiction in  respect  of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts  in the  absence of statutory provision exercised power of  con- tempt  to protect the subordinate courts on the  premise  of inherent  power of a Court of Record. Madras High  Court  in the case of Venkat Rao, 21 Madras Law Journal 832 held  that it  being a court of record had the power to deal  with  the contempt  of  subordinate courts. The Bombay High  Court  in Mohandas Karam Chand Gandhi’s, [1920] 22 Bombay Law Reporter 368 case held that the High Court possessed the same  powers to punish the contempt of subordinate courts as the Court of the King’s Bench Division had by virtue of the Common Law of England. Similar view was expressed by the 975  Allahabad  High  Court in Abdul Hassan Jauhar’s,  case  AIR 1926  Allahabad 623 and Shantha Nand Gir  v.  Basudevanand., AIR  1930 Allahabad 225 (FB). In Abdul Hassan Jauhar’s  case (supra)  a  Full  Bench of the Allahabad  High  Court  after considering the question in detail held:               "The  High Court as a court of record  and  as               the  protector of public justice  through  out               its  jurisdiction has power to deal with  con-               tempts’ directed against the administration of               justice, whether those contempts are committed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 51  

             in face of the court or outside it, and  inde-               pendently  or whether the particular court  is               sitting  or  not sitting,  and  whether  those               contempts   relate  to  proceedings   directly               concerning  itself or whether they  relate  to               proceedings concerning an inferior court,  and               in  the latter case whether those  proceedings               might  or might not at some stage come  before               the High Court." Similar view was taken by the Nagpur and Lahore High  Courts in  Mr. Hirabai v. Mangal Chand, AIR 1935 Nagpur 16;  Harki- shan Lal v. Emperor, AIR 1937 Lahore 197 and the Oudh  Chief Court  took the same view in Mohammad Yusuf v. Imtiaz  Ahmad Khan., AIR 1939 Oudh 13 1. But, the Calcutta High Court took a contrary view in Legal Remembrancer v. Motilal Ghosh,  ILR 41  Cal. 173 holding that there was no such  inherent  power with the High Court.     Judicial conflict with regard to High Court’s power with regard to the contempt of subordinate court was set at  rest by  the  Contempt of Courts Act 1926. The Act  resolved  the doubt  by recognising to the power of High Courts in  regard to  contempt  of subordinate courts, by enacting  Section  2 which expressly stated that the High Courts will continue to have  jurisdiction  and  power with regard  to  contempt  of subordinate  courts as they exercised with regard  to  their own  contempt.  Thus the Act reiterated and  recognised  the High  Court’s power as a court of record for  taking  action for contempt of courts subordinate to them. The only  excep- tion to this power, was made in subsection (3) of Section  2 which provided that no High Court shall take cognizance of a contempt  alleged  to have been committed in  respect  of  a court  subordinate to it where such contempt is  an  offence punishable under the Indian Penal Code. Section 3 of the Act restricted the punishment which could be passed by the  High Court.  Since doubt was raised whether the High Court  as  a court  of  record  could punish contempt of  itself  and  of courts  subordinate to it if contempt was committed  outside its  territorial  jurisdiction, the Parliament  enacted  the Con- 976 tempt  of Courts Act 1952 removing the doubt. Section  3  of the  1952  Act again reiterated and  reaffirmed  the  power, authority  and jurisdiction of the High Court in respect  of contempt  of  courts subordinate to     it,  as  it  existed prior  to the enactment. It provided that every  High  Court shall  have  and exercise the same jurisdiction,  power  and authority,  in accordance with the same procedure and  prac- tice  in respect of contempt of courts subordinate to it  as it  has and exercise in respect of contempt of itself.  Sec- tion  5 further expanded the jurisdiction of the High  Court for  indicting  a person in respect  of  contempt  committed outside the local limits of its jurisdiction. The Parliamen- tary  legislation did not confer any new or fresh  power  or jurisdiction  on the High Courts in respect of  contempt  of courts subordinate to it, instead it reaffirmed the inherent power of a Court of Record, having same jurisdiction,  power and authority as it has been exercising prior to the  enact- ments. The effect of these statutory provisions was  consid- ered  by this Court in Sukhdev Singh Sodhi’s case,  and  the Court  held  that contempt jurisdiction was  a  special  one inherent  in the very nature of a court of record  and  that jurisdiction  and power remained unaffected even  after  the enactment of 1926 Act as it did not confer any new jurisdic- tion or create any offence, it merely limited the amount  of punishment which could be awarded to a contemner. The juris-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 51  

diction of the High Court to initiate proceedings or  taking action for contempt of its subordinate courts remained as it was  prior to the 1926 Act. In R.L. Kapur v. State of  Tamil Nadu,  AIR  1972 SC 858 the Court again emphasised  that  in view of Article 215 of the Constitution, the High Court as a court  of record possesses inherent power and  jurisdiction, which is a special one, not arising or derived from Contempt of  Courts Act and the provisions of Section 3 of 1926  Act, do not affect that power or confer a new power or  jurisdic- tion. The Court further held that in view of Article 215  of the  Constitution, no law made by a Legislature  could  take away  the  Jurisdiction conferred on the High Court  nor  it could confer it afresh by virtue of its own authority.     The English and the Indian authorities are based on  the basic  foundation  of inherent power of a Court  of  Record, having jurisdiction to correct the judicial orders of subor- dinate courts. The Kings Bench in England and High Courts in India  being  superior Court of Record and  having  judicial power  to correct orders of subordinate courts  enjoyed  the inherent  power  of  contempt  to  protect  the  subordinate courts.  The  Supreme Court being a Court  of  Record  under Article  129 and having wide power of  judicial  supervision over  all the courts in the country, must possess and  exer- cise  similar jurisdiction and power as the High Courts  had prior to Contempt Legislation in 1926. Inherent 977 powers of a superior Court of Record have remained unaffect- ed even after Codification of Contempt Law. The Contempt  of Courts  Act 1971 was enacted to define and limit the  powers of  courts in punishing contempts of courts and to  regulate their  procedure in relation thereto. Section 2 of  the  Act defines  contempt  of  court  including  criminal  contempt. Sections  5,  6, 7, 8, and 9 specify matters  which  do  not amount  to  contempt  and the defence which  may  be  taken. Section  10  which  relates to the power of  High  Court  to punish  for contempt of subordinate courts. Section 10  like Section  2 of 1926 Act and Section 3 of 1952 Act  reiterates and reaffirms the jurisdiction and power of a High Court  in respect  of its own contempt and of subordinate courts.  The Act  does not confer any new jurisdiction instead  it  reaf- firms  the  High Courts power and  jurisdiction  for  taking action for the contempt of itself as well as of its subordi- nate courts. We have scanned the provisions of the 1971 Act, but  we  find no provision therein  curtailing  the  Supreme Court’s power with regard to contempt of subordinate courts, Section  15  on  the other hand  expressly  refers  to  this Court’s power for taking action for contempt of  subordinate courts. Mr. Nariman contended that under Section 15  Parlia- ment  has exclusively conferred power on the High  Court  to punish for the contempt of subordinate courts. The  legisla- tive  intent being clear, this Court has no power under  its inherent jurisdiction or as a court of record under  Article 129 of the Constitution with regard to contempt of  subordi- nate courts. Section 15 of the Act reads as under:               "15. Cognizance of criminal contempt in  other               cases--(1) 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 a motion made               by--               (a) the Advocate-General, or                        (b)  any other person, with the  con-               sent in writing of the Advocate-General (or)                        (c) in relation to the High Court for               the Union Territory of Delhi, such Law Officer

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 51  

             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.               (2)  In the case of any criminal  contempt  of               subordinate               978               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.               (3) Every motion or reference made under  this               section  shall specify the contempt  of  which               the person charged is alleged to be guilty.               Explanation--In  this section, the  expression               "Advocate General" means-                          (a)  in  relation  to  the  Supreme               Court,  the Attorney General or the  Solicitor               General;                          (b) in relation to the High  Court,               the  Advocate General of the State or  any  of               the  States for which the High Court has  been               established;                          (c)  in relation to the Court of  a               Judicial Commissioner, such Law Officer as the               Central Government may, by notification in the               official Gazette, specify in this behalf.     Under  sub-section (1) the Supreme Court and High  Court both have power to take cognizance of criminal contempt  and it  provides three modes for taking cognizance. The  Supreme Court and the High Court both may take cognizance on its own motion or on the motion made by the Advocate-General or  any other  person with the consent in writing of  the  Advocate- General. Sub-section (2) provides that in case of any crimi- nal  contempt of 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, and in,  relation to a Union Territory, on a motion made by any officer as may be  specified by the Government. Thus Section 15  prescribes modes for taking cognizance of criminal contempt by the High Court  and Supreme Court, it is not a substantive  provision conferring power or jurisdiction on the High Court or on the Supreme  Court  for taking action for the  contempt  of  its subordinate  courts. The whole object of prescribing  proce- dural  modes of taking cognizance in Section 15 is to  safe- guard  the valuable time of the’ High Court and the  Supreme Court  being wasted by frivolous complaints of  contempt  of court.  Section 15(2)   does not restrict the power  of  the High Court to take cognizance of the 979 contempt  of  itself or of a subordinate court  on  its  own motion  although apparently the Section does not say so.  In S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v. Vinay Chandra Misra, [1981] 2 SCR 331 this Court held that Section 15  prescribed procedure for taking cognizance and  it  does not  affect the High Court’s suo moto power to  take  cogni- zance and punish for contempt of subordinate courts.     Mr.  Nariman urged that under Entry 77 of List I of  the VIIth Schedule the Parliament has legislative competence  to make  law curtailing the jurisdiction of Supreme  Court.  He further urged that Section 15 curtails the inherent power of this  Court with regard to contempt of  subordinate  courts.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 51  

Entry  77  of List 1  states:  "Constitution,  organisation, jurisdiction  and  powers of the  Supreme  Court  (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court." This  Entry. read  with  Article 246 confers power on the  Parliament  to enact  law with respect to the  constitution,  organisation, jurisdiction  and powers of the Supreme Court including  the contempt of this court. The Parliament is thus competent  to enact  a  law relating to the powers of Supreme  Court  with regard  to  ’contempt of itself’ such a  law  may  prescribe procedure  to  be  followed and it may  also  prescribe  the maximum punishment which could be awarded and it may provide for  appeal and for other matters. But the Central  Legisla- ture has no legislative competence to abridge or  extinguish the  jurisdiction  or power conferred on  this  Court  under Article  129 of the Constitution. The Parliament’s power  to legislate in relation to law of contempt relating to Supreme Court  is limited, therefore the Act does not  impinge  upon this  Court’s power with regard to the contempt of  subordi- nate courts under Article 129 of the Constitution.     Article 129 declares the Supreme Court a court of record and  it further provides that the Supreme Court  shall  have all the powers of such a court including the power to punish for  contempt of itself (emphasis supplied). The  expression used in Article 129 is not restrictive instead it is  exten- sive in nature. If the Framers of the Constitution  intended that the Supreme Court shall have power to punish for  con’- tempt  of itself only, there was no necessity for  inserting the  expression "including the power to punish for  contempt of  itself’. The Article confers power on the Supreme  Court to punish for contempt of itself and in addition, it confers some  additional power relating to contempt as would  appear from the expression ’*including". The expression "including" has been interpreted by courts, to extend and widen the 980 scope of power. The plain language of Article clearly  indi- cates  that  this Court as a court of record  has  power  to punish for contempt of itself and also something else  which could  fall within the inherent jurisdiction of a  court  of record. In interpreting the Constitution, it is not  permis- sible to adopt a construction which would render any expres- sion  superfluous or redundant. The courts ought not  accept any  such construction. While construing Article 129, it  is not permissible to ignore the significance and impact of the inclusive  power conferred on the Supreme Court. Since,  the Supreme Court is designed by the Constitution as a court  of record and as the Founding Fathers were aware that a superi- or court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to  it, the expression "including" was deliberately inserted in  the Article. Article 129 recognised the existing inherent  power of  a  court of record in its full plenitude  including  the power  to  punish for the contempt of  inferior  courts.  If Article 129 is susceptible to two interpretations, we  would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and protect the subordinate  judici- ary,  which  forms the very back bone of  administration  of justice.  The subordinate courts administer justice  at  the grass root level, their protection is necessary to  preserve the  confidence of people in the efficacy of Courts  and  to ensure unsullied flow of justice at its base level.     Disputing  the inherent power of this Court with  regard to the contempt of subordinate courts, Mr. Nariman contended that  inherent powers are always preserved, but they do  not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 51  

authorise  a court to invest itself with  jurisdiction  when that jurisdiction is not conferred by law. He urged that the status  of  an  appellate court like High  Court,  does  not enable  the  High Court to claim original  jurisdiction  not vested by law. Similarly, the Supreme Court having appellate jurisdiction under Section 19 of the Contempt of Courts  Act 1971,  cannot invest itself with original  jurisdiction  for contempt  of subordinate courts. He placed reliance  on  the decision  of this Court in Raja Soap Factory & Ors. v.  S.P. Shantharaj & Ors., [1965] 2 SCR 800. We are unable to accept the  contention. In Raja Soap Factory’s case  (supra),  High Court had entertained an original suit and issued injunction under  the  Trade and Merchandise Marks  Act  1958  although under the Act the suit was required to be instituted in  the District  Court. In appeal before this Court, order  of  the High Court was sought to be justified on the ground of  High Court’s  power  of transfer under Section 24 read  with  its inherent power under Section 151 of the Code of Civil Proce- dure. This Court rejected the submission on the ground  that exercise 981 of jurisdiction under Section 24 of Code of Civil  Procedure was conditioned by lawful institution of the proceeding in a subordinate  court of competent jurisdiction,  and  transfer thereof to the High Court. The Court observed that power  to try and dispose of proceedings, after transfer from a  court lawfully-seized of it, does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the  High Court. Referring to the claim of  inherent  powers under Section 151 to justify entertainment of the suit grant of  injunction order, the Court observed that  the  inherent power could be exercised where there is a proceeding lawful- ly  before the High Court, it does not,  however,  authorise the  High Court to invest itself with jurisdiction where  it is  not  conferred by law. The facts  and  circumstances  as available  in the Raja Soap Factory’s case, were quite  dif- ferent  and the view expressed in that case do not have  any bearing  on the inherent power of this Court. In  Rata  Soap Factory’s case there was no issue before the Court regarding the inherent power of a superior court of record instead the entire  case related to the interpretation of the  statutory provisions conferring jurisdiction on the High Court.  Where jurisdiction  is  conferred  on a court by  a  statute,  the extent  of jurisdiction is limited to the extent  prescribed under  the  statute- But there is no such  limitation  on  a superior court of record in matters relating to the exercise of constitutional powers. No doubt this Court has  appellate jurisdiction under Section 19 of the Act, but that does  not divest  it  of its inherent power under Article 129  of  the Constitution- The conferment of appellate power on the court by a statute does not and cannot affect the width and ampli- tude  of inherent powers of this Court under Article 129  of the Constitution.     We have already discussed a number of decisions  holding that  the  High Court being a court of record  has  inherent power  in  respect of contempt of itself as well as  of  its subordinate courts even in the absence of any express provi- sion in any Act. A fortiori the Supreme Court being the Apex Court  of  the country and superior court of  record  should possess the same inherent jurisdiction and power for  taking action for contempt of itself, as well as, for the  contempt of  subordinate and inferior courts. It was  contended  that since  High  Court  has power of  superintendence  over  the subordinate  courts under Article 227 of  the  Constitution, therefore,  High Court has power to punish for the  contempt

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 51  

of subordinate courts. Since the Supreme Court has no super- visory jurisdiction over the High Court or other subordinate courts,  it does not possess powers which High  Courts  have under Article 215. This submission is misconceived.  Article 227  confers supervisory jurisdiction on the High Court  and in exercise of that 982 power High Court may correct judicial orders of  subordinate courts, in addition to that, the High Court has  administra- tive  control over the subordinate courts.  Supreme  Court’s power  to correct judicial orders of the subordinate  courts under Article 136 is much wider and more effective than that contained under Article 227. Absence of administrative power of  superintendence,  over the High  Court  and  subordinate court  does not affect this Court’s wide power  of  judicial superintendence of all courts in India. Once there is  power of judicial superintendence, all the Courts whose orders are amenable  to correction by this Court would  be  subordinate courts  and  therefore  this Court  also  possesses  similar inherent power as the High Court has under Article 215  with regard to the contempt of subordinate courts. The  jurisdic- tion  and  power of a superior Court of  Record  ’to  punish contempt  of  subordinate  courts was  not  founded  on  the court’s administrative power of superintendence, instead the inherent  jurisdiction  was conceded to  superior  Court  of Record  on the premise of its judicial power to correct  the errors of subordinate Courts.     Mr. Nariman urged that assumption of contempt  jurisdic- tion  with  regard to contempt of subordinate  and  inferior courts on the interpretation of Article 129 of the Constitu- tion  is  foreclosed by the decisions of Federal  Court,  he placed  reliance-on the decisions of Federal Court  in  K.L. Gauba  v.  The Hon’ble the Chief Justice and Judges  of  the High Court of Judicature at Lahore & Anr., AIR 1942 FC 1 and Purshottam Lal Jaitly v. The King Emperor., [1944] FCR  364. He  urged that this Court being successor to  Federal  Court was bound by the decisions of the Federal Court under  Arti- cle 374(2) of the Constitution. Mr. Sorabji, learned  Attor- ney-General seriously contested the proposition, he contend- ed  that  there is a marked difference between  the  Federal Court and this Court, former being established by a  statute with  limited  jurisdiction  while this Court  is  the  Apex constitutional court with unlimited jurisdiction, therefore, the  Federal Court decisions are not binding on this  Court. He  urged that Article 374(2) does not bind this Court  with the decisions of the Federal Court, instead it provides  for meeting  particular situation during transitory  period.  In the  alternative  learned Attorney-General  urged  that  the aforesaid two decisions of Federal Court in Gauba’s case and Jaitly’s  case do not affect the jurisdiction and  power  of this Court with regard to contempt of subordinate and  infe- rior  courts as the Federal Court had no occasion to  inter- pret  any provision like Article 129 of the Constitution  in the aforesaid decisions. Article 374 made provision for  the continuance  of  Federal Court Judges as the Judges  of  the Supreme Court on the commencement of the Constitution and it also made 983 provisions  for transfer of the proceedings pending  in  the Federal  Court to the Supreme Court. Clause (2)  of  Article 374 is as under:               "All suits, appeals and proceedings, civil  or               criminal, pending in the Federal Court at  the               commencement of this Constitution shall  stand               removed to the Supreme Court, and the  Supreme

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 51  

             Court  shall  have jurisdiction  to  hear  and               determine  the  same, and  the  judgments  and               orders of the Federal Court delivered or  made               before  the commencement of this  Constitution               shall  have  the same force and effect  as  if               they had been delivered or made by the Supreme               Court." On  the  promulgation  of the  Constitution,  Federal  Court ceased to exist and the Supreme Court was set up and with  a view  to  meet the changed situation, provisions had  to  be made  with regard to the matters pending before the  Federal Court. Article 374(2) made provision for two things, firstly it directed the transfer of all suits, appeals and  proceed- ings, civil or criminal pending before the Federal Court  to the Supreme Court. Secondly, it provided that any orders and judgments delivered or made by the Federal Court before  the commencement  of the Constitution shall have the same  force and  effect as if those orders or judgments had been  deliv- ered  or made by the Supreme Court. This was  necessary  for the continuance of the proceedings before the Supreme Court. The  Federal Court may have passed interlocutory orders,  it may  have delivered judgments in the matters pending  before it  and in order to maintain the continuance of validity  of orders  or  judgments of Federal Court a legal  fiction  was created  stating  that those judgments and orders  shall  be treated as of Supreme Court. Article 374(2) is in the nature of  transitory provision to meet the exigency of the  situa- tion  on the abolition of the Federal Court and  setting  of the  Supreme Court. There is no provision in  the  aforesaid Article  to  the effect that the decisions  of  the  Federal Court  shall be binding on the Supreme Court.  Similar  view was taken by the Allahabad High Court in Om Prakash Gupta v. The  United Provinces, AIR 195 1 Allahabad 205 para  43  and Bombay  High  Court in State of Bombay  v.  Gajanan  Mahadev Badley.,  AIR  1954  Bombay 352 para 14.  The  decisions  of Federal  Court  and the Privy Council made before  the  com- mencement of the Constitution are entitled to great  respect but those decisions are not binding on this Court and it  is always  open to this Court to take a different view. In  The State  of  Bihar v. Abdul Majid, [1954] SCR 786 at  795  and Shrinivas  Krishnarao Kango v. Narayan Devji Kango and  Ors. [1955] 1 SCR 1 at 24 and 25. Federal 984 Court  decisions were not followed by this Court. There  is, therefore,  no  merit in the contention that this  Court  is bound by the decisions of the Federal Court.     But  even  otherwise the decisions of Federal  Court  in K.L.  Gauba’s case and Purshottam Lal Jaitly’s case have  no bearing on the interpretation of Article 129 of the  Consti- tution. In K.L. Gauba’s case the facts were that K.L. Gauba, an Advocate of Lahore High Court was involved in  litigation of various kinds including a case connected with his  insol- vency.  A  Special  Bench of the High Court  of  Lahore  was constituted to decide his matters. His objection against the sitting  of  a particular Judge on the  Special  Bench,  was rejected. His application for the grant of certificate under Section  205 of the Government of India Act to  file  appeal against the order of the High Court before the Federal Court was refused. Gauba filed a petition before the Federal Court for  the issue of direction for the transfer of his case  to Federal  Court from High Court. The Federal Court held  that appeal against the order of the High Court refusing to grant certificate was not maintainable. Gauba argued that the High Court  was  guilty of contempt of Federal Court  as  it  had deliberately  and maliciously deprived the  Federal  Court’s

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 51  

jurisdiction  to hear the appeal against its orders.  Gwyer, CJ. rejected the contention in the following words:               "We  have had occasion more than once to  con-               strue  the provisions of Section 205,  and  we               repeat  what  we have already  said,  that  no               appeal  lies to this Court in the  absence  of               the certificate prescribed by that Section:  a               certificate is the necessary condition  prece-               dent  to every appeal. We cannot question  the               refusal of a High Court to grant a certificate               or investigate the reasons which have prompted               the refusal; we cannot even inquire what those               reasons  were,  if the High  Court  has  given               none.  The matter is one exclusively  for  the               High Court; and, as this Court observed in  an               earlier  case, it is not for us  to  speculate               whether  Parliament  omitted per  incuriam  to               give a right of appeal against the refusal  to               grant a certificate or trusted the High Courts               to  act with reasonableness and  impartiality:               1939  FCR 13 at page 16. The  jurisdiction  of               the Court being thus limited by the statute in               this  way, how could it be extended by a  High               Court acting even perversely or maliciously in               withholding the certificate." In Purshottam Lal Jaitly’s case an application purporting to 985 invoke  extraordinary original jurisdiction of  the  Federal Court under Section 2 10(2) of the Government of India  Act, 1935  was made with a prayer that the Federal  Court  should itself  deal  directly with an alleged contempt of  a  Civil Court,  subordinate to the High Court. By a short order  the Court  rejected  the  application placing  reliance  on  its decision in K.L. Gauba’s case. The Court observed as under:               "The  expression  "any contempt of  court"  in               that  provision must be held to mean "any  act               amounting to contempt of this Court". This was               the view expressed in Gauba’s case and we have               been  shown no reason for departing from  that               view.  Under  the Indian Law the  High  Courts               have power to deal with contempt of any  Court               subordinate  to them as well as with  contempt               of  the  High Courts. It could not  have  been               intended  to  confer on the  Federal  Court  a               concurrent  jurisdiction in such matters.  The               wider  construction  may conceivably  lead  to               conflicting  judgments and to other  anomalous               con sequences." In  the  case of K.L. Gauba the Federal Court  found  itself helpless in the matter as the Government of India Act,  1935 did  not  confer  any power on it  to  entertain  an  appeal against  the order of High Court refusing to grant  certifi- cate.  The decision has no bearing on the question which  we are concerned. In Purshottam Lal Jaitly’s case the  decision turned  on the interpretation of Section 210(2) of the  1935 Act.  Section  2 10 made provisions for the  enforcement  of decrees and orders of Federal Court. Sub-section (2) provid- ed that Federal Court shall have power to make any order for the  purpose of securing the attendance of any  person,  the discovery  or production of any documents or the  investiga- tion  or  "punishment of any contempt of court",  which  any High  Court  has  power to make as  respects  the  territory within its jurisdiction, and further the Federal Court shall have  power to award costs and its orders shall be  enforce- able  by all courts. While interpreting Section 2 10(2)  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 51  

Federal  Court held that it had no power to deal  with  con- tempt of any court subordinate to High Court and it  further observed that the wider constructions may lead to  conflict- ing judgments and to other anomalous consequences. It is not necessary for us to consider the correctness of the  opinion expressed  by the Federal Court, as in our view the  Federal Court  was a court of limited jurisdiction, it was  not  the Apex  Court like this Court as against the  judgment,  order and  decree  of the Federal Court appeals lay to  the  Privy Council. The Federal Court exercised limited jurisdiction as conferred on it by the 1935 Act. The question regarding  the inherent power of the 986 Superior  Court  of  Record in respect of  the  Contempt  of Subordinate court was neither raised nor discussed in afore- said decisions. The Federal Court observed that if the  High Court  and the Federal Court both have concurrent  jurisdic- tion in contempt matters it could lead to conflicting  judg- ments  and anomalous consequences, that may be so under  the Government  of India Act as the High Court and  the  Federal Court  did not have concurrent jurisdiction, but  under  the Constitution,  High  Court and the Supreme Court  both  have concurrent jurisdiction in several matters, yet no anomalous consequences follow.     While  considering the decision of Federal Court, it  is necessary  to  bear in mind that the Federal Court  did  not possess  wide powers as this Court has under  the  Constitu- tion.  There are marked differences in the constitution  and jurisdiction  and the amplitude of powers exercised  by  the two  courts.  In addition to civil  and  criminal  appellate jurisdiction,  this Court has wide powers under Article  136 over all the courts and Tribunals in the country. The Feder- al  Court had no such power, instead it had appellate  power but that too could be exercised only on a certificate issued by  the High Court. The Federal Court was a court of  record under  Section  203 but it did not possess  any  plenary  or residuary appellate power over all the courts functioning in the  territory  of India like the power  conferred  on  this Court under Article 136 of the Constitution, therefore,  the Federal  Court  had no judicial control  or  superintendence over subordinate courts.     Advent of freedom, and promulgation of Constitution have made drastic changes in the administration of justice neces- sitating  new  judicial approach. The Constitution  has  as- signed  a  new role to the Constitutional Courts  to  ensure rule  of law in the country. These changes have brought  new perseptions.  In  interpreting Constitution,  we  must  have regard  to the social, economic and political changes,  need of  the  community and the independence  of  judiciary.  The court cannot be a helpless spectator, bound by precedents of colonial  days which have lost relevance. Time has  come  to have a fresh look to the old precedents and to lay down  law with the changed perceptions keeping in view the  provisions of the Constitution. "Law", to use the words of Lord  Coler- idge,  "grows; and though the principles of law  remain  un- changed,  yet  their application is to be changed  with  the changing  circumstances  of the  time."  The  considerations which weighed with the Federal Court in rendering its  deci- sion  in Guaba’s and Jaitley’s case are no more relevant  in the context of the constitutional provisions. 987      Since this Court has power of judicial  superintendence and control over all the courts and Tribunals functioning in the entire territory of the country, it has a  corresponding duty  to  protect  and safeguard the  interest  of  inferior

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 51  

courts  to ensure the flow of the stream of justice  in  the courts without any interference or attack from any  quarter. The  subordinate  and inferior courts do not  have  adequate power under the law to protect themselves, therefore, it  is necessary  that  this court should protect them.  Under  the constitutional scheme this court has a special role, in  the administration  of  justice and the powers conferred  on  it under  Articles  32, 136, 14 1 and 142 form  part  of  basic structure of the Constitution. The amplitude of the power of this  Court under these Articles of the Constitution  cannot be curtailed by law made by Central or State Legislature. If the contention raised on behalf of the contemners is accept- ed,  the courts all over India will have no protection  from this  Court. No doubt High Courts have power to persist  for the contempt of subordinate courts but that does not  affect or  abridge the inherent power of this court  under  Article 129.  The  Supreme Court and the High  Court  both  exercise concurrent  jurisdiction under the constitutional scheme  in matters relating to fundamental rights under Article 32  and 226 of the Constitution, therefore this Court’s jurisdiction and power to take action for contempt of subordinate  courts would  not  be inconsistent to  any  constitutional  scheme. There may be occasions then attack on Judges and  Magistrate of  subordinate courts may have wide  repercussions  through out  the country, in that situation it may not  be  possible for  a High Court to contain the same, as a result of  which the administration of justice in the country may be  paraly- sed,  in  that situation the Apex Court  must  intervene  to ensure smooth functioning of courts. The Apex Court is  duty bound  to  take effective steps  within  the  constitutional provisions  to  ensure  a free and  fair  administration  of justice  through out the country, for that purpose  it  must wield  the  requisite power to take action for  contempt  of subordinate courts. Ordinarily, the High Court would protect the subordinate court from any onslaught on their  independ- ence, but in exceptional cases, extra ordinary situation may prevail  affecting the administration of public  justice  or where  the  entire  judiciary is affected,  this  Court  may directly take cognizance of contempt of subordinate  courts. We  would like to strike a note of caution that  this  Court will sparingly excercise its inherent power in taking cogni- zance  of the contempt of subordinate courts, as  ordinarily matters  relating to contempt of subordinate courts must  be dealt with by the High Courts. The instant case is of excep- tional  nature,  as the incident created a  situation  where functioning  of the subordinate courts all over the  country was   adversely affected, and the administration of  justice was paralysed, 988 therefore, this Court took cognizance of the matter.     Mr.  Nariman contended that in our country there  is  no court of universal jurisdiction, as the jurisdiction of  all courts  including the Supreme Court is limited. Article  129 as well as the Contempt of Courts Act 1971 do not confer,any express  power to this Court with regard to contempt of  the subordinate courts, this Court cannot by construing  Article 129 assume jurisdiction in the matter which is not entrusted to it by law. He placed reliance on the observations of this Court  in Naresh Shridhar Mirajkar & Ors. v. State of  Maha- rashtra & Ors., [1966] 3 SCR 744 at 77 1. We have  carefully considered  the  decision  but we find  nothing  therein  to support  the  contention  of Mr. Nariman. It  is  true  that courts constituted under a law enacted by the Parliament  or the  State  Legislature have limited jurisdiction  and  they cannot  assume jurisdiction in a matter, not  expressly  as-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 51  

signed to them, but that is not so in the case of a superior court  of  record constituted by the  Constitution.  Such  a court  does not have a limited jurisdiction instead  it  has power to determine its own jurisdiction. No matter is beyond the jurisdiction of a superior court of record unless it  is expressly  shown to be so, under the provisions of the  Con- stitution.  In the absence of any express provision  in  the Constitution  the  Apex court being a court  of  record  has jurisdiction in every matter and if there be any doubt,  the Court  has  power  to determine its  jurisdiction.  If  such determination  is  made  by High Court, the  same  would  be subject to appeal to this Court, but if the jurisdiction  is determined by this Court it would be final. Halsbury’s  Laws of England Vol. 10 Para 7 13, states:               "Prima facie no matter is deemed to be  beyond               the jurisdiction of a superior court unless it               is expressly shown to be so, while nothing  is               within  the jurisdiction of an inferior  court               unless  it is expressly shown on the  face  of               the proceedings that the particular matter  is               within   the  cognizance  of  the   particular               court." The  above  principle of law was approved by this  Court  in Special  Reference No. I of 1964 [1965] 1 SCR 413 at 499  in holding  that  the,  High Court being a  superior  court  of record  was  entitled to determine its own  jurisdiction  in granting  interim bail to a person against whom  warrant  of arrest  had been issued by the Speaker of a  State  Legisla- ture. In Mirajkar’s case (supra) this Court again reiterated the  principles  that a superior court of  record  unlike  a court of limited jurisdiction is entitled to determine about its own jurisdiction. In Ganga Bishan v. Jai Narain,  [1986] 1 SCC 75 the Court emphasised that the 989 Constitution  has  left  it to the  judicial  discretion  of Supreme  Court to decide for itself the scope and limits  of its  jurisdiction in order to render substantial justice  in matters coming before it. We therefore hold that this  Court being  the  Apex Court and a superior court  of  record  has power to determine its jurisdiction under Article 129 of the Constitution,  and as discussed earlier it has  jurisdiction to initiate or entertain proceedings for contempt of  subor- dinate courts. This view does not run counter to any  provi- sion of the Constitution.     Constitutional hurdles over, now we would revert back to the incident which has given rise to these proceedings.  The genesis  of  the  unprecedented attack  on  the  subordinate judiciary arose out of confrontational attitude of the local police  against the Magistracy in Kheda. The Chief  Judicial Magistrate is head of the Magistracy in the District.  Under the provisions of Chapter XII of the Code of Criminal Proce- dure,  1973, he exercises control and supervision  over  the investigating  officer.  He is-an immediate officer  on  the spot  at the lower rung of the administration of justice  of the  country  to  ensure that the Police which  is  the  law enforcing machinery acts according to law m investigation of crimes  without indulging into excesses and causing  harass- ment to citizens. The main objective of Police is to  appre- hend offenders, to investigate crimes and to prosecute  them before  the courts and also to prevent commission  of  crime and  above all to ensure law and order to protect the  citi- zens  life  and property. The law enjoins the Police  to  be scrupulously  fair to the offender and the Magistracy is  to ensure fair investigation and fair trial to an offender. The purpose  and object of Magistracy and Police are  complemen-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 51  

tary to each other. It is unfortunate, that these objectives have remained unfulfilled even after 40 years of our Consti- tution.  Aberrations of Police officers and Police  excesses in  dealing with the law and order situation have  been  the subject of adverse comments from this court as well as  from other courts but it has failed to have any corrective effect on it. The Police has power to arrest a person even  without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the Police to take maximum care in exercising that power. The Police must bear in mind, as  held  by this Court that if a person is arrested  for  a crime, his constitutional and fundamental rights must not be violated.  See: Sunil Batra v. Delhi Administration &  Ors., [1978] 4 SCC 494. In Prem Shankar Shukla’s (supra) case 526, this  Court  considered the question of placing  a  prisoner under  handcuff  by the Police. The Court declared  that  no prisoner shall be handcuffed or lettered routinely or merely for  the convenience of custody or escort. The Court  empha- sised  that  the Police did not enjoy  any  unrestricted  or unlimited 990 power  to handcuff an arrested person. If having  regard  to the  circumstances  including  the  conduct,  behaviour  and character of a prisoner, there is reasonable apprehension of prisoner’s  escape from custody or disturbance of  peace  by violence, the Police may put the prisoner under handcuff. If a prisoner is handcuffed without there being any  justifica- tion,  it would violate prisoner’s fundamental rights  under Articles  14  and 19 of the Constitution. To  be  consistent with Articles 14 and 19 handcuffs must be the last refuge as there are other ways for ensuring security of a prisoner. In Prem Shankar Shukla’s case, Krishna Iyer, J. observed:               "If today freedom of the ferlorn person  fails               to  the police somewhere tomorrow the  freedom               of  many  may  fall else where  with  none  to               whimper  unless the court process  invigilates               and polices the police before it is too late." The  prophetic words of Krishna Iyer, J. have come  true  as the facts of the present case would show.     In the instant case, Patel, CJM, was assaulted, arrested and  handcuffed by Police Inspector Sharma and other  Police Officers.  The Police Officers were not content  with  this, they  tied him with a thick rope round his arms and body  as if  N.L. Patel was a wild animal. As discussed  earlier,  he was  taken  in that condition to the  hospital  for  medical examination where he was made to sit in varanda exposing him to the public gaze, providing opportunity to the members  of the  public to see that the Police had the power and  privi- lege to apprehend and deal with a Chief Judicial  Magistrate according to its sweet will. What was the purpose of unusual behaviour of the police, was it to secure safety and securi- ty  of N.L. Patel, or was it done to prevent escape  or  any violent  activity  on  his part justifying  the  placing  of handcuffs  and ropes on the body of N.L. Patel. The  Commis- sion  has recorded detailed findings that the object was  to wreck vengeance and to humiliate the CJM who had been polic- ing  the police by this judicial orders. We agree  with  the findings recorded by the Commission that there was no justi- fication  for  this extraordinary and unusual  behaviour  of Police  Inspector Sharma and other Police Officers  although they made an attempt to justify their unprecedented, dehuma- nising behaviour on the ground that Patel was drunk, and  he was behaving in violent manner and if he had not been  hand- cuffed  or tied with ropes, he could have snatched  Sharma’s revolver and killed him. We are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 51  

991 amazed  at the reasons given by Sharma justifying the  hand- cuffs  and  ropes on the body of N.L. Patel. Patel  was  un- armed, he was at the Police Station in a room, there were at least  seven police officials present in the room  who  were fully  armed,  yet,  there was  apprehension  about  Patel’s escape or violent behaviour justifying handcuffs and roping. The justification given by them is flimsy and  preposterous. S.R. Sharma acted in utter disregard of this Court’s  direc- tion in Prem Shankar Shukla’s case. His explanation that  he was  not aware of the decision of this Court is a mere  pre- tence as the Commissioner has recorded findings that Gujarat Government had issued Circular letter to the Police incorpo- rating  the  guide  lines laid down by this  Court  in  Prem Shanker  Shukla’s  case with regard to  the  handcuffing  of prisoner.     What  constitutes  contempt  of court?  The  Common  Law definition  of  contempt of Court is: ’An  act  or  omission calculated  to  interfere  with the  due  administration  of justice.’ (Bowen L.J. in Helmore v. Smith, [1886] 35 Ch.  D. 436 at 455. The contempt of court as defined by the Contempt of  Courts Act, 1971 includes civil and  criminal  contempt. Criminal contempt as defined by the Act: ’Means the publica- tion whether by words, spoken or written, or by signs, or by visible  representations, or otherwise of any matter or  the doing of any other act whatsoever which scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any  court;  or prejudices, or  interferes or  tends  or  to interfere  with, the due course of any judicial  proceeding; or  interferes, or tends to interfere with, or obstructs  or tends  to  obstruct, the administration of  justice  in  any other  manner. The definition of criminal contempt  is  wide enough  to include any act by a person which would  tend  to interfere with the administration of justice or which  would lower the authority of court. The public have a vital  stake in  effective  and orderly administration  of  justice.  The Court has the duty of protecting the interest-of the  commu- nity  in  the due administration of justice and, so,  it  is entrusted  with the power to commit for contempt  of  court, not  to protect the dignity of the Court against  insult  or injury,  but,  to  protect and vindicate the  right  of  the public so that the administration of justice is not pervert- ed, prejudiced, obstructed or interfered with. "It is a mode of vindicating the majesty of law, in its active  manifesta- tion against obstruction and outrage." (Frank Furter, J.  in Offutt v. U.S.) [1954] 348 US 11. The object and purpose  of punishing contempt for interference with the  administration of justice is not to safeguard or protect the dignity of the Judge or 992 the Magistrate, but the purpose is to preserve the authority of  the  courts  to ensure an ordered life  in  society.  In AttOrney-General v. Times Newspapers, [1974] A.C. 273 at  p. 302 the necessity for the law of contempt was summarised  by Lord Morris as:               "In  an  ordered community courts  are  estab-               lished for the pacific settlement of  disputes               and  for the maintenance of law and order.  In               the  general interests of the community it  is               imperative  that the authority of  the  courts               should not be imperilled and that recourse  to               them  should not be subject  to  unjustifiable               interference.  When such unjustifiable  inter-               ference is suppressed it is not because  those               charged with the responsibilities of  adminis-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 51  

             tering  justice  are concerned for  their  own               dignity:  it is because the very structure  of               ordered  life  is at risk  if  the  recognised               courts  of the land are so flouted  and  their               authority wanes and is supplanted."     The Chief Judicial Magistrate is head of the  Magistracy in  the District who administers justice to ensure,  protect and safeguard the rights of citizens. The subordinate courts at  the  district level cater to the need of the  masses  in administering  justice at the base level. By and  large  the majority  of  the people get their disputes  adjudicated  in subordinate  courts, it is, in the general interest  of  the community  that the authority of subordinate.courts is  pro- tected.  If the CJM is led into trap by unscrupulous  Police Officers  and if he is assaulted, handcuffed and roped,  the public  is  bound to lose faith in courts,  which  would  be destrictive  of  basic structure of an ordered  society.  If this is permitted Rule of Law shall be supplanted by  Police Raj.  Viewed in this perspective the incident is not a  case of  physical  assault  on an  individual  judicial  officer, instead it is an onslaught on the institution of the judici- ary  itself. The incident is a clear interference  with  the administration of justice, lowering its judicial  authority. Its effect was not confined to one District or State, it had a  tendency to affect the entire judiciary in  the  country. The incident highlights a dangerous trend that if the Police is  annoyed  with  the orders of a presiding  officer  of  a court, he would be arrested on flimsy manufactured  charges, to  humiliate him publicly as has been done in  the  instant case.  The  conduct  of Police Officers  in  assaulting  and humiliate  the CJM brought the authority and  administration of justice into disrespect, affecting the public  confidence in the institution of justice. "The summary power of punish- ment for contempt has been conferred on the courts to keep a blaze of glory around them, to deter people from  attempting to render 993 them  contemptible in the eyes of the public.  These  powers are  necessary to keep the course of justice free, as it  is of  great  importance to society." (Oswald  on  Contempt  of Court). The power to punish contempt is vested in the Judges not for their personal protection only, but for the  protec- tion of public justice, whose interest, requires that decen- cy and decorum is preserved in Courts of Justice. Those  who have  to discharge duty in a Court of Justice are  protected by  the law, and shielded in the discharge of their  duties, any  deliberate  interference  with the  discharge  of  such duties either in court or outside the court by attacking the presiding  officers of the court, would amount  to  criminal contempt and the courts must take serious cognizance of such conduct.     It  takes us to the question against which of’ the  con- temners  contempt is made out. On behalf of the  petitioners it  was urged that the Police Officers’ conduct  amounts  to criminal  contempt as their action lowered the authority  of the  Chief Judicial Magistrate and it further caused  inter- ference with the administration of justice. Mr. Soli  Sorab- jee,  learned Attorney-General contended that all those  who abetted and helped the Police Officers’ in their conduct and design  are also guilty of contempt of court. On  behalf  of the  contemners  it was urged that the incident  which  took place  in the Police Station does not make out any  contempt of court. The Chief Judicial Magistrate had consumed  liquor and  in  druken  state he went to  the  Police  Station  and slapped  the Police Inspector, Sharma, thereby he  committed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 51  

offence  under the Bombay Prohibition Act as well  as  under Section 332, 504 and 506 of the Indian Penal Code.  Criminal cases have been registered against N.L. Patel, CJM and after investigation  charge-sheets  have  been  submitted  to  the court. In this context, it was urged that no action could be taken  against the contemners as the facts in issue  in  the present proceedings are the same as involved in the criminal prosecutions  pending against N.L. PateI, CJM. The  question raised on behalf of the contemners need not detain us  long. Proceedings  for contempt of court are different than  those taken  for the prosecution of a person for an offence  under the criminal jurisdiction. Contempt proceedings are peculiar in nature although in certain aspects they are quasicriminal in nature but they do not form part of criminal jurisdiction of  the court. Criminal prosecution pending against the  CJM or  against  the contemners has no bearing on  the  contempt proceedings initiated by this Court as the present  proceed- ings are not for the purpose of punishing the contemners for the offence of wrongful detention and assault on N.L. Patel, Chief  Judicial Magistrate, instead these  proceedings  have been taken to protect the interest of the public in the 994 due administration of justice and to preserve the confidence of people in Courts. We, accordingly, reject the contemner’s objection.     We  have already recorded findings that  Sharma,  Police Inspector,  Nadiad  had  preplanned the  entire  scheme,  he deliberately invited Patel to visit Police Station where  he was  forced  to  consume liquor and on his  refusal  he  was assaulted,  arrested,  handcuffed and tied  with  rope  S.R. Sharma,  K.H. Sadia, Sub-Inspector,  Valjibhai   Kalajibhai, Head Constable and Pratap Singh, Constable, all took  active part  in  this shameful episode with a view  to  malign  and denigrade  the CJM on accout of his judicial orders  against the Police. We, therefore, hold S.R. Sharma, Police  Inspec- tor,  K.H. Sadia, Sub Inspector, Valujibhai Kalajibhai  Head Constable and Pratap Singh, Constable guilty of contempt  of court.  M.B. Savant, Mamlatdar had been summoned by  Sharma, Police  Inspector,  to  the Police Station  in  advance  for purposes  of  being  witness to the Panchnama  drawn  up  by Sharma  describing  drunken  condition of  Patel,  CJM.  The document  was false and deliberately prepared to make out  a Case against Patel, CJM. M.B. Sawant was in complicity  with Sharma,  he actively participated in the preparation of  the document  to malign and humiliate the CJM and to  prepare  a false  case  against him, he is also, therefore,  guilty  of contempt of court.     As regards D.K. Dhagal, the then District Superintendent of Police, Kheda, we have already recorded findings that  he was hand in glove with Sharma, Police Inspector. The circum- stances  pointed  out  by the Commission  and  as  discussed earlier,  show that though D.K.  Dhagal, had not  personally participated  in the shameful episode but his  Conduct,  act and omission establish his complicity in the incident. It is difficult  to  believe or imagine that  a  Police  Inspector would arrest, humiliate, assault and handcuff a CJM and  the Police Chief in the District would be indifferent, or a mute spectator. The circumstances unequivocally show that  Sharma was  acting under the protective cover of Dhagal as  he  did not  take  any  immediate action in the  matter  instead  he created an alibi for himself by interpolating the entries in the register at the Government Rest House, Balasinor. In his report  submitted  to the Addl. Chief  Secretary  (Home)  on 27.9.1989,  Dhagal did not even remotely mention  the  hand- cuffing and roping of CJM. It is unfortunate that Dhagal  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 51  

the district Superintendent of Police did not discharge  his duty  like a responsible Police Officer instead he   identi- fied  himself  with Sharma, Police  Inspector  and  actively abetted the commission of onslaught on the CJM. We,  accord- ingly,  hold  D.K. Dhagal, the then D.S.P. Kheda  guilty  of contempt of court. 995     This  takes us to the petition filed by N.L.  Patel  for quashing  the  criminal cases initiated against him  on  the basis  of two First Information Reports made by  Police  In- spector  S.R.  Sharma.  As noticed  earlier  Sharma,  Police Inspector, had registered two FIRs on 25.9.1989 against N.L. Patel  for  the offences under Section  85(1)(3)  read  with Section 66(1)(b) and also under Section 110 of Bombay Prohi- bition   Act  on  the allegations that  Patel  had  consumed liquor  without  permit or pass and under the  influence  of alcohol  entered  into Sharma’s  chamber and behaved  in  an indecent  manner. The FIR further alleged that Patel  caught hold of PoliCe Inspector Sharma and slapped him. The  second FIR  was lodged by Sharma against Patel for  offences  under Sections  332,353, 186 and 506 of the Indian Penal  Code  on the same allegations as contained in the earlier FIR. During the pendency of the contempt proceedings before this  Court, the Police continued the investigation and submitted  charge sheet  in both the cases against N.L. Patel and  at  present Criminal  Cases Nos. 1998/90 and 1999/90 are pending in  the Court  of Chief Judicial Magistrate, Nadiad. These  proceed- ings are sought to be quashed.     On  behalf of the State and the Police Officers, it  was urged  that since charge sheets have already been  submitted to  the  Court, Patel will have full opportunity  to  defend himself  before the court where witnesses would be  examined and cross-examined, therefore, this Court should not  inter- fere with the proceedings. The gravamen of the charge in the two  cases  registered  against N.L. Patel is  that  he  had consumed  liquor  without  a pass or permit  and  under  the influence  of liquor, he entered the chamber of  Police  In- spector Sharma at the Police Station and assaulted him.  The Police  over-powered  and arrested him and a  panchnama  was prepared and he was taken to the Hospital for medical exami- nation, and the report of medical examination indicates that he had consumed liquor. These very facts have been  inquired into  by  the Commissioner and found to be  false.  We  have recorded  findings  that Police Inspector Sharma  and  other Police  Officers  manipulated records and  manufactured  the case  against N.L. Patel with a view to humiliate and  teach him  a  lesson as the Police was annoyed with  his  judicial orders.  We  have  already recorded  findings  holding  S.R. Sharma,  Police Inspector, Sadia,  Sub-Inspector,  Valjibhai Kalabhai,  Head-Constable,  Pratap  Singh,  Constable,  M.B. Savant,  Mamlatdar, and D.K. Dhagal, D.S.P. guilty  of  con- tempt of court. These very persons are specified as witness- es in the two charge sheets. The Commission’s as well as our findings clearly demonstrate  that the allegations contained in the two FIRs are false. If Police is permitted to  prose- cute Patel on those allegations merely on the basis 996 that  charge  sheets  have been submitted by  it,  it  would amount  to gross abuse of the process of the Court.  In  the circumstances, proceedings against N.L. Patel are liable  to be quashed.     Learned  counsel,  appearing on behalf of the  State  of Gujarat  and the Police Officers, urged that in the  present proceedings this Court has no jurisdiction or power to quash the  criminal proceedings pending against N.L.  Patel,  CJM.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 51  

Elaborating  his contention, learned counsel submitted  that once a criminal case is registered against a person the  law requires that the court should allow the case to proceed  to its’  normal conclusion and there should be no  interference with the process of trial. He further urged that this  Court has  no power to quash a trial pending before  the  criminal court  either under the Code of Criminal Procedure or  under the Constitution, therefore, the criminal proceedings  pend- ing  against Patel should be permitted to continue.  Learned Attorney-General  submitted that since this Court has  taken cognizance  of the contempt matter arising out of the  inci- dent which is the subject matter of trial before the  crimi- nal  court, this Court has ample power under Article 142  of the  Constitution to pass any order necessary to do  justice and  to prevent abuse of process of the court.  The  learned Attorney-General  elaborated that there is no limitation  on the  power  of this Court under Article 142  in  quashing  a criminal  proceeding  pending before  a  subordinate  court. Before  we  proceed to consider the width and  amplitude  of this Court’s power under Article 142 of the Constitution  it is  necessary  to remind ourselves that though there  is  no provision  like Section 482 of the Criminal  Procedure  Code conferring express power on this Court to quash or set aside any criminal proceedings pending before a criminal court  to prevent  abuse of process of the court, but this  Court  has power  to  quash  any such proceedings in  exercise  of  its plenary and residuary power under Article 136 of the Consti- tution,  if  on  the admitted facts no charge  is  made  out against  the accused or if the proceedings are initiated  on concocted  facts,  or if the proceedings are  initiated  for oblique  purposes.  Once this Court is  satisfied  that  the criminal proceedings amount to abuse of process of court  it would quash such proceedings to ensure justice. In State  of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982] 3 SCR 121  this Court quashed First Information Report and  issued direction  prohibiting  investigation into  the  allegations contained  in  the FIR as the Court was  satisfied  that  on admitted  facts no offence was made out against the  persons named  in the FIR. In Madhavrao Jivajirao Scindia & Ors.  v. Sambhajirao  Chandrojirao  Angre & Ors., [1988]  1  SCC  692 criminal  proceedings were quashed as this Court Was  satis- fied  that  the  case was founded on false  facts,  and  the proceedings 997 for trial had been initiated for oblique purposes.     Article 142(1) of the Constitution provides that Supreme Court  in exercise of its jurisdiction may pass such  decree or  make such order as is necessary for doing complete  jus- tice  in  any  ’cause’ or ’matter’ pending  before  it.  The expression ’cause’ or ’matter’ would include any  proceeding pending  in  court and it would cover almost every  kind  of proceeding in court including civil or criminal. The  inher- ent  power of this Court under Article 142 coupled with  the plenary  and residuary powers under Article 32 and  136  em- braces  power to quash criminal proceedings  pending  before any  court to do complete justice in the matter before  this Court.  If the court is satisfied that the proceeding  in  a criminal case are being utilised for oblique purposes or  if the same are continued on manufactured and false evidence or if.no case is made out on the admitted facts, it would be in the  ends  of  justice to set aside or  quash  the  criminal proceedings. It is idle to suggest that in such a  situation this Court should be a helpless spectator.     Mr.  Nariman urged that Article 142(1) does not  contem- plate any order contrary to Statutory provisions. He  placed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 51  

reliance  on the Court’s observations in Prem Chand Garg  v. Excise Commissioner. U.P. Allahabad, [1963] Supp. 1 SCR  885 at  899 and, A.R. Antulay v. R.S. Nayak & Anr. [1988] 2  SCC 602  where  the Court observed that though the  powers  con- ferred on this Court under Article 142(1) are very wide, but in  exercise of that power the’ court cannot make any  order plainly  inconsistent with the express statutory  provisions of  substantive  law. It may be noticed that in  Prem  Chand Garg’s  and Antulay’s case (Supra) observations with  regard to  the  extent of this Court’s power under  Article  142(1) were made in the context of fundamental rights. Those obser- vations have no bearing on the question in issue as there is no provision in any substantive law restricting this Court’s power to quash proceedings pending before subordinate court. This  Court’s  power under Article 142(1)  to  do  "complete justice"  is entirely of different level and of a  different quality.  Any prohibition or restriction contained in  ordi- nary  laws cannot act as a limitation on the  constitutional power  of this Court. Once this Court has seisin of a  cause or  matter  before it, it has power to issue  any  order  or direction  to  do  "complete justice" in  the  matter.  This constitutional power of the Apex Court cannot be limited  or restricted by provisions contained in statutory law. In Har- bans Singh v. U.P. State, [1982] 3 SCR 235 at 243 the  Court observed:               "Very wide powers have been conferred on  this               Court for               998               due  and  proper  administration  of  justice.               Apart  from the jurisdiction and  powers  con-               ferred on this Court under Articles 32 and 136               of  the Constitution I am of the opinion  that               this Court retains and must retain, an  inher-               ent  power and jurisdiction for  dealing  with               any  extra-ordinary situation in  the  largest               interests of administration of justice and for               preventing manifest injustice being done. This               power must necessarily be sparingly used  only               in  exceptional circumstances  for  furthering               the ends of justice." No enactment made by Central or State Legislature can  limit or restrict the power of this Court under Article 142 of the Constitution,  though while exercising power  under  Article 142 of the Constitution, the Court must take into considera- tion  the  statutory  provisions regulating  the  matter  in dispute.  What would be the need of "complete justice" in  a cause  or  matter would depend upon the  facts  and  circum- stances  of  each case and while exercising that  power  the Court  would take into consideration the express  provisions of  a substantive statute. Once this Court has taken  seisin of  a case, cause or matter, it has power to pass any  order or  issue direction as may be necessary to do complete  jus- tice  in  the matter. This has been the consistent  view  of this Court as would appear from the decisions of this  Court in  State of U.P. v. Poosu & Anr. [1976] 3 SCR  1005;  Ganga Bishan  &  Ors. v. Jai Narain, [1986] 1 SCC  75;  Navnit  R. Kamani & Ors. v. R.R. Kamani, [1988] 4 SCC 387; B.N. Nagara- jan  &  Ors. v. State of Mysore & Ors., [1966]  3  SCR  682: Special Reference No. I of 1964, (supra), and Harbans  Singh v.  State of U,P. Ors. (supra). Since the foundation of  the criminal  trial  of N.L. Patel is based on the  facts  which have already been found to be false, it would be in the ends of  justice and also to do complete justice in the cause  to quash  the  criminal proceedings. We accordingly  quash  the criminal  proceedings  pending  before  the  Chief  Judicial

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 51  

Magistrate, Nadiad in Criminal Cases Nos. 1998/90 and  1999/ 90.     The question arises what punishment should be awarded to the contemners found guilty of contempt. In determining  the punishment, the degree and the extent of part played by each of  the  contemners has to be kept in mind.  Sharma,  Police Inspector who was the main actor in the entire incident  and who had planned the entire episode with a view to  humiliate the CJM in the publis eye is the main culprit, therefore, he deserves  maximum  punishment.  Sadia,  Sub-Inspector   took active part in assaulting and tying the CJM at the behest of Sharma,  Police Inspector. Valijibhai Kalajibhai, Head  Con- stable and Pratap 999 Singh,  Constable also took active part in  handcuffing  and tying the CJM with ropes, but as subordinate officials  they acted under the orders of his superior officer. M.B. Sawant, Mamlatdar  was friendly to Sharma, Police Inspector, he  had no  axe  to  grind against the CJM but he  acted  under  the influence of Sharma, Police Inspector. So far as D.K. Dhagal is  concerned,  he actively abetted the  commission  of  on- slaught  on the CJM. Having regard to the facts and  circum- stances and individual part played by each of the  aforesaid contemner we hold them guilty of contempt and award  punish- ment as under:     S.R.  Sharma,  the then Police Inspector,  Nadiad  shall undergo  simple imprisonment for a period of six months  and he  shall pay fine of Rs.2,000. K.H.  Sadia,  Sub-Inspector, Nadiad  shall  undergo simple imprisonment for a  period  of five months and will pay a fine of Rs.2000 and in default he will  undergo  one month’s  simple  imprisonment.  Valjibhai Kalajibhai, Head Constable and Pratap Singh, Constable, both are  convicted and awarded simple imprisonment for a  period of  two  months and a fine of Rs.500 each, in  default  they would undergo simple imprisonment for a further period of 15 days.  M.B. Savant, Mamlatdar is convicted and  awarded  two month’s  simple imprisonment and a fine of Rs. 1000  and  in default  he would undergo one month’s  simple  imprisonment. D.K.  Dhagal,  the then District Superintendent  of  Police, Kheda,  is  convicted and sentenced to  imprisonment  for  a period  of  one month and to pay a fine of Rs. 1000  and  in default  to undergo simple imprisonment for 15 days. So  far as  other respondents against whom notices of contempt  have been  issued by the Court, there is no adequate material  on record to hold them guilty of contempt of court, we  accord- ingly discharge the notices issued to them.     Before we proceed further, we would like to express  the Court’s displeasure on the conduct of K. Dadabhoy, the  then Director  General  of Police, Gujarat. As the  head  of  the Police  in  the State he was expected to  intervene  in  the matter  and  to ensure effective action against  the  erring Police  Officers. We are constrained to observe that he  was totally  indifferent  to the news that a CJM  was  arrested, handcuffed,  roped  and assaulted. He took this  news  as  a routine  matter  without taking any steps to  ascertain  the correct facts or effective action against the erring  Police Officers.  If the head of the Police administration  in  the State exhibits such indifference to a sensitive matter which shook  the entire judicial machinery in the  State,  nothing better  could be expected from his subordinate officers.  K. Dadabhoy  did not act like a responsible officer. The  State Government should 1000 take  action against him departmentaly on the basis  of  the findings  recorded by the Commission. The  State  Government

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 51  

has  initiated proceedings against other erring officers  in respect  of whom the Commission has adversely commented,  we would make it clear that discharge of contempt notices  does not  absolve those officers of their misconduct,  the  State Government  is  directed to proceed  with  the  disciplinary proceedings for taking appropriate action against them.     We are constrained to observe that the State  Government did not immediately take effective steps against the  erring officials.  In spite of the direction issued by  this  Court the erring Police Officers were neither arrested nor  placed under suspension. It was only after this Court took  serious view  of  the matter and directed the  State  Government  to suspend  the  erring Police Officers and  arrest  them,  the State  Government  moved in the matter. The  apathy  of  the State  Government  in taking effective  action  against  the erring  Police Officers leads to an impression that  in  the State of Gujarat, Police appears to have upper-hand, as  the administration  was  hesitant in taking action  against  the erring  Police  Officers. If this practice and  tendency  is allowed  to grow it would result in serious erosion  of  the Rule  of Law in the State. We hope and trust that the  State Government  will take effective measures to avoid  re-occur- rence  of  any such instance. The  State  Government  should further take immediate steps for the review and revision  of the Police Regulations in the light of findings recorded  by the Commission.     The facts of the instant case demonstrate that a presid- ing  officer  of a court may be arrested and  humiliated  on flimsy  and  manufactured  charges which  could  affect  the administration of justice. In order to avoid any such situa- tion in future, we consider it necessary to lay down  guide- lines  which  should be followed in the case of  arrest  and detention  of  a Judicial Officer. No  person  whatever  his rank, or designation may be, is, above law and he must  face the  penal  consequences of infraction of  criminal  law.  A Magistrate, Judge or any other Judicial Officer is liable to criminal  prosecution for an offence like any other  citizen but  in  view of the paramount necessity of  preserving  the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, we think  that the following guidelines should be followed.               (A)  If a judicial officer is to  be  arrested               for  some  offence, it should  be  done  under               intimation  to the District Judge or the  High               Court as the case may be.               1001               (B) If facts and circumstances necessitate the               immediate arrest of a judicial officer of  the               subordinate  judiciary, a technical or  formal               arrest may be effected.               (C) The facts of such arrest should be immedi-               ately  communicated to the District  and  Ses-               sions Judge of the concerned District and  the               Chief Justice of the High Court.               (D) The Judicial Officer so arrested shall not               be  taken  to a police  station,  without  the               prior  order or directions of the  District  &               Sessions  Judge of the concerned District,  if               available.               (E) Immediate facilities shall be provided  to               the Judicial Officer to communication with his               family  members, legal advisers  and  Judicial               Officers,  including the District  &  Sessions               Judge.               (F) No statement of a Judicial Officer who  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 51  

             under arrest be recorded nor any panchnama  be               drawn  up nor any medical tests  be  conducted               except in the presence of the Legal Adviser of               the  Judicial  Officer  concerned  or  another               Judicial  Office of equal or higher rank,  it’               available.               (G) There should be no handcuffing of a  Judi-               cial Officer. If, however, violent  resistance               to arrest is offered or there is imminent need               to  effect physical arrest in order  to  avert               danger to life and limb, the person  resisting               arrest may be over-powered and’ handcuffed. In               such  case, immediate report shall be made  to               the  District & Sessions Judge  concerned  and               also  to the Chief Justice of the High  Court.               But  the  burden  would be on  the  Police  to               establish  necessity  for  effecting  physical               arrest  and handcuffing the  Judicial  Officer               and  if  it be established that  the  physical               arrest and handcuffing of the Judicial Officer               was  unjustified, the Police Officers  causing               or responsible for such arrest and handcuffing               would  be guilty of misconduct and would  also               be  personally liable for compensation  and/or               damages as may be summarily determined by  the               High Court.     The  above guidelines are not exhaustive but  these  are minimum safeguards which must be observed in case of  arrest of a judicial officer. These guidelines should be implement- ed  by the State Government as well as by the  High  Courts. We, accordingly, direct that a copy of the guidelines  shall be  forwarded  to  the Chief Secretaries of  all  the  State Governments and to all the High Courts with a direction that the 1002 same may be brought to the notice of the concerned  officers for compliance.       We do not approve N.L. Patel’s conduct in visiting the Police Station on the invitation of Police Inspector Sharma. In our opinion,    no Judicial Officer should visit a Police Station  on his own except in connection with  his  official and judicial duties and functions. If it is necessary for  a Judicial Officer or a Subordinate Judicial Officer to  visit the  Police Station in connection with his official  duties, he  must  do so with prior intimation of his  visit  to  the District & Sessions Judge. Pursuant to this Court’s appeal made on September 29,  1989, the      members  of the Bar as well as the members  of  the Judiciary  throughout  the country refrained from  going  on strike as a result of which inconvenience to general  public was avoided and the administration of justice continued. The Court  is beholden to the members of the Bar and members  of the Judiciary for their response to this Court’s appeal.         We  record our appreciation of the  able  assistance rendered  to the Court by the learned counsel for  the  par- ties.  We  are beholden to Sri Soli Jl. Sorabjee,  the  then Attorney-General, who at our request ably assisted the Court in resolving complex questions of law.       The  Writ Petitions, Contempt Petitions  and  Criminal Miscellaneous Petitions are disposed of accordingly. N.V.K.                                    Petitions disposed of.                                 1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 51