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Janardan Prasad Gupta Vs. O.P. Chakarvarty and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1975CriLJ164
AppellantJanardan Prasad Gupta
RespondentO.P. Chakarvarty and anr.
Excerpt:
.....to interfere with the due course of justice. 15 makes it out clearly that in the matter of criminal contempts, other than those referred to in section 14, there can be no danger if the supreme court or a high court takes action on its own motion because being the highest court in india or in a state, as the case may -be. the court would not initiate proceedings unless there is a good case. a criminal contempt, like most criminal actions, is primarily a matter between the court and the contemner and not a matter primarily between a citizen and the contemner. at best, he can bring the matter to the notice of the court and leave it there. he acts more or less like a sentinel trying to uphold the dignity of the court by approaching it for action or by giving consent in writing to a..........the advocate-general. the preliminary objection raised by the respondents is that cognizance of a criminal contempt, other than one falling under section 14, can be taken by this court only on its own motion, or on a motion made by the advocate-general, or on a motion made by any other person, with the consent in writing of the advocate-general, and in no other manner and since there is non-compliance with the three alternative procedural requirements, therefore, the petition must be ordered to stand dismissed without going into its merits.3. the preliminary objection raises a short question of law as to the interpretation of section 15 of the act this section reads thus:15. cognizance of criminal contempt in other cases:(1) in the case of a criminal contempt, other than, a contempt.....
Judgment:

K. B. Srivastava, J.

1. The petitioner Dr Janardan Prasad Gupta alleges that Dr,, O. P. Chakravarty, Additional Director of Medical and Health Services and Drugs Controller, Uttar Pradesh, and Dr. Niranjan Prasad, Assistant Drugs Controller, Uttar Pradesh, the two respondents before us, have committed criminal contempt of this Court under sub-clauses (i), (ii) and (iii) of Clause (c) of Section 2, Contempt of Courts Act (hereinafter referred to as the Act) and consequently they deserve punishment under Section 12 of the Act.

2. It is not disputed by either side that the alleged contempt was not committed in the face of this Court, so as to fall within the purview of Section 14 of the Act. Similarly, it is not disputed that it lies within the ambit of Section 15 of the Act. The proceedings have not been initiated on its own motion by this Court or on a motion made by the Advocate-General. The petitioner further admits that he has not made the motion with the consent in writing of the Advocate-General. The preliminary objection raised by the respondents is that cognizance of a criminal contempt, other than one falling under Section 14, can be taken by this Court only on its own motion, or on a motion made by the Advocate-General, or on a motion made by any other person, with the consent in writing of the Advocate-General, and in no other manner and since there is non-compliance with the three alternative procedural requirements, therefore, the petition must be ordered to stand dismissed without going into its merits.

3. The preliminary objection raises a short question of law as to the interpretation of Section 15 of the Act This Section reads thus:

15. Cognizance of criminal contempt in other cases:

(1) In the case of a criminal contempt, other than, a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by:

(a) the Advocate-General, or

(b) any other person, with the consent in writing of the Advocate-General.

(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.

(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. Explanation ....

4. Before proceeding to interpret the above section, we deem it necessary to give a brief outline of the scheme and object of the Act. The Act is an Act to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto. It consists of 24 sections. Section 1 relates to short title and extent. Section 2 is the definition section. Clause (a) of this section defines 'contempt of Court'; Clause (b) defines 'civil contempt'; cL (c) defines 'criminal contempt'; and Clause (d) defines 'High' Court'. Then follow Sections 3 to 7. The provisions of these five sections pertain to those acts which are not contempt notwithstanding the fast that they may have been deemed to be contempt under the repealed law. Section 8 has been enacted by way of abundant caution permitting the existing law as to defence to be still open in a contempt action. Thus, while Sections 3 to 7 indicate special acts that are not contempt; Section 8 implies that the Act is not exhaustive as to what is not contempt.

* The purpose of Section 9 is to emphasise that the Act will not imply enlargement of the scope of contempt, vis-a-vis the prior and existing law. Section 10 relates to the power of a High Court to punish contempts of its subordinate courts. Section 11 confers powers of an extra-territorial nature to try offences committed, or offender found, outside the jurisdiction of a High Court. Section 12 is the punishing section. Section 13 deals with contempts of a superficial nature and makes such contempts not punishable. Section 14 deals with the procedure in a case where contempt has been committed in the face of the Supreme Court or a High Court. Section 15 deals with criminal contempt, other than a contempt referred to in Section 14. Section 16 deals with contempts committed by Judges. Magistrates or other persons acting judicially. Section 17 deals with procedure after cognizance has been taken under Section 15. Section 18 deals with the manner of hearing of a criminal contempt. Section 19 deals with appeals and Section 20 with limitation for actions for contempt. Section 21 makes the act inapplicable to a Nyaya Panchayat Section 22 is declaratory in nature. Section 23 confers rule making power on the Supreme Court and in High Court. Section 24 is the repealing section. Thus, the object of the Act is to uphold and preserve respect to the seat of justice as any disrespect to it is an affront to the dignity and majesty of law. The Act defines as to what is contempt; and lays down as to what is not contempt: it fixes the jurisdiction of courts to punish for contempt; limits the power of punishment, and regulates the procedure in relation thereto. The procedural rules will appear from Sections 14, 15. 17 and 18, A period of limitation has been prescribed to eliminate stale complaints. In so far as criminal complaints, other than those referred to in Section 14, are concerned, provision has been made for the manner in which action can be taken.. Even in the case of such complaints, the Supreme Court or a High Court may take or may not take action, ',The matter has been left to their discretion, as will be evident from the words 'may take action', as occurring in Sub-section (1) of Section 15,' However, if the Supreme Court or a High Court does not take, action on its own motion, certain agencies have been prescribed by or through whom, the action can be taken. Section 15 specifically says that the Supreme Court or a High Court may take action;

(i) on its own motion, or

(ii) on a motion made by the Advocate-General, or

(iii) on a motion made by any other person, with the consent in writing of the Advocate-General.

The Section fixes the limit to three types of motion, and does not cover any 4th type. Sub-section (2) of Section 15 limits the agency to two, namely, on a reference made to the High Court by a Subordinate Court, or on a motion made by the Advocate-General. The section clearly excludes any private citizen from setting such criminal contempt in motion, unless he makes the motion with the consent in writing of the Advocate-General: or at worst lays the information before the Court itself praying the court to take action on its own motion. Thus, so far as such criminal contempts are concerned, a check has been imposed in the matter of taking action. The object appears to eschew vindictiveness malice or a desire to harass on the part of a private citizen. Either the Supreme Court or a High Court must initiate the action itself, if so satisfied, or the Advocate-General must intervene and make a motion or must Rive his consent in writing for the making of a motion by a private citizen with the obvious intention that the Advocate-General being the highest Law Officer in the State, will be jealous to uphold the dignity of the Court if there is prima facie case, or refuse to make a motion or give his consent in writing, if what a citizen wants is to harass a person out of his personal malice or vindictiveness and not to uphold the dignity of the court and the majesty of the law. We are of the view that Section 15 places a statutory bar on a citizen moving this Court for taking action for punishment for criminal contempt, without complying with the third alternative mentioned in the section. The learned Counsel for the respondent argued that the marginal note to this section, namely, the words 'cognizance of criminal contempt in other cases' are themselves indicative of the intention of Parliament. The marginal notes, however, cannot be referred to for the purpose of construing e section. They can at best be taken into consideration if the words used in a section are uncertain or ambiguous, but, as observed earlier, the section itself is clear, certain and Unambiguous. Subsection (3) of Section 15 also unravels the intention of the Parliament to some extent when it says that every motion or reference shall specify the contempt of which the person charged is alleged to be guilty. It obviously refers to the three kinds of motions mentioned in Sub-section (1) and to the reference or motion mentioned in Sub-section (2). There can be no other motion or reference. Section 17 relates to procedure after cognizance has been taken, that is to say, after the Supreme Court or a High Court takes cognizance under Section 15. We also find ample support in our view by a Full Bench decision of the Orissa High Court in B. K. Misra v. Chief Justice. Orissa AIR 1974 Cri 1 (FB) wherein, referring to a criminal contempt, other than a contempt referred to in Section 14, their Lordships observed that such a motion at the instance of a citizen without the consent of the Advocate-General is not in accordance with the requirement of Section 15(1) and hence not maintainable.

5. The learned Counsel for the petitioner placed reliance upon Dharam-deo Rai v. Ramnagina Rai. : 1972CriLJ632 for the proposition that on the anology of that decision, any person, even without consent in writing of the Advocate-General, can make a motion for a criminal contempt under Section 15, The question involved in Dharamdeo Rai's case : 1972CriLJ632 was whether a private person could institute a prosecution for an offence under the Registration Act without the permission of the Inspector-General, the Registrar or the Sub-Registrar, in whose territories, district or sub-district, as the case may be, the offence had been committed. Their Lord- ships held that Section 83 of the Registration Act was not prohibitory in character, and it did not preclude a private person from commencing a prosecution for an offence under the Apt without the permission as envisaged in the section. That decision, in our view, has no application to the facts of the present case. It is not permissible to construe a section in one Act by interpreting a section in another Act. Besides Section 83 of the Registration Act is clearly distinguishable from Section 15. On a reading of Section 83, it will be clear that it deals only with prosecution for an offence under the Registration Act coming to the knowledge of the Registering Officer in his official capacity, and can possibly have no application to cases in which offences are committed under, that Act but the offences do not come to the knowledge of the Registering Officer in his official capacity. It is on the language of that section that the decision of their Lordships of the Supreme Court turned. We have, therefore, come to the conclusion that the petitioner has no right to invoke the jurisdiction of this Court without compliance with the mandatory provisions contained in Section 15. He has not invoked our discretion to set the law in motion and. therefore, we need not refer to this question at all.

6. The learned Counsel for the petitioner has, however, contended' that Section 15 of the Act is ultra vires inasmuch as it infringes Articles 129 and 215 of the Constitution and should, therefore, be struck down. Article 129 of the Constitution states that the Supreme Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Article 215 similarly says 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 These two articles thus speak about the position and status of the Supreme Court and a High Court, as a Court of record. The jurisdiction to punish for its own contempt which a High Court exercises as a Court of record was not derived from any statute, but originated from the fact of its being a Court of record; and it is this status which has been incorporated in Article 215, and as if by way of abundant caution, it has been specifically mentioned that a High Court has the power to punish for contempt of itself. The Supreme Court is a creature of the Constitution and has been declared by Article 129 to be a Court of record. It would follow that since the Constitution vests the Supreme Court and every High Court with the powers of a Court of record including the power to punish for contempt of itself, these powers cannot be taken away by Parliamentary legislation except by way of a Constitutional amendment. The impugned section of the Act does not abrogate or cut down this power: and indeed, fully preserves and upholds it/ Article 215 does not confer any power on a High Court to punish for contempt of a Subordinate Court and obviously this had to be done by Parliamentary legislation but that would amount to conferring more power rather than taking away the power conferred by Article 215. The learned Counsel has argued that by the force of Articles 129 and 215. the Supreme Court or a High Court have the Constitutional power to punish for contempt and, therefore, they have the ancillary or incidental power to prescribe their own procedure for dealing with a contempt matter: and all that would be necessary for them is to prescribe a procedure which should be fair so that the contemner is made aware of the charge made against him and given a fair opportunity to defend himself but since this power to prescribe the procedure has been taken away by the Act, therefore. Section 15 amounts to an encroachment upon that power. We are not impressed by this argument. It is quite true to say that the earlier Act of 1952 did not prescribe any procedure and the Supreme Court or a High Court was free to lay down its own procedure. That position will, however, not affect the power of Parliament to legislate about the procedure, if the Constitution says that it can. Under Article 246 of the Constitution. Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule, referred to as the Union List. Entry 77 of this List reads 'Constitution, organization, jurisdiction and powers of the Supreme Court (including contempt of such Court)....' Under Clause (2) of Article 246, Parliament also has the power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule referred to as the 'Concurrent List'. Entry 14 in this List reads 'Contempt of Court', but not including contempt of the Supreme Court. These two entries give a clear picture of the legislative power of Parliament. It has full power to legislate with regard to 'Contempt of Court' and with regard to powers of the Supreme Court, including its power with regard to contempt matters. At best, in order to reconcile Articles 129 and 215 with Article 246 and the entries aforesaid what can be said is that Parliament cannot take away the power to punish, without a Constitutional amendment, but it would be untenable to say that it cannot prescribe the procedure as to how a contempt matter has to be dealt with by the Supreme Court or a High Court. Clause (2) of Article 142 deals with the powers of the Supreme Court to prescribe its procedure. It, however, says that subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for purposes of securing the attendance of any person, the 'discovery or production of any document, or the investigation, or punishment of any contempt of itself. The power, of the Supreme Court to prescribe its own procedure for the investigation or punishment of any contempt of itself is there, but that power is subject to the overall power of Parliament to make a law in regard to this procedure. It cannot, therefore, . be argued that Section 15 which is procedural; militates against Article 215 or Article 142. The moment Parliament makes a law. the rules or procedure made by the Supreme Court, shall yield to that legislation. Article 225 says that subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature under the Constitution, the jurisdiction of and the law administered in, any existing High Court .... including any power to make rules of Court and to regulate the sitting of the Court shall be the same as immediately before the commencement of the Constitution. The power to make rules that exists in every High Court under Article 225, is subject to twp conditions, namely, that this power cannot be exercised if the Constitution provides otherwise or if a State law does so. It has been seen above that by Entry 14 of List III. Parliament has the power to legislate about contempt of Court. The language used in these two entries is of wide amplitude and it is well settled that the power to legislate on a subject covered by the entries, includes incidental matters also. When a Legislature gets a power to legislate on a particular subject, it cannot be said that it has no power to legislate as to the procedure or manner in which, the particular legislation shall be regulated or implemented. The power to legislate regarding a Court must include the power to regulate the procedure of such a Court We have no doubt, therefore, in our mind that Parliament had full power to legislate as to what is contempt, as to what can be the kinds of contempt, as to how cognizance of a contempt can be taken, and as to the manner in which such an action should be heard and disposed of. It was argued by the learned counsel that Section 15 is a meaningless section; but we do not think that it is so. There is a clear public policy behind its enactment. Parliament has defined contempt and has then proceeded to state what is a criminal contempt or whit is civil contempt. With regard to criminal contempt, It provides for contempt ex fade and contempts other than ex facie. Section 14 deals with ex facie contempts while Section 15 has regard to criminal contempts, A criminal contempt committed in the face of the Court certainly forms one group. There might, however, be criminal contempts committed outside the Court room. The purpose behind Section 15 is to curtail litigation except in certain circumstances. Indeed, Section 13 lends some support to this observation of ours, when it states that notwithstanding anything contained in law for the time being in force, no Court shall impose a sentence for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice. Section. 15 makes it out clearly that in the matter of criminal contempts, other than those referred to in Section 14, there can be no danger if the Supreme Court or a High Court takes action on its own motion because being the highest Court in India or in a State, as the case may -be. the Court would not initiate proceedings unless there is a good case. A criminal contempt, like most criminal actions, is primarily a matter between the Court and the contemner and not a matter primarily between a citizen and the contemner. A contempt committed by the contemner affects more the majesty of law and the dignity of a Court than a citizen who is not affected by it. At best, he can bring the matter to the notice of the Court and leave it there. That appears to be the reason why a restraint has been put upon the right of a citizen to resort to Section 15, except on the condition that he has obtained the consent in writing of the Advocate-General who, of course has the right to approach the Court himself or give his consent in writing to a citizen, if he does not wish to approach the Court, himself. He acts more or less like a sentinel trying to uphold the dignity of the Court by approaching it for action or by giving consent in writing to a citizen to approach. The citizen has no unfettered right for the simple reason that he may act more out of personal prejudice and vindictive-ness to harass an adversary, than out of any respect for the majesty of law or dignity of the Court. It is for that purpose that a safeguard has been provided that he must get his claim scrutinized by the Advocate-General before coming to Court.

7. The learned Counsel for the petitioner has then argued that Section 15 curtails the fundamental right guaranteed under Article 14 of the Constitution inasmuch as a private person is precluded from approaching the Supreme Court or a High Court in the matter on such criminal contempt whereas the Advocate-General has the statutory right to make a motion. In this connection, he argued that even a procedural law must, not infringe or militate against Article 14. We are of the view that there is no fundamental right of litigation and indeed such a right is subservient to the law of the land. If the law says that certain persons cannot institute an action except after compliance with a certain procedure, such a law would undoubtedly be valid. In Prabhakar Rao H. Mawle v. State of Andhra Pradesh : [1965]3SCR743 . it was argued that the Madras Vexatious Litigation (Prevention) Act was unconstitutional because it prevented a class of citizens from approaching a Court and obtaining a relief to which everyone is entitled in a State governed by the rule of law,. Article 14 was invoked, because it was alleged that the impugned Act created an unreasonable distinction between a litigant and a litigant. Their Lordships repelled this contention, because the two types of litigants fell into two separate groups and because the impugned Act did not intend to deprive a person of his right to go to Court and what it did was only to create a check so that the Court may examine the bona fides of any claim before the opposite party is harassed. The object of that Act was, as held by their Lordships, to promote public good and it could not be claimed that it was an inviolable right of a citizen to bring vexatious actions without control. Section 15 of the Act serves the same purpose. Article 14 prohibits class legislation, but does not prohibit reasonable classification. The Advocate-General holds a high status and is supposed to act impartially in coming to a conclusion whether or not he should move the Court under Section 15 or give his consent in writing to any other person to move it. An ordinary citizen cannot belong to that group. Parliament thought that a restraint or check should be placed upon a citizen in a matter of criminal contempt for the sake of public good so that only tenable motions come before the Supreme Court or a High Court and the intervention of the Advocate-General was provided for that purpose. There is no discrimination inter se between one citizen and another. Both suffer under the same disability. We are. therefore, of the view that Section 15 is not hit by Article 14 of the Constitution.

8. This petition has no substance and is dismissed. There is no order as to costs.


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