Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.180 OF 2006

TRANSPARENCY INTERNATIONAL INDIA & ANR. ... PETITIONER(S)

VS.

STATE OF JAMMU & KASHMIR ... RESPONDENT(S)

J U D G M E N T

JAGDISH SINGH KHEHAR, CJI.

1. The instant writ petition has been filed by two

petitioners, Transparency International India and Centre

for Media Studies. The cause for the petitioners, to

approach this Court, seems to emerge from a study,

described as “India Corruption Study to improve

Governance”, conducted by Centre for Media Study, and

published by Transparency International India. It was

sought to be repeatedly highlighted, that the above

research program taken on hand by Centre for Media Studies,

was a general study on governance, predominantly with

reference to the bureaucracy, and the functioning of the

administrative machinery. Yet it was acknowledged, that

there were references to the functioning of the judiciary,

as well.

1

Page 2 2. Even though, the above study was conducted

independently, with reference to each State, yet the

relevant study, which has brought the petitioners of the

instant writ petition to this Court, pertains to the State

of Jammu and Kashmir, and is limited to the findings

recorded therein, with reference only to the lower

judiciary. For the aforesaid purpose, learned counsel for

the petitioners invited our attention to Table No.2.1:

Jammu and Kashmir-Ranking of Public Services, the extract

whereof, which is relevant to the subject of the present

controversy, is extracted hereunder :

“Table No.2.1: Jammu & Kashmir-Ranking of Public Services

Depart-

ment

Direct

experience

of bribing

Quality of

service is

poor

Using

influence/

middle-

men

Perception

that

depart-

ment is

corrupt

Lack of

Commit-

ment to

reduce

corruption

Percep-

tion

increased

Composite

Index

Value

NEED BASED

Judiciary

(Lower)

96 81 09 92 88 86 87

A perusal of the table extracted above reveals, that the

compilation of the views of those who were asked (to

express their views) led to the inference, that 92% of the

lower judiciary in the State of Jammu and Kashmir, was

perceived to be corrupt.

3. It is also relevant to refer to Table 2.2: (Estimated

No. of Households Paid Bribes), wherein, with reference to

the lower judiciary in the State of Jammu and Kashmir, the

study incorporated, the following data/information :

2

Page 3 “Table No.2.2 : Estimated No. of Households Paid Bribes

Department No. of Households Paid Bribes

Judiciary (Lower) 223267

A perusal of the table extracted above reveals, that

2,23,267 cases of actual bribe giving were disclosed, with

reference to the lower judiciary, in the State of Jammu and

Kashmir.

4. Based on the findings recorded, with reference to the

lower judiciary in the State of Jammu and Kashmir, the

Court of Judicial Magistrate, 1

st

Class, Kangan, Jammu &

Kashmir, on 4.5.2006 initiated action against five

individuals/parties, details whereof are extracted

hereunder :

“1.P.N. Razdan, author of Op.Ed.

Page – Corruption in J&K – here, there and

Everywhere – I & II, C/o Greater Kashmir

2.Fayaz Ahmed Kaloo, editor Printer &

Publisher, GK

14/B Sanat Nagar, Srinagar/6 Pratap Park,

Residency Road

3.Zahir-ud-In – Executive Editor

Greater Kashmir

4.Centre for Media Studies

New Delhi through its Director/Secretary

C/o GK

5.Transparency International

through Chief Executive Officer C/o GK

(non-applicant/respondents)”

It is therefore apparent, that the Centre for Media Studies

(Petitioner No.2, before this Court), was issued notice at

3

Page 4 serial No.4, and Transparency International (Petitioner

No.1, herein) was issued notice at serial No.5.

5. The text of the order dated 4

th

May, 2006, is also

reproduced hereinbelow :

“Order

4

th

May 06

Whereas Greater Kashmir, Newspapers daily,

printed and published by non-applicant No.2 as

edited by non-applicant No.3 has published an

article in Op.-Ed at page 7 filled 'Corruption

in J&K - here, there and everywhere – I & II

authorized by non-applicant No.1, based on

certain references to non-applicants 4 & 5 in

the paper dated 3

rd

and 4

th

May, 2006.

Whereas the subtitle of the article in

bold front depicts, 'Lower Judiciary' and

further in Column 2, line 45 and col.3 line 8 –

wherein the author refers, “Kashmir viewed as

the most corrupt, Lower Judiciary (86%) and

referred to as 'govt. - sucking' – Also in

article Part II – published on 4

th

May 06 col.1

and 2 last line (Col.1) and first seven lines

in col.2 which are reproduced herein below. “A

strong and honest head of the unit or

department, who is easily amenable to the

public, has powers to take drastic action

against the delinquent officials, and has a

political interference, is sure to deliver

results”.

Whereas such publication is libelous in

nature, where such sweeping reference towards

the judiciary is general and subordinate

judiciary (lower) as mentioned in the article

in particular, thereby not only scandalizing

the whole system of administration of justice,

but also defaming the public servants (member

of subordinate judicial services) who are

employed in connection with administration of

justice and thereby lowering down the image of

judiciary as a whole and tends to scandalize

and lower down the image of judiciary as a

whole undermining the authority of courts (esp.

lower courts) and shaking the confidence of

general public and prejudicing the due course

of justice.

4

Page 5 Whereas such generic remarks cast

reflections on the very conduct of subordinate

judiciary and even sight upto their

administrative heads as given in part II,

creating doubts about the integrity of

functioning of the Department as a whole.

Whereas in the opinion of this court, this

flagrant statement has not only lowered down

the image of judiciary and is direct

interference into the administration of justice

and callous and irresponsible behaviour on the

part of respondents.

Therefore by virtue of this show cause

notice you are hereby called upon to explain

your position, within a period of 15 days from

the issuance of this notice as to why action as

warranted under law be not initiated against

you.

Issued under my hand and seal of this

court, today this 4

th

May, 06.”

(emphasis is ours)

6. A perusal of the order dated 4.5.2006, according to

the learned counsel for the respondent, makes it abundantly

clear, that the same is in the nature of a 'show cause

notice', calling for the explanation of the noticees. This

position, in our view, merits acceptance. It is also

relevant to mention, that the order dated 4.5.2006 also

brought out, that the same was being passed under the

provisions of the Contempt of Courts Act, 1997, and/or

Section 2/6 read with Sections 499, 500/501 of the Ranbir

Penal Code. It is in the above perspective, that we will

examine the submissions of the rival counsel, while

adjudicating upon the controversy in hand.

7. Thereafter (after the issuance of the notice

extracted above, dated 4

th

May, 2006), it was pointed out on

5

Page 6 behalf of the petitioners, that further notices dated

16.2.2006 and 1.7.2006, were also issued, for the same

purpose. The notice dated 1.07.06, categorically

expressed, “...Now again you are being issued notice to

cause your appearance or through your authorized

representative to answer all material questions as to why

cognizance as taken above be not proceeded against you on

or before next date of hearing ...” It is therefore

apparent, that the personal presence of the petitioners (or

others, to whom the above notices were issued) was not

sought.

8. The pleadings in the instant writ petition, more

particularly paragraph 6 thereof, acknowledge that,

Transparency International India (-Petitioner No.1 herein),

received the show cause notice on 7.7.2006, and Centre for

Media Studies (-Petitioner No.2 herein), received the same

on 16.6.2006. Having received the aforesaid notices, the

following response was addressed by the Centre for Media

Studies (-Petitioner No.2), to the Judicial Magistrate,

Class-I, Kangan, Jammu & Kashmir, on 23.6.2006. The same

is extracted below :

“RESEARCH HOUSE

Saket Community Centre

New Delhi-110017

23 June 2006

To

Judicial Magistrate 1

st

Class

Kangan, J&K

6

Page 7 Ref: You notice of 16/06/2006, No.101/MK

Contempt of Courts Act – 1997, Sec.216 read

with Section 499, 500/501 RPC.

Sir,

Although the Order dated 16 June 2006

mentioned that “a copy of the complaint it

enclosed”, a copy of the complaint has not been

enclosed. Instead, a copy of the Order dated

4

th

May, 2006 directing show cause notice to be

issued and posting the case to 19 May 2006 was

enclosed. The Order dated 4

th

May 2006 was not

served on us till today. A copy of the letter

is received along with Order dated 16 June

2006. Therefore, we had no opportunity to

respond to the notice dated 4 May 2006. This

letter may be treated as response to the show

cause notice directed to be issued on 4

th

May,

2006.

Without a copy of the complaint and a copy

of the article entitled Corruption in Jammu &

Kashmir here, there and everywhere – I & II by

Mr. F.N. Razdan as published in Greater Kashmir

being made available to us, it is not possible

for us to reply to the show cause notice or to

assist the Hon'ble Court of Judicial Magistrate

Class-1

st

, Kangan in this case. We, therefore

request that these crucial documents which are

absolutely essential to be supplied to us.

Only after seeing the said article which is the

basis of the complaint we will be able to

explain the reference allegedly made there in

to the Centre for Media Studies.

At this point of time we can only say that

we are not a party to the said article and we

have no role in the writing or publication of

the said article. We have no connection either

with the author of the article or the

publication of the said article. We have no

connection either with the author of the

article or the publisher or the editor of the

newspaper concerned.

Nevertheless, we would like to state that

CMS has been undertaking for more than a couple

of years national surveys on corruption

involving ordinary citizen in various public

services/utilities. In this exercise eminent

experts on the subjects covered in the study

are being consulted. More specifically, Chief

7

Page 8 Central Vigilance Commissioner, Vigilance

Commissioners, Justice Rajinder Sachhar (former

Chief Justice of Delhi High Court), Shri

Prashant Bhushan, for example, and such other

outstanding national personalities have been

consulted at one point or other in the process

of designing and conducting these surveys on

corruption and common citizen. They are all

familiar with the survey findings and the

reports published by Transparency International

India some months ago. J & K was included in

the India Corruption Survey of 2005 conducted

by CMS in collaboration with Transparency

International India and its President Admiral

R.H. Tahiliani. The then Vigilance Commissioner

of J & K (Shri Radhavinod Raju, IPS) visited

CMS in New Delhi for discussions and was aware

of the survey both before conducting, during

the time of the survey in J & K, and after the

publication of the report in this context.

The said study covers 19 other States of

India. CMS has been appreciated for its

pioneering work in this regard and many,

including senior officials of the States, have

thanked us for the study. The study findings

were published by internationally reputed

Transparency International India and its

Chairman Admiral R.H. Tahiliani took personal

interest with a hope that seriousness is

imparted into public debate on critical issues

before the Nation with more reliable field

data. Further as concerned citizens to India,

we are as much sincerely concerned and

interested in upholding the status and role of

Judiciary in the country. In fact, the

Chairman of CMS had closely worked in the last

decade with two former Chief Justices of India

– Justice P.N. Bhagawati and Justice R.S.

Pathak. Our Chairman was the national Convener

while they were the Chairpersons of Social

Audit Panels constituted by Ministry of

Communication and Ministry of Environment and

Forests, respectively.

There was never any intention at all on

our part to scandalize or lower the authority

of the judiciary much less interface with the

due course of justice or obstruct the

administration of justice in any manner.

We pray that in view of the facts stated

above, the Order directing appearance on July

1

st

, 2016 may be recalled and the case closed

as against us.

8

Page 9 Thanking you,

Sincerely

For Centre for Media Studies”

(emphasis is ours)

9. A separate response dated 7.7.2016, was also

addressed on behalf of Transparency International India

(-Petitioner No.1, herein) to the Judicial Magistrate, 1

st

Class, Kangan. Since the response runs into several pages,

for reasons of brevity, we shall extract hereunder, only a

relevant portion thereof :

“However, without any prejudice, we would like

to make the following submissions :

1.We are aware that subordinate courts do not

have the power of contempt under the

Contempt of Courts Act. They can at most

make a reference to the High Court and the

High Court can then, take a decision on the

matter.

2.We presume that your notice is only to

enable you to decide whether to make a

reference to the High Court to commence

contempt proceedings.

3.We presume that our response is to enable

the above and not to directly commence

contempt proceedings at this stage.

4.We now enclose a reply to this notice as to

why action may not be initiated against us

on the charges of contempt, libel and

defamation.”

(emphasis is ours)

10. A perusal of the extracts from the responses,

reproduced above, would reveal, that the petitioners did

not object to the initiation of the show cause proceedings.

It is necessary to notice, that the petitioners informed

9

Page 10 the Judicial Magistrate, 1

st

Class, Kangan, that while it

was open to the Magistrate to make a reference to the High

Court, under the Contempt of Courts Act, the Magistrate had

no right to suo moto initiate proceedings, under the

Contempt of Courts Act. Besides recording the above

submissions in its reply, Transparency International India

also highlighted the fact, that it had not seen the

newspaper article, which constituted the basis, for the

show cause. It also expressly asserted, that Petitioner

No.1 had no connection with the author/publisher/editor of

the newspaper-Greater Kashmir. The reply, also gave out,

the functions/activities and the credentials of the

Transparency International India. Be that as it may, it

needs to be noticed, that in its response Transparency

International India, in the reference to the said letter,

as also, in the contents thereof acknowledged, that the

proceedings had been initiated under the Jammu & Kashmir

Contempt of Courts Act, 1997 and/or Section 2(d) read with

Sections 499, 500/501 of the Ranbir Penal Code.

11. It seems, that having responded to the notices

received from the Court of Judicial Magistrate, 1

st

Class,

Kangan (through their communications, referred to above),

the petitioners felt satisfied, that no further response

was called for on their behalf. And therefore, despite

having been required to enter appearance before the

Judicial Magistrate, 1

st

Class, Kangan, vide orders dated

10

Page 11 16.6.2006 and 1.7.2006, the petitioners chose not to appear

before the concerned Court. Consequent upon the non-

appearance of the petitioners before the Judicial

Magistrate, the impugned order dated 24.8.2006 came to be

passed. The text of the above order is reproduced below :

“Whereas a Robkar titled above is pending

before this Court and the attendance of the

said non-applicant is required.

As such you are asked to arrest the said

person and produce him before this court on

27.9.06. In case the said person furnish the

bail bond of Rs.15,000/- and the surety of like

amount, he shall be released. ”

(emphasis is ours)

A perusal of the above order reveals, that even though the

respondents had been summoned to the Court, they had not

entered appearance, and therefore, their attendance was

being procured through bailable warrants.

12. Learned counsel for the petitioners, in his effort to

assail the above order dated 24.8.2006, vehemently

contended, that the Judicial Magistrate, 1

st

Class, Kangan,

seems to have taken upon himself, the jurisdiction vested

in a High Court under the Contempt of Courts Act. It was

submitted, that the Judicial Magistrate, 1

st

Class, Kangan,

had no authority to direct the attendance or the presence

of the petitioners, under contempt proceedings. It was

submitted, that the impugned order extracted above, was

clearly beyond the jurisdiction of the Judicial Magistrate.

It was pointed out, that when the matter was listed before

11

Page 12 this Court for hearing, on the first occasion itself, on

20.9.2006, this Court stayed the operation of the order

dated 24.8.2006, till further orders. It was pointedly

asserted, that this Court must have been clearly conscious,

of the abuse of jurisdiction of contempt proceedings, at

the hands of the Judicial Magistrate, and accordingly, in

its motion Bench order dated 20.9.2006, this Court, not

only stayed the execution of the warrants of arrest (issued

against the Chairman, Transparency International India, and

the Director, Centre for Media Studies), but also stayed

further proceedings in the matter (pending, before the

concerned Magistrate).

13. In continuation of the position expressed above, it

was the contention of the learned counsel for the

petitioners, that under the Jammu & Kashmir Contempt of

Courts Act, 1997, the jurisdiction to initiate contempt

proceedings is only vested with the High Court. For this,

reference has been made to Section 10 thereof, which is

reproduced below :

“10. Power of the High Court to punish

contempts of subordinate courts :- The 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 itself :

Provided that the High Court shall not

take cognizance of a contempt alleged to have

been committed in respect of a court

12

Page 13 subordinate to it where such contempt is an

offence punishable under the Ranbir Penal Code,

Samvat 1989.”

(emphasis is ours)

Based on the mandate of Section 10 extracted above, it was

submitted, that even when contempt was alleged to have been

committed against a subordinate court, only the

jurisdictional High Court and not the subordinate court

(against which the contempt is alleged to have been

committed) had jurisdiction to initiate contempt

proceedings.

14. Furthermore, even though it was acknowledged, that

cognizance of criminal contempt could have been taken, at

the instance of a subordinate court, it was submitted, that

only the High Court had the authority to initiate action in

the matter. For this, reference was made to Section 15 of

the 1997 Act, which is reproduced below:

“15.Cognizance of criminal contempt in other

cases :- (1) In the case of criminal contempt,

other than a contempt referred in section 14,

the High Court may take action on its own

motion or of 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.

(3) Every motion or reference made under this

section shall specify the contempt of which the

13

Page 14 person charged is allegedly to be guilty.

Explanation.- In this section, the expression

“Advocate General” means the Advocate General

of the State.”

(emphasis is ours)

Based on Section 15 extracted above, it was submitted, that

only that subordinate court, against which criminal

contempt is alleged to have been committed, can make a

reference, about the same to the jurisdictional High Court.

Relying on sub-section (2) of Section 15, it was sought to

be explained, that it was only the court, of which contempt

has been committed, and which was having intrinsic

knowledge thereof, was authorized to make such reference,

and not just any court.

15. It was submitted, that the extract from the report of

the Centre for Media Studies, which was sought to be

published by Transparency International India, was a

general report, based on a study. And that, the report was

not aimed at a particular court, and as such, it was not

open to the Judicial Magistrate, 1

st

Class, Kangan, in any

case, even to make such a reference to the High Court,

within the meaning of Section 15 of the 1997 Act.

16. It was also the contention of the learned counsel for

the petitioners, that in the absence of the petitioners,

the Judicial Magistrate, Kangan, ought to have proceeded in

accordance with law, after taking into consideration the

14

Page 15 response submitted by the petitioners. In this behalf it

was asserted, that the response of the petitioners, to the

notice issued to them, ought to have been considered, and

further proceedings ought to have been dropped, as the

petitioners could not be held to be blameworthy, of the

newspaper reporting.

17. We have given our thoughtful consideration to the

submissions advanced at the hands of learned counsel for

the petitioners. We have also heard learned counsel for

the State of Jammu & Kashmir, who has generally supported

the cause, and the different orders, passed by the Judicial

Magistrate, 1

st

Class, Kangan.

18. We would first like to deal with one of the

submissions of learned counsel for the petitioners, based

on Section 15 of the 1997 Act. It was contended, that a

reference could be made only by the particular court, of

which contempt was allegedly committed, and not by just any

court. And that, only the said particular court, could

make a reference to the High Court, to initiate contempt

proceedings. It is not possible for us to accept the

submission of the learned counsel for the petitioners, at

least, in the facts and circumstances of the case in hand.

In our considered view, in the sense that the above

contention has been advanced, it would not be open to any

Member of the lower judiciary, to make a reference to a

15

Page 16 High Court, wherein general allegations have been levelled.

The publication of the article in the newspaper – Greater

Kashmir, wherein, only general allegations have been

levelled, according to learned counsel for the petitioners,

cannot be the basis of any action. It was highlighted, on

the basis of the compilation of Centre for Media Studies

(Petitioner No.2), and publication of the compilation

effectuated by Transparency International India (Petitioner

No.1), that 92% of the lower judiciary in the State of

Jammu and Kashmir, was perceived to be corrupt, and there

were actual figures of 2,23,267 cases, where bribe was

actually given. But there were no allegations aimed at any

individual Judge or Court. Only because the above

allegations were not aimed at any particular Court, the

provisions of the 1997 Act could not be invoked. It is not

possible for us to accept the above contention. We may

clarify, that the term “of a subordinate court”, used in

Section 15(2) of the 1997 Act – could well contemplate a

situation, where the alleged contemptuous action is aimed

at more than one court, or a large number of courts, all

at once. In that eventuality, in our considered view, any

one of such courts, can make a reference to the High Court,

under the provisions of the Jammu & Kashmir Contempt of

Courts Act, 1997. In view of the above, we may be deemed

to have concluded, that where the contemptuous action is of

a general nature, and is not aimed at specific Judges or

Courts, any one of such Judges or Courts, which perceives

16

Page 17 that the same is aimed at him (or it), would be well within

its right, to make a reference of the same to the

jurisdictional High court. And thereupon, whether

cognizance and initiation of contempt proceedings need to

be taken, would fall within the realm of the High Court

itself.

19. We are, however, satisfied in accepting, that the

Judicial Magistrate, Kangan, had absolutely no jurisdiction

or authority to pass the impugned order dated 24.8.2006,

whereby, it contemplated to enforce the attendance of the

petitioners (amongst others), by way of arrest. We are

also of the view, that in a case as the one in hand, the

petitioners had perceived, that the proceedings initiated

by the Judicial Magistrate on 4.5.2006, were misconceived.

And accordingly, in their written submissions, it was

acknowledged “...We presume that your notice is only to

enable you to decide whether to make a reference to the

High Court to commence contempt proceedings... We presume

that our response is to enable the above and not to

directly commence contempt proceedings at this stage...”

Having received the aforesaid response from the

petitioners, and the petitioners having not entered

appearance before the Judicial Magistrate, the Judicial

Magistrate ought to have proceeded further with the matter,

in consonance with law. And if it was the Court's

understanding, that the matter needed to be taken further,

17

Page 18 either under the Contempt of Courts Act, 1997 and/or under

Section 2/6 read with Sections 499, 500/501 of the Ranbir

Penal Code, the Court ought to have done so.

20. In view of the above, while disposing of the instant

petition, we direct the present Judicial Magistrate, 1

st

Class, Kangan (the judicial officer holding the charge of

the Court of the Judicial Magistrate, 1

st

Class, Kangan) to

proceed with the matter in furtherance of the original show

cause notice dated 4.5.2006. It shall be open to the

petitioners to enter their appearance before the Judicial

Magistrate, 1

st

Class (either in person or through their

counsel). In case the petitioners do not enter appearance

before the Judicial Magistrate, he may pass such an order,

as he considers appropriate, in consonance with law.

Needless to mention, that it would be open to the

petitioners to assail the same, in case they are aggrieved

thereof. The order dated 24.8.2006 is quashed and set

aside.

21. During the course of hearing, learned counsel for the

petitioners also placed reliance on Section 199-B of the

Code of Criminal Procedure, 1989, as is applicable to the

State of Jammu & Kashmir, to contend that, it would not be

open to the Magistrate concerned to initiate proceedings

under Section 2/6 read with Sections 499, 500/501 of the

Ranbir Penal Code. We record the contention of the learned

counsel for the petitioners, and in case the concerned

18

Page 19 Judicial Magistrate desires to proceed under the aforesaid

provisions of the Ranbir Penal Code, the Court shall take

due notice of the submissions advanced by the petitioners

under Section 199-B of the Code of Criminal Procedure,

1973.

22. After the order was dictated, learned counsel for the

petitioners informed us, that Admiral R.H. Tahiliani, to

whom the notices dated 16.6.2006 and 1.7.2006 were issued,

has since passed away, and as such, proceedings initiated

against him, would stand abated. We find force in the

contention advanced at the hands of learned counsel for the

petitioners. The proceedings initiated against Admiral

R.H. Tahiliani, shall be deemed to have abated.

23. The writ petition is disposed of in the above terms.

Consequent upon the disposal of the main petition, all the

pending applications, shall also stand disposed of.

......................CJI.

[JAGDISH SINGH KHEHAR]

........................J.

[Dr. D.Y. CHANDRACHUD]

........................J.

[SANJAY KISHAN KAUL]

New Delhi;

21

st

February, 2017.

19