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PETITIONER:

S. K. SARKAR, MEMBER, BOARD OF REVENUE, U.P., LUCKNOW

Vs.

RESPONDENT:

VINAY CHANDRA MISRA

DATE OF JUDGMENT12/12/1980

BENCH:

SARKARIA, RANJIT SINGH

BENCH:

SARKARIA, RANJIT SINGH

REDDY, O. CHINNAPPA (J)

CITATION:

1981 AIR 723 1981 SCR (2) 331

1981 SCC (1) 436

CITATOR INFO :

R 1988 SC1208 (41)

RF 1991 SC2176 (27)

ACT:

Contempt of Courts Act 1971, S. 15(2)-Scope of Contempt

of Subordinate or inferior Court-Whether High Court can take

suo motu cognizance of and punish.

HEADNOTE:

The Contempt of Courts Act, 1971 by section 15(2)

empowers the High Court in the case of any criminal contempt

of a subordinate court, to take cognizance 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

the notified Law Officer.

In a proceeding under the U.P. Zamindari and Land

Reforms Act 1950, the respondent-advocate, appeared as a

counsel before the appellant who was a Member of the Board

of Revenue to oppose the vacation of a stay order filed

before the Board.

The respondent, in his petition to the High Court under

the Contempt of Courts, 1971 alleged that in the course of

arguments before the appellant in the aforesaid proceeding,

the appellant got infuriated, lost his temper and abused him

saying "Nalayak Gadhe Salle ko Jail Bhijwadunga; kis Idiot

Ne Advocate Bana Diya Hai", and that thereby the appellant

had committed contempt of his own Court as well as that of

the High Court as provided in sections 15 and 16 of the

Contempt of Courts Act which was punishable under section 12

of the said Act.

Before the High Court, the appellant raised a

preliminary objection stating that the High Court was not

competent to take cognizance of the alleged contempt without

any reference from the subordinate Court or without a motion

by the Advocate-General as envisaged by section 15(2) of the

Act. The High Court rejected the preliminary objection and

held that the application was maintainable.

In the appeal to this Court, on the question whether

the High Court can take suo motu cognizance of contempt of

subordinate/inferior Court when it is not moved in either of

the two modes mentioned in section 15(2) of the Act.

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HELD : 1. Sub-section (2) of section 15 of the Contempt

of Courts Act 1971, does not restrict the power of the High

Court to take cognizance of and punish contempt of a

subordinate Court, on its own motion [339 A]

2. In the facts of the instant case the High Court has

not acted improperly or illegally in taking suo motu

cognizance, on the petition of the respondent-advocate. [340

C]

332

3. Articles 129 and 215 preserve all the powers of the

Supreme Court and the High Court, respectively, as a Court

of Record which include the power to punish the contempt of

itself. Parliament has, by virtue of Entry 77 of List I of

the Seventh Schedule, and Entry 14 of List III of the

Seventh Schedule, power to define and limit the power of the

Courts in punishing contempt of Court and to regulate their

procedure in relation thereto. [337 A-B]

Mohd. Ikram Hussain v. The State of U.P., A.I.R. 1964

S.C. 1625 referred to.

4. Section 15 does not specify the basis or the sources

of the information on which the High Court can act on its

own motion. If the High Court acts on information derived

from its own sources, such as on a perusal of the records of

a subordinate court or on reading a report in a newspaper or

hearing a public speech, without there being any reference

from the subordinate court or the Advocate-General, it can

be said to have taken cognizance on its own motion. But if

the High Court is directly moved by a petition by a private

person feeling aggrieved, not being the Advocate-General,

the High Court, has, a discretion to refuse to entertain the

petition, or to take cognizance on its own motion on the

basis of the information supplied to it in that petition. If

the petitioner is a responsible member of the legal

profession, it may act suo motu. [339B-E]

5. If the High Court is prima facie satisfied that the

information received by it regarding the commission of

contempt of a subordinate court is not frivolous, and the

contempt alleged is not merely technical or trivial, it may,

in its discretion, act suo motu and commence the proceedings

against the contemner. However, this mode of taking suo motu

cognizance of contempt of a subordinate court should be

resorted to sparingly where the contempt concerned is of a

grave and serious nature. [339 P-G]

6. If the intention of the Legislature was to take away

the power of the High Court to take suo motu cognizance of

contempt, there was no difficulty in saying so in

unequivocal language, or in wording sub-section (2) of

section 15 in a negative form. [338 H; 339 A]

7. The whole object of prescribing procedural modes of

taking cognizance in section 15 is to safeguard the valuable

time of the High Court or of the Supreme Court from being

wasted by frivolous complaints of contempt of court. [339 E]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

294 of 1974.

From the Judgment and Order dated 10.4.1978 of the

Allahabad High Court in Criminal Misc. Contempt Case No.

115/73.

O. P. Rana for the Appellant.

J. P. Goyal and Pramod Swarup for the Intervener.

The Judgment of the Court was delivered by

SARKARIA, J. This appeal is directed against an order,

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dated April 10, 1974, of the High Court of Judicature at

Allahabad in

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Criminal Misc. Contempt Case No. 115 of 1973. It raises a

question of law as to the jurisdiction and powers of a High

Court to take action suo motu under Section 15 of the

Contempt of Courts Act, 1971. The material facts giving rise

to this appear are as follows:

Raj Narain alias Raja Sharma, Ram Narain, Tapesh Narain

alias Trilok Narain and Hari Narain, respondents instituted

Suit No. 89/ 168 under Section 209 of the U.P. Zamindari &

Land Reforms Act (hereinafter referred to as the Act) for

ejectment of eleven defendants.

Issue No. 6 framed in the case was referred under

Section 331A of the Act to the Revenue Officer, Sub-

Divisional Office, for seeking declaration under Section 143

or 144 of that Act, with regard to the question as to

whether the land in suit was abadi land before the

consolidation and even thereafter. The Revenue Officer by

his order, dated September 3, 1970, dismissed the suit.

Aggrieved by the dismissal of their suit, the plaintiffs

preferred an appeal before the Commissioner, Meerut, who, by

his order dated April 29, 1972, allowed the appeal and

decreed the suit with costs.

Against the decree of the Commissioner, the defendants

preferred Revenue Second Appeal No. 226(2) of 1971-72 before

the Revenue Board. Along with the petition of appeal, they

made an application for stay of the execution of the

ejectment decree. The Board of Revenue passed an order on

June 12, 1972, staying the execution of the decree. The

opposite party therein, moved an application for vacation of

the ex-parte stay order. The application for vacation of

stay order came up for hearing before the appellant, herein,

in his capacity as Member of the Revenue Board, on October

23, 1973. The respondent, Shri Vinay Chandra Misra appeared

as a counsel in that Court on behalf of the appellant

therein, to oppose the vacation of the stay order. What

happened thereafter on that day, according to the

allegations in the petition and affidavit, dated October 23,

1973, of Shri V. C. Misra, Advocate filed before the High

Court, was as follows:

"That on the said date the opposite party

(appellant herein) heard the counsel of the parties in

the case and was pleased to confirm the stay order.

6. That even after passing of the order aforesaid

the counsel of (the respondent in that appeal)

addressed the Court (opposite party) further and during

the course of his arguments, the opposite party

(appellant herein) scored the order and vacated the

stay order and threw the file for getting the

signatures of the parties affixed on the same.

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7. That on this, the deponent (Shri V. N. Mishra)

requested the opposite party to hear him and when he

resisted, the opposite party got infuriated, lost his

temper and abused the applicant and ordered the Court

peon to throw the deponent physically out of the

Court....."

On the preceding facts, Shri Misra, on October 23,

1973, filed a petition under the Contempt of Courts Act,

1971, against the appellant, herein, in the High Court of

Judicature at Allahabad, alleging that since the facts

stated in the petition and the affidavit, supporting it,

show that the "opposite party (appellant herein) committed

the contempt of his own Court as that of the High Court as

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provided under Section 15/16 of the Contempt of Courts Act

punishable under Section 12 of the said Act, he deserves to

be punished for the same in order to save the dignity,

decorum and honour of his Court and that of the Hon'ble High

Court". Shri V. C. Misra further prayed that the High Court

"be pleased to take suo motu action under Section 15(1) of

the aforesaid Act against the contemner-opposite party or be

pleased to pass such other and further order as the Court

deems fit."

In Annexure `1' to his petition, Shri V. N. Misra gave

particulars of the alleged criminal conduct of the appellant

and of the contemptuous words uttered by him. In that

Annexure, he alleged, inter alia, that the appellant had

used these abusive words in respect of him (Shri Misra)

"Nalayak Gadhe Sale ko Jail Bhijwadunga; Kis Idiot Ne

Advocate Bana Diya Hai".

On receiving this petition, the High Court straight-

away issued notice to the appellant, herein, to show cause

why he be not proceeded against for committing contempt of

Court. The appellant received this notice on November 5,

1973 and filed his reply supported by an affidavit dated

November 8, 1973, in which he denied the allegations in the

petition levelled by Shri V. C. Misra. The latter also filed

a rejoinder affidavit dated December 10, 1973, in which he

reiterated the allegations in his petition and in the

Annexures thereto.

A preliminary objection was taken by the appellant

before the High Court, that the latter was not competent to

take cognizance of the contempt alleged to have been

committed in the petition moved by Shri Misra without any

reference from the subordinate court or without a motion by

the Advocate-General. Reliance in this connection was placed

on sub-section (2) of Section 15 of the Act. The High Court

rejected this preliminary objection with these observations:

"Since Article 215 (of the Constitution) states

that every High Court shall be a Court of Record and

shall have all the

335

powers of such a Court, it follows that through that

Article the Constitution preserved to the High Courts

its power as a Court of Record to punish contempt of

subordinate Courts. No doubt a special reference is

made in Article 215 to the power of the High Court to

punish contempt of itself. That has only been done to

emphasise that particular power of the High Court. The

aforesaid words do not exclude what the preceding part

of Article 215 preserves to or confers on the High

Court.....

The result of incorporating Article 215 in the

Constitution is that the power of every High Court as a

Court of Record to punish contempt of the subordinate

courts now carries a constitutional sanction behind it

and that the power cannot be done away with except

through an amendment of the Constitution.

. . Section 2 of the 1926 Act and Section 3 of the

1952 Act do not confer any new power but recognise the

power that a High Court already possesses as a Court of

Record; it can be said that equal force about Section

10 of the 1971 Act that it does not confer any new

jurisdiction in the High Court but only recognised the

jurisdiction which was initially inherent in every High

Court as a Court of Record and which now has the

sanction of the Constitution behind it by virtue of

Article 215.

If Section 15, sub-section (2) is interpreted to

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mean that a High Court cannot take cognizance of the

contempt committed of a subordinate court, whether

committed by the court itself or by a stranger, except

in one of the modes specified therein it can lead to

anomalous results....

". . . Interpreting sub-section (2) of Section 15

in that manner would be inconsistent with Section 10 of

the Act and shall be violative of the powers of this

Court as a Court of Record, which powers now carry

Constitutional sanction by virtue of Article 215 of the

Constitution.

. . Section 10 of 1971 Act explicitly states that

every High Court shall have and exercise the same

jurisdiction, power and authority in accordance with

the same procedure and practice in respect of the

contempt of Courts subordinate to it as it has and

exercises in respect of contempt of itself,....."

336

Aggrieved by the order of the High Court rejecting the

preliminary objection, the appellant has now come in appeal

before us.

At the outset, a preliminary objection has been taken

by Shri Goyal, learned counsel for the respondent, that

under Section 19 (1) of the Act, only a final order whereby

the contemner is punished is appealable; that since the

impugned order is not such an order, this appeal is

incompetent. In this connection Shri Goyal has referred to

several decisions, including that in Purshottam Das Goyal v.

Hon'ble Mr. Justice B. S. Dhillon, whereby it has been held

that it could not be the intention of the legislature to

provide for an appeal to this Court as a matter of right

from each and every interlocutory order passed in the

proceedings initiated under Section 17 of the Act, by the

High Court. An order or decision in order to be appealable

under Section 19(1) of the Act, must be such that it decides

some bone of contention raised before the High Court

affecting the right of the party aggrieved. Reference has

also been made to the decision of this Court in V. C. Shukla

v. State.

This objection of Shri Goyal has been rendered merely

academic, because as a matter of abundant caution, the

appellant herein has filed a petition for grant of special

leave under Article 136 of the Constitution, also. The

matter being important, the leave to appeal has been granted

to him.

The controversy in this appeal centres round the

question, whether the High Court can take suo motu

cognizance of contempt of a subordinate/inferior court when

it is not moved in either of the two modes mentioned in

Section 15(2) of the Act.

Before dealing with this contention, it is necessary to

have a look at the relevant provisions of the Constitution

and the Act.

Article 215 of the Constitution provides :

"Every High Court shall be a court of record and

shall have all the powers of such a court including the

power to punish for contempt of itself."

Entry 14 of List III of the Seventh Schedule is to this

effect : "Contempt of Court, but not including contempt of

the Supreme Court." A provision analogous to Article 215 is

Article 129 which preserves to the Supreme Court all the

powers of a Court of Record including the power to punish

for contempt of itself. Entry 77 of List I of the Seventh

Schedule is relatable to Article 129.

337

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Articles 129 and 215 preserve all the powers of the

Supreme Court and the High Court, respectively, as a Court

of Record which include the power to punish the contempt of

itself. As pointed out by this Court in Mohd. Ikram Hussain

v. The State of U.P., there are no curbs on the power of the

High Court to punish for contempt of itself except those

contained in the Contempt of Courts Act. Articles 129 and

215 do not define as to what constitutes contempt of court.

Parliament has, by virtue of the aforesaid Entries in List I

and List III of the Seventh Schedule, power to define and

limit the powers of the courts in punishing contempt of

court and to regulate their procedure in relating thereto.

Indeed, this is what is stated in the Preamble of the Act of

1971.

Section 2(c) of the Act defines `criminal contempt".

Section 9 emphasises that "nothing contained in this Act

shall be construed as implying that any disobedience,

breach, publication or other act is punishable as contempt

of court which would not be so punishable apart from this

Act". Section 10 runs as under :

"Every High Court shall have and exercise the same

jurisdiction, powers and authority, in accordance with

the same procedure and practice, in respect of

contempts of courts subordinate to it as it has and

exercises in respect of contempts of itself."

Then, there is a proviso which is not material for our

purpose. The provision in Section 10 is but a replica of

Section 3 of the 1952 Act. The phrase "courts subordinate to

it" used in Section 10 is wide enough to include all courts

which are judicially subordinate to the High Court, even

though administrative control over them under Article 235 of

the Constitution does not vest in the High Court. Under

Article 227 of the Constitution the High Court has the power

of superintendence over all courts and tribunals throughout

the territories in relation to which it exercises

jurisdiction. The Court of Revenue Board, therefore, in the

instant case, is a court "subordinate to the High Court"

within the contemplation of Section 10 of the Act.

Section 14 provides for the procedure where contempt is

committed in the face of the Supreme Court or a High Court.

Section 15 is very material for our purpose. It provides in

regard to cognizance of `criminal contempt' in cases other

than those falling under Section 14. The material portion of

Section 15 reads thus :

"(1) In the case of a criminal contempt, other

than a contempt referred to in Section 14, the Supreme

Court or

338

the High Court may take action on its own motion or on

a motion made by-

(a) the Advocate-General, or

(b) any other person, with the consent in writing

of the Advocate-General.

(2) In the case of any criminal contempt of a

subordinate court, the High Court may take action on a

reference made to it by the subordinate court or on a

motion made by the Advocate-General or, in relation to

a Union Territory, by such Law Officer as the Central

Government may, by notification in the Official

Gazette, specify in this behalf............."

The operation of sub-section (1) appears to be confined to

cases of `criminal contempt' of the Supreme Court or the

High Court, itself. Criminal contempt of a subordinate court

is dealt with in sub-section (2).

A comparison between the two sub-sections would show

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that whereas in sub-section (1) one of the three alternative

modes for taking cognizance, mentioned is "on its own

motion", no such mode is expressly provided in sub-section

(2). The only two modes of taking cognizance by the High

Court mentioned in sub-section (2) are : (i) on a reference

made to it by a subordinate court; or (ii) on a motion made

by the Advocate-General, or in relation to a Union Territory

by the notified Law Officer. Does the omission in Section

15(2) of the mode of taking suo motu cognizance indicate a

legislative intention to debar the High Court from taking

cognizance in that mode of any criminal contempt of a

subordinate court? If this question is answered in the

affirmative, then, such a construction of sub-section (2)

will be inconsistent with Section 10 which makes the powers

of the High Court to punish for contempt of a subordinate

court, co-extensive and congruent with its power to punish

for its own contempt, not only in regard to quantum or pre-

requisites for punishment, but also in the matter of

procedure and practice. Such a construction which will bring

Section 15(2) in conflict with Section 10, has to be

avoided, and the other interpretation which will be in

harmony with Section 10 is to be accepted. Harmoniously

construed, subsection (2) of Section 15 does not deprive the

High Court of the power of taking cognizance of criminal

contempt of a subordinate court, on its own motion, also. If

the intention of the Legislature was to take away the power

of the High Court to take suo motu cognizance of such

contempt, there was no difficulty in saying so in

unequivocal language, or by wording the sub-section in a

negative

339

form. We have, therefore, no hesitation in holding in

agreement with the High Court, that sub-section (2) of

Section 15, properly construed, does not restrict the power

of the High Court to take cognizance of and punish contempt

of a subordinate court, on its own motion.

It is, however, to be noted that Section 15 does not

specify the basis or the source of information on which the

High Court can act on its own motion. If the High Court acts

on information derived from its own sources, such as from a

perusal of the records of a subordinate court or on reading

a report in a newspaper or hearing a public speech, without

there being any reference from the subordinate court or the

Advocate-General, it can be said to have taken cognizance on

its own motion. But if the High Court is directly moved by a

petition by a private person feeling aggrieved, not being

the Advocate-General, can the High Court refuse to entertain

the same on the ground that it has been made without the

consent in writing of the Advocate-General? It appears to us

that the High Court, has, in such a situation, a discretion

to refuse to entertain the petition, or to take cognizance

on its own motion on the basis of the information supplied

to it in that petition. If the petitioner is a responsible

member of the legal profession, it may act suo motu, more

so, if the petitioner-advocate, as in the instant case,

prays that the court should act suo motu. The whole object

of prescribing these procedural modes of taking cognizance

in Section 15 it to safeguard the valuable time of the High

Court or the Supreme Court from being wasted by frivolous

complaints of contempt of court. If the High Court is prima

facie satisfied that the information received by it

regarding the commission of contempt of a subordinate court

is not frivolous, and the contempt alleged is not merely

technical or trivial, it may, in its discretion, act suo

motu and commence the proceedings against the contemner.

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However, this mode of taking suo motu cognizance of contempt

of a subordinate court, should be resorted to sparingly

where the contempt concerned is of a grave and serious

nature. Frequent use of this suo motu power on the

information furnished by an incompetent petition, may render

these procedural safeguards provided in sub-section (2),

otiose. In such cases, the High Court may be well advised to

avail of the advice and assistance of the Advocate-General

before initiating proceedings. The advice and opinion, in

this connection, expressed by the Sanyal Committee is a

pertinent reminder. "In the case of criminal contempt, not

being contempt committed in the face of the court, we are of

the opinion that it would lighten the burden of the court,

without in any way inter-

340

fering with the sanctity of the administration of justice,

if action is taken on a motion by some other agency. Such a

course of action would give considerable assurance to the

individual charged and the public at large. Indeed, some

High Courts have already made rules for the association of

the Advocate-General in some categories of cases at

least.....the Advocate-General may, also, move the Court not

only on his own motion but also at the instance of the court

concerned."

In the peculiar circumstances of the instant case, we

do not think that the High Court has acted improperly or

illegally in taking suo motu cognizance, on the petition of

the respondent-advocate.

We, therefore, dismiss this appeal and send the case

back to the High Court for further proceedings in accordance

with law.

As a matter of caution, we would add that nothing in

this judgment shall be construed as an observation relating

to the merits of the allegation levelled by Shri V. C. Misra

against the appellant.

N.V.K. Appeal dismissed.

341