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H

DELHI JUDICIAL SERVICE ASSOCIATION TIS HAZARI

COURT, DELHI ETC. ETC.

v.

STATE OF GUJARAT AND ORS. ETC. ETC.

SEPTEMBER 11, 1991

[K.N. SINGH,'KULD!P SINGH AND N.M. KASLIWAL, JJ.]

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 aliJo---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 subordi-

nate

or inferior courts-Supreme Court having judicial superintendence

over all courts in the country has same

jurisdictic-n.

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-Con-

· temners-punishment-Quantum of punishment determined according

to qegree 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 connec-

tion 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

contmmers not persons

accused

of an offence.

936

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JUDL. SERVICE .ASSN. '· STATE OF GUJARAT 937

Supreme Court-Supervisory and appellate jurisdiction of-­

Plenary jurisdiction unaffected by self imposed restrictions of the

Court-From plenary jurisdiction flows supervisory jurisdiction over all

courts and Tribunals in India. ·

A

Supreme Court's jurisdiction and power not limited-Can deter-B

mine its own jurisdiction and it will be finai Supreme Court taking

cognizance

of contempt matter arising out of an incident subject

matter

of trial before a criminal 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

~=· c

Precedents-Decisions of Federal Court-Not binding but enti­

tled

to great weight-Changes brought about by Constitution to be kept

in mind while considering Federal Court,

Privy Council decisions.

Contempt

of Courts Act, I97 I-Sections 2(c), I2 and 15. Criminal

contempt-Object of punishing contemner-To protect administration

of public justice-Not to protect Judges personally.

D

Police Officers assaulting, arresting and handcuffing Chief Judi­

cial Magistrate-Publishing photographs

in newspapers-Held consti- E

tuted criminal contempt-Punishment to contemners determined having

regard

to degree and extent of part played by each contemner­

Guidelines laid down by Supreme Court to be followed by State

Governments and High Courts while arresting Judicial Officers.

Criminal contempt proceedings different from ordinary criminal

F

proceedings.

'Courts

of Record'-Have power to summarily punish for con­

tempt

of court-Contempt of Courts Act I97 I does not curtail inherent

power

of Supreme Court to punish for

contempi

Statutory Interpretation.

G

Constitution-Interpretation of-Not permissible to adopt a con­

struction which would render any expression super:fluous or redun­

dant-Regard to

be had to the social, economic and political changes,

need

of the Community and the independence of the judiciary-H

A

938 SUPREME COURT REPORTS [1991) 3 S.C.R.

Supreme Court cannot be a helpless spectator bound by precedents of

colonfo/ .days which have least relevance.

Criminal Procedure Code, I973. Section 6 and Chapter Xll.

Chief Judicial Magistrate-Postition and role of-Coordination,

B Cooperation of police necessity for-Police to be scrupulously fair to

offender-Magistrate to ensure fair investigation and fair trial of

offender-Magistracy and po/ice-Purpose and object-Comple­

mentary to each other-Judicial officer.not to visit pofjr;e station except

in connection with official and judicial duties and with prior intimation

to District and Sessions Judge.

c

D

Words and Phrases-Meaning of.

'Contempt'-Contempt of Courts Act I97 I: Section 2(c)-.

'Court of record'-Constitution of India-Article I29.

'Persons accused of an ojf«JtCe'-Constitution of India, Article 20(3).

Including the power to punish for contempt of itself-Consti-

tution oj' India, Article I29.

'Complete Justice'-Constitution of India, Article I42( I).

E

Mr. N.L. Patel was posted as Chief Judicial Magistrate at Nadiad

in

October, 1988. He soon found that the local Police was not co­

operating with the courts in ellicting 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

F Director General

of Police but nothing concrete happened.

On account

of these complaints, Mr. S.R. Sharma, 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 Officials,

Nadiad. for delaying the process of the Court.

On 25th July, 1989, the

G

CJM directed the police to register a criminal

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 Superintendent of

H Police.

On account of the aforesaid facts there was hostility between the

Police ofNadiad and the CJM.

,

JUDL. SERVICE ASSN. v. STATE OF GUJARAT 939

On 25th September 1989, the Police Inspector met the CJM in his A

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

B

CJ

M'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, hand-

'

cuffed 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

c

his photograph 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

D

photographed 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

E

Associations passed Resolutions and went on strike. The Delhi Judicial Service Association, the All India Judges Association, Bar Council of

U !tar 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 comp-

F

taint as

State case an award of compensation. On 29.9.1989 this Court took

cognizance 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

G

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 permitted the parties and the

contemners to

file their objections before this Court.

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940 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

The Learned Commissioner's Report establised the following facts

and circumstances: that the CJM found that the Police of Nadiad was not

effective in service

of summons and had adopted an attitude of indiffe-

rence to the court's orders, and as

complaints were forwarded to the

authorities

by th.e 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 be 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 pan.chnama

showing the drunken state of the CJM was prepared

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 published 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 submit-

ted 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 !PC in order to frustrate the attempt. The District Superinten-

dent

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: (l) 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

G 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

mdict a person for contempt of an inferior 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

H

court as neither the constitution nor any statutory provision confer any

<

'!!

""

__,.

•

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)

...

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JUDL. SERVICE ASSN. 1•. STATE OF GUJARAT 941

such jurisdiction· or power on this Court. So far as the High Court is

concerned, it has power of judicial and administrative superintendence

over the subordinate courts and Section IS 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 ju"risdiction of the Supreme Court and Section IS of the

Contempts of Courts Act

I97l curtails the inherent power of this Court

with regard to

co11tempt of subordinate courts. Inherent powers are

always preserved but they do not authorise a court to invest itself with

jurisdiction when

that jurisdiction is not conferred by law. (4)

Assump-

tion of contempt jurisdiction with regard to contempt of subordinate

A

B

and inferior courts on the interpretation of Article I29 of the Constitu-. .C

lion is foreclosed by the decisions of the Federal Court in K. L. Gauba

v. The Hon'b[e the Chief Justice and Judges of the High Court of

J ud1cature at Lahore & Anr., AtR I942 FC I. 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.

(S) In our

country there

is no court of universal jurisdiction, as the

jurisdidlon of D

all courts including the Supreme Court is limited. (6) Article I42(l)

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 E

a special jurisdiction which

is inherent in a Court of record, that 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,

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 F

interfere with the due administration of justice of that court.

It was

further urged

thaf the Contempt of Courts Act I97I recognises and

preserves the existing contempt jurisdiction and power of the court of

·record for punishing for contempt of subordinate 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 con· G

stitutional sanction under Article 129, that since this Court has taken

cognizance

of the contempt matter arising out of the incident which is

the subject matter of trial before the criminal court, this Court has

ample power under Article I42

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 I42 H

942 SUPREME COURT REPORTS [ l99!J 3 S.C.R,.

A in quashing a crimin:il proceeding pending before a subordinate court.

B

c

The basic questions that arose for consideration of the Court

were: (a) whether the Supreme Court has inherent juisdiction 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, I97I,

(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 Miscellan,eous Petitions,

and contempt petitions, this Court,

HELD: I. I Contempt of court is an act or ommission calculated to

interfere with the due administration of justice.

It includes civil and

D criminal contempt.

[9910]

E

F

Bowen L.J. in He/more v. Smith, [I886] 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 administra-

•

tion 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 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,

obstructed

or interfered with

Offutt v. U.S., [1954] 348 ijs 11, referred

to. [99IF]

1.3 The power to punish contempt is vested in the Judges not for

their personal protecting only, but for the protection of public justice,

G whose interest, requires that decency 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

H serious cognizance

of such conduct. [993B]

,_./

JUDL. SERVICE ASSN. v. STATE OF GUJARAT 943

l.4 The object and purpose of punishing contempt for interfe­

rence with the administration of justice is not to safeguard or protect

the dignity of the Judge

or the Magistrate, but the purpose is to

pre­

serve the authority of the courts to ensure an ordered life in society. [99IHJ

Auorney-Generai v. Times Newspapers, (1974] A.C. 273 at p.

302, referred to.

I.5 The Chief Judicial Magistrate is head of the Magistracy in the

District who administers justice to ensure, protect and safaguard 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

subor­

dinate 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 permit­

ted Rule of Law shall be supplanted by Police Raj. [992D-E)

I.6 The conduct of Police Officers in the instant case; in assa.ult­

'i ing and humiliating the CJM brought the authority and administration

of justice into disrespect, affecting the public confidence in the institu­

tion of justice. [992G I

A

B

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I. 7 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 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 manufai:tured charges, to humiliate him publicly as F

has been done in the instant case. [992F)

l.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 situation in future, it is necessary to lay down G

guidelines which should

he followed in the case of arrest and detention

of a Judicial

Officer. [IOOOF)

J.9 In view of the paramount necessity of preserving the·

independence of judiciary and at the same time ensuring that infrac­

tions of law are properly investigated the following guidelines are to be H

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944 SUPREME COURT REPORTS [1991] ,3 S.C:R.

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 circumstanct's necessitate the

immediate arrest of a judicial officer of the subordi1nate judiciary, a

~

technical 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 thie 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 u11 nor any medical

test be conducted except in the presence of the Legal Advisor of. the

Judicial Officer concerned or another Judicial Ollicer of equa! or

higher rank, if 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 linib, the person resisting arrest may be over-p,Bwered and hand­

cuffed. In such case, immediate report shall be mad«e 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 est•.blish the necessity

for effecting physical arrest and handcuffing the Judicial Officer and if

ii be established that the physical arrest and hand-cuffing of the Judi·

cial 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

Cou°rt. [lOOOG-lOOIF] ,j

I.I() 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.

[IOOIG]

1.11 No judicial officer should visit a Police Station on his own

G except in connection with his official and judicial duties and functions, · I

and this also with prior intimation to the District and SessionsJ~e. [lll02B] II ~

2.l 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 amen·

H able to correction, from commission of contempt against them. This

JUDL. SERVICE ASSN. v. STATE OF GUJARAT 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

antagonistie. (967G-H]

A

2.2 Article 136 vests the Supreme Court with wide powers to

grant special leave to appeal from any judgment, decree determination B

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 b) or under any law relating to the Armed Forces. The Court's appel­

late power under Article 136 is plenary, it may entertain any appeal by

granting special leave against any order made by any Magistrate; Tri­

bunal <;>r any other subordinate court. The width and amplitude of the C

power is not affected by the practice and prcedure followed in insisting

that before invoking the jurisdiction under Article 136 the aggrieved

part) inust exhaust remedy available under the law before the appellate

authority of the High Court. Self imposed restrictions 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 D

alternative remedy before the appellate authority or the High Court.

fhe power of the Court under Article 136 is unaffected by Articles 132,

133 and 134(A) in view of the expression "notwithstanding anything in this

Chapter" occurring in Article 136. (968E-969A]

Durga Shankar Mehcav. Thakur Raghuraj Singh & Ors., [I955] 1 E

SCR 267 and Arunachalam v. P.S.R. Sadhanantham & Anr., [1979] 2 ·

sec 297' referred to.

' 2 .3 In addttion 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 F

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

tire Supreme Court as well as

High Courts are courts of record having powers to punish Ior contempt

G

including the power to punish for contempt of itself. I970G I H

/1

946 SUPREME COURT REPORTS I 1991] 3 S.C.R.

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 memorial and t•estimony, which

rolls

are called the 'record' of the

court· and.are conclusive evidence of

that which is recorded therein. [970H-971E]

B Wharton's Law Lexicon: Words & Pnrases (Permanent Edition)

c

vol. IO p. 429: Halsbury's Laws of England Vol. 10 p. 3jl9.

2.6

In India prior to the enactment of the Contempt of Courts

Act, 1926, High

Court's

jurisdietion· in respect of cont1,mpt of subordi­

nate 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 contempt to protect the

subordina-.te courts on the

· premise of inherent power of a Court of Record. [974F ·G]

Rex v. Almon, 97 ER 94; Rainy v. The Justices of Seirra Leone, 8

Moors PC 47 at 54; Surendra Nath Banerjee v. The Chief Justice and

D Judges of the High Court at Fort William in Bengal, ILR 10 Calcutta

109; Rex v. Parke, [1903] 2 K.B. 432 at 442; King v. Davies, [1906] I

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] :~2 Bombay Law

Reporter 368; Abdul Hassan Jauhar's AIR 1926 Allahabad 623;

E

Shantha Nand

Cir v. Basudevanand, AIR 1930 Allahabad 225 FB; Mt.

,.

Hirabai v. Mangal Chand, AIR 1935 Nagpur 46; Harkishan Lal v.

Emperor, AIR I937 Lahore 497; Mohammad Yusuf v .. lmtiaz Ahmad

Khan, AIR 1939 Oudh, 131 and Legal Remembrancer v. Moti/al

Ghosh,

ILR 41Cal.173, referred to.

}

F 2. 7 The Kings Bench in England and High Courts in India being

superior Court of Record and having judicial power to corte<it 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

sup•,rvision over all

the Courts in the country, must possess and exercise similar jurisdiction

G 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 Codification of Contempt Law. [976G-977 A]

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

H Nadu, AIR 1972 SC 858, referred to.

·-'

•

>

JUDL. SERVICE ASSN. v. STATE OF GUJARAT 947

2.8 The Contempt of Courts Act 1971 was enacted to define and

limit the powers or'courts in punishing contempts of courts and to

regulate their procedure in relation thereto. 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

pre­

scribes modes for taking cognizance of criminal contempt by the High

Court and Supreme Couri. 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 snbordinate courts. The whole

object of prescribing procedural modes of taking cognizance in Section

15 is to safeguard to valuable time oT 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. [977

A-C, 978G-979A]

S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v.

A

B

c

Vmay Chandra Misra, [198112 SCR331, referred to. D ·

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 punishment which could

be awarded and it may provide

i;;

for appeal and for other matters. But the Central Legislature has no

legislative competence to abridge or extinguish the jurisdiction or

power conferred on the Supreme Court under Article 129. The Parlia­

ment's power to legislate in relation to the law of contempt relating to

the Supreme Court

is limited, therefore the Contempt of

Courts Act

does not impinge upon the Supreme Court's power with regard to the F

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 h.ave 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 G

nature. If the Framers of the Constitution intended that the Supreme

C"urt 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 I

3.3 Article 129 confers power on the Supreme Court tG punish for H

A

B

948 SUPREME COURT REPORTS (1991] 3 S.C.R.

contempt of itself l)-nd in addition, it confers some additional power

relating to contempt as would appea_r from the expression "including".

The expression "including" has l>een interpreted l>y 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 wfrhin the inherent jurisdiction of a court of record. [979H-980A]

3.4 In interpreting the Constitution, it is not permissible to adopt

a construction which would render any expression superfluous

or

redundant.

[980B j

C 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

D ·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

129ofthe Constitution. [981E]

KL. Gauba v

• .The Hon"ble the Chief Justice and Judges of the

High Court

of Judicature at Lahore & Anr., AIR 1942 FC l,

¥

E distinguished.

F

G

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 Allaha-·

bad 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] I

SCR l,

H referred to.

JUDL. SERVICE ASSN. v. STATE OF GUJARAT 949

K.L. Gauba v. The Hon'b/e the Chief Justice and Judges of the

High Court of Judicature at Lahore & Anr., AIR 1942 FC l 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 tbe 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 subordinate Courts was neither raised nor discussed in

its decisions. The Fe.deral 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 con­

current jurisdiction in several matters, yet no anamolous consequences

follow. [985H-986B]

A

B

c

4.2 The Federal

Court did not possess the wide powers as the D

Supreme Court has under the Constitution. There are marked diffe­

rence 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 E

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 an~

plenary or residuary appellate 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 Courl had

no judicial control

or superintendence over subordinate courts.

[986C-E I F

4.3 Advent

of freedom; and promulgation of the

Constitution

have made drastic changes in the administration of justice necessitating

new judicial approach; The Constitution 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 Constitu-G

lion, regard must be had to the social, economic and political changes,

need of the community and the independence of the judiciary. The

Court can.not 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

Constitutiton. [986F-G I H

A

B

c

D

950 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

5.1 Courts constilut·tl under a law enacted by the Parliament or

the State Legislature have limited jurisdiction and they cannot assume

jurisdiction in a

matter, not expressly assigned to them, but that is not

so, in the case

of a s11perior court of record constituted by the

Constitu­

tion such a court does not have a limited jurisdiction, instead it has

power to determine its own jurisdiction.

No matter is beyond the

juris­

diction of a superior court of record unless it is expressly showrt 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 & Ors.,

[ 1966] 3 SCR 744; Special Reference No. I of 1964, [1965] l SCR 413

and Ganga Bishan v. Jai Narain, [1986] l SCC 75, referred to.

5.2 Since the Supreme Court has po.wer of judicial superinten•

deuce 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

E any

quarter. The subordinate and inferior courts do not have adequate

power under the

Jaw to protect themselves, therefore, 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 confer­

red 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

F

under these Articles of the Constitution cannot be curtailed by law

made

by Central or State Legislature. [987 A-Cl

5.3 The Supreme Court and the High Court both exercise

concur­

rent jurisdiction under the constitutional scheme in matters relating to

fundamental rights under Articles 32 and 226 of the Constitution.

G Therefore, this Court's jurisdiction and power

to take action for

con­

tempt of subordinate courts would not be inconsistent to any constitu­

. tional scheme. [9870 I

5.4 The Apex Court is duty bound to take effective steps within

the constitutional provisions

to ensure a free and fair administration of

H justice through out the country. For

that purpose it must wield the

J

)

\/

).

JUDL. SERVICE ASSN. v. STATE OF GUJARAT 951

requisite power to take action for contempt of subordinate courts. Ordi­

narily, the High Court would protect the subordinate courts from any

onslaught

on their independence, 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.

[987F]

5.5 The

Supreme Court will sparingly exercise its inherent power

in taking cognizance of the contempt of subordinate courts,

as

ordina­

rily matters relating to contempt of subordinate courts must be dealt

with by the High Courts. The instant case

is of exceptional natllre 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]

A

B

c

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 D

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 obli-

que purposes.

[996E] E

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.

[996GJ

State of West Bengal &

Ors. '\· Swapan Kumar Guha & Ors.. F

[1982] 3 SCR 121 and Madhavrao Jivajirao Scindia & Ors. v. Sambha­

jirao Chandrojirao Angre & Ors .• [1988] I SCC 692, referred to.

6.2 The inherent power

of the

Supreme Court under Article 142

coupled with the plenary and residuary powers under Articles 32 and

136 embraces power to quash criminal proceedings pending before any G

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 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

qupsh the criminal proceeding. It is

idle to suggest that in such a situation this Court should be a helpless H

spectator. [997B-C]

A

B

952

SUPREME COURT REPORTS (1991] 3 S.C.R.

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 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. [997G I

6.4 What would be the need of "complete justice" in a cause or

matter would depend upon the facts and circumstances of each case and

while exercising that power the Court would take into consideration the

C · 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 justice in the matter. [998D I

Prem Chand Garg v. Excise Commissioner, UP. Allahabad,

(1963] Supp. 1 SCR 885 and A.R. Antu/ay v. R.S. Nayak & Anr.,

D (1988] 2 SCC 602, referred to.

E

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 ·1

the criminal proceedings. [998F]

7.1 Article 20(3) of the Constitution declares that no person

accused

of any offence shall be compelled to be a witness against

him­

self. 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,

'

F and thirdly it must be against himself. All the three ingredients 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 Devidaya/ 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

. H offence. [964G]

).

JUDL. SERVICE ASSN. v. STATE OF GUJARAT 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 pendellcy

of contempt proceedings 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 contempt

proceedings from criminal proceedings. In a criminal trial where a

person

is accused of an offence there is a public prosecutor who

prose­

cutes the case on behalf of the prosecution against the accused but in

contempt proceedings the court

is both the accused a.s 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 o_f an offenct" 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

A

B

c

D

the Constitution and the Commission's finding are not violated. [966F-G] E

8.1 In determining, what punishment should

be awarded to

con·

temners found guilty, the degree and the extent of part played by each

of the contemners has to he kept in mind. [998G I

8.2 In the instant case, Sharma, the Police Inspector was the F

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

w'ith ropes, but as G

subordiµate officials they acted under the orders of the superior offi·

cers. 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

Inspector.

So far as the

DSP is concerned, ne actively abetted the com·

mission of onslaught on the CJM. The contemners are held guilty of

contempt and.awarded punishment. [998H·999B I H

A

B

c

D

E

F

954.

SUPREME COURT REPORTS (1991] 3 S.C.R.

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 imprison­

ment. The Mamlatdar to undergo simple imprisonment for a period of

two months and a fine of Rs.1,000 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.1,000 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

express~d 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 Offi·

cers. 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 indifference to a sensitive matter which

shook the entire judicial machinery in the State, nothing better could

be

expected from his subordinate officers. The State Government should

take action departmentally

on the basis of the findings recorded by the

Commission.

[999F-1000A]

9.2 The discharge of the contempt notices does not absolve the

officers

of their misconduct. The State Government

is directed to pro­

ceed with the disciplinary proceedings for taking appropriate action. I lOOoli I

ORIGINAL JURISDICTION: Writ Petition (CRL.) No. 517

of 1989 etc. etc.

(Under Article 32 of the Constitution of India).

G Scli. J. Sorabjee, Attorney General, Ashok H. Desai, Addi.

·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, Sushi! Kumar

Jain, Bahl

Singh Malik, Gopala Subramanium, Ms. Binu Tamta,

H Shahid Rizi, D.K. Singh, T. Ray, Pramod Swarup, Praveen Swarup,

I

JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.] 955

P.H. Parekh, Sunil Dogra, C.L. Sahu, G.L. Gupta, Brij Bhushan,

A

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

B

K.N. SINGH, J. On 25th September, 1989, a horrendus inci-

dent 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 judiciary. S.R. Sharma, Inspector of

Police, with 25 years of service posted at the Police Station, Nadiad,

arrested, assaulted and ha.ndcuffed N.L. Patel, Chief Judicial Magis-

.,..

trate, Nadiad and tied him with a thick rope like an animal and made a c

public exhibition of it by sending him in the same condition to the

Hospital for medical examination on

an alleged charge of having con-

sumed liquor

in breach of the prohibition law enforced in the

State of

Gujarat. The Inspector S.R. Sharma got the Chief Judicial Magistrate

photographed

in handcuffs with rope tied around his body alongwith

the constables which were published

in the news papers all over the

D

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

E

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

F

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. Subse-

q uently, a number of petitions were filed under Article.32 of the Con-

G

stitution 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.

H

A

B

c

D

956

SUPREME COURT REPORTS [ 1991] 3 S.C.J{.

In Petition No. 518 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 Offi­

cials, 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 Const­

able 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

F!Rs 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 proceei:lings 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" :ew of the Report of Justic~ Sahai.

N .L. Patel was posted as Chief Judicial Magistrate at Nadiad in

October, 1988. He soon found that the local Police was not co­

operating 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

E 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 other Police Officials, Nadiad for delay-

F ing the process of the court. On 25 July, 1989 Patel directed the Police

to register a criminal case against 14 persons who had caused obstruc­

tion in judicial proceedings but subsequently since they tendered

unqualified apology, the CJM directed the Police Inspector to drop the

cases against those persons. Sharma reacttd strongly to Patel's direc­

tion and he made complaint against the CJM to the Registrar of the

G High Court through District Superintendent of Police;. These facts

show that there

was hostility between the

Police of N adiad and the

CJM. On 25.9.1989, S.R. Sharma met Patel, CJM in his Chambers to

discuss the case

of one Jitu

Sport 'Vhere 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

l-1 would ·n Jllify the sentiments of the Police Officials. His alleged that at

'

JUDL. SERVICE ASSN. v. STATE OF GUJARAT (SINGH, J.J 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 arrived in the Chamber of Sharma in the

Police Station, he was forced to consume liquor and on

his refusal he

was assaulted, handcuffed and tied with rope by Sharma. Police

Inspector,

Sadia Sub-Inspector, Valjibhai Kalajibhai, Head Constable

and Pratap Singh, Constable. It is further alleged that Pata! 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

1 the Police Station at 8.45 p.m. on 25.9. 1989 in a drunken state, shout­

ing and abusing him, he ~aught hold of Sharma and slapped him, since

he was violent he was arrested, handcuffed 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

A

B

c

D

~ 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 E

Nadiad and held sittings 'there. The learned Commissioner/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 F

evidence and

to cross examine witnesses. He submitted 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 ccintemners to file their objections, if

any, before this Court. The objections were filed

by the Police Officers

and the contemners disputi.ng the findings recorded by the G

Commissioner.

On 12.12. 1989, when the matter came up for final disposal 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 stating as to what actio.n it had taken or pro-H

A

B

c

D

E

F

958

SUPREME COURT REPORTS [ 1991] 3 S.C.R.

posed to take against the off:cers in the light of the Report of Justice

Sahai. The Court further issued notices to R. Bala Krishnan, Addi­

tional Chief Secretary (Home), Government of Gujarat,

K. Dadab­

hoy, 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 v:as 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. Savant, Mamlatdar, Nadiad also.

In his affidavit, S.R. Sharma,

Police Inspectoi' has raised a

number

of objections to the findings recorded by the Commissioner.

The objections are technical

in nature, challenging the authority and

jurisdiction

of the Commissioner in collecting evidence and recording

findings against him. Sharma has further stated

in his objections that

the Commissioner 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 In>pector

and other contemners. The Commissioner 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 Magis-

trate's arrest, assault, handcuffing and roping was connected with

several

other incidents which led to the confrontation between the

Magistracy and local police, 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, Gujarat,

was rejected by a well reasoned order of the Com-

G missioner dated 9.11.1989.

We have gone through the order and we

finct that the Commissioner has given good reasons for rejecting the

recall of CJM for further cross-examination,

as he had been cross­

examined

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

H opportunity was afforded to them for cross-examining the witnesses.

•

..

JUDL. SERVICE ASSN. v. STATE OF GUJARAT. (SINGH, J.J 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 con­

sidered the evidence as well

as the circumstances in support of his

findings that

Patel had been invited by 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

Pat\'l had gone on the invitation of Sharma on

Police jeep and not in the manner as alleged by Sharma, Patel could

A

B

c

not be drunk and there appears no reason as to why he would have

assaulted Sharma as alleged by the Police. The circumstances as D

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 persons and submitted his E

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 F

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.

G

"" After hearing learned counsel for the parties and on perusal of

the affidavits, objections, applications and the Report of the Commis­

sioner,

we hold that the following facts and circumstances are fully

proved:

(

1) N .L.

Patel, Chief Judicial Magistrate found that the Police of H

960 SUPREME COURT REPORTS [1991) 3 S.C.R.

A

N adiad

was not effective in service of summons and it had adopted an

attitude of indifference to court orders. He tried to obtain the assis-

tance

of the District Superintendent 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

B CJM filed two complaints against Police Officers of Nadiad Police

Station and the Inspectors, and forwarded it to the District Superin-

tendent 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 work-

ing in the courts

of Magistrates on the alleged pretext of utilising their

c

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 registration of

a case against

14 accused persons for misbehaviour and causing

obstruction in the judicial proceedings. Since the accused persons had

D later expressed regret and tendered unqualified apology to the court,

the

CJM sent a letter to the Police Inspector, Sharma to drop proceed-

ings. 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 duties. The action of

Sharma, Police Inspector was highly irresponsible and Dhagal, D.S.P.

E should not have acted in a casual manner in forwarding Sharma's letter

to the

Registrarof the High

Court directly.

(3) Remand period of Jitu Sport was to expire on 27th Septem-

ber, 1989, the CJM directed the Police Inspector to produce complete •

papers before the expiry of the period of remand but he applied for the

F 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.

G

(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

H Police and Magistracy. The CJM agreed to visit the Police Station and

JUDL. SERVICE ASSN. v. STATE OF GUJARAT (SINGH, J.l 961

Sharma offered to send police jeep to CJ M's house for bringing him to

the Police Station.

A

..... ;. (5) On 25.9.89 after the Court hours the CJM went to the offi­

cers' club where he remained in th'e company of Sudhalkar. 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 B

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 C

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. D

Police Inspector Sharma, Sub-Inspector Sadia, Head Constable

Valjibhai Kalabhai and Constable Pratap Singh took active part in this

., episode. They actively participated in the assualt on Patel and in forc­

ing liquor in his mouth. They acted

in collusion with

Sharma to

humiliate and teach a lesson to Patel.

" •

E

(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 F

in Prem 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 G

custody

or making any attempt to commit suicide or attacking the Police Officers and y.et 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. H

A

B

c

962 SUPREME COURT REPORTS [1991] 3 S.C.R.

(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 twopanches, M.B. Savant, Mamlatdar and P.O. Baro!, Fire

Brigade Officer, Nadiad, did not represent the correct facts, instead;it

was manufactured for the purpose of preparing a false case against

CJM Patel, 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

tci contact the District Judge and inform him about the incident. 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. Bhavsar 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

D 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

E 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 Chemical Examiner who submitted

the report holding that the blood sample of

Patel contained alcohol on

the basis of the calculation made

by him in the report clearly admitted

F

before the c.ommission 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

si't.outside in the Varanda

on bench for half an hour

in public gaze, to enable the public to have a

G 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 with­

out 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

H the Press Reporter were published in 'Jan Satta' and 'Lokmat' on 26th

J

/

..

..J

_ ..

r

.,

JUDI.. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.] 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 requested 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.

A

B

c

(12) D.K. Dhagal, the then District Superintendent of Police,

Kheda exhibited total indifference to CJM's complaint regarding the

unsatisfactory state of affairs

in the matter of execution of court pro-D

cesses. Dhagal identified himself with

Sharma, Police Inspector who

appeared to b.e his favourite. Instead of taking corre,ctive measures in

the service of processes, he bec~me party along with Sharma in for­

warding 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 , E

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 manipu­

lated subsequently

by making interpolation.

On the direction of Addi­

tional Chief Secretary (Home) Dhagal submitted his report on F

27.9.1989 but

in that report he did not make any reference of handcuf-

fing and roping of the CJM although it

was a matter of

comrron

knowledge and there was a great resentment among the judicial offi-

cers 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 G

registered against

him by

Sharma and also in the case registered by

Patel against Sharma.

( 13) Police Inspector Sharma had. pre-planned the entire inci­

dent and

he had even arranged witnesses in advance for preparing false

case against N.L.

Patel, CJM, as M.B. Savant, Mamlatdar in the H

A

B

c

964 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

Police Station, immediately on the arrival of Patel, CJM, and they

acted

in complicity with

Sharma in preparing the panchnam~ which

falsely stated that Patel was drunk. M.B. Sawant and P.O. Baro! both

were hand in glove with Sharma to flasely implicate Patel in Prohibi­

tion Case.

Learned Commissioner has adversely commented upon the con­

duct 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, MamJat­

dar, P.O. 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 the Commissioner's Report.

Mr. Nariman contended on behalf

of the

0

olice Officers that the

D findings recorded by the Commission cannot be •aken into account as

those findings are hit by Article 20(3) of the Corstitution. Inspector

Sharma and other Police Officers against whom c ·iminal cases have

been registered were compelled to be witnesses aga11st themselves

by

filing affidavits and by subjecting them to cross

examirntion before the

Commissioner. Any finding recorded on the basis

of their evidence is

E 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 protec­

tion

of Article

20(3) three conditions must be satisfied. Firstly, the

person must be accused

of an offence. Secondly, the element of com­

pulsion to be a witness should be there and thirdly

it must he

again,t

F himself. All the three ingredients 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 see: Balkishan Devidayal v. State of

Maharshtra., (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 proceed-

G ings do not attract Art. 20(3) of the Constitution as the contemner.s

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 ordinary offence. An offence under the criminal jurisdiction

is

tried by a Magistrate or a Judge and the procedure of trial is regulated

H

by the Code of Criminal

Procedure, I973 which provides as elaborate

••

j

JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.) 965

procedure for framing of charges, recording of evidence, cross-A

examination, 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 criminal offence is B

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. Ordi­

narily, 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

applicabl~

immemorial usage when criminal contempt was committed o

court

by a stranger. The practice of proceeding summarily for

tli

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

consider it necessary to refer to decisions from English Courts which.

D

have been discussed in detail in the History of Contempt of

Couri· 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 exercised as part

of the original criminal jurisdiction of the Court, as was. held in re: E

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 approa­

ched 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 rejected the application holding

F

that Section 527 of the Criminal Procedure <;:ode did not apply to the G

contempt proceedings 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 H

..

966 SUPREME COURT REPORTS [1991] 3 S.C.R.

A 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 proce­

dures of the Criminal Procedure Code do not apply to contempt pro­

ceedings.

Section 5 of the Code of Criminal Procedure lays down that

nothing contained in this Code shall, in the absence of a specific provi-·

B sion 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

not in the nature of criminal proceedings for an offence, the

ency

of contempt proceedings

cannot· be regarded as criminal

eedings merely because it may end

in imposing punishment on the

contemner. A contemner is not in the position of an accused, it

i~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

D 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 proceed­

ings. 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 prsecu­

tion against the accused but

in contempt proceedings the court is both

E the accuser

as well as the judge of the accusation as observed by

Hidayatullah, CJ

in Debabrata Bandopadhyaya's, case AIR 1969

SC

189. Contempt proceeding is sui generis, it has peculiar features

which are not found

in criminal proceedings. In this view the con­

temners do not stand in the position of a

··person accused of an

offence .. merely on account of issue of notice of contempt by this

F

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~rsion of the incident 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

G 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

H jurisdiction of the

Superme Court and the High Courts respectively.

I

•.

•

l

•

JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.l 967

This Court's Jurisdiction under Article 129 is confined to the contempt A

of itself only and it has no jurisdiction to intict a person for contempt

of an inferior court subordinate to the High Court. The Parliament in

exercise of its legislative power under Entry 77 of List I read with

Entry 14 of List III has enacted Contempt of Courts Act 1971 (herein­

after referred to

as the 'Act') and that Act does not confer any jurisdic­

tion on this Court for taking action for contempt

of subordinate courts. B

Instead the original jurisdiction of High Couttsin 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 w;th Articles 134(l)(c) and 136 of the

Constitution. The Constitutional and statutory

provi:;ions con fr r

exclusive. power on the High Court for taking action with regarvy -

contempt of inferior or subordinate court, and the Supreme Cou~ 0f · C

no jurisdiction in the matter. Shri Nariman further urged that

in

'Ol\,_/

country there is no court of universal jurisdiction, and the jurisdiction

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 D

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 neces­

sarily includes and carries with it the power to punish for contempt

committed in respec,t 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 E

due administration

of justice of the court. Articles 129 and 215 do not

confer any additional jurisdiction on the Supreme Court and the High

Court. The constitutional provisions

as well as the legislative enact­

ment

"'The Contempt of Courts Act" recognise and preserve the exist-

ing contempt jurisdiction and power of the court of record for punish-

ing for contempt of subordinate

or inferior courts. The Act has not F

affected

or restricted the suo moto

lnherent·power of the Supreme

Court being a court of record which has received constitutional sanc­

tion 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 guar-G

dian

of justice throughout the land, therefore, it has a right and also a

duty to protect the courts whose orders

an~ 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

h:ji; this right and duty of protection of the subordinate

courts. The jurisdictions are concurrent and not exclusive or antagonistic. H

A

B

968 SUPREME COURT REPORTS [ 1991) 3 S.C.R.

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 Constitu­

tion.

It is necessary to have a look at the constitutional provisions

relating to the original 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

C 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 pro­

vides 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 con-

D

E

.f

G

H

tempt of itself. Article 131 confers original jurisdiction on the Supreme

Court in certain 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 jurisdic­

tion

in the Supreme Court in appeals from High Courts in regard to

ci

vii and criminal matters respectively on certificate to be issued by the

High Court. Article

136 provides for special leave to appeal before the

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 judgment, decree determination sen­

tence

or order in any cause or matter passed or made by any court or

tribunal in

che territory of India except a court or Tribunal constituted

by or under any law relating to the Armed Forces. The Court's appel­

late power under Article

136 is plenary, it

may entertain any appe,al by

granting special leave against any orcJer made by any Magistrate. Tri-

bunal

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 restrictions 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

ln the country without

exhausting alternative remedy before the appellate authority

or the

High

Court. The power of this Court under Article 136:1s unaffected

by Article 132'. 133, 134 and 134(A) in view of the expression

'

-

...

>

....

JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.I 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:

A

B

"The powers given by Article 136 of the Constitution how­

ever 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 jurisdiction in the matter of entertaining and C

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 Constitution for the best of

· D

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 Constitu­

tion

of India by special leave at the instance of a complainant against E

the .iudgment 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 Constitution, was

rejected. Chinnappa Reddy, J. speaking for the Court held

as under:

F

"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

qi:ialifying that power. But, the very nature of the

powh has led the court to set limits to itself within which to G

exercise such power.

It is now the well established practice

of this Court

tci permit the invocation 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 imposed

by itself, this Court has the H

A

970 SUPREME COURT REPORTS [1991] 3 S.C.R.

undoubted power to interfere even with findings 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, distinguished from

B. the State, to invoke the jurisdiction of this Court under Article 136 of

the Constitution, the Court observed:

c

D

"Appellate power vested in the Supreme Court under Arti­

cle

136 of the Constitution is not to be confused with ordi­

nary 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 confers on

anyone the right to invoke the jurisdiction of the

Supreme

Court nodnhibits anyone from invoking the Court's juris­

diction. 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 limitaiion as to who may invoke

it."

E There is therefore no r?om 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

F 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

G 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

including the power to punish for contempt of itself. The Constitution

does not define "Court of Record", This expression is well recognised

H

in jurisdical world. In Jowitt's Dictionary of English Law,

"Court of

Record" is defined as:

,.

j

....

JUDL. SERVICE ASSN. v. STATE OF GUJARAT (SINGH, J.l 971

"A court whereof the acts and judicial proceedings are

enrolled for a perpetual memorial and testimony,, and

which has power to fine and imprison for contempt of its

authority i'

Jn Wharton's Law Lexicon, Court of Record is defined as:

"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 enrol­

led

or

recorded."

In Words and Phrases (Permanent Edition) Vol. 10 page 429, "Court

A

B

c

of Record" is defined as under: D

"Court of Record is a court where acts and judicial pro­

ceedings are enrolled.in parchment for a perpetual memo­

rial and testimony, which rolls are called the "record" of

the court, and are

of such high and supereminent authority

that their truth

is not to be

questioned." E

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 lourts are exPressly declared

by statute to be courts of record. In the case of courts not F

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 G

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 H

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972 SUPREME COURT REPORTS [1991] 3 S.C.R.

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 concept 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

A/man's case. In that case King's Bench initiated proceedings for con­

tempt 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 attach­

ment without the intervention of a Jury, as the summary form of

procedure was founded .upon immemorial usage. The judgment pre­

pared with great learning and erudition could not be delivered

as the

proceedings were dropped following the change of Government. 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 pe1son for contempt of court,

by follow­

ing a summary procedure on the principle that this power

was 'a neces­

sary 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 A/man's case, in 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 expressed

by him has all along been followed by the Eng­

lish 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 ofcourt.

In India, the courts have followed the English practice in holding

th.at 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

G Bengal, !LR

10 Calcutta 109 the High Court of Calcutta in 1883 con­

victed Surendra Nath Banerjee, who was Editor and Proprietor of

Weekly newsp,aper for contempt of court and sentenced

him to

impris­

onment 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

Pres-

H idencies were superior courts of record, and ,the powers of the High

-

JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.l 973

Cou.rt as superior courts in India are the same as in England. The Privy A

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 B

inherent power to punish for contempt of subordinate courts. The

Court further held that even after the codification of the law of con­

tempt in India the High Court's jurisdiction as a court of record to

initiate 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

subordinate courts and further Section 15 of the Act expressly confers

power of the High Court to take action for the contempt of subordi­

nate courts. This Court being a court of record has limited jurisdiction

to take action for contempt of itself under Article 129 of the Constitu­

tion, it has no jurisdiction to indict a person for the contempt of

subordinate 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 subordi-

c

D

E

, nate or inferior courts, has been considered 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. F

observed:

"This Court exercises a vigilant watch over the proceedings

of inferior courts and succes.sfully prevents them from

usurping powers which they do not possess,

or otherwise

acting contrary to law. It would seem almost a natural G

corollary that it should possess correlative powers of

guard'

ing them against unlawful attacks and interferences with

their independence on the part of others."

In King v. Davies, [1906) l K.B. 32. Wills, J. further held that the

Kings Bench being a court

of record must protect the inferior courts H

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974 SUPREME COURT REPORTS [1991] 3 S.C.R.

from unauthorised interference, and this could only be secured by

action of

the

Kings Bench as the inferior courts have no power to

proted 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.

Avary, 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 161 the House of Lords

proceeded on the assumption that a court of record possesses protec­

tive jurisdiction to indict a person for interference with the administra­

tion 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 authorities 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 jurisdic­

tion to correct the orders of those courts.

F 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 exer­

cised power of contempt to protect the subordinate courts

on the pre­

mise of inherent power

of a Court of Record. Madras High Court in

G

· 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 he.Id that the High

Court possessed the same powers to punish the contempt of subordi­

nate courts as the Court of the King's Bench Division had by virtue of

H

the Common Law of England. Similar view was expressed by the

.

JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.] 975

Allahabad High Court ·in Abdul Hassan Jauhar's, case AIR 1926

Allahabad 623 and Shantha Nand Cir v. Basudevanand., AIR 19Jll

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

dCal with contempts directed against the administration of

justice, whether those contempts are committed in face of

the court

or outside it, and independently 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.

1

'

A

B

c

Similar view was taken by the Nagpur and Lahore High Courts in Mt.

Hirabai v. Mangal Chand, AIR 1935 Nagpur 16; Harkishan Lal v. D

Emperor,

AIR 1937 Lahore 197 and the Oudh Chief Court took the

same view in

Mohammad Yusuf v. Imtiaz Ahmad Khan., AIR 1939 Oudh 131. But, the Calcutta High Court took a contrary view in Legal

Remembrancer

v. Motilal Ghosh, !LR 41 Cal. 173 holding that there

was no such inherent power with the High Court.

E

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 F

subordinate courts

as they exercised with regard to their own

con·

tempt. Thus the Act reiterated and recognised the High Court's power

as a court of record for taking action for contempt of courts subordi­

nate to them. The only exception to this power was made in sub­

section (3) of Section 2 which provided that no High Court shall take

cognizance

of a contempt alleged to have been committed in respect of G """ 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 con­

tempt of itself and of courts subordinate to it if contempt was commit-

ted outside its territorial jurisdiction, the Parliament enacted the Con-H

A

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976 SUPREME

COURT REPORTS [ 1991] 3 S. C.R.

•empt of Courts Act 1952 removing the doubt. Section 3 of the 1952

Act again reitented and reaffirmed the power, authority and jurisdic­

tion 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 autho­

nty, in accordance with the same procedure and practice in respect of

contempt of courts subordinate to it as it has and exercise in respect of

contempt of itself. Section 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

Parliamentary legisla­

tion 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

enactments. The effect of these statutory provisions was considered

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

jurisdiction

or create any offence, it merely limited the amount of

punishment which could be awarded to a contemner. The jurisdiction

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

Courtc

Act and the provisions of Section 3 of 1926 Act, do not affect that

power or confer a new power- or jurisdiction. 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 subordinate courts. The Kings Bench

G

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

H the High Courts had prior to Contempt Legislation in I926. Inherent

-.

JUDL. SERVICE ASSN. v. STATE OF GUJARAT (SINGH, J.] 977

powers of a superior Court of Record have remained unaffected even A

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 crimi-

nal contempt. Sections

5,

6, 7, 8, and 9 specify matters which do not

amount

to contempt and the defence which may be taken. Section lU B

which relates to the power of High Court to punish for contempt of ,ubordinate 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 reaffirms the

41 High Courts power and jurisdiction for taking action for the contempt C

of itself as well as of its subordinate 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. Nari-

man contended that under Section

15 Parliament has exclusively con-D

ferred power on the High Court to punish for the contempt of subordi-

nate courts. The legislative 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 subordinate 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 'consent in writing of

the Advocate-General (or)

E

F

(c) in relation to the High Court for the

Union Ter-G

ritory

of Delhi, such Law

Officer as the Central Govern-

ment 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

criJ11inal contempt of subordinate H

978

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SUPREME COURT REPORTS [1991) 3 S.C.R.

'

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 noti-~

fication 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 Commis­

sioner, such Law Officer

as the Central Government may,

by notification

in the official Gazette, specify in this behalf.

E

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

I' case of any criminal 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

G 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

the valuable time

of the High Court and the

Supreme Court being

wasted

by frivolous complaints of contempt of court.

Section 15(2)

H does not restrict the power

of

th7 High Court to take cognizance of the

..

..

JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.J 979

contempt of itself or of a subordinate court on its own motion although

apparently the Section does not say so. ln S.K. Sarkar, Member,

_Board of Revenue, U. P. Lucknow v. Vinay Chandra Misra, I 1981) 2

f 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 cognizance and punish for contempt of subordinate

courts.

Mr. Nariman urged that under Entry 77 of List l of the V!lth

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. Entry 77 of List l states: "Constitu­

tion, 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 Jaw

with respect to the constitution, organisation, jurisdiction and powers

of the Supreme Court including the contempt of this court. The Parlia­

ment 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 Legislature 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 subor­

dinate 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 restric-

A

B

c

D

E

F

.....

tive insteac it is extensive in nature. If the Framers of the Constitution

intended that the Supreme Court shall have power to punish for con·-G

tempt of itseJf only, there was no necessity for inserting the expression

"including the power to punish for contempt of itself'. The Article

cm1fers power on the Supreme Court to punish for contempt of itself

andifl-· ion, it confers some additional power relating to contempt

as would app r from. the expression "including". The expression

"including" has een interpreted by courts, to extend and widen the H

A

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980

SUPREME COURT REPORTS [ 1991] 3 S.C.R.

scope of power. The plain language of Article clearly indicates that

this Court as a court

of record has power to punish for

contempt of

itself and also something eise which could fall within the inherent

jurisdiction

of a court of record. In interpreting the Constitution, it is

not permissible to adopt a construction which would render anv 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 Con­

stitution as a court

of record and as the Founding Fathers were aware

that a superior court of record had inherent power to indict a person

for the contempt

of itself as well as of courts inferior to it, the expres-

.

sion "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 safe-

D guard and protect the subordinate judiciary, 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.

E 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 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 ves-

F

ted 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

G

Court had entertained an original suit and issued injunction under the

Trade and

Merch~ndise Marks Act 19~8 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

S.ection 2_'.!,read

with its inherent power under Section 151 of the Code iv1l Proce-

H dure. This Court rejected the submission on the gro nd that exercise

•

•

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JUDL. SERVICE ASSN. v. STATE OF GUJARAT (SINGH, J.] 981

of jurisdiction under Section 24 of Code of Civil Procedure was con-

A

ditioned by lawful institution of the proceeding

in a subordinate court

of competent jurisdiction, and transfer thereof to the High Court. The i 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

B

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 lawfully before the High Court, it does

not, however, authorise the High Court to invest itself with jurisdic-

tion where it is not conferred

by law. The facts and circumstances as

~-available in the Raja Soap Factory's case, were quite different and the

c

view expressed in that case do not have any bearing on the inherent

power of this Court.

In Raja

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 jurisdic-

D

tion 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 appel-

.A

late jurisdiction under Section 19 of the Act, but that does not divest it

of its inherent power under Article 129 of the Constitution. The con-

ferment of appellate power on the court

by a statute does not and E

cannot affect the width and amplitude 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 F

absence of any express provision in any Act. A fortiori the

Supreme

Court being the Apex Court of the country and superior court of

record sbould 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 G

. ..__ Article 227 of the Constitution, therefore, High Court has power to

punish for the contempt of subordinate courts. Since the Supreme

Court has no supervisory 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 con-

fers supervisory jurisdiction on the High Court and

in exercise of that H

982 SUPREME COURT REPORTS ( 1991] 3 S.C.R.

A

power High Court may correct judicial orders of subordinate courts,

in

addition to that, the High Court has administrative control over the

subordinate courts.

Supreme Court's power to correct judicial orders

of the subordinate courts under Article

136 is much wiaer ana more

~

effective than that contained under Article 227. Absence of aaminis-

trative power of superintendence over the High Court and subordinate

B court does not affect this Court's wide power of judicial superin-

tendence of all courts

in India.

Once there is power of judicial

superintendence, all the Courts whose orders are amenable to correc-

tion 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.

c

The jurisdiction 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 ihe inherent juris-

diction

was conceded to superior Court of Record on the premise of its

judicial power to correct the errors of subordinate Courts.

D Mr. Nariman urged

that 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

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

--._

E 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 Article 374(2) of the

Constitution. Mr. Sorabji, learned Attorney-General seriously contes-

ted the proposition, he contended that there

is a marked difference

between the Federal Court and this Court, former being established

by

F a statute with limited jurisdiction while this Court is the Apex constitu-

tional 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

G 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 inferior courts as the Fed'eral Court

had no occasion to interpret 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 ..

H Court on the commencement of the Constitution and it also made

_)

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JUDL SERVICE ASSN. v. STATE OF GUJARAT (SINGH, J.] 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, civifor criminal, pend­

ing in the Federal Court at the commencement of this Con­

stitution shall stand removed to the Supreme Court, and

the Supreme Court shall have jurisdiction to hear and

determine the same, and the judgments and orders of the

Federal Court ·delivered or made before the commence­

ment 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 vi.ew to meet the

changed situation, provisions had to be made with regard to the mat­

ters pending before the Federal Court. Article 374(2) made provision

for two things, firstly it directed the ·transfer of all suits, appeals and

proceedings, 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

ihe Constitution shall have the same force and effect

as if those orders

or' judgments had been delivered 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

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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 situation 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 1951 Allahabad 205 para 43 and Bombay High Court in State of

Bombay v. Gajanan Mahadev Badley., AIR 1954 Bombay 352 para 14. G

The decisions of Federal Court and the Privy Council made before the

commencement 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., [19551 1 SCR 1 at 24 and 25. Federal H

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SUPREME COURT REPORTS [1991] 3 S.C.R.

Court decisions were not followed by this Court. There is, therefore,

no muit 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 Constitution. 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 insolvency. 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

main­

tainable. Gauba argued that the High Court was guilty of contempt of

Federal Court as it had deliberately and maliciously deprived the

Federal Court's 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 construe 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 precedent to every appeal.

We

can­

not question the refusal of a High Court to grant a certifi­

cate 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 exclu­

sively 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

•

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JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.] 985

invoke extraordinary original jurisdiction of the Federal Court under A

Section 210(2) of the Government of India Act, 1935 was made with a

prayer that the Federal Court should itself deal directly with

an alleged wntempt of a Civil Court, subordinate to the High Court. By a short

order the Court rejected the application placing reliance on its deci­

sion

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

consequences."

In the case of K. L. Gauba the Federal Court found itself helpless in

B

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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 certificate. The decision has

no bearing on the ques­

tion which

we are concerned. Jn Purshottam Lal Jait/y's case the deci­

sion turned on the interpretation of

Section 210(2) o.,f the 1935 Act. E

Section 210 made provisions for the enforcement of decrees and orders

of Federal Court. Sub-section (2) provided that Federal Court shall

have power to make any order for the purpose of securing the atten­

dance

of any person, the discovery or production of any documents or

the investigation

or

"punishment of any contempt of court", which any

High Court has power to make as respects the territory within its F

jurisdiction, and further the Federal Court shall have power to award

costs and its orders shall be enforceable by all courts. While interpret-

ing Section 210(2) the Federal Court held that it had no power to deal

with contempt of any court subordinate to High Court and it further

observed that the wider constructions may lead to conflicting judg­

ments and to other anomalous consequences.

It is not necessary for us G

to consider the correctness of the opinion expressed

by the Federal

Court, as in our view the Federal Court

was a court of limited jurisdic­

tion, 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 H

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986 SUPREME COURT REPORTS [1991] 3 S.C.R.

Superior Court of Record

in respect of the Contempt of Subordinate

court was neither raised nor discussed

in aforesaid decisions. The

Federal Court observed that if the High Court and the Federal Court

both have concurrent jurisdiction

in contempt matters it could lead to

t

conflicting judgments 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 Constitu-

. tion, High Court and the Supreme Court both have concurrent jurisdic­

tion in several matters, yet

no anomalous consequences follow.

While considering the decision of Federal Court, it

is necessarv to

bear in mind that the Federal Court did not possess wide powers as this

Court bas under the Constitution. 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 bas wide powers under Article

136 over all the courts and

Tribunals in

the country. The Federal Court bad 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 territ­

ory

of India like the power conferred on this Court under Article 136

of the Constitution, therefore, the Federal Court had no judicial con­

trol

or superintendence over subordinate courts.

•

Advent of freedom, and promulgation of Constitution have

made drastic changes

in the administration of justice necessitating new

judicial approach. The Constitution has assigned 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 Coleridge, "grows; and though the principles oOaw

remain unchanged, 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 decision .in Guaba's

and Jaitley's case are no more relevant in the context of the constitu­

tional provisions.

I

•

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JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.] 987

Since this Court has power of judicial superintendence and con­

trol 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

interferenFe 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, 141 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 Cent­

ral or State Legislature.

If the contention raised on behalf of the con­

temners is accepted, 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 ihe

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 jurisdic­

tion and power to take action for contempt of subordinate courts

would not be inconsistent to any constitutional scheme. There may

be

occasions when 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 paralysed,

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 aciion for contempt of subordi­

nate courts. Ordinarily, the High Court would protect the subordinate

court from any onslaught on their independence, 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 cognizance of the contempt of

fsubordinate courts, as ordinarily matters relating to contempt of

sub:

ordinate 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,

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988 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

ff;

'.-;·

A

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

B 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

Nuresh Shridhar Mirajkar & Ors. v. State of Maharashtra &

Ors., [1966] 3 SCR 744 at 771. We have carefully considered the deci-

sion but

we find nothing therein to support the contention of Mr.

Nariman. It

is true that courts constituted under a law enacted by the

,.

c

Parliament or the State'Legislature have limited jurisdiction andJhey

cannot assume jurisdiction in a matter, not expressly 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

D beyond the jurisdiction of a superior court of record unless it is ex-

pressly 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 High Court, the same would be subject to

E appeal to this Court, but

if the jurisdiction is

fotermined by this Court

it would be final. Halsbury's Laws of England Vol. 10 Para 713, states:

"Prima facie no matter is deemed to be beyond the juris-

diction

of a superior court unless it is expressly shown to be

•

so, while nothing is within the jurisdiction of an inferior

F court unless it is expressly shown on the face of the pro-

ceedings 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. 1

of 1964 (1965] 1

SCR 413 at 499 in holding that the·

G 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 c~se (supra) this Court again reiterated the princi-

pies that a superior court of record unlike a court of limited jurisdic-

tion is entitled to determine about its own jurisdiction. In

Ganga

H Bishan v.

Jai Narain, (1986] 1 SCC 75 the Court emphasised that the

[

•

JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.]. 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 subordinate courts. This view

does n9t run counter to any provision 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

con­

frontational 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

Procedure, 1973, he exercises control and supervision over the investi­

gating 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 in investiga­

tion of crimes without indulging into excesses and causing harassment

to citizens. The main objective of Police is to apprehend 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 citizens' 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 complementary to each other. It is unfortu-.

nate, that· these objectives have remained unfulfilled even after 40

years of our Constitution. 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 fettered routinely or

merely for the convenience of custody or escort. The Court

emphasised that the Police did not enjoy any unrestricted or unlimited

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990 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

power to handcuff

an

arrested person. If having regard to the circums·

lances 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

justification, it would violate prisoner's fundamental rights under Arti·

cles 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 Shuk/a's case,

Krishnalyer,J. observed:

"If today freedom of the forlorn person fails to the police

somewhere tomorrow the freedom of many

may fall, else

where, with none to whimper unless the court process

lnvigilates 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

E 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 v.ower and privilege to apprehend

and deal with a Chief Judicial Magistrate according to its sweet will.

F What was the purpose of unusual behaviour of the police, was it to

secure safety and security 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 Commission has

recorded detailed findings that the object

was to wreck vengeance and

to

humiliate· the CJM who had been policing the police by this judicial

G orders. We agree with the findings recorded

by the

Cilmmission that

there was no justification for this extraordinary and unusual behaviour

of

Police Inspector Sharma and other Police Offi~ers although they

made an attempt to justify their unprecedented, dehumanising

behaviour on the ground that Patel was drunk, and he was behaving in

violent manner and if he had not been handcuffed or tied with ropes,

H he could have snatched Sharma's revolver and killed him.

We are

•

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JUDL. SERVICE .ASSN. v. STATE 01' GUJARAT (SINGH, J.] '991

amazed at the reasons given by Sharma justifying the handcuffs and A

ropes on the body

of N

.L Patel. Patel was unarmed, he_ was a_t the

Police Station in a room, there were at least seven pohce officials

present in the room who were fully armed, yet, t_here was apprehen­

sion about Patel's escape or violent behaviour 1ust1fymg handcuffs and

roping.

The justification given by them

i_s flimsy, and prepo~terous.

S.R. Sharma acted in utter disregard of this Courts duectmn m Prem

Shankar Shukla's case. His explanation that he was not aware of the

decision

of this Court is a mere pretence as the Commissioner has

recorded findings that Gujarat Government had issued Circular letter

B

to the Police incorporating the guide lines laid down by this Court in

Prem Shanker Shukla's case with regard to the handcuffing of

prisoner. c

What constitutes contempt of court? The Common Law defini­

tion of contempt of Court is: 'An act or omission calculated to

interfo1~ with the due administration of justice.' (Bowen L.J. in

He/more 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 publication 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 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,

obstructed

or interfered with.

"It is a mode of vindicating the majesty

of law, in its active manifestation against obstruction and outrage."

(Frank Furler, J. in Offutt v. U.S.,) [1954] 348 US 11. The object and

purpose

of punishing contempt for interference with the

administra­

tion of justice is not to safeguard or protect the dignity of the Judge or

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992 SUPREME COURT REPORTS [1991] 3 S.C.R.

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 established 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 unju.stifiable interference. When such unjustifiable

interference

is suppressed it is not because those charged

with the responsibilities of administering 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."

D 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

E the authority of subordinate courts

is protected. 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 perspec­

tive the incident

is not a case of physical assault on an individual

F

judidal officer, instead it is an onslaught on the institution of the

judiciary itself.

The'incident is a clear interference with the administ­

ration

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,

G 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

punishment for contempt has been conferred on the courts to keep a

ff blaze of glory around them, to deter people from attempting to render

'

"

\,

'

JUDL. SERVICE ASSN. v. STATE OF GUJARAT (SINGH, J.] 993

them contemptible in the eyes of the public. These powers are neces­

sary to keep the course of justice. free, as it

is of great importance to

society." (Oswald on Contempt of Court). The power to punish con­

tempt

is vested in the Judges not for their personal protection only, but

for the protection of public justice, whose interest, requires that

decency 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 interfe­

rence 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 contemners con­

tempt

is made out.

On behalf of the petitioners it was urged that the

Police Officers' conduct amounts to criminal contempt as their action

lowere<l the authority of the Chief Judicial Magistrate and it further

caused interference 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 no.t make

out any contempt of court. The Chief Judicial Magistrate had con­

sumed liquor and

in druken state he went to the

Police Station and

slapped the Police Inspector, Sharma, thereby he committed 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 prosecu­

tions pending against N.L.

Patel, 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

A

B

c

D

E

F

are peculiar in nature although in certain aspects they are quasi­

criminal

in nature but ihey do not form part of criminal jurisdiction of G

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 proceedings 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 pro­

ceedings have been taken to protect the interest of the public

in the H

A

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E

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G

H

994 SUPREME COURT REPORTS ( 19911 3 S.C.R.

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 Inspector, K.H. Sadia, Sub­

Inspector, Valijibhai 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

theq District Superintendent of

Police, Kheda, we have already recorded findings that he was hand in

glove with Sharma, Police Inspector. The circumstances 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

R~st House, Balasinor. In his report

submitted

to the

Addi. Chief Secretary (Home) on 27.9.1989, Dhagal

did not even remotely mention the handcuffing and roping of CJM.

It

is unfortunate that Dhagal as the district Superintendent of

Police did

not discharge

his duty like a responsible

Police Officer instead he

identified himself with Sharma, Police Inspector and actively abetted

the commission of onslaught on the CJM. We, accordingly, hold D.K.

Dhagal, the then D.S.P., Kheda guilty of contempt of court.

•

•

· JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.] 995

This takes us to the petition filed by N.L. Patel for quashing the A

criminal cases initiated against him

on the basis of two First lnforma-

tiun Reports made

by

Police Inspector 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 Prohibition

Act on the alfegations that Patel had consumed liquor without permit B

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 C

of the contempt proceedings before this Court, the

Police continued

the investigation and submitted ch.arge 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 pro-

ceedings are sought to be quashed.

·

On behalf of the State and the Police Officers, it was urged t.hat

since charge sheets have already been submitted to the Court, Patel

D

will have full opportunity to defend himself before the court where

\.Vitnesses would be examined and cross-examined, therefore, this

Court should not interfere with the proceedings. The gravamen of the

charge in the two cases registered against N .L. Patel is that he had E

consumed liquor without a pass or permit and under the influence of

liquor, he entered the chamber

of

Police Inspector 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 examination, and the report

of medical examina-

tion indicates that he had consumed liquor. These very facts have been F

inquired into

by the Commissioner and found to be false. We have

recorded findings that

Police Inspector Sharma and other Police Offi-

cers 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, Valji-G

bhai Kalabhai, Head-Constable, Pratap Singh, Constable, M.B.

Savant, Mamlatdar, and D.K. Dhagal, D.S.P. guilty of contempt of

court. These very persons are specified as witnesses

in the two charge

sheets. The Commission's

as well as our findings clearly demonstrate

that the allegations contained in the two F!Rs are false.

If Police is

permitted to prosecute Patel on those allegations merely on the basis H

A

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F

G

996 SUPREME COURT REPORTS [1991] 3 S.C.R.

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. 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 pending 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 incident which

is·

'he subject matter of trial before the criminal 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 widtn 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 crimi­

nal 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 Arti­

cle

136 of the Constitution, 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 Jiva­

jirao

Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors.,

["1988] 1 SCC 692 criminal proceedings were quashed as this Court was

H satisfied that the case was founded on false facts, and the proceedings

•

JUDL. SERVICE ASSN. v. STATE OF GUJARAT [SINGH, J.l 997

for trial had been initiated for oblique purposes. A

Article 142(1) of the Constitution provides that Supreme Court

1

in exercise of its jurisdiction may pass such decree or make such order

as.

is necessary for doing complete justice 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 inherent power

of this Court under Article 142 coupled with the plenary and residuary

powers under Article

32 and 136 embraces 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

7 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 contemplate any

order contrary to statutory provisions. He placed 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 conferred 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 anC:

B

c

E

Antu/ay's case (supra) observations with regard to the extent of this

'Court's power under Article 142(1) were made in the context of funda­

mental rights. Those observations have no bearing on the question in

issue as there is no provision in any substantive law restricting

this F

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 ordinary 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 G

"' 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

Harbans Singh v.

UP. State, [1982] 3 SCR 235 at

243 the Court observed:

"Very wide powers have been conferred on this Court for H

•

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F

998 SUPREME COURT REPORTS [1991) 3 S.C.R.

due and proper administration of justice. Apart from the

jurisdiction and powers conferred on this Court under Arti­

cie.s 32 and 136 of the Constitution I am of the opinion that,_

this Court retains and must retain, an inherent power and

jurisdiction for dealing with any extra-ordinary situation in

the largest interests of administration of justice and for pre­

venting manifest injustice being done. This power must

necessarily be sparingly used only

in exceptional

circums­

tances forfurthering 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

Constitutio

though while exercising power under Article 142 of the Constitution,

the Court must take into consideration the statutory prov1S1ons

regulating the matter in dispute. What would be the need of "complete

justice" in a cause or matter would depend upon the facts and cir­

cumstances 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 justice

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; Ganf?a Bishan & Ors. v. Jai

Narain,

[1986] 1

SCC 75; Navnit R. Kamani & Ors. v. R.R. Kamani,

[1988] 4 SCC 387; B.N. NaJ?arajan & Ors. v. State of Mysore & Ors.,

[ 1966] 3 SCR 682: Special Reference No. 1 of 1964, (supra), and

Harbans Singh v. State of U.P. Ors., (supra). Since the foundation of

the criminal trial

ofN.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 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,

G 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,

thern­

fore, he deserves maximum punishment. Sadia, Sub-Inspector took

active part

in assaulting and tying the CJM at the behest of

Sharma,

H Police Inspector. Valijibhai Kalajibhai,.Head Constable and Prat.ap

J

JUDL. SERVICE ASSN. v. STATE OF GUJARAT (SINGH. J.] 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

JSharma,

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

onslaught on the CJM. Having regard to the facts and circumstances

and individual part played

by each of the aforesaid contemner we hold

them guilty of contempt and award punishment as under:

A

B

S.R.

Sharma, the then Police Inspector, Nadiad shall undergo

simple imrisonment 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 C

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 imrisonment 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, D

Mamlatdar

is convicted and awarded two month's simple imprison­

ment and a fine of

Rs.1000 and in default he would undergo one

month's simple imprisonment. D.K. Dhagal, the then District

1

Superintendent of Police, Kheda, is convicted and sentenced to impri­

sonment 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 E

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 accordingly discharge the notices issued to

them.

Before we proceed further,

we would like to express the Court's F

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, hand­

cuffed, roped and assaulted. He took this news as a routine matter G

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 H

A

B

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F

G

1000 SUPREME COURT' REPORTS [1991] 3 S.C.R.

take action against him departmentaly on the basis of the findings

recorded

by the Commission. The

State Government has initiated pro­

ceedings against other erring officers

in respect of whom the Commis­

sion has adversely commented,

we would make it clear that discharge \.

of contempt notices does not absolve those officers of their miscon­

duct, 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 Offi­

cers 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-{)ccurrence

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 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 situation in future,

we consider it necessary to lay down

guidelines 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

H

High Court as the case may be.

I

11

•

1001 JUDL. SERVICE ASSN. v. STATE OF GUJARAT (SINGH, i.)

(Bl If facts ·and circumstances necessitate the immediate arrest

A

of a judicial officer of the subordinate judiciary, a technical or

j

formal arrest may be effected.

(C) The facts

of such arrest should be immediately communi-

I

cated to the District and Sessions Judge of the concerned District

and the Chief Justice

of the High Court. B

(D) The Judicial Officer so arrested shall not be taken

. to a

police station, without the prior order

or directions of the Dis-

trict

& Sessions Judge of the concerned District, if available.

' "

(E) Immediate facilities shall be provided to the Judicial Officer

c

fo communication with his family members, legal advisers 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 tests

be conducted except in the presence

of the Legal Adviser of the D

Judicial Officer concerned or another Judicial Office of equal or

higher rank, if

avaitable. · . ·

(G) There should be no handcuffing of a Judicial Officer. If,

however, violent resistance to arrest is offered or there is immi-

nent need to effect physical arrest in order to avert danger to life E

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

l) 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 F

arrest and handcuffiQg of the Judicial Officer was unjustified, the

Police Officers causing or responsible for such arrest and hand-

cuffing· would be guilty of misconduct and would also be per-

sonally liable for compensation and/or damages

as may be sum-

marily determined by the High Court.

G

The above guidelines are not exhaustive but these are minimum

safeguards which must be observed

in

.:1.,se of arrest of a judicial

officer. These guidelines should be imple ented

by the

State Govern-·

ment as well as by the High Courts. We, 86:Cordingly, directthat a copy

of the guidelines shall be forwarded to th'e Chief Secretaries of all the

State Governments and to all the High Courts with a direction that the H

..

1002 SUPREME COURT REPORTS [1991) 3 S.C.R.

A same may be brought to ·the notice of the concerned officers fol

compliance.

B

c

D

E

·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 judic'al 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 o.n September 29, 1989, the

members of the Bar

as well as the members

of the Judiciary through·

out 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

memblrr:ohhe 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 parties. We are beholden to

Sri

Soli J. 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 Miscel·

laneous PetitioM are disposed of accordingly.

N.V.K. Petitions disposer.I of.

•

)..