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PETITIONER: SUKHDEV SINGH SODHI

       Vs.

RESPONDENT: THE CHIEF JUSTICE AND JUDGESOF THE PEPSU HIGH COURT.

DATE OF JUDGMENT: 25/11/1953

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MUKHERJEA, B.K. BHAGWATI, NATWARLAL H.

CITATION:  1954 AIR  186            1954 SCR  454  CITATOR INFO :  R          1963 SC 692  (16)  R          1971 SC1132  (83)  R          1972 SC 858  (5)  RF         1991 SC2176  (1-1 13,21,25)  R          1992 SC 904  (15,18,19,22,37,40)

ACT:     Contempt of court-Contempt of Judges of High  Court-Power  of  Supreme  Court to transfer proceedings to  another  High  Court  -  Criminal  Procedure Code,  1898,  ss.  1(2),  527-  Constitution  of  India, art. 215-Contempt  of  Courts  Act,  1952, s. 3.

HEADNOTE:  The  Supreme Court has no power under section 527  of  the Criminal Procedure Code or under any other provision of  law to transfer from a High Court,. proceedings which that  High Court has initiated for contempt of itself, to another  High Court.   Section 527 of the Criminal Procedure Code does not apply to  such  a case as the power of a High Court  to  institute proceedings  for  contempt  of  itself  and  to  punish  the contemner  where necessary, is a special jurisdiction  which is inherent in all courts of record and section 1 (2) of the Criminal Procedure Code excludes such special  jurisdictions ’from its scope. It-is  desirable, on general principles of justice, that  a judge who has been personally attacked should not as far  as possible  bear  a  contempt matter which,  to  that  extent, concerns him personally.     In    re   Abdool   and   Mahtab(8   W.R.   Cr.    32), Surendranath  Banerjea  v. Chief justice and Judges  of  the High  Court of Bengal (10 I.A. 171), Abdul  Hasan     Jauhar (I.L.R.  48  All.711),  In  the  matter  of  Sashi   Bhushan Sarbadhicary  (I.L.R.  29 All. 95), Crown  v.  Sayyad  Habib (I.L.R.  6 Lah. 528 F.B1.), In re Abdul Hasan Jauhar  (I.L.R 48.All 711), In the matter of Muslim Outlook, Lahore  (A.I.R 1927 Lah. 610), In re Murli Manohar Prasad (I.L.R 8 Pat. 323 ) Harikrishen Lal v. The Crown (I.L.R. 18 Lah. 69) Ambard v. Attorney-Geneneral for Trinidad & Tobago ([1936] A.C.  322), William Raini v. The Justices of Sierre Leone (8 Moo.   P.C.

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47),  In  the matter of K. L. Gauba (I.L.R.  23  Lah.  411), Parashuram  Detaram  v.  Emperor (A.I.R. 1945  P.  C.  134), Emperor v. 455   B.     G.  Horniman (A.I.R. 1945 All. 1), In  re  Pollard (L.  R. P.     C.  106),  In re Vallabhdas (I.L.R.  27  Bom. 394)  and Ebrahim Mamoojee Parekh v. King Emperor (I.L.R.  4 Rang- 257) referred to,

JUDGMENT:     ORIGINAL  JURISDICTION  : Petition .(No.  304  of  1953) under section 527 of the Criminal Procedure Code.   H. J. Umrigar for the appellant.   M. C. Setalvad, attorney-General for India (G.  N. loshi, with him) for the respondent.    1953.   November  25.   The Judgment  of  the  Court  was delivered by    BOSE  J.-This  is  an unusual application  asking  for  a transfer of certain contempt proceedings from the Pepsu High Court  to  any  other High Court and,  in  the  alternative, askinG  that at least the matter should not be heard by  two -of  the judges of that High Court who -are named.  This  at once raises a question about our jurisdiction to order  such a transfer.    The  learned counsel for the applicant relied on  section 527 of the Criminal Procedure Code.  Briefly his  reasoning. was this.  Section 527 authorises the transfer of any "case" from one High Court to another whenever it is made to appear to the Supreme Court that such transfer is expedient for the ends  of  justice.   The word "’case"  is  not  defined  but "offence"  is ,defined in section 4 (o) to mean "any act  or omission  made punishable by any law for the time  being  in -force."  Contempt  is  punishable under  the  Contempt  .of Courts Act, 1952, therefore it is an offence punish-able  by a  law which is in force ; consequently, it is  an  offence. Being an offence it is triable under the Criminal  Procedure Code because section 5 makes the Code applicable not only to the trial of offences under the.  Indian Penal Code but also to  the trial of offences against "other laws." As it  is  a matter triable under the Criminal Procedure Code it must  be a  "case" within the meaning of section 527 and  accordingly the section can be invoked here.    We are unable to agree.  In our opinion, the power ,of  a High Court to institute proceedings for contempt 456 and  punish where necessary is a special jurisdiction  which is,inherent in all courts of record section 1(2) of the Code expressly  excludes  special jurisdictions from  its  scope. The section runs-    "In  the  absence  of  any  specific  provision  to   the contrary,   nothing  herein  contained  shall   affect   any special......  law now in force or any special  jurisdiction or  power conferred by I any other law for the time  be’  in force."     The  term "special jurisdiction’ is not defined  in  the Criminal  Procedure  Code but the words  "special  law"  are defined  in section 41 of the Indian Penal Code to  mean  "a law  applicable to a particular subject." In the absence  of any  specific definition in the Criminal Procedure  Code  we think that that brings out the ordinary and natural  meaning of  the words "special jurisdiction" and covers the  present case.  Contempt is a special subject and the jurisdiction is conferred  ’by a special set of laws peculiar to  courts  of

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record.    This has long been the view in India.  In 1867 Peacok  C. J. laid down the rule quite broadly in these words in In  re Abdool and Mahtab (1):   "there can be no doubt that every court of record has  the power of summarily punishing for contempt."    It  is true the same learned Judge sitting in  the  Privy Council in 1883 traced the origin of the power in the case I of the Calcutta, Bombay and Madras High Courts to the common law  of England [see Surendranath Banerjea v. Chief  justice and  Judges  of  the High Court of  Bengal(2)],  but  it  is evident from other decisions of the judicial Committee  that the  jurisdiction is broader based than that.   But  however that may be, Sir Barnes Peacock made it clear that the words "any other law" in section 5 of the Criminal Procedure  Code do not cover contempt of a kind punishable summarily by  the three Chartered High Court.    Now  it  is  relevant to note  in  this  connection  that whatever the origin of the jurisdiction may be in the (1) (1867) 8 W.R. Cr. 32 at 33. (2) (1883) 10 I.A. 171 at 179. 457 case  of  those  three courts, the  Charter  of  1774  which established the Supreme Court of Bengal, while providing  in clause  4 that its Judges should have the same  jurisdiction as  the  Court of, King’s Bench in England,  also  expressly stated  in clause 21 that the court is empowered  to  punish for  contempt.   When  the  Supreme  Court  of  Bengal   was abolished the High Courts Act of 1861 continued those powers to the Chartered High Courts by sections 9 and 11 and clause 2  of the Letters Patent of the year 1865 continued them  as courts  of record.  Despite this, in 1883 the Privy  Council did  not trace this particular jurisdiction of the  Calcutta High Court to clause 15 of its Charter but to the common law of England.  But what is the common law ? It is simply this: that  the jurisdiction to punish for contempt  is  something inherent in every court of record.  Sulaiman J. collected  a number  of  English authorities at pages 728 to 730  of  his judgment in In re Abdul Hasan Jauhar (I and concluded thus:     "These leading cases unmistakably show that the power of the  High  Court  in England to deal with  the  contempt  of inferior  courts  is  based not so much  on  its  historical foundation as on the High Court’s inherent jurisdiction."    Apparently,  because  of this the Privy Council  held  in 1853  that  the Recorder’s Court at Sierre  Leone  also  had jurisdiction to punish for contempt, not because that  court had  inherited  the jurisdiction of the English  courts  but because it was a court of record.  Their Lordships’ language was this:     "In  this country every court of record is the sole  and exclusive   judge   of  what  amounts  to  a   contempt   of court.........  and unless there exists a difference in  the constitution  of  the Recorder’s Court at Sierre  Leone  the same  power  must  be  conceded  to  be  inherent  in   that court......  we are of opinion that it is a court of  record and  that  the law must be considered the same there  as  in this country." (1)  (1926) I.L.R. 48 All. 711 . 458     The  1884 edition of Belchamber’s Practice of the  Civil Courts also says at ’page 241 that-     "Every superior court of record, whether in ’the  United Kingdom, or in the colonial’ possessions or dependencies  of the  Crown has inherent’ power to punish contempts,  without its      precincts,     as     well     as     in      facie

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curiae......................      So also 7 Halsbury’s Laws of England (Hailsham edition) page 2-    "The  superior  courts have an inherent  jurisdiction  to punish criminal contempt etc.............."     "But  reverting to the developments in India.  The  High Court of  Allahabad  was  established  in  1866  under   the High  Courts  Act  of 1861 and was constituted  a  court  of record.   In 1906 the Privy Council remarked at page 108  of its judgment in In the matter of Sashi Bhushan  Sarbadhicary (1) that-   "There is also no doubt that the publication of this libel constituted a contempt of court which might have been  dealt with  by  the  High Court in a summary  manner  by  fine  or imprisonment or both."     After  this  came  the Government of  India  Act,  1915. Section  106 continued to all High Courts then in  existence the  same jurisdiction, powers and authority as they had  at the commencement of that Act, and section 113 empowered  the establishment  of  new High Courts by  Letters  Patent  with authority to vest in them the same jurisdiction, powers  and authority "as are vested in or may be conferred on any  High Court existing at the commencement of this Act."     The Lahore High Court was established by Letters  Patent in 1919 and was duly constituted a court of record.  In  the year 1925 a Special Bench of that court punished a  contempt of itself in Crown v. Sayyad Habib(2).    After  this  the  question  was  again  agitated  in  the Allahabad  High Court in 1926 but this time in respect of  a contempt of a subordinate court.  A Full Bench was  convened and the learned Judges reaffirmed their (1) (1907) I.L.R. 29 All. 95. (2) 1925 I.L.R. 6 Lah. 528 (F.B).                             459 powers:   In re Abdul Hasan Jauhar (1).  Two of  the  Judges based  broadly  on the inherent jurisdiction of a  court  of record.   Sulaiman J, said at page 727 that "it is  not  the territorial  limits of the jurisdiction of a Supreme  Court" [of Bengal] "but the very nature of its constitution that is of  importance." Boys J. however preferred to ground on  the fact  that that court "had conferred on it, by  the  statute and the Letters Patent creating it, similar powers to those conferred  on the High Court of Calcutta," and at  page  733 went on to say that that applied "to every other High  Court in this country."     In  the  presence of all this history  the  Contempt  of Courts  Act, 1926, was passed.  The heading states that  the Act is "to define and limit the powers of certain courts  in Punishing contempts of courts." The preamble states-    "Whereas  doubts have arisen as to the powers of  a  High Court  of  Judicature  to punish  contempts  of  courts  and whereas  it  is  expedient to resolve these  doubts  and  to define  and limit the powers exercisable by High Courts  and Chief Courts in punishing contempts of court : It is  hereby enacted as follows Section 2 says :-    "Subject  to the provisions of sub-section (3), the  High Courts  of  judicature established by Letters  Patent  shall have   and  exercise  the  same  jurisdiction,  powers   and authority   in  accordance  with  the  same  procedure   and practice,  in respect of contempts of courts subordinate  to them  as they have and exercise in respect of  contempts  of themselves."     This recognises an existing jurisdiction in all  Letters Patent  High Courts to punish for contempts  of  themselves, and the only limitation placed on those powers is the amount

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of punishment which they could thereafter inflict.  It is to be  noted  that  the Act draws no  distinction  between  one Letters’  Patent  High.  Court and another  though  it  does distinguish  between  Letters Patent High Courts  and  Chief Courts;- also, as the (1)  (1926) I.L.R. 48 All. 711. 460     Act is intended to remove doubts about the, High  Coures powers  it  is evident that it would  have  conferred  those powers had there been any doubt about the High Court’s power to commit for contempts of themselves.  The only doubt  with which the Act deals is the doubt whether a High Court  could punish  for a contempt of a court subordinate to  it.   That doubt  the  Act  removed.  It also  limited  the  amount  of punishment which a  High Court could inflict.     Now  this  recognises an existing power in  all  Letters Patent- High Courts to punish and as the Letters Patent High Courts  other than the Chartered High Courts could not  have derived  this power from the common law, it is evident  that the power must have been inherent in themselves because they were courts of record.     In  1927  another Full Bench of the  Lahore  High  Court consisting  of five judges re-examined the position: In  the matter  of  Muslim Outlook, Lahore(’ They  reaffirmed  their earlier  decision in The Crown v. Sayyad Habib (2) and  held that  this jurisdiction is inherent in every High Court  and not merely in the three Chartered High Courts.      In  1928 a Full Bench of the Patna High Court  examined the  matter  [In  re  Murli  Manohar  Prasad(3)]  and   then committed  for contempt.  In 1936 another Special  Bench  of the  Lahore  High  Court [Harkishen  Lai  v.  The  Crown(4)] followed the earlier Lahore decisions.    The  Privy  Council  decided  a  case  of  contempt  from Trinidad in 1936 [Ambard v. Attorney-General for Trinidad  & Tobago(5)] and held that it was a quasicriminal offence  and in the course of their judgement they referred to an earlier decision  of  the  Be from Sierre Leone  to  which  we  have already  referred [William Rainy v. The Justices  of  Sierre Leone(6)].   In  the Trinidad case their Lordships  did  not accept the extreme proposition that every court of record is the (1)  A.I.R. 1927 Lah. 610. (2)  (1925) I.L.R. 6 Lah. 528. (3)  (1929) I.L.R. 8 Pat. 323. (4)  (1937) I.L.R. 18 Lab. 69. (5)  [1936] A.C. 322. (6)   8 Moo.  P.C. 47. 461 sole  and  exclusive  judge of what  amounts,to  a  contempt because  of their decision in Surendranath Banerjea  v.  the Chief Justice and Judges of the High Court of Bengal(1), but they did not doubt the soundness of the decision otherwise.     In 1942 the Lahore High Court examined the position in a Full  Bench  for  the  third  time  and  reached  the   same conclusion: In the matter of K. L. Gauba(2).  This time they pointed  out that the Sind, Rangoon and Nagpur  High  Courts had  also  punished  summarily  for  contempts.   They  also referred  to two American decisions where, though the  power was  said to have been derived from the common law,  it  was said that.      "The  power to fine and imprison for contempt from  the earliest  history  of jurisprudence has been regarded  as  a necessary incident and attribute of a court without which it could no more exist than without a judge............     Finally, in Parashuram Detaram v. Emperor(3 ) the  Privy

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Council  said  that  "this summary power  of  punishing  for contempt..........  is  a  power  which  a  court  must   of necessity possess."    We  have  omitted  references to the  Bombay  and  Madras decisions after 1883 because the judicial Committee  settled the powers of the three Chartered High Courts.  What we  are at  pains  to show is that, apart from  the  Chartered  High Courts,  practically  every other High Court  in  India  has exercised the jurisdiction and where its authority has  been challenged each has held that it is a jurisdiction  inherent in  a  court  of record from the very nature  of  the  court itself.   This  is important when we come  to  construe  the later  legislation  because by this time it  Was  judicially accepted  throughout  India  that  the  jurisdiction  was  a special  one inherent in the very nature of the court.   The only  discordant note that we know of was struck in  Emperor v. B. G. Horniman(4) where a Division Bench of the Allahabad (1)  (1883) 10 I.A. 171. (2)  (1942) I.L.R. 23 Lah. 411. (3)  A.I.R. 1945 P.C. 134 at 136. (4)  A.I.R. 1945 All at 4. 462     High  Court held that after the Act of 1926 the  offence of contempt was punishable under an Indian Penal statute and so  the  Code of Criminal Procedure applied because  of  the words "any other law" in section 5. In our opinion, this  is wrong   because  the  Act  of  1926  does  not  confer   any jurisdiction  and  does not create the offence.   It  merely limits  the amount of the punishment which can be given  and removes  a certain doubt.  Accordingly, the jurisdiction  to initiate the proceedings and take seisin of the matter is as before.     The Pepsu High Court was established in 1948 and section 33  of  the Ordinance which established it recites  that  it shall be a court of record and that it shall have ’power  to punish for contempt.  It will be remembered that the Charter of  1774 which established a Supreme Court for  Bengal  said the  same thing of that court and yet the Privy Council  did not  trace  its powers about contempt from the  Charter  but from the common law.  In the same way, the law by this  time was  so well settled in matters of contempt that  the  words "court  of  record" and "power to punish for  contempt"  had acquired a special meaning.  Consequently, it is  immaterial whether  in  1948  the power of the  Pepsu  High  Court  was derived from section 33 or was inherent in the nature of the court because whichever it is the jurisdiction is a  special one,  and  had the legislature desired to take it  away  and confer  another  kind  of jurisdiction it  would  have  been necessary  to  use express words in, view of  the  case  law which by then had become well established. In  1950  came  the Constitution of India  and  article  215 states that-    "Every  High Court shall be a court of record  and  shall have  all the powers of such a court including the power  to punish for contempt of itself."    Here  again, whether this is a fresh, conferral of  power or a continuation of existing powers hardly matters  because whichever way it is viewed the jurisdiction is a special one and  so  is outside the purview of  the  Criminal  Procedure Code. 463    The  Contempt  of Courts Act, 1926, was repealed  by  Act XXXII  of  1952.   Section 3 of the new Act  is  similar  to section  2  of  the  old and,  far  from  conferring  a  new jurisdiction, assumes, as did the old Act, the existence  of

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a  right  to  punish for contempt in every  High  Court  and further  assumes  the existence of a  special  practice  and procedure, for it says that every High Court shall  exercise the  same jurisdiction, powers and authority "in  accordance with  the same procedure and practice." These words are  new and  would be inappropriate if the Criminal  Procedure  Code applied.  In  any case, so far as contempt of a  High  Court itself  is concerned, as distinct from one of a  subordinate court,  the  Constitution vests these rights in  every  High Court,  so  no  Act of a legislature could  take  away  that jurisdiction  and  confer  it afresh by virtue  of  its  own authority.   It is true section 5 expands the ambit  of  the authority  beyond  what  was  till  then  considered  to  be possible  but  it does not confer a  new  jurisdiction.   It merely  widens  the scope of an existing jurisdiction  of  a very special kind.      On  reflection it will be apparent that the Code  could not be called in aid in such cases, for if the Code  applies it  must apply in its entirety and in that event  how  could such  proceedings be instituted ? The maximum punishment  is now limited to six month’s simple imprisonment or a fine  of Rs. 2,000 or both because of the 1952 Act.  Therefore, under the second schedule to the Code contempt would be triable by a Magistrate and not by a High Court and the procedure would have  to be a summons procedure.  That would take  away  the right of a High Court to deal with the matter summarily  and punish,  a right which was well established by the case  law up to 1945 and which no subsequent legislation has attempted to  remove.  So also section 556 could not apply, nor  would the  rule  which prohibits a judge from  importing  his  own knowledge  of  the facts into the case.  We  hold  therefore that  the  Code  of Criminal Procedure  does  not  apply  in matters  of  contempt triable by the High Court.   The  High Court can deal with it summarily and adopt its own 464 procedure.   All that is necessary is that the procedure  is fair  and  that the contemner is made aware  of  the  charge against  him and given a fair and reasonable opportunity  to defend  himself.   This  rule was laid  down  by  the  Privy Council in In re Pollard(1) and was followed in India and in Burma in In re Vallabhdas(2) and Ebrahim Mamoojee Parekh  v. King Emperor(3) In our view that is still the law.    If  the Code of Criminal Procedure does not  apply,  then there  is  no  other  power  which  we  can  exercise.   The Constitution gives every High Court the right and the  power to  punish  a  contempt of itself.  If we were  to  order  a transfer to another court in this case we would be depriving the Pepsu High Court of the right which is so vested, in it. We have no more power to do that than has a legislature.  As for transfer from one judge to another, there again there is no original jurisdiction which we can exercise.  It is not a fundamental  right and so article 32 has no application  and there  is no other law to which recourse can be  had.   This petition is therefore incompetent and must be dismissed.       We wish however to add that though we have no power to order  a  transfer in an original petition of this  kind  we consider it desirable on general principles of justice  that a  judge who has been personally attacked should not as  far as  possible hear a contempt matter which, to  that  extent, concerns  him personal1y It is otherwise when the attack  is not directed against him personally.  We do not lay down any general  rule  because  there may be  cases  where  that  is impossible,  as for example in a court where there  is  only one  judge  or two and both are attacked.  Other  cases  may also  arise where it is more convenient and proper  for  the

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judge  to deal with the matter himself, as for example in  a contempt  in facie curioe.  All we say is that this must  be left to the good sense of the judges themselves who, we  are confident, will (1)  L.R. 2 P.C. 106 at 120. (2) I.L.R. 27 Bom. 394 at 399. (3)  I.L.R. 4 Rang. 257 at 259-261. 465 comport,  themselves  with that  dispassionate  dignity  and decorum which befits their high office and will bear in mind the oft quoted maxim that justice must not only be done  but must  be  seen  to  be  done  by  all  concerned  and   most particularly  by  an accused person’ who should,  always  be given,  as  far as that is humanly possible,, A  feeling  of confidence  that he will receive a fair, just and  impartial trial by judges who have no personal interest or concern  in his case.                     Petition dismissed. Agent for the petitioner : Ratnaparkhi Anant Govind. Agent for the respondent       G. H. Rajadhyakska.