R.S. Pathak, C.J.
1. By this miscellaneous petition the respondent, Shri Narotam Datt Shastri, contends that the Advocate General of this State has acted without authority in the present criminal contempt petition by examining the petitioner's witnesses and cross-examining the respondent's witnesses, and he claims that therefore the said proceedings should be struck off the record.
2. On September 26, 1973, Shri Hari Krishan filed the present criminal contempt petition against the respondent alleging that in a speech delivered by the latter on August 8, 1973 at Bilaspur the respondent made certain derogatory observations in respect of a learned Judge of this Court and that, therefore, he should be punished for committing criminal contempt of this Court. By an endorsement of the same date made on the petition, it is apparent that the Advocate General accorded his consent to the institution of the petition. It may be mentioned that while the petition is signed by Shri Hari Krishan, it has been described as having been made through the Advocate General. On the next day, the Advocate General filed a memorandum of appearance which recites that he has been engaged by Shri Hari Krishan to appear for him in the case. The learned Advocate General has throughout appeared on behalf of the petitioner and participated in the proceeding in that capacity. He has not filed any power of attorney.
3. It is contended by Shri Inder Singh, on behalf of the respondent, that the Advocate General is not entitled to appear for the petitioner without a Vakalatnama, and in any event, the petitioner has no statutory right to be represented by him. The Advocate General seeks to sustain his position in the proceeding on the basis of a number of submissions. In the. first place, he says, he is entitled to pursue that proceeding. In the second place, he urges, by virtue of holding the office of Advocate General he is entitled under the Code of Criminal Procedure to function as a Public Prosecutor and prosecute the case, the proceeding being a proceeding governed by the Code of Criminal Procedure. In the third place, he contends, he has been authorised by the Governor under Article 165 (2) of the Constitution to represent the State in a contempt proceeding. Fourthly, he urges, the memorandum of appearance is sufficient to enable him to appear in the case and no Vakalatnama is necessary.
4. On the submissions of the parties the following questions arise for consideration:
1. Can the present criminal contempt petition be said to have been initiated by the Advocate General under the Contempt of Courts Act, 1971?
2. Is the present criminal contempt petition governed by the Code of Criminal Procedure, and is the Advocate General entitled to prosecute it as a Public Prosecutor under the Code?
3. Has the Advocate General authority to prosecute the criminal contempt petition by virtue of the duties assigned to him by the Governor under Article 165 of the Constitution?
4. Does the Advocate General require a Vakalatnama executed by the petitioner to enable him to prosecute the criminal contempt petition?
Point No. 1
5. It is beyond doubt that the act charged against the respondent is an act of 'criminal contempt' as defined in Section 2 (c) of the Contempt of Courts Act, 1971. Section 15 (1) of the Act declares that 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. The petition filed by Shri Hari Krishan clearly shows that it has been filed with the consent in writing of the Advocate General. The submission of the Advocate General that the proceeding was initiated by him is without merit. He has drawn our attention to the circumstance that Shri Hari Krishan is his Assistant, but that, it seems to me, is of no moment. Plainly the case falls under Section 15 (1) (b) and not under Section 15 (1) (a).
Point No. 2
6. The question is whether the Code of Criminal Procedure applies to contempt proceedings under the Contempt of Courts Act, 1971. The Advocate General urges that contempt proceedings are of a criminal nature. It is necessary to be clear about this.
7. Under the common law of England a court of record has inherent power of summarily punishing for contempt. This rule was applied to the Chartered High Courts in India. Subsequently when the High Courts were constituted by Letters Patent they were expressly constituted Courts of Record, so that thereby they were empowered to punish for contempt of themselves.
8. There was a cleavage of opinion on whether the High Courts could also punish for contempt of the Subordinate Courts. The Madras High Court in Thorburn v. K. Venkata Rao (1900) 10 Mad LJ 316 the Bombay High Court in In re M. K. Gandhi, 22 Bom LR 368 : 21 Cri LJ 835 (FB) and the Allahabad High Court in Abdul Hasan Jauhu ILR 48 All 711 : (AIR 1926 All 623 (FB)) took the view that the High Courts possess that power. The Calcutta High Court in Legal Remembrancer v. Mati Lal Ghose ILR 41 Cal 173 : 14 Cri LJ 321 (SB) took a contrary view. This doubt was resolved by the Contempt of Courts Act, 1926. That Act provided, by Section 2 (i) that the High Courts established by Letters Patent would 'have and exercise the same jurisdiction, powers and authority in accordance with, the same procedure and practice in respect of contempt of Courts subordinate to them as they have and exercise in respect of contempt of themselves.' It was also provided, by Section 3, that a contempt of court could be punished with simple imprisonment for a term which could extend to six months or with fine extending to two thousand rupees or with both. Subsequently when the Lahore High Court held in Har Kishen Lal v. Crown ILR (1937) 18 Lah 69 : (38 Cri LJ 883) (SB) that the inherent powers of the High Court were unlimited in respect of punishment, the Act was amended in 1937 by inserting a proviso limiting the power of the High Court in imposing a sentence to that specified in the substantive provision of Section 3,
9. When the Constitution came into force in 1950, it provided by Article 214 for a High Court for each State. Article 215 declared:
215. Every High Court shall be a court of record and shall have all the powers of such a court including the powers to punish for contempt of itself.
It is apparent that the High Courts contemplated by the Constitution were constituted as courts of record. In order to remove any doubt, it was affirmed in Article 215 that as courts of record the High Courts would have all the powers of such courts including the power to punish for contempt of themselves. The High Courts' power to commit for contempt is now based on Article 215 and it is not necessary to refer to the Letters Patent to determine the ambit of such power. See State of Bombay v. Mr. P. : AIR1959Bom182 .
10. The Contempt of Courts Act, 1926 was replaced by the Contempt of Courts Act, 1952 which was some-what more comprehensive. That Act empowered the High Court to try offences committed by offenders even outside its jurisdiction.
11. In its turn, the Contempt of Courts Act, 1952 has been replaced by the Contempt of Courts Act, 1971, which is a far more comprehensive legislation and lays down the law in respect of several matters which hitherto had been the subject of judicial exposition. It has also brought the law into line with modern trends of thinking in other countries respecting the powers of courts to punish for contempt,
12. There was at one time a difference between the courts in India on whether contempt proceedings were governed by the Code of Criminal Procedure, While the Allahabad High Court held in Emperor v. B.G. Horniman AIR 1945 All 1 : 46 Cri LJ 272 that the Code applied by virtue of Section 5 (2) thereof, the remaining High Courts adopted the contrary view. The law was settled by the Supreme Court in Sukhdev Singh v. The Hon'ble Chief Justice, S. Teja Singh and the Hon'ble Judges of the Pepsu High Court at Patiala AIR 1954 SC 186 : (1954 Cri LJ 460) where Bose, J., speaking for the Court, in a judgment noted for its erudition and its exhaustive treatment of the subject, traced the origin and historical development of the law in relation to contempt in India, and came to the conclusion that the Code of Criminal Procedure does not apply to matters of contempt triable by the High Courts. The statement of the law was affirmed by the Supreme Court in C. K. Daphtary v. O. P. Gupta 0065/1971 : 1971CriLJ844 .
13. The learned Advocate General states that while that may be true of the position obtaining before the Contempt of Courts Act, 1971, it is not true respecting the position under that Act. He has referred us to the use of the words 'offences', 'offenders' and 'accused.' In my opinion, the mere use of these words does not alter the position. The scope of the Act of 1971 is comparable with that of the Act of 1926 and the Act of 1952. The preamble of the three Acts sufficiently indicates that the three Acts differ only in that each succeeding Act is more comprehensive than the previous one. There is nothing in the Act of 1971 which indicates, either expressly or by necessary implication, that a departure has been made from the previous state of the law in that the Code of Criminal Procedure has been applied now. I am of opinion that the Code of Criminal Procedure cannot be applied to the present contempt petition. For that reason, the claim of the Advocate General to prosecute the contempt petition as a Public Prosecutor by virtue of the Code of Criminal Procedure must be rejected.
Point No. 3:
14. The Advocate General relies on the duties assigned to him by the Governor under Article 165 (2) of the Constitution. He relies upon notification No. 19-19/71 (Home) dated May 25, 1971 (published in the Himachal Pradesh Gazette dated June 5, 1971, page 599), Rule 3 (b) of which entitles the Advocate-General to represent the State in criminal cases and cases of a quasi-criminal nature. Before the learned Advocate-General can avail of Rule 3 (b), it needs to be examined whether the State has a right to be represented in a contempt proceeding. An act constituting contempt of court is directed against the administration of justice. It is an offence against the Court. See Mange Nanak v. Addl. Director, Consolidation of Holdings, Punjab Rohtak (FB). It cannot be described as an offence against the State, in the sense which that concept generally implies. It is for this reason that the power to punish for contempt resides in the High Court itself and has not been conferred on the State. In this connection, it may be pointed out that when Section 15 (1) of the Act requires that the motion should be made by the Advocate-General, or a person with the consent in writing of the Advocate-General, it is for the mere purpose of ensuring that the High Court is not flooded with frivolous motions but receives only motions of substance. The Advocate-General has been entrusted with that function by virtue of his legal training and experience and the responsibility presumed in the holder of that office. It would be incorrect to say that because this function has been vested in the Advocate-General the State which he represents is thereby made a party to the proceeding. At the same time it may be made clear that there is nothing to prevent the court from seeking the assistance of the Advocate-General or any other law officer of the State in the conduct and decision of a contempt proceeding. Reliance has been placed by the Advocate-General on Thakur Ram v. State of Bihar : 1966CriLJ700 , where the State has been described as the custodian of the social interest of the community, and it has been said that for that reason the State is empowered to take all steps necessary for bringing a person to book who has acted against the social interest of the community. Upon the considerations adverted to earlier that observation, in my opinion, cannot be applied in respect of contempt proceedings In my opinion, nothing contained in the notification D/- May 25, 1971, issued under Article 165 (2) of the Constitution entitles the Advocate-General to represent the State in a contempt proceeding in this Court. Point No. 4:
15. The last point raises the question whether the Advocate-General can participate on behalf of the petitioner in the present proceeding and examine and cross-examine witnesses. The Advocate-General has filed a memorandum of appearance on behalf of the petitioner. He has not filed a Vakalatnama. There is no dispute that without a Vakalatnama it is not possible for the Advocate-General to 'act'. Does the examination and cross-examination of witnesses amount to 'acting' In Govind Narain v. Smt. Chhoti Devi AIR 1966 Raj 170 a learned single Judge of the Rajasthan High Court held that the examination and cross-examination of witnesses would constitute 'acting', and that no pleader can be allowed to examine and cross-examine witnesses unless he has filed his Vakalatnama. In that view he proceeded on the basis of Thunnudeo Raghvi v. Baldeo Raghvi 1942 Nag LJ 449 and Governor-General in Council v. Bhagwan Sahai AIR 1948 EP 61. On the other hand, Chagla, C. J., observed in Aswin Shambhuprasad Patel v. National Rayon Corporation Ltd. : AIR1955Bom262 . that the right to examine or cross-examine witnesses was included in the function of 'pleading', and he differed from the view taken in Bhagwan Sahai AIR 1948 EP 61 (supra). Recently, a Division Bench of the Delhi High Court has held in Saraswati v. Tulsi Ram Seth : AIR1971Delhi110 that the right to examine and cross-examine witnesses was not covered in the expression 'acting'. It seems to me, with great respect, that Chagla, C. J.. is right. The right to examine and cross-examine witnesses is, like that right to address the Court, a part of 'pleading.' It is one of the ways in which counsel pleads the case of his client. It is open to counsel, by filing a memorandum of appearance on behalf of the party, to perform the function of acting and cross-examining witnesses. Accordingly, I hold that the Advocate General is entitled to examine and cross-examine the witnesses.
16. In view of the opinion expressed by me on the last point, this miscellaneous petition is dismissed. There is, however, no order as to costs.
D.B. Lal, J.
17. I agree.