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PETITIONER:

SUKHDEV SINGH SODHI

Vs.

RESPONDENT:

THE CHIEF JUSTICE AND JUDGESOF THE PEPSU HIGH COURT.

DATE OF JUDGMENT:

25/11/1953

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

MUKHERJEA, B.K.

BHAGWATI, NATWARLAL H.

CITATION:

1954 AIR 186 1954 SCR 454

CITATOR INFO :

R 1963 SC 692 (16)

R 1971 SC1132 (83)

R 1972 SC 858 (5)

RF 1991 SC2176 (1-1 13,21,25)

R 1992 SC 904 (15,18,19,22,37,40)

ACT:

Contempt of court-Contempt of Judges of High Court-Power

of Supreme Court to transfer proceedings to another High

Court - Criminal Procedure Code, 1898, ss. 1(2), 527-

Constitution of India, art. 215-Contempt of Courts Act,

1952, s. 3.

HEADNOTE:

The Supreme Court has no power under section 527 of the

Criminal Procedure Code or under any other provision of law

to transfer from a High Court,. proceedings which that High

Court has initiated for contempt of itself, to another High

Court.

Section 527 of the Criminal Procedure Code does not apply

to such a case as the power of a High Court to institute

proceedings for contempt of itself and to punish the

contemner where necessary, is a special jurisdiction which

is inherent in all courts of record and section 1 (2) of the

Criminal Procedure Code excludes such special jurisdictions

'from its scope.

It-is desirable, on general principles of justice, that a

judge who has been personally attacked should not as far as

possible bear a contempt matter which, to that extent,

concerns him personally.

In re Abdool and Mahtab(8 W.R. Cr. 32),

Surendranath Banerjea v. Chief justice and Judges of the

High Court of Bengal (10 I.A. 171), Abdul Hasan Jauhar

(I.L.R. 48 All.711), In the matter of Sashi Bhushan

Sarbadhicary (I.L.R. 29 All. 95), Crown v. Sayyad Habib

(I.L.R. 6 Lah. 528 F.B1.), In re Abdul Hasan Jauhar (I.L.R

48.All 711), In the matter of Muslim Outlook, Lahore (A.I.R

1927 Lah. 610), In re Murli Manohar Prasad (I.L.R 8 Pat. 323

) Harikrishen Lal v. The Crown (I.L.R. 18 Lah. 69) Ambard v.

Attorney-Geneneral for Trinidad & Tobago ([1936] A.C. 322),

William Raini v. The Justices of Sierre Leone (8 Moo. P.C.

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47), In the matter of K. L. Gauba (I.L.R. 23 Lah. 411),

Parashuram Detaram v. Emperor (A.I.R. 1945 P. C. 134),

Emperor v.

455

B. G. Horniman (A.I.R. 1945 All. 1), In re Pollard

(L. R. P. C. 106), In re Vallabhdas (I.L.R. 27 Bom.

394) and Ebrahim Mamoojee Parekh v. King Emperor (I.L.R. 4

Rang- 257) referred to,

JUDGMENT:

ORIGINAL JURISDICTION : Petition .(No. 304 of 1953)

under section 527 of the Criminal Procedure Code.

H. J. Umrigar for the appellant.

M. C. Setalvad, attorney-General for India (G. N.

loshi, with him) for the respondent.

1953. November 25. The Judgment of the Court was

delivered by

BOSE J.-This is an unusual application asking for a

transfer of certain contempt proceedings from the Pepsu High

Court to any other High Court and, in the alternative,

askinG that at least the matter should not be heard by two

-of the judges of that High Court who -are named. This at

once raises a question about our jurisdiction to order such

a transfer.

The learned counsel for the applicant relied on section

527 of the Criminal Procedure Code. Briefly his reasoning.

was this. Section 527 authorises the transfer of any "case"

from one High Court to another whenever it is made to appear

to the Supreme Court that such transfer is expedient for the

ends of justice. The word "'case" is not defined but

"offence" is ,defined in section 4 (o) to mean "any act or

omission made punishable by any law for the time being in

-force." Contempt is punishable under the Contempt .of

Courts Act, 1952, therefore it is an offence punish-able by

a law which is in force ; consequently, it is an offence.

Being an offence it is triable under the Criminal Procedure

Code because section 5 makes the Code applicable not only to

the trial of offences under the. Indian Penal Code but also

to the trial of offences against "other laws." As it is a

matter triable under the Criminal Procedure Code it must be

a "case" within the meaning of section 527 and accordingly

the section can be invoked here.

We are unable to agree. In our opinion, the power ,of a

High Court to institute proceedings for contempt

456

and punish where necessary is a special jurisdiction which

is,inherent in all courts of record section 1(2) of the Code

expressly excludes special jurisdictions from its scope.

The section runs-

"In the absence of any specific provision to the

contrary, nothing herein contained shall affect any

special...... law now in force or any special jurisdiction

or power conferred by I any other law for the time be' in

force."

The term "special jurisdiction' is not defined in the

Criminal Procedure Code but the words "special law" are

defined in section 41 of the Indian Penal Code to mean "a

law applicable to a particular subject." In the absence of

any specific definition in the Criminal Procedure Code we

think that that brings out the ordinary and natural meaning

of the words "special jurisdiction" and covers the present

case. Contempt is a special subject and the jurisdiction is

conferred 'by a special set of laws peculiar to courts of

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record.

This has long been the view in India. In 1867 Peacok C.

J. laid down the rule quite broadly in these words in In re

Abdool and Mahtab (1):

"there can be no doubt that every court of record has the

power of summarily punishing for contempt."

It is true the same learned Judge sitting in the Privy

Council in 1883 traced the origin of the power in the case I

of the Calcutta, Bombay and Madras High Courts to the common

law of England [see Surendranath Banerjea v. Chief justice

and Judges of the High Court of Bengal(2)], but it is

evident from other decisions of the judicial Committee that

the jurisdiction is broader based than that. But however

that may be, Sir Barnes Peacock made it clear that the words

"any other law" in section 5 of the Criminal Procedure Code

do not cover contempt of a kind punishable summarily by the

three Chartered High Court.

Now it is relevant to note in this connection that

whatever the origin of the jurisdiction may be in the

(1) (1867) 8 W.R. Cr. 32 at 33.

(2) (1883) 10 I.A. 171 at 179.

457

case of those three courts, the Charter of 1774 which

established the Supreme Court of Bengal, while providing in

clause 4 that its Judges should have the same jurisdiction

as the Court of, King's Bench in England, also expressly

stated in clause 21 that the court is empowered to punish

for contempt. When the Supreme Court of Bengal was

abolished the High Courts Act of 1861 continued those powers

to the Chartered High Courts by sections 9 and 11 and clause

2 of the Letters Patent of the year 1865 continued them as

courts of record. Despite this, in 1883 the Privy Council

did not trace this particular jurisdiction of the Calcutta

High Court to clause 15 of its Charter but to the common law

of England. But what is the common law ? It is simply this:

that the jurisdiction to punish for contempt is something

inherent in every court of record. Sulaiman J. collected a

number of English authorities at pages 728 to 730 of his

judgment in In re Abdul Hasan Jauhar (I and concluded thus:

"These leading cases unmistakably show that the power of

the High Court in England to deal with the contempt of

inferior courts is based not so much on its historical

foundation as on the High Court's inherent jurisdiction."

Apparently, because of this the Privy Council held in

1853 that the Recorder's Court at Sierre Leone also had

jurisdiction to punish for contempt, not because that court

had inherited the jurisdiction of the English courts but

because it was a court of record. Their Lordships' language

was this:

"In this country every court of record is the sole and

exclusive judge of what amounts to a contempt of

court......... and unless there exists a difference in the

constitution of the Recorder's Court at Sierre Leone the

same power must be conceded to be inherent in that

court...... we are of opinion that it is a court of record

and that the law must be considered the same there as in

this country."

(1) (1926) I.L.R. 48 All. 711 .

458

The 1884 edition of Belchamber's Practice of the Civil

Courts also says at 'page 241 that-

"Every superior court of record, whether in 'the United

Kingdom, or in the colonial' possessions or dependencies of

the Crown has inherent' power to punish contempts, without

its precincts, as well as in facie

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curiae......................

So also 7 Halsbury's Laws of England (Hailsham edition)

page 2-

"The superior courts have an inherent jurisdiction to

punish criminal contempt etc.............."

"But reverting to the developments in India. The High

Court of Allahabad was established in 1866 under the

High Courts Act of 1861 and was constituted a court of

record. In 1906 the Privy Council remarked at page 108 of

its judgment in In the matter of Sashi Bhushan Sarbadhicary

(1) that-

"There is also no doubt that the publication of this libel

constituted a contempt of court which might have been dealt

with by the High Court in a summary manner by fine or

imprisonment or both."

After this came the Government of India Act, 1915.

Section 106 continued to all High Courts then in existence

the same jurisdiction, powers and authority as they had at

the commencement of that Act, and section 113 empowered the

establishment of new High Courts by Letters Patent with

authority to vest in them the same jurisdiction, powers and

authority "as are vested in or may be conferred on any High

Court existing at the commencement of this Act."

The Lahore High Court was established by Letters Patent

in 1919 and was duly constituted a court of record. In the

year 1925 a Special Bench of that court punished a contempt

of itself in Crown v. Sayyad Habib(2).

After this the question was again agitated in the

Allahabad High Court in 1926 but this time in respect of a

contempt of a subordinate court. A Full Bench was convened

and the learned Judges reaffirmed their

(1) (1907) I.L.R. 29 All. 95.

(2) 1925 I.L.R. 6 Lah. 528 (F.B).

459

powers: In re Abdul Hasan Jauhar (1). Two of the Judges

based broadly on the inherent jurisdiction of a court of

record. Sulaiman J, said at page 727 that "it is not the

territorial limits of the jurisdiction of a Supreme Court"

[of Bengal] "but the very nature of its constitution that is

of importance." Boys J. however preferred to ground on the

fact that that court "had conferred on it, by the statute

and the Letters Patent creating it, similar powers to those

conferred on the High Court of Calcutta," and at page 733

went on to say that that applied "to every other High Court

in this country."

In the presence of all this history the Contempt of

Courts Act, 1926, was passed. The heading states that the

Act is "to define and limit the powers of certain courts in

Punishing contempts of courts." The preamble states-

"Whereas doubts have arisen as to the powers of a High

Court of Judicature to punish contempts of courts and

whereas it is expedient to resolve these doubts and to

define and limit the powers exercisable by High Courts and

Chief Courts in punishing contempts of court : It is hereby

enacted as follows Section 2 says :-

"Subject to the provisions of sub-section (3), the High

Courts of judicature established by Letters Patent shall

have and exercise the same jurisdiction, powers and

authority in accordance with the same procedure and

practice, in respect of contempts of courts subordinate to

them as they have and exercise in respect of contempts of

themselves."

This recognises an existing jurisdiction in all Letters

Patent High Courts to punish for contempts of themselves,

and the only limitation placed on those powers is the amount

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of punishment which they could thereafter inflict. It is to

be noted that the Act draws no distinction between one

Letters' Patent High. Court and another though it does

distinguish between Letters Patent High Courts and Chief

Courts;- also, as the

(1) (1926) I.L.R. 48 All. 711.

460

Act is intended to remove doubts about the, High Coures

powers it is evident that it would have conferred those

powers had there been any doubt about the High Court's power

to commit for contempts of themselves. The only doubt with

which the Act deals is the doubt whether a High Court could

punish for a contempt of a court subordinate to it. That

doubt the Act removed. It also limited the amount of

punishment which a High Court could inflict.

Now this recognises an existing power in all Letters

Patent- High Courts to punish and as the Letters Patent High

Courts other than the Chartered High Courts could not have

derived this power from the common law, it is evident that

the power must have been inherent in themselves because they

were courts of record.

In 1927 another Full Bench of the Lahore High Court

consisting of five judges re-examined the position: In the

matter of Muslim Outlook, Lahore(' They reaffirmed their

earlier decision in The Crown v. Sayyad Habib (2) and held

that this jurisdiction is inherent in every High Court and

not merely in the three Chartered High Courts.

In 1928 a Full Bench of the Patna High Court examined

the matter [In re Murli Manohar Prasad(3)] and then

committed for contempt. In 1936 another Special Bench of

the Lahore High Court [Harkishen Lai v. The Crown(4)]

followed the earlier Lahore decisions.

The Privy Council decided a case of contempt from

Trinidad in 1936 [Ambard v. Attorney-General for Trinidad &

Tobago(5)] and held that it was a quasicriminal offence and

in the course of their judgement they referred to an earlier

decision of the Be from Sierre Leone to which we have

already referred [William Rainy v. The Justices of Sierre

Leone(6)]. In the Trinidad case their Lordships did not

accept the extreme proposition that every court of record is

the

(1) A.I.R. 1927 Lah. 610.

(2) (1925) I.L.R. 6 Lah. 528.

(3) (1929) I.L.R. 8 Pat. 323.

(4) (1937) I.L.R. 18 Lab. 69.

(5) [1936] A.C. 322.

(6) 8 Moo. P.C. 47.

461

sole and exclusive judge of what amounts,to a contempt

because of their decision in Surendranath Banerjea v. the

Chief Justice and Judges of the High Court of Bengal(1), but

they did not doubt the soundness of the decision otherwise.

In 1942 the Lahore High Court examined the position in a

Full Bench for the third time and reached the same

conclusion: In the matter of K. L. Gauba(2). This time they

pointed out that the Sind, Rangoon and Nagpur High Courts

had also punished summarily for contempts. They also

referred to two American decisions where, though the power

was said to have been derived from the common law, it was

said that.

"The power to fine and imprison for contempt from the

earliest history of jurisprudence has been regarded as a

necessary incident and attribute of a court without which it

could no more exist than without a judge............

Finally, in Parashuram Detaram v. Emperor(3 ) the Privy

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Council said that "this summary power of punishing for

contempt.......... is a power which a court must of

necessity possess."

We have omitted references to the Bombay and Madras

decisions after 1883 because the judicial Committee settled

the powers of the three Chartered High Courts. What we are

at pains to show is that, apart from the Chartered High

Courts, practically every other High Court in India has

exercised the jurisdiction and where its authority has been

challenged each has held that it is a jurisdiction inherent

in a court of record from the very nature of the court

itself. This is important when we come to construe the

later legislation because by this time it Was judicially

accepted throughout India that the jurisdiction was a

special one inherent in the very nature of the court. The

only discordant note that we know of was struck in Emperor

v. B. G. Horniman(4) where a Division Bench of the Allahabad

(1) (1883) 10 I.A. 171.

(2) (1942) I.L.R. 23 Lah. 411.

(3) A.I.R. 1945 P.C. 134 at 136.

(4) A.I.R. 1945 All at 4.

462

High Court held that after the Act of 1926 the offence

of contempt was punishable under an Indian Penal statute and

so the Code of Criminal Procedure applied because of the

words "any other law" in section 5. In our opinion, this is

wrong because the Act of 1926 does not confer any

jurisdiction and does not create the offence. It merely

limits the amount of the punishment which can be given and

removes a certain doubt. Accordingly, the jurisdiction to

initiate the proceedings and take seisin of the matter is as

before.

The Pepsu High Court was established in 1948 and section

33 of the Ordinance which established it recites that it

shall be a court of record and that it shall have 'power to

punish for contempt. It will be remembered that the Charter

of 1774 which established a Supreme Court for Bengal said

the same thing of that court and yet the Privy Council did

not trace its powers about contempt from the Charter but

from the common law. In the same way, the law by this time

was so well settled in matters of contempt that the words

"court of record" and "power to punish for contempt" had

acquired a special meaning. Consequently, it is immaterial

whether in 1948 the power of the Pepsu High Court was

derived from section 33 or was inherent in the nature of the

court because whichever it is the jurisdiction is a special

one, and had the legislature desired to take it away and

confer another kind of jurisdiction it would have been

necessary to use express words in, view of the case law

which by then had become well established.

In 1950 came the Constitution of India and article 215

states that-

"Every High Court shall be a court of record and shall

have all the powers of such a court including the power to

punish for contempt of itself."

Here again, whether this is a fresh, conferral of power

or a continuation of existing powers hardly matters because

whichever way it is viewed the jurisdiction is a special one

and so is outside the purview of the Criminal Procedure

Code.

463

The Contempt of Courts Act, 1926, was repealed by Act

XXXII of 1952. Section 3 of the new Act is similar to

section 2 of the old and, far from conferring a new

jurisdiction, assumes, as did the old Act, the existence of

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a right to punish for contempt in every High Court and

further assumes the existence of a special practice and

procedure, for it says that every High Court shall exercise

the same jurisdiction, powers and authority "in accordance

with the same procedure and practice." These words are new

and would be inappropriate if the Criminal Procedure Code

applied. In any case, so far as contempt of a High Court

itself is concerned, as distinct from one of a subordinate

court, the Constitution vests these rights in every High

Court, so no Act of a legislature could take away that

jurisdiction and confer it afresh by virtue of its own

authority. It is true section 5 expands the ambit of the

authority beyond what was till then considered to be

possible but it does not confer a new jurisdiction. It

merely widens the scope of an existing jurisdiction of a

very special kind.

On reflection it will be apparent that the Code could

not be called in aid in such cases, for if the Code applies

it must apply in its entirety and in that event how could

such proceedings be instituted ? The maximum punishment is

now limited to six month's simple imprisonment or a fine of

Rs. 2,000 or both because of the 1952 Act. Therefore, under

the second schedule to the Code contempt would be triable by

a Magistrate and not by a High Court and the procedure would

have to be a summons procedure. That would take away the

right of a High Court to deal with the matter summarily and

punish, a right which was well established by the case law

up to 1945 and which no subsequent legislation has attempted

to remove. So also section 556 could not apply, nor would

the rule which prohibits a judge from importing his own

knowledge of the facts into the case. We hold therefore

that the Code of Criminal Procedure does not apply in

matters of contempt triable by the High Court. The High

Court can deal with it summarily and adopt its own

464

procedure. All that is necessary is that the procedure is

fair and that the contemner is made aware of the charge

against him and given a fair and reasonable opportunity to

defend himself. This rule was laid down by the Privy

Council in In re Pollard(1) and was followed in India and in

Burma in In re Vallabhdas(2) and Ebrahim Mamoojee Parekh v.

King Emperor(3) In our view that is still the law.

If the Code of Criminal Procedure does not apply, then

there is no other power which we can exercise. The

Constitution gives every High Court the right and the power

to punish a contempt of itself. If we were to order a

transfer to another court in this case we would be depriving

the Pepsu High Court of the right which is so vested, in it.

We have no more power to do that than has a legislature. As

for transfer from one judge to another, there again there is

no original jurisdiction which we can exercise. It is not a

fundamental right and so article 32 has no application and

there is no other law to which recourse can be had. This

petition is therefore incompetent and must be dismissed.

We wish however to add that though we have no power to

order a transfer in an original petition of this kind we

consider it desirable on general principles of justice that

a judge who has been personally attacked should not as far

as possible hear a contempt matter which, to that extent,

concerns him personal1y It is otherwise when the attack is

not directed against him personally. We do not lay down any

general rule because there may be cases where that is

impossible, as for example in a court where there is only

one judge or two and both are attacked. Other cases may

also arise where it is more convenient and proper for the

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judge to deal with the matter himself, as for example in a

contempt in facie curioe. All we say is that this must be

left to the good sense of the judges themselves who, we are

confident, will

(1) L.R. 2 P.C. 106 at 120.

(2) I.L.R. 27 Bom. 394 at 399.

(3) I.L.R. 4 Rang. 257 at 259-261.

465

comport, themselves with that dispassionate dignity and

decorum which befits their high office and will bear in mind

the oft quoted maxim that justice must not only be done but

must be seen to be done by all concerned and most

particularly by an accused person' who should, always be

given, as far as that is humanly possible,, A feeling of

confidence that he will receive a fair, just and impartial

trial by judges who have no personal interest or concern in

his case.

Petition dismissed.

Agent for the petitioner : Ratnaparkhi Anant Govind.

Agent for the respondent G. H. Rajadhyakska.