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Ram Piara Comrade Vs. High Court of Punjab and Haryana - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1984CriLJ1311
AppellantRam Piara Comrade
RespondentHigh Court of Punjab and Haryana
Cases ReferredState of U.P. v. Babu Ram Upadhya
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply.....k.s. tiwana, j.1. this civil writ petition has been filed by shri ram piara comrade challenging the vires of rule 6, sub-rule (6) of the contempt of court (punjab and haryana) rules, 1974, hereinafter referred to as the rules framed by the punjab and haryana high court under the contempt of courts act, 1971, hereinafter referred to as the act, from the reading of the petition and rejoinder to the return filed by the high court, the case of the petitioner, which we have been able to make out, is that rule 6(6) is ultra vires of the. provisions of the act. the grounds urged to support the challenge are that the rule-making power of the high court has not been properly exercised and it lacks wisdom. it is also one of the grounds in the petition that the cr.p.c. hereinafter referred to as the.....
Judgment:

K.S. Tiwana, J.

1. This civil writ petition has been filed by Shri Ram Piara Comrade challenging the vires of Rule 6, Sub-rule (6) of the Contempt of Court (Punjab and Haryana) Rules, 1974, hereinafter referred to as the Rules framed by the Punjab and Haryana High Court under the Contempt of Courts Act, 1971, hereinafter referred to as the Act, From the reading of the petition and rejoinder to the return filed by the High Court, the case of the petitioner, which we have been able to make out, is that Rule 6(6) is ultra vires of the. provisions of the Act. The grounds urged to support the challenge are that the rule-making power of the High Court has not been properly exercised and it lacks wisdom. It is also one of the grounds in the petition that the Cr.P.C. hereinafter referred to as the Code, does not apply to the cases under the Act as no reference to it is made in the Act and the use of the provisions of the Code in the rule is inconsistent with the Act. In the rejoinder, it is taken as a plea :

(5) Therefore not only that provisions of Criminal Procedure Code do not apply but also Rules of Procedure contemplated in Section 23 exclude matters for which provision is made in Section 17.

(6) It is seen that 17 covers two classes of persons :

(a) those who have received notice but are likely to abscond;

(b) those who keep away to avoid and evade service of notice.

The Parliament provided for the procedure in Section 17 fully knowing that there are provisions in the Cr.P.C. for effecting arrest and physically bringing the contemnor to the presence of the Court to answer the charge, but it rejected such provisions and devised another provision in Section 17 for securing this appearance viz. by attachment of property-immovable, moveable and every form of asset like degrees, diplomas etc. (7) Not only this, the Act that provides that the Rules of Procedure framed by the Supreme Court and the High Court under Section 23 shall not be inconsistent with Section 17. Rule 6(6) is patently, not only inconsistent with Section 17 but also abnegates Section 17 in that I was arrested when, if Section 17 conditions are present, proceedings ought to have been taken only with respect to my property.

These are the only points worth consideration, as the grounds of attack to the vires of Rule 6(6) of the Rules, which we have been able to make out of the petition and the rejoinder, which are full of extraneous matters of other cases of the petitioner and scandalous allegations particularly against various sitting and, retired Judges of this Court. These scandalous allegations which have been made, are not relevant or necessary to the relief the petitioner seeks in the petition for striking down Rule 6(6) nor could it be of any interest to refer to that material in this judgment. These appear to have been made, with a desire to scandalise this Court.

The petitioner has referred to his arrest in the cases of contempt of court pending against him. This Court had issued warrants under Rule 6(6) of the Rules, to secure his presence when he had absented during those proceedings. This seems to be the ground which led the petitioner to file this petition.

2. The Punjab and Haryana High Court in the return, filed through the Registrar of this Court, defended the validity of the Rules. It took a position that the Rules are framed by the High Court under its valid rule-making power by virtue of the delegated powers under Section 23 of the Act. The High Court under the Act has to adopt its own procedure and it is free to adopt the procedure laid down in Section 71 of the Code for the endorsement of the warrants and nothing debars it from applying the provisions of the Code. It was requested in the return that as the petitioner has made unfounded imputations of mala fides, bias and prejudice to the sitting and retired Judges of the Court in their judicial conduct, amounting to scandalizing the court, notice for contempt of court be issued to him.

3. When the case was taken up for arguments, the petitioner at the outset submitted a rejoinder referred to in the previous para stating that it contained allegations against this Bench. He further said that we may read the rejoinder so that after going through its contents, we may transfer the case from this Bench. The request was declined as a litigant cannot be given that right to make a defamatory accusation against the Bench for the purpose to seek adjournment or transfer of the case. The petitioner then read the petition and after finishing it again made a request that we should not hear his case. This again was declined on the same ground that the litigant cannot be permitted to browbeat the court and hold it under a threat by making defamatory accusations and contemptuous comments. Though the conduct of the petitioner was objectionable but we did not take any notice of it for taking any action against him. The petition, which contained defamatory and scandalous references to the Judges of this Court, present and past, as referred to earlier, was read in court. When the reading of the petition was concluded, Shri H.L. Sibal, learned Senior Advocate, appearing for the High Court, suggested that the challenge in the petition was to the validity of Rule 6(6) of the Rules and the reading of the return of the High Court, which had defended the rule, and the rejoinder which is full of slanderous and contemptuous comments against the sitting and retired Judges of this Court, need not be gone into, as it will not help the attack on the vires of Rules in any manner, as it was in no way connected with the legal question raised in the petition. The petitioner was bent upon reading the irrelevant matter and refused to further argue his case. The conduct of the petitioner in refusing to argue the case was similar to his conduct earlier, which he has referred to at page 9 of his rejoinder in not arguing his revision. As the vires of the rules, which may be often used by this Court, in contempt matters, were under challenge, we asked Shri H.L. Sibal, learned Counsel for the High Court, to argue the case. The petitioner, however, remained sitting in the Court and occasionally interrupted Shri Sibal in his arguments. At the conclusion of the arguments by Shri Sibal, the petitioner wanted to argue his case. He again insisted on reading the same defamatory material in the rejoinder. He was repeatedly told to reply the arguments of Shri Sibal and adhere to the direction given by the Bench in this regard. He persisted with his insolent behavior to read the rejoinder to derive a sadistic pleasure of repeating the defamatory comments made on several Judges of this Court. He then as a last resort averred that the paper book in the case was not complete. We do not find if this contention of the petitioner is correct. The petition, return and the rejoinder are only the parts of the file. No other document has been filed by any party. This was only a request ostensively made with an idea to drag on the proceedings.

4. The only point for decision is whether Rule 6(6) of the Rules made by the High Court is ultra vires of the provisions of the Act. Grounds in support of the challenge taken in the petition and the rejoinder are noticed in para 1 of this judgment.

5. The power of the High Court to punish for its contempt is inherent being a Court of record. What is a Court of record has been described in Corpus Juris Secundum as:

A Court of Record has been defined as a Court where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony and which has power to fine and imprison for contempt of its authority; a court that is bound to keep a record of its proceedings and that may fine or imprison; a court whose proceedings are enrolled for a, perpetual memorial and testimony which rolls are called the Records of the Court, and are of such high and super-eminent authority that their truth is not to be called in question; a judicially organized tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it and proceeding according to the course of the common law, and a court having a seal. Courts may be designated by Statute as Courts of Record. Courts not of record are those of inferior dignity which have no power to fine or imprison and in which the proceedings are not enrolled or recorded; and all courts which do not come within the definition of a court of record are courts not of record In Halsbury's Laws of England, courts of record are described as:Courts not of Record are those civil courts in which 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 recnrded therein.

When Article 129 of the Constitution of India was moved for acceptance in Parliament, Dr. Ambedkar said : 'As a matter of fact once you make a court of record by statute, the power to punish for contempt necessarily follows from that position. But it was felt that in view of the fact in England this power is largely derived from the common law and we have no such thing as common law in this country, we feel it better to state the whole position in the statute itself. Vide Article 129 of the Constitution of India, the Supreme Court and vide Article 215 of the Constitution of India, the High Courts in the country, have been made the courts of record Article 215 is asunder:

Every High Court shall be a court of record and shall have all the powers of such a court including tie power to punish for contempt of itself.

Every High Court under this Article is a court of record and has the inherent power to punish its own contempt.

6. Prior to the enactment of Contempt of Courts Act, 1971, law about the contempt in the country was not codified. It was codified vide this Act. The Preamble of the Act reads as :

An Act to define and limit the powers of certain Courts in punishing contempts of Courts and to regulate their procedure in relation thereto.

Section 1 of the Act gives its short title and the extent of its application. Section 2 contains definitions and Section 3 exempts, from the operation of the Act, certain publications and distribution of those publications, in given circumstances. Q. 4 provides an exception for the fair and accurate reports of judicial proceedings, subject, however, to the provisions contained in Section 7. Under Section 5, a publication of a fair comment aimed in Section 7, Under section 5, a publication of a fair comment a judicial act is not contempt. Section 6 gives exemption to the makers of a statement in good faith regarding the presiding officers of the subordinate courts. Section 7 deals with the publication relating to proceedings in camera. Section 8 provides for defences. Section 9 provides that nothing contained in the Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court, which would not be so punishable apart from this Act. Section 10 gives, powers to the High Courts to punish the contempt of the subordinate courts and Section 11 gives the High Court jurisdiction to try the offences committed outside the jurisdiction of local limits, irrespective of the fact whether the condemner is within or outside its jurisdiction. Section 12 provides for punishments for contempt's of courts. According to Section 13, no court shall impose a sentence under the Act for 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 14 makes provisions for the Supreme Court's or the High Courts' jurisdiction for punishing contempts committed in their presence, and the procedure these courts have to follow. Section 15 provides the manner, in which cognizance of criminal contempt is to be taken by the Supreme Court and the High Courts. According to this section, these courts can take cognizance Suo motu, on a motion by the Advocate General, or by a motion of any other person with the consent in writing of the Advocate General. According to the provisions of Section 16, a Judge or a Magistrate or other persons acting judicially, can be guilty of the contempt of their courts or any other courts. Section 17 provides for the procedure after cognizance is taken. Since stress is laid on the provisions of Sub-sections (3) and (4) of this section, it is reproduced as a whole:

17(1). Notice of every proceeding under Section 15 shall be served personally on the person charged, unless the court for reasons to be recorded directs otherwise.

(2) The notice shall be accompanied--

(a) in the case of proceedings commenced on a motion, by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded; and

(b) in the case of proceedings commenced on a reference by a subordinate court, by a copy of the reference.

(3) The court may, if it is satisfied that a person charged under Section 15 is likely to abscond or keep out of the way to avoid service of the notice, order the attachment of this property of such value or amount as it may deem reasonable.

(4) Every attachment under Sub-section (3) shall be effected in the manner provided in the C.P.C. 1908 (5 of 1908), for the attachment of property in execution of a decree for payment of money, and if, after such attachment, the person charged appears and shows to the satisfaction of the court that he did not abscond or keep out of the way to avoid service of the notice, the court shall order the release of his property from attachment upon such terms as to costs or otherwise as it may think fit.

(5) Any person charged with contempt under Section 15 may file an affidavit in support of his defence and the court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires.

Section 18, provides for the mode of hearing by Benches. Appeal is provided under Section 19. According to Section 20, no action for a contempt of court can be initiated after one year of the alleged commission of that contempt. Vide Section 21, the Act does not apply to the Panchayats. Section 22 makes it clear that the provisions of the Act are in addition to, and not in derogation of, the provisions of any other law relating to contempt of courts, for the time being in force. Section 23, which is one of the important sections, giving power to the Supreme Court and the High Courts to frame rules, is:

The Supreme Court or, as the case may be, any High Court, may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its procedure.

Vide Section 24, the Contempt of Courts Act. 1952, was repealed.

7. Section 23 of the Act gives powers to the Supreme Court and the High Courts to frame the rules, not inconsistent with the provisions of this Act, providing for or relating to its procedure. The Punjab and Haryana High Court framed the Rules under this provision of the Act, which are contained in the Rules and Orders of the Punjab High Court Volume V, chapter 7-H, the heading of the Rules is: 'Rules made by the High Court under Section 23 of the Contempt of Courts Act, 1971, for. regulating proceeding under the said Act.' This power has been given by the Legislature to the High Court. The Legislature has framed the periphery in which the Act is to operate. The procedure for the operation of the Act, where it is not provided in the Act itself, is to be prescribed by the Supreme Court or the High Court. We need not refer to all the rules framed by the High Court, except the rule challenged in the petition which is as under:

6(6). The High Court may, if satisfied that the person charged is absconding or likely to abscond or is keeping or likely to keep out of the way to avoid service of the notice, order the issue of warrant of his arrest which, in the case of criminal contempt, may be in lieu of or in addition to the attachment of his property under Sub-sections (3) and (4) of Section 17 of the Act. Such warrant may be endorsed in the manner laid down in Section 71 of the Cr.P.C. 1973, in terms of the order of the High Court.

8. The Preamble of the Act gives a clear indication about the purpose of the Act. The first part defines and limits the powers of certain Courts in punishing contempt of courts. We are not concerned with this part, in this case. The second part is to regulate the procedure in relation thereto, that is, the contempt. We have referred in brief in paragraph 6 of this judgment to the provisions of this Act. It does not prescribe procedure for all the matters involved in it, although to some extent procedure is provided in Sections 14 and 17. The Act gives the area of its operation. Ancillary matters are not to be provided in the Act itself. The same are to make the power of the Court effective and to implement the provisions of the Act. It is necessary that all incidental powers to proceed with the case must obviously be with the High Court. The legislature cannot contemplate or envisage all the procedure for the working of the statutes. For this reason it leaves the rule-making power to the agencies which are to administer it. The most comprehensive Acts, like, Cr.P.C., C.P.C. and the like, are not complete in their working. Rules have been framed by the High Courts to implement the working of those statutes. The rule-making power is delegated to the administering agency only when the legislature itself cannot undertake to look in future of the Act to anticipate the problems which the working of the statute might create for the persons who are to work those. It was for this reason that the power was delegated to the Supreme Court and the High Courts to formulate their own procedure. This delegation of power is unlimited subject only to one condition that the Rules have to be consistent with the provisions of the Act. There is nothing to suggest that the High Court had no power to frame the rules or the Rules framed, as stated in the petition, Jack wisdom, or the powers have been mis-utilised except a bald averment in the petition. The Rules are comprehensive and detailed covering almost all the area of the operation of the Act in the matter of procedure, where the Act has not provided for it. Rules made by the High Court, therefore, effectuate the purpose of the Act.

9. Next thing which comes to notice is the ground that the Code is not referred in the Act and its provisions cannot, therefore, be invoked by the High Court, even for the endorsement of warrants in the manner prescribed by Section 71 of the Code. Section 22 of the Act makes it clear that the Act is in addition to and not in derogation to any other provision of law regarding contempt of courts. This immediately brings Article 215 of the Constitution of India to the fore, where as a court of record a High Court has been empowered to punish its contempt. Article 215 does not provide for procedure for the bringing of the contemner before the High Court for trying and punishing him. Acting under Article 215, the High Court has to formulate its own procedure. It can utilize the provisions of the Cr.P.C. if, it so likes. If the High Court takes proceedings for contempt against a contemner, then the Code governing the procedure of criminal courts in the matter of trial of criminal offences ipso facto will not be attracted for application. Provisions like the framing of the charge, transfer of the cases from one court to another, for example, cannot be invoked. In Sukhdev Singh v. Teja Singh C. J., and Anr. Judge of the Pepsu High Court at Patiala AIR 1954 SC 186 : 1954 Cri LJ 460, which was a case under the Contempt of Courts Act, 1952, in which there was no provision like Section 23 of this Act, it was held that the Code does not apply to the cases under the Contempt of Courts Act. Sukhdev Singh's case was, mainly a case for the transfer of the contempt proceedings, from one High Court to another with the aid of Section 527 of the Cr.P.C. 1898, under the 1952 Act, which did not empower the High Court to frame rules for any matter relating to procedure. The position of this Act is different and the difference is because of Section 23 of the Act regarding delegation of powers to the Supreme Court and the High Court to frame rules relating to the matters of procedure. No limitation can be imposed on the adoption of any procedure whether of Civil Procedure Code or Criminal Procedure Code on the High Court for trial of civil or criminal contempts. The High Courts have to implement the provisions of the Act in the best way and to see how the avowed object of the Act and the inherent power of the Courts to punish their contempt, can be best fulfilled.

10. The law of contempt is not an ordinary measure but a solemn law. This is to protect the dignity of law by providing protection to the Judges and certain other judicial personalities from libelous and defamatory attack on their acts performed in their exalted offices. It is to be noted that the High Court has been given power under the Constitution and the Act to punish a person for its contempt. In case a contempt is committed, the contemner has to be brought before the Court. He cannot be punished unless he is brought before the High Court. If he evades to appear, then, if the ground as contained in the petition is accepted, Section 17(3) of the Act is the only remedy, by which his property can be attached. Suppose the alleged contemner has no property or he does not care for his property even if it is sold after attachment. Can it mean that the High Court is powerless to bring before it a contemner? If this is accepted, then nothing can be done beyond that to secure the presence of the contemner before the court. It is beyond one's comprehension that any coercive measure is not intended by the Act to achieve its object. If this argument is accepted, then the contemner can with impunity commit the offence and stay away from the court. In spite of the commission of the contempt of worst type, the contemner can avoid punishment, because he can be punished only if he is brought before a court. The concept of punishment as contained in the Act implies that the contemner has to be present before the High Court; otherwise he cannot receive punishment. The punishment includes a sentence of imprisonment also. He has to be served with the accusation which again implies his presence in person. The power to punish thus necessarily implies the power to bring the contemner before the court for the purpose of proceeding against him for contempt and punish him.

A contemner may appear before the court and apprehending unfavourable verdict may depart. He may start playing hide and seek with the court, that is, he may appear on any one date fixed in the case and abstain from the succeeding hearings. This he may repeat. In such cases, the attachment of the property alone will not serve the purpose of the Act. In that situation, the Court will not be able to decide any case of its contempt as it has to punish the contemner and not simply attach, his property. Such is not and can never be the intention of law of contempt, including the Act. There is no prohibition in the Act against the use of the provisions of the Code. The statute need not contain a reference to the Code. Under Section 14(4) of the Act a contemner can be released on bail or personal bond. If he fails to turn up on the next hearing and persists in remaining absent, could it be taken to mean that the court is helpless to bring him before it. If the contention in the petition is accepted, then it will render the law of contempt, including the Act, into absurdity. Coercive process to get the contemner before the Court is to be resorted to in the form of warrants. Now the word 'warrant' is not defined in the Act. Prom where is this word and its form to be borrowed? Naturally the court will take the normal meanings of the word and fall back upon the Code for the form in which the warrant is to be issued. Another situation also comes to our mind. When a contemner is convicted for contempt, he is to be sent to jail to serve the sentence awarded. What would be the form of warrants through which he is to be sent to the jail and under what procedure? No one can be sent to jail to undergo the sentence, except by a warrant for commitment to jail and then warrant has to be endorsed in the name of the officer in charge of the jail, directing him to receive the punished person and make him (convict) serve the sentence. These provisions are found in the Code and they have to be invoked, although the Act is silent about those. I Those have to be provided by the Rules. I We have taken only these illustrations, although they can be multiplied. It thus boils down to this that if provided by rules, which are framed by a High Court under the power delegated under the Act, the relevant provision of the Code can be made use of S.L. Bhasin v. Lt. Col. Rucy D. Colabawala (1974) 76 Bom. LR 422, though a case decided under the 1952 Act, supports the view that the Code can be applied in the matter of enforcing the attendance of a contemner before the Court.

11. Rule 6(6) of the Rules makes a provision for the endorsement of the warrants in the manner laid down in Section 71 of the Code. The warrants of arrest may be issued in lieu of or in addition to an order of attachment under Section 17(3) of the Act. The order for the issue of warrants is made only when the court is satisfied of the conditions mentioned in the rule itself. We do not find any infirmity in the rule-making powers of the High Court. The rules can be amended also according to the exigencies of the situation. The law is well settled that statutory rules framed under the power given by the statute are a part of the statute itself. Following State of U.P. v. Babu Ram Upadhya : 1961CriLJ773 , it was held in State of Tamil Nadu v. Hind Stone etc. : [1981]2SCR742 :

A statutory rule, while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as effective. Rules made under the statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction of obligation.' State of U.P. v. Babu Ram Upadhya : 1961CriLJ773 ; (See also Maxwell : Interpretation of Statutes, 11th Edn. P. 49-50). So, statutory rules made pursuant to the power entrusted by Parliament are law made by Parliament within the meaning of Article 302 of the Constitution. To hold otherwise would be to ignore the complex demands made upon modern legislation which necessitate the plenary legislating body to discharge its legislative function by laying down broad guidelines and standards, to lead and guide as it were, leaving it to the subordinate legislating body to fill up the details by making necessary rules and to amend the rules from time to time to meet unforeseen and unpredictable situations, all within the frame work of the power entrusted to it by the plenary legislating body.

12. The plenary rule-making power delegated to the High Court by Parliament under Section 23 has been rightly exercised by it in framing Rule 6(6) of the Rules. It is not inconsistent with any provisions of the Act and not even with Section 17(3), which prescribes only one mode to enforce the attendance of the contemner and which may not by itself be sufficient to effectuate the purpose of the Act. In spite of attachment under Section 17(3) of the Act, the contemner may stay away from the Court and he cannot be punished in his absence without affording him an opportunity of hearing. Rule 6(6) is an effective way in which an erring person guilty for the offence under the Act can be brought before the High Court for trial. The use of certain provisions of the Code is only to further the administration of justice, the purpose of the Act, and not for any other purpose. Rule 6 neither is inconsistent with the provisions of the Act nor is in excess of the powers delegated to the High Court.

13. For the foregoing reasons, finding no merit in the petition, we dismiss it with costs.

14. Before parting with this judgment, we take notice of the request made by the Registrar made in the return, for the issue of notice to the petitioner for committing the contempt of Court. On reading the petition and rejoinder, we find that these bristle with malicious, defamatory, scandalous and contemptuous comments about the present and retired Judges of this Court and the subordinate Judicial Officers in their judicial capacity. These have been made by the petitioner with an intent to malign and scandalize this Court and its present and past Judges and bring down their image in the estimate of the public. We, therefore, direct that a notice be issued to the petitioner to show cause why he should not be punished for committing the contempt of this Court.


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