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Criminal Appeal (sic) No. 147 of 1941, decided on 15th September, 1947.
(a) Contempt of Court Statement that Magistrates and Judges accept invitations to cocktail parties‑Whether scanda lising.
That, Magistrates and judges accept invitations to cocktail parties, which no one could deny, is not a statement that scandalises any Court, notwithstanding the fact that the writer appeared to attach a very sinister significance to such parties. The Court should not be concerned with the sanity or the taste of the views expressed by the writer.
(b) Contempt of Court‑Vilification of party to pending suit in newspaper article‑Amounts to contempt.
While a civil suit was pending between a younger step brother on the one side and the elder brother and others on the other, a newspaper article made the allegation that the elder brother had behaved "like a butcher" against the younger brother and had "with the object of usurping the rightful share of his younger stepbrother stopped his house hold expenses" and that the elder brother acted thus "in collusion" with the other defendants.
Held, that this vilification of parties in the pending litigation; was calculated to excite prejudice against them in relation to their defence in the suit, to prejudice their having a fair hearing at the trial, and to interfere with the due and proper administration of justice and thus amounted to contempt of Court.
In re : An Advocate of Allahabad (1935) A I R All. 1 Demibai Gengjai Sojpal v. Rowji Saipal and others (1937) A I R Bom. 305 : Rex Tibbit ( 902) I K B 77, 88: Sethappa Chettiarv C. Ramchandra Naidu (1931) I L R 55 Mad. 262: Suresh Chandra Mukherji v. Biswa Nath Chakrabarti (1938) I L R 2 Cal. 447 ref.
(c) Contempt of Court‑Whether Chief Court of Sind possesses power to punish contempts of subordinate Courts Contempt of Courts Act (XII of 1926), S. 2 (2) (3).
The fact that the Chief' Court of Sind is a Superior Court of Record with powers of supervision over all subordinate Courts in the province, does not give that Court jurisdiction to punish contempts of subordinate Courts.
In re: Venket Rao, (1911) 2t M L J 832: Legal Remem brancer v. Matilal Ghose and others (1913) I L R 41 Cal. 173 and Emperor v. Balkrishna Govind Kullkarano, (1921) 1 L R 46 Born . 592 ref.
In re: Abdul Hasan Jauhar and another (1926) I L R 48 All. 711: Muhammad Yusaf v. Imtiaz Ahmad Khan (1939) I L R 14 Luck. 492 dissented from.
The significance of the term "Court of Record" appears to be this that the records of every such Court constitute conclusive evidence of its proceedings. It is also clear that every Court of record, whether a superior Court or an inferior Court, has the inherent power as such a Court to fine and imprison for a contempt committed in the face of the Court. Every Court of record when it is a superior Court, cannot punish contempts of subordinate Courts.
When it is argued however that the above‑mentioned powers give that Court an Inherent jurisdiction to punish contempts of subordinate Courts; the word "inherent" seem to be used in a sense which cannot be justified. When a Court has jurisdiction to do justice by exercising certain powers expressly conferred upon it, it may be said to have by necessary implication an inherent power to do certain things, not expressly provided for, to enable it to reach the ends of justice, intended to be reached by the power is expressly conferred, and to prevent an abuse of the powers expressly conferred so that injustice may snot be the result. It is in this sense only that a power can be said to be inherent in a Court, by reason of the powers expressly conferred upon it. In order to administer and supervise subordinate Courts, a Matter relating to the internal affairs and work of the Courts, it is not necessary that the administering or supervising superior Court also have the power to punish external attacks upon the Courts, and punish those who vitiate that public atmosphere in which the Courts have to work. The latter function is not inherent in the first, but is clearly, an additional function, however necessary it may be for the proper administration of justice in a State and it is obvious that it may be discharged by a different Court, without the powers of supervision of the Court being in any manner affected.
Further, the Contempt of Courts Act not only does not confer upon the Chief Court any power to punish contempts of subordinate Courts but limits the powers of that Court in respect of summary punishments for contempt to con tempts of itself.
It is impossible, as a matter of logic, to assign any relevance or meaning to the words "Subject to the provisions of subsection (3)" with which subsection (2) of section 2, contempt of Court's Act (XII of 1926) commences and these words furnish no justification for the view that subsection (2) of section 2 does not limit the power of a Chief Court to punish contempts to contempts of itself.
A. K. Brohi, for Applicant.
Ajitsingh G. Vaswani, for Opponent.
Fatehchand Assudomal, Advocate‑General of Sind, for the Crown.
‑This is an application in which it is alleged that two articles, published at Hyderabad on the 16th and 30th March, 1947 respectively in the weekly "Partab", of which the opponent is the Editor and publisher, constituted contempts of this Court as well as of the Court of the First Class Subordinate Judge of Hyderabad, and it is prayed that the opponent be dealt with under section 2 of the Contempt of Courts Act, 1926.
The facts shortly are as follows. Chandanmal, his younger brother Ramchand, and their two nephews Jhamandas and Mohandas sons of Pessumal, were members of a firm which owned very extensive businesses in "many parts of the world. As a result of losses, they filed an insolvency petition in 1938. A composition was then arrived at and on the 5th February, 1938, a deed was executed by which the properties of the firm were taken over by a board of trustees. On the 30th October, 1938 certain foreign businesses of the insolvents were purchased from the trustees by a Syndicate, consisting of some 15 merchants at Hyderabad, of which the applicant Chuharmal was the Chairman. One of the terms of the sale to the Syndicate was that the businesses were to return to the insolvents if certain sums were paid to the Syndicate within a particular period. A dispute arose over the matter some years later between Ramchand, on the one side, and his brother, and nephews, and the members of the Syndicate on the other, and on the 4th December, 1943, Ramchand filed a suit, No. 136 of 1943, in the Court of the First Class Subordinate judge of Hyderabad, against the applicant and the other members of the Syndicate, and Chandumal, Jhamandas and Mohandas, for accounts, claim ing that Ramchand and the other members of the firm had become entitled to the properties and also claiming certain other sums from the Syndicate. This suit is still pending. On the 30th May 1946 Ramchand filed a criminal complaint against his brother Chandanmal and eight members of the Syndicate, including the applicant Chuharmal, under sections 120 B, 403, 406 and 477A of the Indian Penal Code, in the Court of the Extra Joint Subordinate Judge and First Class Magistrate of Hyderabad. The proceedings on this complaint were quashed by this Court by an order made on the 16th November, 1946 in a Revision Application.
The first article complained of appeared in the Weekly Pratap on the 30th March, 1947. It represents an imaginary conversation on the telephone between one Mr. Noos‑Noos (The name suggests a busybody prone to pry into the affairs of other people) and the editor of a paper, in which Mr. Noos‑Noos complained that an article sent by him to the editor, criticising Seth Chandanmal, had not been published, because, as he suggested, the paper had been bought over by Chandanmal. The editor, on the other hand, was represented as repudiating the charge, of having been bought over, but pleading that his refusal to. publish the article was due to his fear of displeasing Seth Chandannmal and having to face the consequences. The following is a transla tion of the article :‑
Telephone
Tintin‑ Tintin‑ Tintin.
Hallo‑ Hallo . . . .
Sir, you are sitting. I thought, it being meal time you would not be in office;
I am sitting upto now‑say‑what is the order Sir, in the past week I sent you an article regarding the property dispute between Seth Chandanmal and his brother Seth Ramchand‑why have you not published the same in the paper
Mr. Noos‑Noos, this is a strange world. To speak truth to rich men is to put oneself in hell
Aha‑What an outrageous age has come Justice is in the pockets of the rich‑but even the pen of the newspapers is mortgaged with the rich
Mr. Noos‑Noos, without any reason, whatever it is not proper for you to doubt the integrity of any one You know yourself that right from the Sub‑Inspector of police upto the Superintendent of Police and from Magistrate right upto Judges and Ministers‑each one of these officers takes cocktail parties of Seth Chandanmal If he were merely rich one might speak the truth in his face but he is not only a rich man but also an influential person Tomorrow, if he speaks to Minister and gets me implicated in some trouble, what money have I that by spending it I would be able to extricate myself
Sir, tell him at least this much that what gentlemanliness is this that he is living luxurantly while he has stopped even the meals of his brother;
Mr. Noos‑Noos, your complaint is reasonable.
Tomorrow I would have a message sent to him. I would tell you whatever answer I get.
. . (Telephone communication stopped) . . "
The second article complained of appeared cn the 16th March, 1947, and, as translated, is as follows :‑
"Bankruptcy of Seth Chandanmal "
With the object of usurping the rightful share of his younger step brother Seth Kamchand, the well known Seth Chandanmal of Hyderabad, behaving like a butcher has stopped the household expenses of the former, presssed him hard and caused him to go about in Courts for settlement or accounts. Seeing and considering this conduct of Seth Chandanmal every citizen is amazed. This dispute of Seth Ramchand with his brother Seth Chandanmal started like this, some years ago these brothers, in order to be able to meet financial demands and save themselves from the stigma of insolvency, mortgaged their karkhanas in the sum of rupees two lacs with a syndicate formed from among the respectable baibands sethias of Hyderabad, on the condition that if the syndicate realised within two years the sum of rupees two lacs from the karkhana or otherwise, the members of syndicate wilt return the entire estate to the brothers (Seth Chandanmal, Seth Ramchand and others) but in other case, the syndicate will give no facilities to the owners. But the dispensation of God, it is said, on the assumption of control of the karkhanas by the syndicate, on account of commencement of war, money began to flow in torrents one after another, into the hands of the syndicate the dealings and accounts in respect thereof were commenced and kept by Seth Chandan mal and some select members of the syndicate acting with mutual consultation. After the expiry of two years Seth Ramchand demanded accounts from the syndicate and asked the return of the estate. The members of the syndicate agreed to return the estate but refused to render accounts and said that as during the four years they had realised four and half thousand less than the stipulated amount of two lacs the syndicate remained the owner of the estate and as such was not bound to render any account of theirs, whatever, Seth Ramchand refusing to take back the estate without examination of the accounts has filed a suit in the Civil Court against the members of the syndicate because he says that during the two years the syndicate has realised more than two lacs of rupees but it has not maintained honest accounts with a view to misappro priate their property.
On the other hand, this Seth Chandanmal, who, in a usual course, should have stood hand‑in‑hand with his brother Seth Ramchand against the members of a syndicate with a view to get back his estate, has on the contrary, assumed in the suit a position hostile to his brother Ramchand and acting in collusion with the members of the syndicate has deposed as follows :‑
"Yes, it is correct that during the two years the syndicate has realised four and half thousand less than the stipulated amount of two lacs of rupees, that as such our estate should be considered the property of the syndicate and that even I (i.e. Seth Chandanmal) and my nephews are, at present, the paid servants of the syndicate
This matter is at present subjudice and as, according to law we have no right to comment on a pending trial, we will, while not giving our opinion on the facts of the case, appeal to the good men of the Bhaibund community and thick friends (who sit and drink together) of Seth Chandan mal to remonstrate with him in private to refrain from bringing about with his own hands his own insolvency by allowing, in the blindness caused by the desire to hurt his brother, his estate to be usurped by the syndicate "
With regard to the first article, the applicant's contention has been stated as follows :‑
"that the comment was calculated to convey the impression that the decision of the Chief Court in Criminal Revision Application No. 122 of 1946 was not honest. The comment' also conveys the impression that justice can be bought and sold and that rich and influential persons can have, out of the law Courts, any decision they want. In short it is a libel on the entire judiciary of the Province."
But there is no reference whatever in this article to the decision of this Court quashing the complaint of Ramchand, and I cannot see anything in it which could reasonably be regarded as imputing improper motives to those administer ing justice either in this Court or in the Court of the First Class Subordinate Judge. There are no defamatory aspersions on the character or ability of any of the Judges such as there were in In re ; An Advocate of Allahabad, ((1935) A I R All. 1) on which the applicant relied.
It is impossible to regard the statement, that Magistrate and judges accept invitations to cocktail parties, which no one: could deny, as a statement scandlising any Court, notwithstanding the fact that the writer does appear to attach very sinister significance to such parties. We are of course not concerned with the sanity or the taste of the view expressed by the‑writer.
As regards the second article, there can be no doubt that its contents did constitute a contempt of the Court, in which Ramchand's suit against the applicant and Chandanmal (and others) was pending. "The well known Seth Chandanmal of Hyderabad" was, it was stated, "behaving like a butcher", and had with the object of usurping the rightful share of his younger step‑brother Seth Ramchand stopped the household expenses" of Ramchand, "pressed him hard and caused him to go about in Courts for settle ment of accounts" ; it was stated that "Seth Chandanmal who in the usual course should have stood hand‑in‑hand with his brother Seth Ramchand against the members of the Syndicate, with a view to get back his estate" and "on the contrary assumed, in the suit a position hostile to his brother Ramchand" and acted "in collusion with the members of the syndicate." This vilification of Chandanmal and the applicant, who were parties in the pending litigation, was clearly calculated to excite prejudice against them in relation to their defence in the suit, to prejudice their having a fair hearing at the trial, and to interfere with the due and proper administration of justice and thus amounted to a contempt of Court. The law on the matter is very well settled, and we need only refer to two or three recent decisions. In Demibai Gengji Sojpal v. Rowji Sajpal and others ((1937) A I R Born. 305) B. J. Wadia J. stated:
"The law on the subject of contempt of Halisham Court has been laid down from ancient times, and is to be found in Hailsham's Laws of England, Vol. 7, in the well known work of Oswald on Contempt, and in several decided cases, which were referred to and mentioned in the argument. It has been laid down in an old case in The St. James Evening Post case (2) that offences which constitute contempt of Court are of three kinds, viz., those which (i) scandalise the Court, or ((1742) 2 Atk. 469 at p. 471) abuse the parties concerned in causes there, or (3) prejudice mankind against persons before the cause is heard. It has also been laid down that anything which tends to excite prejudice against the parties in litigation 'While it is pending is contempt of Court. That case has been followed in numerous later decisions, and is reproduced by Oswald in his Edn. 3 at p. 91, .see also In re : William Thomas Shipping Co. ((1930) 2 Ch. 368 at p. 375). There is no question here of scandalisin the Court. The question is only whetherg the editor has been guilty of abusing and vilifying the parties to a pending suit in relation to their defence, and thereby prejudicing a fair trial for them at the hearing. The test in such cases is not whether the writings have in fact obstructed or interfered with the administration of justice, or will obstruct or interfere with the administration of justice, but whether they are calculated to do so, or whether it is likely that they will have that effect. The intention of the writer may often be of secondary impor tance ; the question is, what is the effect of the articles, and have they a tendency to obstruct and interfere with the due and proper course of administration of justice "
The observations of Lord Alverstone in Rex v. Tibbit. ((1902) 1 K B 77, 88):
"it would, indeed, be far‑fetched to infer that the articles would in fact have any effect upon the mind of either Magistrate or‑Judge, but the essence of the offence is conduct calculated to produce, so to speak, an atmosphere of prejudice "in the midst of which the proceedings must go on. Publications of that character have been punished over 'and over again as contempts of Court, where the legal proceedings pending did not involve trial by jury and where no one would imagine that the mind of the Magis trate or judges charged with the case would or could be induced thereby to swerve from the straight course."
were referred to with approval in Sethappa Chettiarv C. Ramchandra Naidu ((1931) 1 L R 55 Mad. 262) (Beasley, C J. and Cornish J.).
The case of Suresh Chandra Mukherji v. Biswa Nath Chakrabarti ((1938) I L R 2 Cal. 447) may also be referred to in this connection.
The question then arises, have we the power to punish this contempt, which was a contempt not of this Court, but of a Subordinate Court
It is not contended that this power, to punish contempts of subordinate Courts, was possessed by this Court's predecessor, the Court of the Judicial Commissioner of Sind, as a power inherited from the Saddar Court, and it is in fact admitted that that was not the case. The applicant's conten tion' is (1) that when the Government of India Act, 1935, declared the Court of the Judicial Commissioner of Sind a Court of Record, this Court became a Chief Court, on the 15th April, 1940, the power was conferred upon it, and (2) that then the Contempt of Courts Act, 1926, also operated to the same effect.
Clause (1) of section 219 of the Government of India Act, 1935, made the Judicial Commissioner's Court in Sind a High Court for the purposes of the Act, and clause (1) of section 220 enacted that "Every High Court shall be a Court of record". It is contended that the expression "Court of record" when applied to a superior Court necessarily means a Court which has the power to punish contempts not only of itself but also of subordinate Courts. It appears to me to be clear, however, that this contention cannot be accepted.
There is no definition of the expression "Court of Record" in the General Clauses Act or elsewhere in any Indian Statute, so far as I am aware. In para. 1169, page 527 of Vol. VIII of Halsbury's Laws (Hailsham Ed.) it is stated:
"1169. Another manner of division is into Courts of record and Courts not of, record. Whether a Court is a Court of record or not depends on whether it has power to fine and imprison, whether for contempt of itself or for other substantive offences. Courts of record are such as have been expressly made so by statute, or by implication of a statute that is by having statutory power to fine and imprison, and Courts of record at common law. . These latter are such Civil Courts as have power to hear and determine, according to the course of the common law, action in which the debt, damages; or value of the property claimed is forty shillings or above, and such Criminal Courts as have power to fine or imprison. Courts not of record are those Civil Courts in which the proceedings are not according to the course of common law (except such as have been made Courts of record by statute). All Courts of record, with the exception of the Courts of the counties palatine are Courts of the King, even though a subject or corporation has the benefit of the Court, as in the case of borough and city courts of record. The proceedings of a Court of record preserved' in its archives are called records, and are conclusive evidence of that which is recorded therein."
In para. 5, page, 5 of Vol. VII of the same work (Hailsham) it is stated :‑
"5. The power to fine and imprison for a contempt committed in the face of the Court is a necessary incident to every Court of justice. It is not from any exaggerated notion of the dignity of individuals that insults to judges are not allowed, but because there is imposed upon the Court the duty of pteventing brevi manu any attempt to interfere with the administration of justice."
The significance of the term "Court of Record" appears to be this that the records of every such Court constitute conclusive evidence of its proceedings. It is also clear that every court of record, whether a superior Court or an inferior Court, has the inherent power as such a Court to fine and imprison for a contempt committed in the face of the Court. There is, so far as I can see no foundation for the proposition that every court of record when it is a superior Court, can punish contempts of subordinate Courts, and in fact it seems to me to be clear that that is not the case. In England the House of Lords, the Judicial Committee of the Privy Council, the Supreme Court of Judicature, the Court of Criminal Appeal, and the Courts Chancery of the Counties Palatine of Lancaster and Durham are all Superior Courts of record (Halsbury Vol. VII. para. 1170, p. 528), and there are a number of other inferior Courts of record : but it is only the King's Bench Division, a branch of the Supreme Court, which by virtue of its special common law jurisdiction as the "custos morum (Custodian of morals), can punish contempts of inferior Courts. ' (Halsbury Vol. VII para. 36, p. 23). The jurisdiction over contempts used to be exercised by Curia Regis and later by the Star Chamber. On the abolition of the Star Chamber in 1941 the jurisdiction to deal with all con tempts was exercised by the King's bench. As Jenkins C. J. stated in Legal Remembrancer v. Matilal Ghose and others ((1913) 1 L R 41 Cal. 173), at p. 209:
"Next, this jurisdiction (of the King's Bench Division) inherited from the Old King's Bench was of a special character, and, unless I have misread the judgment Rex v. Davies ((1906) 1 K B 52) it rested on that Court's power to punish every kind of misdemeanour, in that it was, in a special manner, the guardian and protector of public justice throughout the kingdom, the "custos morum", a dignity that reverted to it or was revived on the abolition of the Star Chamber by 16 Char. Ic. 10. Ordinarily misdemeanour was punishable by indictment or information, but when it was a contempt of Court it was also punishable "brevi manu" by attachment."
It has been argued before us that as this Court is the highest Court of Record within the Province charged with the function of supervising and administering the Courts subordinate to it, criminal as well as civil, its position is akin to that of the King's Bench Division in England, and that it must therefore be held that it has an inherent jurisdiction, as the custodian and protector of public justice throughout the province, to punish contempts of subordinate Courts.
This Court clearly is‑ the highest, and in fact the only, Court: of Record within the province and it has the powers of administration and control over the Civil Courts subordinate to it, conferred upon it by the Government of India Act, and the power of superintendence over all subordinate Courts, civil as well as criminal, conferred by section 224 of the Government of India Act, 1935. Section 224 is as follows :‑
" 224. (1) Every High Court shall have superintendence over all Courts in India for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say :‑
(a) call for returns :‑
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts ;
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts ; and
(d) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of Courts ;
Provided that such rules, forms and tables shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(2) Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judg ment of any inferior Court which is not otherwise subject to appeal or revision."
When it is argued that the powers so conferred give this Court an inherent jurisdiction to punish contempts of subordinate Courts, it seems to me that the word "inherent" is used in a sense which cannot be justified. When a Court has jurisdiction to do justice by exercising certain powers expressly conferred upon it, it may be said to have by necessary implication an inherent power to do certain things not expressly provided for, to enable it to reach the ends of justice intended to be reached by the powers expressly conferred, and to prevent an abuse of the powers expressly conferred so that: injustice may not be the result. It is in this sense only, that a power can be said to be inherent in a Court, by reason of the powers expressly conferred upon it. It. seems to me to be impossible to hold that in order to administer and supervise subordinate Courts, a matter. relating to the internal affairs and' work of the Courts, it is necessary that the administering or supervising superior Court also have the power to punish external attacks upon the Courts, and punish those who vitiate that public atmos phere in which the Courts have to work. The latter function is not inherent in the first, but is clearly an additional function, however necessary it may be for the proper administration of justice in a State and it is obvious that it may be discharged by a different Court, without the powers of supervision of the Court being in any manner affected. As has already been mentioned there are Superior Courts of record in England which have no jurisdiction to punish contempts of Courts subordinate to them. The argu ment addressed to us wholly overlooks the fact that in England the jurisdiction of the King's Bench Division to punish con tempts of subordinate Courts was not based merely on the position of the King's Bench Division as a Superior Court of record possessing powers of superintendence over the Courts subordinate to it. That Court had, in addition to being such a Court, a very special jurisdiction in Common Law, as the "custos morum", which constituted the Court, the guardian and protector of public justice throughout the kingdom. The power to punish every kind of misdemeanour, including contempts of all other Courts, including even‑ the other superior Courts of Record, was inherent in this special jurisdiction, which the' Common Law gave it. As it is impossible to contend that this special Common Law jurisdiction was ' ever conferred upon this Court, I find it impossible to hold that this Court was ever constituted "a protector of public justice ", in the sense used, throughout this province.
I will now refer to a few of the numerous decisions which were cited before us. Before the Contempt of Courts Act of 1926 was enacted, the position of the High Courts of Calcutta, Madras and Bombay was a very special one, different from that of the other High Courts in that they had inherited the Common law jurisdiction of the King's Bench Division possessed by the Supreme Courts in the three residency Towns, which had been expressly conferred upon the Supreme Courts within the limits of the Presidency Towns. In In re Venket Rao ((1911) 21 M L J 832) the Madras High Court (Arnold White, C. J., Munro and Sankaran Nair, JJ.), had to consider whether they had the power to punish a con tempt of the Court of the District Munsif of Bellary, a subordinate civil Court outside the presidency town of Madras. A twofold argument was addressed to them. The contention that the power to punish contempts of sub ordinate Courts was conferred on the High Court by section 15 of the Indian High Courts Act, which conferred on the High Court powers of superintendence over subordinate Courts, was rejected The learned 'Judges, however, upheld the other contention, that the Common Law jurisdiction of the King's Bench Division of the High Court in England had been expressly conferred on the Madras High Court, and they held that the Court, therefore, had the power to punish contempts of all subordinate Courts. Some two years later a similar question arose in the Calcutta High Court in Legal Remembrancer v. Matilal Ghose and others ((1913) 1 L R 41 Cal. 173) (before Jenkins C. J., Stephen and Asutosh Mookerjee JJ.), when that Court had to consider whether it could punish a contempt of the subordinate criminal Court at Barisal. The contention that the Court had such a power by reason of the powers of superintendence conferred upon the Court was again rejected. Jenkins C. J. stated:
"It is true that the High Court not only has superinten dence over the Courts of moffusil Magistrate, but also is a Court of Record ; if I am right, however, in my reading of Rex v. Davis ((1906) I K B 52), superintendence does not give jurisdiction while the power of the King's Bench to punish for inter ference with the lower Courts did not arise from its being a Court of Record but from its Common Law powers, as custos morum."
The decision of the Court was that the Common Law jurisdiction, inherited from its predecessor, the Supreme Court, did not extend beyond the limits of the Presidency town of Calcutta, and that outside that jurisdiction, the High Court had no power to punish contempts of subordinate Courts, although the High Court was a Court of record and the highest Court in the province In Emperor v. Balkrishna Govind Kullkarano ((1921) I L R 46 Bom. 592) the Bombay High Court (Macleod C. J. and Shah J.) had to consider whether it could punish a contempt of the subordinate Criminal Court at Dharwar, and there was a difference of opinion between Macleod C. J. and Shah J. Macleod C. J. based his decision on the‑fact that the Supreme Court at Bombay had the same power of punish ing contempts as the King's Bench Division had, by virtue of the. Common Law in England, and reasoned:
"It would follow that the Supreme Court by its Charter had the same jurisdiction to the extent of its territorial limits. If those limits had been extended to the Presidency proper, its jurisdiction in matters of contempt would have extended in the same way, and because the Supreme Court was abolished and the territorial limits of the High Court which took its place were extended by the same measure which brought it into existence, there is no reason why its jurisdiction in matters of contempt should be restricted to the territorial limits of the old Supreme Court. Of course by territorial limits I mean the limits within which the High Court exercises appellate and revisional powers and powers of superintendence."
Shah J. agreed with the reasoning of Jenkins C. J. in the Calcutta case, and held that the Court did not have the power claimed. Shah J. also observed.
" I need not labour the point that the mere fact that the Court has powers of superintendence over the subordinate Courts does not give to this Court any such jurisdiction, as both the Madras and Calcutta High Courts are agree on this point ".
It is thus clear that the very eminent Judges who decided these three cases did not accept the contention that the power to punish contempts of subordinate Courts could be claimed by a superior Court of record, merely by reason of the powers of superintendence over subordinate Courts possessed by it, and that in each case their decisions were based on the con clusions they arrived at on the question whether the Common Law jurisdiction, which the three High Courts undoubtedly possessed, extended to the entire Presidency.
The applicant relies mainly on 19z re. Abdul Hasan Jauhar and another ((1926) 1 L R 48 All. 711) and Muhammad Yusaf v. Imtiaz Ahmed Khan (I L R 14 Luck. 492), In re. Abdul Hasan Jauhar and another, the Allahabad High Court (Walsh, Sulaiman and Boys JJ.) had to consider whether they could punish a contempt which was a contempt of the High Court as well as of the Court of the Subordinate Judge of Barielly. The contempt in question had been com mitted before the Contempt of Courts Act, 1926, came into operation, but the decision was made after that Act had been passed. It was only the contempt of the High Court itself which was taken into consideration when the Court's order against the offender was made. The decision regarding the powers of the Allahabad High Court to punish contempts of Subordinate Courts before the passing of the Act therefore borders on being academic. With regard to the question now under consideration, Walsh J. only stated :
" It has been pointed out that this libel includes a contempt upon the Court of the Subordinate Judge. On the question of the jurisdiction of the High Court to punish contempts committed against Courts Subordinate to itself, I have studied all the cases, particularly the judg ment in the case reported in Legal Remembrancer v. Matilal Ghose ((1913) I L R 41 Cal. 173) where the question was decided in the negative. This High Court is a Court of Record and has general power of superintendence and control over the Courts Subordinate to it, and I agree with the view "taken in the Bombay case of In re Mohandas Karamchand Gandhi ((1920) 22 Bom. L R 368) and in a case decided by three Judges in Madras in the matter of K. Vankat Rao ((1911) 21 M L J 832), that the High Courts in India have such power. We have not taken into account this part of the libel complained of in awarding the punishment which we have decided to inflict ".
Boys J. was of the opinion that the Common Law powers of the King's Bench Division had been expressly conferred on the Calcutta High Court, that the same powers had been ex pressly conferred on the Allahabad High Court, and that therefore the Allahabad High Court had the power to punish contempts of Subordinate Courts. The judgments of these two learned judges are therefore not helpful here, as this Court admittedly has no Common Law powers. Suleman J. however expressed an entirely different opinion. He was of the view (cf p. 725) that neither the Indian High Courts Act nor the Letters Patent, by which the Allahabad High Court .was constituted, expressly conferred on that Court any power to punish contempts of Subordinate Civil Courts ; he was, however of the view that the Allahabad High Court by the very nature of its constitution as a High Court became " the guardian and protector of public justice throughout these provinces " and became possessed of an "inherent jurisdiction" to punish contempts not only of itself but also of Subordinate Courts. He said :
" Even without any direct authority I would have been " inclined to say that such inherent power rust necessarily exist, the grounds for this view being (1) that it is not the indignity to individual officers which requires to be pre vented, but public confidence in the Courts has to be maintained ; (2) that inferior. Courts themselves possess no such powers and would be entirely helpless if even the seperior Court cannot protect them ; and (3) that the ordinary remedy under the penal laws of the land are me4rit for offences against officers in their individual capacity, and would, if restorted to be cumbrous and cause considerable delay. If Courts have to be protected effectively they must be protected in a way in which swift justice can be dealt with, and that can be only in a summary proceeding of the nature of contempt of Court."
The learned Judge then proceeded to state that there was " abundant authority for the view that inherent jurisdic tion in a Supreme Court like the High Court must exist", and referred to certain passages from Rex v. Parke ((1903) 2 K B 432) and Rex. v. Davis (1906 1 K B 32), which were cases in which the question was whether by virtue of the Common Law of England the King's Bench Division was possessed of the power to punish con tempts of Subordinate Courts. The view of Sulaiman J. was substantially adopted in Muhammad Yusuf v. Imtiaz Ahmed Khan ((1939) I L R 14 Luck. 492) in which the Chief Court of Oudh (Thomas, C: J., Ziaul Hassan and Yorke, JJ.) decided that the Chief Court had power to punish a contempt of a Subordinate Criminal Court at Lucknow. Thomas C. J. stated:
" I have already pointed out that under section 219 of the Government of India Act of 1935 this Court is a High Court. I am, therefore, of opinion that this Court is the highest Court of Record with a position akin to that of the Court of the King's Bench. It has its power of superinten dence over all inferior Civil and Criminal Courts, and it has power to, protect its Subordinate Courts from improper interference in the administration of justice. In my opinion it will be absurd to think that this Court, which is the custodian and protector of public justice throughout the province, has no power to deal with the contempt of Subordi nate Courts. It is absolutely necessary that this Court should have such power and authority and exercise it ".
If the reasoning of Sulaiman J. and the learned Judges of the Oudh Chief Court be accepted as valid, it must apply equally to this Court, and our conclusion would have to be that this Court also possessed the power to punish contempts of Subordinate. Courts, leaving the Contempt of Courts Act out of consideration for the moment. But, as must be clear from what I have already stated, I find it impossible to agree with this reasoning, which fails to take note of the clear and very important difference, as it seems to me, between a power to supervise and administer Subordinate Courts, and a juris diction to act as " custos morum ", as the guardian and pro tector of public justice and to punish every kind of misdemeanour.
I, therefore, agree with the Madras, Calcutta and Bombay decisions referred to above and particularly with the observa tions of Arnold White‑C. J., Jenkins C, J. and Shah J. on the particular question before us, and am of the view that the, fact that this Court is a Superior Court of Record with powers of supervision over all Subordinate Courts in the province, does not give this Court jurisdiction to punish contempts of Subordinate Courts.
It now remains to consider whether the power contended for was conferred on this Court by the Contempt of Courts Act of 1926. The need for such an Act at the time was obvious. As regards contempts of themselves it was beyond any question that al] High Courts, which had been declared Courts of Record, had the power to punish such contempts. The position of the other Superior Courts, which had not been declared Courts of record, was in this respect very doubtful. As regards the power to punish contempts of Subordinate Courts there was a difference of opinion even between the three High Courts of Calcutta, Madras and Bombay with regard to their own powers, and the position of the other High Courts in this respect was even more dubious. The relevant part of the Act is as follows:
. " 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:
(1) .
2. (1) Subject to the provisions of subsection (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.
(2) Subject to the provisions of subsection (3), a Chief Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts to itself as a High Court referred to in subsection (1).
(3) No High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court Subordinate to it where such contempt is an offence punish able under the Indian Penal Code.
In spite of the criticism of the Act to be found in Muhammad Yusuf v. Imtiaz Ahmad Khan (1), the Act did in my view, resolve the doubts which had actually arisen; and did both define and limit the powers exerciseable by High Courts and Chief Courts in punishing contempts of Court, in a very clear manner. Subsection .(1) of section 2 set of rest all doubts regarding the powers of High Courts by enacting that all High Courts established by Letters Patent could punish Contempts of Courts Subordinate to them. Subsection (2) of section 2 in equally plain terms enacted that a Chief Court's power was limited to punishing contempts of itself. I find it wholly impossible to read subsection (2) of section 2 in any manner which does not limit the power of a Chief Court in punishing contempts to contempts of the Court itself, and even more impossible to read it as conferring on a Chief Court the power to punish contempts of Subordi nate Courts. I agree with the interpretation of the Act by Young, C. J., in In. re. Lala Harkishen Lal (2), when he stated:
" In the matter of the Chief Court, the Act confers upon it the same jurisdiction, power and authority in accordance with the same procedure and practice in respect of contempt of itself as is possessed by a High Court. It is significant that the Act does not confer any power on the Chief Court to punish contempt of Courts Subordinate to it and limits its power to punish contempt of itself alone. It is for this reason that the words " Chief Court " find no place in either subsection (1) of section 2 or subsection (3) of the same section".
A different view of the Act was taken in Muhammad Yusuf v. Imtiaz Ahmad Khan ((1939) I L R 14 Luck. 492 (cf. 505)) in which it was held that sub section ((1937) I L R Lah. 69) of section 2 did not limit the power of a Chief Court to punish contempts to contempts of itself, and the words " Subject to the provisions of subsection (3) " were relied upon as justifying that view. Thus Yorke J. stated:
" Thus the mere inclusion of the words " subject to the provisions of subsection (3) " would seem to be an answer to the argument that by this Act a Chief Court is denied power to deal with contempts of Courts Subordinate to it ".
In view of my conclusion that apart from the Contempt of Courts Act, a Chief Court has no power to punish any contempts other than those of the Court itself, the question whether the Act did or did not limit the powers of a Chief Court to contempts of itself, is of no consequence. I may say, however, that I find it wholly impossible, as a matter of logic, to assign any relevance or meaning to the words " Subject to the provisions of subsection (3) " with which subsection (2) G commences. Subsection (2)' deals with the subject of the powers of a Chief Court to deal with contempts of itself. Subsection (3) deals with an entirely different subject viz. the powers of a High Court in respect of certain contempts of Subordinate Courts. The areas covered by the two sub sections, so to speak, are entirely different. Clearly therefore it was logically impossible for anything contained in sub section (3) to affect anything contained in subsection (2). If a rule (a) directed that men should wear morning suits of a grey colour, and rule (b) directed that women should wear skirts of moderate lengths, the addition of the words " subject to the directions in rule (b) " at the commencement rule (a) would immediately be seen to be devoid of any possible reasonable meaning, I cannot see that the case of the words "subject to the provisions of subsection (3)" is at all different. It seems to me that the reasoning adopted in the Lucknow case comes to this : If you add to subsection (2) the words :
" The Chief Court shall also have (or retain) the power to punish contempts of Subordinate Courts in a summary manner like High Courts ", then the words " Subject to the provisions of subsection (3) " which now save no meaning, can be given a meaning,; therefore although as the Act stands these words have no meaning, we must give them a meaning by reading the Act as if the words suggested which acre not there were there. With all respect it seems to me that this is to construe the Act not as it is, but after adding words which are not there, and which in fact would confer powers which were never intended to be conferred.
I am, therefore, of the opinion that the Contempt of Courts Act not only does not confer ulon this Court any power to punish contempts of Subordinate Courts but clearly F limits the powers of this Court in respect of summary punishments for contempt to contempts of itself.
I would therefore dismiss this application, with no order as to costs, having regard to all the circumstances of the case.
As the decision in this case involves a substantial question of law as to the powers conferred on this Court by the Government of India Act 1935, by its being declared a Court of record (section 220 (1) ) and a High Court for the purposes of the Act (section 219 (1)) with powers of supervision over all Courts subject to its appellate jurisdiction (section 224), I think a certificate should issue under section 205 (1) of the Government of India Act, 1935.
Before concluding I consider it necessary that we should call the attention of the Legislative Department to the very urgent need for immediate legislation giving this Court the power, which we find we do not possess, of punishing con tempts of Subordinate Courts. No one, I imagine, would question the truth of the remark made by the Chief Judge of the Oudh Chief Court, already cited:
" In my opinion it will be absurd to think that this Court, which is the custodian and protector of public justice throughout the province, has no power to deal with the contempt of Subordinate Courts. It is absolutely necessary that this Court should have such power and authority and exercise it ".
It is obvious that ‑very grave consequences may easily result if scandalous attacks can be made with impunity upon Courts and upon litigants in pending cases, and there is no quick remedy provided against such interference with the proper administration of Justice.
T. V. THADANI, J.‑--I agree.
G. B. CONSTANTINE, J.--‑I agree.
A. H Application dismissed.
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