Judgment Text

N.P. SINGH, J.

(1.) Three Advocates of this Court have filed this application alleging that a Judge of this
Court has committed contempt of Court by making insulting and uncharitable remarks
against an Advocate Dr. Sadanand Jha while hearing a civil revision application for
admission.

(2.) The Civil Revision application had been listed before S. Ali Ahmed, J. a Judge of this
Court (hereinafter to be referred to as 'the opposite party') for admission on 19-7-1985.
According to the petitioners, after the luncheon interval when the opposite party took his seat
Mr. Syed Imam Ali, Advocate mentioned to the Court that a caveat petition and an affidavit
had been filed on behalf of opposite party No. 3 of that case, and, as such, the petitioner of
that civil revision application be directed to hand over a copy of the petition to the caveator
so that a proper counter-affidavit may be filed. He also made a prayer for adjournment of the
case for a week. On this the opposite party asked the counsel for the petitioner of that case as
to whether he was agreeable to the suggestion made by Mr. Syed Imam Ali. Mr. Naseem
Ahmad, who Appeared for the petitioner of that application, replied that he will have no
objection to the adjournment, provided the operation of the order under revision was stayed.
Then Mr. Syed Imam Ali said that the opposite party No. 3 had already come in possession,
and, as such, staying the operation of the impugned order shall not be fair and only an order
for maintaining status quo be passed. The counsel for the petitioner did not agree to this
suggestion. On that the opposite party said that he shall pass the order when the case shall be
called out in its normal turn. It has been stated that apart from Mr. Syed Imam Ali, Dr.
Sadanand Jha, petitioners 1 and 2 had also been engaged on behalf of opposite party No. 3
aforesaid. When the case was called out for admission Mr. Balbhadra Prasad Singh, Senior
Advocate, addressed the Court on behalf of the petitioner of that application and gave the
background under which the civil revision application had been filed. The opposite party then
called upon Mr. Syed Imam Ali and asked him whether he wanted time in that very case
which was replied in affirmative. The opposite party then observed that if he adjourned the
case for a week then he shall stay the operation of the impugned order. Upon this Mr. Syed
Imam Ali again requested that only an order for maintaining status quo be passed because
opposite party No. 3 had already come in possession. The opposite party replied that he
usually did not pass status quo orders as he himself did not know what was meant by status
quo. On this Mr. Syed, Imam Ali prayed that the application itself be heard on merit because
it was not maintainable. Thereafter, Mr. Balbhadra Prasad Singh resumed his argument. What
happened thereafter has been stated in paras 14 and 15 of the present application which are as
follows : -

"14. After Mr. Balbhadra Pd. Singh finished his arguments, S. Ali Ahmed, J. started dictating
the orders that Sri Syed Imam Ali put an appearance on behalf of Opposite Party No. 3, the
petitioner should give a copy of the petition to him and the case be adjourned to the 30th of
July, 1985 in the meantime the operation of appellate judgment shall remain stayed. Mr. Syed
Imam Ali then stood up and said that the civil revision may be heard for admission matter on
Tuesday or Monday itself, but the counsel for the petitioners, Sri Balbhadra Pd. Singh said
that he will be at Ranchi in the coming week. At this stage Dr. Sadanand Jha, an advocate on
behalf of the opposite party No. 3 got up and prayed to the court that if stay of the operation
of the order is in question, the civil revision application itself may be heard on merits for
admission and it should be either admitted or dismissed. S. Ali Ahmad, J. remarked that an
option had already been given to Mr. Syed Imam Ali as to whether he would like
adjournment with stay or arguments on merits for admission. Upon this Dr. Jha replied that
Mr. Syed Imam Ali had already stated that if stay is to be granted then they should be heard
and the civil revision may either be admitted or dismissed, and only upon his saying so Mr.
Balbhadra Pd. Singh was called upon to resume his argument and therefore the revision be
heard on admission matters on merits. S. Ali Ahmad, J., then remarked to Dr. Jha "You are
present in the Court physically, but mentally you are elsewhere and therefore you missed my
observation". Dr. Jha then replied "My Lord', it is really uncharitable that your Lordship say
that I was present in the Court physically but was mentally somewhere else. I was both
physically and mentally present in the Court."

15. S. Ali Ahmad, J. became very angry upon this and he stated that 'It has become your
habits to insult the Court'. Dr. Jha said upon this that 'It has never been my practice or
intention to insult any Judge. S. Ali Ahmad J. was so flared up at this that he said 'Peshkar
call the constable, I will have him arrested'. After this S. Ali Ahmad, J., spoke for about 10
minutes in which he used the following terms and expressions towards Dr. S. N. Jha,
advocate - 'You are a small fry and I would not even like to harm you because you are such a
small fry. You have no knowledge and no understanding. With your habits you are doomed. I
will not harm you but you will suffer from within and be doomed. I can tolerate a lot but
there is a limit to it and once the limit is reached I am a very hard nut and remember that. I
tell you that you will suffer internally and be doomed. Now-a-days it has become the fashion
of the Bar to insult the Judges. I tell you, you will weep. You cannot call me 'dishonest and
partial'. These words 'dishonest and partial' were used by Justice S. Ali Ahmad even though
these were never used or meant by the counsel. Dr. Jha at this stage said 'I am sorry'. S. Ali
Ahmad, J. again said 'you should be sorry and you would be sorry' and again he said that 'you
will suffer and you are doomed'. Do not think with this attitude you will flourish or prosper.'
Many of these expressions were repeated several times, and lastly at about 3.35 P.M. he
ordered that the civil revision be listed before another Bench, he rose up and left the Court."
According to the petitioners, the opposite party By the aforesaid remarks made by him has
committed contempt of his own court by interfering and obstructing the administration of
justice.

(3.) It was essential to preserve the discipline, while administering justice, was realised
centuries ago when Anglo Saxon Laws developed the concept of contempt of court and for
punishment therefor. The acts which tend to obstruct the course of justice really threaten the
very administration of justice. By several pronouncements such acts which tend to obstruct or
interfere with the course of justice were identified and were grouped into 'civil contempt' and
'criminal contempt'. However, for a long time they were never defined leaving it to the courts to
give their verdict whether under particular set of circumstances any such offence has been
committed or not. Even in India in the earlier two Acts of the years 1926 and 1952 relating to
Contempt of Courts the expression 'contempt of court' was not defined. However, in the
Contempt of Courts Act, 1971 (hereinafter to be referred to as 'the Act') the Parliament has
purported to define 'civil contempt' and 'criminal contempt' separately. The Act has also
introduced several new provisions under different sections, including prescribing the procedure
for initiating proceedings for contempt. The relevant part of S. 15(1) with which we are concerned
is as follows : -

"15 (1). In the case of a criminal contempt, other than a contempt referred to in Sec. 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

(4.) The present application has neither been filed by the Advocate-General nor with his consent
in writing. According to the petitioners the requirement of the consent in writing in S. 15(1)(b) is
directory in nature and that shall not be bar to the maintainability of the application specially
when the application has been filed on behalf of some of the Advocates of this Court. In this
connection reference was made to a judgment of the Karnataka High Court in the case of S. N.
Nagaraj v. Chikkachennappa 1981 Cri LJ 843 where it was observed that S. 15(1) was not
couched in a negative language stating that no motion by a person other than the Advocate-
General shall be entertained by the High Court without the consent of the Advocate-General; as
such it was not intended to preclude the High Court from entertaining a petition filed by the
aggrieved person. But at the same time it was also pointed out : -

"By construing S. 15(1)(b) as directory, we do not mean that the provision should be ignored or
that the consent of the Advocate-General provided for in S. 15(1) is of no importance at all. It is
well settled that a directory provision also must be given due weight and should not be rendered
useless. Therefore having due regard to the purpose with which the above provision has been
made, in all cases of motions made under S. 15(1)(b) of the Act where consent of Advocate
General is not obtained or it has been refused, the Court should take that circumstance into
account. The Court may reject a petition presented without consent of Advocate-General or
where consent has been refused, in limine."

Reliance was also placed on a decision of the Delhi High Court in the case of Subhash Chand v.
S. M. Aggarwal 1984 Cri LJ 481 where also a view was expressed supporting the decision of the
Karnataka High Court aforesaid that requirement of S. 15(1)(b) was directory. But having said so
the Bench passed the order in the following words : -

"But assuming the provision of section 15 of the Contempt of Courts Act are mandatory, we are
not inclined to throw out the petition on this technical ground because the issue involved is of
tremendous importance. There is nothing to prevent us from treating it as an action of our own
motion and we accordingly order that the petition be treated as one on our own motion."

In my view the judgment aforesaid is not of much help to the petitioners because the action in
that case was ultimately initiated suo motu.

(5.) The counsel for the petitioners also referred to the following observations of the Supreme
Court in the case of Board of Revenue, U.P. v. Vinay Chandra AIR 1981 SC 723 in support of his
contention that requirement of S. 15(1)(b) can be ignored under certain circumstances :-
"But if the High Court is directly moved by a petition by a private person feeling aggrieved, not
being the Advocate-General, can the High Court refuse to entertain the same on the ground that
it has been made without the consent in writing of the Advocate-General? It appears to us that
the High Court has, in such a situation, a discretion to refuse to entertain the petition or to take
cognizance on its own motion on the basis of the information supplied to it in that petition. If the
petitioner is a responsible member of the legal profession, it may act suo motu, more so, if the
petitioner-advocate, as in the instant case, prays that the Court should act suo motu. The whole
object of prescribing these procedural modes of taking cognizance in S. 15 is to safeguard the
valuable time of the High Court or the Supreme Court from being wasted by frivolous complaints
of contempt of court."

(Emphasis supplied). I am not able to appreciate as to how the aforesaid judgment of the
Supreme Court helps the petitioners. The Supreme Court only pointed out that even if an
application has been filed without the consent of the Advocate-General the Court has ample
power to act suo motu on basis of information supplied.

(6.) On the other hand, in a series of cases different High Courts have taken the view that the
restriction imposed on the power of the individual to initiate proceeding without the consent of the
Advocate-General is with a purpose and it cannot be held to be a mere directory. Reference in
this connection may be made to a Full Bench decision of the Orissa High Court in the case of B.
K. Mishra v. Chief Justice, Orissa High Court AIR 1974 Orissa 1. In that case it was held that the
petition asking for initiation of proceeding for criminal contempt without the consent of the
Advocate-General was not maintainable as not being in accordance with the requirement of S.
15(1). Similarly, in the case of Dr. J. N. Gupta v. Dr. O. P. Chakarvarty 1975 Cri LJ 164 (All) a
Bench of Allahabad High Court while rejecting an argument that the restriction imposed under S.
15(1)(a) and (b) was violative of Art. 14 of the Constitution, pointed out: -

"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 S. 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."

Even a Bench of Karnataka High Court, in the case of N. Venkataramanappa v. D. K. Naikar, AIR
1978 Kar 57 while rejecting the contention that even where the Advocate-General has declined
to give his consent sought by the complainant under S. 15 of the Act such complainant was
entitled to maintain the petition on the ground that the refusal of the consent by the Advocate-
General was unjustified, observed : -

"It appears to us that absolute discretion is vested in the Advocate-General in the matter of
according consent under S. 15(1)(b) of the Act. Grant or refusal of consent by the Advocate-
General under section 15 of the Act, in our opinion, is not justiciable."

In the case of Sunil Keerthi v. Union of India AIR 1975 Kar 224 it was held that for maintaining an
application under S. 15(1) by a private individual the consent in writing of the Advocate-General
was a must. Similarly in the case of Hari Krishan v. Narotam Dutt Shastri, 1975 Cri LJ 1359 Chief
Justice, R. S. Pathak (as he then was) of the Himachal Pradesh High Court pointed out : -
"..................When S. 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."

In the case of U. N. R. Rao v. M. Shanmugavel AIR 1977 SC 639, the High Court had dismissed
the application for initiating the proceeding for contempt by a private individual saying that it had
been filed without the written consent of the Advocate-General. On being informed that the
aforesaid order had been passed by the High Court on a wrong assumption that there was no
such consent whereas in fact, written consent of the Advocate-General was on the record of the
case, the Supreme Court remanded the case for disposal by the High Court. While setting aside
the order of the High Court, the Supreme Court did not say that the requirement being directory,
the application should not have been dismissed; the order was set aside because there was
already compliance of requirement of S. 15(1)(b). In my view, this judgment of the Supreme
Court indirectly supports the view that requirement of written consent in application for initiating
proceeding for criminal contempt by private individual is a must. The framers of the Act
consciously wanted to put a bar on the power of private individuals while charging any person for
having committed criminal contempt of a court with an object to curtail vexatious petitions for
settling personal scores, being filed by persons who are purporting to uphold the majesty and
dignity of Court. A criminal contempt is primarily a matter between the Court and the contemner
and not a matter between a citizen and the contemner. Every citizen has no unfettered right in
this respect because in some cases he may act more out of personal prestige and vendetta than
out of motive to uphold the dignity of Court. In order to safeguard such a situation the framers of
the Act thought it that a restriction should be imposed on such applications being filed directly
and required them to be filed with the written consent of the Advocate-General who holds a
constitutional position and can scrutinise any such application before coming to Court. In my
opinion, the application filed on behalf of the petitioners without the consent in writing of the
Advocate-General cannot be entertained, and, as such, is not maintainable.

(7.) Faced with this situation, learned counsel for the petitioners submitted that on the allegations
made in the petition, this Court should initiate proceeding against the opposite party on its own
motion because the conduct of the opposite party has obstructed the administration of justice.
There cannot be any dispute that even where an application filed on behalf of an individual or a
citizen for initiating a proceeding for contempt is held to be not maintainable, certainly the
information supplied in such application can form basis for initiating a proceeding for contempt
suo motu; a power which has been recognised for centuries and now has been incorporated in
the statutory form under S. 15(1) itself.

(8.) On behalf of the petitioners it was urged that whatever may be the position prior to coming in
force of the Act, now in view of S. 16(1) even a Judge of a High Court or of the Supreme Court
can be held liable for having committed contempt of his own court. S. 16(1) is as follows : -

"16(1). Subject to the provision of any law for the time being in force, a Judge, Magistrate or
other person acting judicially shall also be liable for contempt of his own court or of any other
court in the same manner as any other individual is liable and the provision of this Act shall, so
far as may be, apply accordingly."

In support of the contention that the expression 'Judge' used in S. 16(1) shall include a Judge of
a High Court and the Supreme Court, our attention was drawn to section 14 of the Act. Section
14 enables the Supreme Court or High Court to cause any person "to be detained in custody" if
such a person has been guilty of having committed contempt of court in view of the Supreme
Court or High Court; in other words, in presence of Judges of the Supreme Court or the High
Court. Sub-secs. (2) and (3) of S. 14 while laying down the procedure for trial and conviction of
such a person who has been taken in custody also uses the expressions 'Judge or Judges in
whose presence or hearing the offence is alleged to have been committed". So it was submitted
that if the expression "Judge or Judges" used in S. 14 refers to the Judge or Judges of the
Supreme Court and High Court, even the expression 'Judge' used in section 16 should be
interpreted to include not only a Judge of the subordinate court but even a Judge of a High Court
or the Supreme Court.

(9.) Articles 129 and 215 of the Constitution of India say that the Supreme Court and High Court
shall be Court of Record and shall have all powers of such a Court including the power to punish
for contempt of itself. The English Courts have always treated Courts of Record in respect of
contempt proceeding, on a different footing from ordinary courts because it was not expected
that Judges presiding over the different courts of record shall not maintain the dignity of their own
court. Oswald in his Book 'Contempt of Court' (3rd. Edition) at page 20 has said as follows : - "An
action will not lie against a Judge of a Court of Record for a wrongful commitment in the exercise
of his judicial duties, any more than for an erroneous judgment." In the case of Hamond against
Howell 86 ER 1035 it was observed : -

"There hath not been one case put which carries any resemblance with this; those of justices of
the peace and mayors of Corporations are weak instances; neither hath any authority been
urged of an action brought against a Judge of Record for doing anything quatenus a Judge."

Again in the case of Garnett v. Ferrand 108 ER 576 it was pointed out : -

"If, indeed, a Judge should act corruptly, either in the exclusion of any individual or of the public
from his court, or in giving an improper judgment, or in doing any other wrongful act in his judicial
situation, he is liable to punishment by proceedings of a different nature; if a Judge of the
Superior Courts, he may be proceeded against by impeachment; if of the inferior Courts, by
indictment or criminal information. No action at the suit of a private individual will lie against the
Judge of a Court of Record for any act done by him in the exercise of his office."

In Fray v. Blackburn 3 B and S 576 Crompton J. said : -

"It is a principle of our law that no action will lie against a Judge of one of the Superior Courts for
a Judicial act, though it be alleged to have been done maliciously..................The public are
deeply interested in this rule, which indeed exists for their benefit, and was established in order
to secure the independence of the Judge, and prevent their being harassed by vexatious action."

The reason for affording protection to the Judges of the Courts of Record was fully stated in Scott
v. Stansfield (1868) LR 3 Ex 220 where it was pointed out : - "It is essential in all courts that the
Judges who are appointed to administer the law should be permitted to administer it under the
protection of the law independently and freely, without favour and without fear. This provision of
the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the
public, whose interest it is that the judges should be at liberty to exercise their functions with
independence and without fear of consequences. How could a judge so exercise his office if he
were in daily and hourly fear of an action being brought against him, and of having the question
submitted to a jury whether a matter on which he had commented judicially was or was not
relevant to the case before him?" In the case of Anderson v. Gorrie (1895) 1 QBD 668 it was said
: -

"By the common law of England it is the law that no such action will lie. The ground alleged from
the earliest times as that on which this rule rests is that if such an action would lie the Judges
would lose their independence, and that the absolute freedom and independence of the Judges
is necessary for the administration of Justice."

It was also observed : -

"To my mind there is no doubt that the proposition is true to the fullest extent, that no action lies
for acts done or words spoken by a judge in the exercise of his judicial office, although his motive
is malicious and the acts or words are not done or spoken in the honest exercise of his office."

In Halsbury's Law of England, 4th Edition, Vol. 9, at page 30 it has been stated as follows only in
respect of judges of subordinate courts : -

"Judges of inferior courts are punishable by committal for acting unjustly, oppressively or
irregularly in the execution of their duty, or for disobeying writs issued by the High Court requiring
them to proceed or not to proceed in matters before them."

So far as English Courts are concerned, it is almost settled that Judges of Courts of Record
cannot be charged for having committed contempt of court while exercising their judicial duties.
Even in India in the case of K. L. Gauba v. The Hon'ble the Chief Justice and the Judges of the
High Court of Judicature at Lahore, AIR 1942 FC 1, a question had arisen whether Federal Court
could take action for contempt of court against High Court for refusal to grant certificate of fitness
of the appeal. In that context it was observed : -

"If we assume for the moment that a High Court can in such circumstances be guilty of a
contempt of this Court, what follows? Even Mr. Gauba does not suggest punishment by fine or
imprisonment; he would be content that the High Court should be served with an order to grant
the certificate hitherto perversely or maliciously withheld. But what is that but to ask this Court to
do by indirect means what it is admitted that it cannot do directly? The law of contempt of Court
has at times been stretched very far in British India; but no one has ever contended that a Court
could use its power to punish for contempt for the purpose of extending its jurisdiction in other
matters,"

It appears that the framers of the Constitution on British pattern declared the Supreme Court and
High Courts, Courts of Record by saying so in clear and unambiguous term in Arts. 129 and 215
of the Constitution.

(10.) Now it has to be examined as to whether the framers of the Act under section 16 purported
to put Judges of the Supreme Court and High Court at par with the Judges of the subordinate
courts making them also liable to be punished under certain circumstances for having committed
contempt of the Supreme Court or High Court itself. In this connection it has to be borne in mind
that till the Act came in force, no Court in India had taken the view that a Judge of a High Court
or the Supreme Court can also be charged for having committed contempt of the High Court or
the Supreme Court. As such, before it is held that the expression 'Judge' in section 16 of the Act
includes a Judge of High Court or Supreme Court, it has to be established that the provisions of
the Act purported to enlarge the scope of the Act by including categories of persons who had
always been excluded from application of the law of contempt of courts.

(11.) In the Statements of the Objects and Reasons of the Act there is no indication that the
scope of the Act was being enlarged. On the other hand, in the preamble it has been stated that
it is 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 9 of the Act is as follows : - "Nothing contained in this
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 22 of the Act also clearly states that the provisions of the Act "shall be in addition to, and
not in derogation of, the provisions of any other law relating to contempt of court." In view of S. 9
nothing contained in the Act shall be construed as implying to make an act punishable as
contempt of court which would not have been so punishable apart from the Act. In other words
an act or action which was not contempt of court before the Act came in force shall not be
punishable as contempt of court under the Act. The provisions incorporated in the Act are
supplemental to already existing law of contempt as interpreted by the Supreme Court and
different High Courts. Now in this background can it be said that S. 16 has purported to enlarge
the scope of the Act to cover even the acts and actions of the Supreme Court and High Court
Judges while administering justice and to make them punishable under the provisions of the Act,
having said in S. 9 that nothing shall be punishable as contempt of court which would not be so
punishable apart from the Act? In this connection it may also be pointed out that S. 16 opens with
the words "Subject to the provisions of any law for the time being in force.", which means that S.
16 is subject to the existing law which was in force before the Act was enacted. On the day the
Act came in force neither the Supreme Court nor any High Court had held that even a Judge of
the Supreme Court or High Court was answerable to a charge of contempt of court. If the framers
of the Act wanted to make a change in this respect they should have introduced a non obstante
clause in section 16 by saying "notwithstanding anything contained in any other law," instead of
making it subject to the law for the time being in force. The Judges of the subordinate courts
were liable to be punished for having committed contempt of superior courts or of their own court
even before the Act came in force in view of series of judgments of different courts. Reference in
this connection may be made to a Full Bench judgment of the Lahore High Court in the case of
Muhammad Shafi v. Quadir Bakhsh AIR 1949 Lah 270 and Bar Association and Library,
Moradabad v. Kothari S.D.M. 1966 All WR (HC) 197. In view of S. 9 and the language of S. 16
itself it has to be held that S. 16 does not purport to enlarge the scope of the Act by including
even the Judges of the Courts of Record. In my opinion, it only gives statutory recognition in
respect of contempt of court committed by Judges and Magistrates presiding over subordinate
courts.

(12.) Apart from that, by reading the different provisions of the Act it appears that wherever there
is a reference to the Supreme Court or High Court in respect of initiation or conviction for
contempt of court, it has been stated that Supreme Court or High Court has power to enquire, try,
a proceeding for contempt of the Supreme Court or the High Court and to convict for the same.
None of the provisions says that a Judge of the High Court or the Supreme Court can enquire, try
or convict a person for having committed the contempt of the court of such a Judge of the High
Court or the Supreme Court. Relevant part of sub-sec. (1) of S. 14 is as follows -

"(1) when it is alleged, or appears to the Supreme Court or the High Court upon its own view,
that a person has been guilty of contempt committed in its presence or hearing, the Court may
cause such person to be detained in custody, and, at any time before the rising of the Court, on
the same day, or as early as possible thereafter."

This section which is specifically applicable only to the Supreme Court or the High Court does
not say "when it is alleged or it appears to a Judge of the Supreme Court or High Court............."
The reason is obvious. Whenever a contempt is committed in presence of a Judge of the
Supreme Court or High Court it is not the contempt of the particular court in which such Judge is
presiding but of the Supreme Court or the High Court, as the case may be. As such, when S.
16(1) says that "a Judge...............shall also be liable for contemptof his own court"(emphasis
supplied) it obviously does not refer to the Supreme Court or High Court. In respect of Supreme
Court or High Court there is no question of any Judge being liable for contempt of his own court,
in other words, the courtroom in which such Judge is presiding. Only a Judge of subordinate
court can be said to have committed contempt of his own court, i.e., the court in which such
judge is presiding. If the framers of the Act wanted to include even the Supreme Court and High
Court

(13.) This question can be examined in another context as well. The framers of the Constitution
in order to maintain the independence of high judiciary kept them immune from the criticism in
respect of their conduct even in the Parliament and Legislature of the State by saying so in Arts.
121 and 211 of the Constitution. They prescribed a special procedure for their removal under
Arts. 124(4) and 217(1)(b). For removal, even on the ground of proved misbehaviour or
incapacity, an address by each house of Parliament supported by a majority of total membership
of the House and by a majority of not less than two third of the members of that House present,
is a must. Then should we easily infer that having provided so much immunity and protection in
respect of such Judges under the Constitution, the framers of the Act by merely using the
expression 'Judge' in S. 16 purported to include even the Judges of the Supreme Court and High
Courts so that they may be answerable in that very Court in respect of their conduct while
discharging the judicial duties?

(14.) Learned Advocate-General, who appeared to assist the Court, submitted that when
Constitution provides, under Art. 124(5) a procedure for investigation of misbehaviour of Judges
of the Supreme Court and High Courts it by necessary implication prohibits investigation at any
other forum or any other manner. In this connection reliance was placed on the well known cases
of Nazir Ahmad v. King Emperor AIR 1936 PC 253 (2), Taylor v. Taylor (1875) 1 Ch. D. 426 and
State of Uttar Pradesh v. Singhara Singh AIR 1964 SC 358. In the aforesaid case of State of
Uttar Pradesh AIR 1964 SC 358 it was observed : -

"The rule adopted in Taylor v. Taylor (1876) 1 Ch. D. 426 is well recognised and is founded on
sound principle. Its result is that if a statute has conferred a power to do an act and has laid down
the method in which that power has to be exercised, it necessarily prohibits the doing of the act
in any other manner than that which has been prescribed."

Learned Advocate-General rightly submitted that when framers of the Constitution have
prescribed under Art. 124(5) that Parliament may by law regulate the procedure for investigation
and proof for misbehaviour of a Judge then it should not be easily inferred that the Parliament
while enacting the Act conceived parallel forums in the Supreme Court and in different High
Courts for the investigation of the alleged misbehaviour of Judges while discharging their judicial
functions and for their conviction, in contempt proceedings. It need not be pointed out that the
constitutional protections given to the Supreme Court and High Court Judges are not to protect
such Judges but to maintain independence of Judiciary which is one of the important features of
the Indian Constitution.

(15.) On behalf of the petitioners, however, reliance was placed on the following observations of
Lord Denning in his Book "The Due Process of Law" : -

"In the old days, as I have said, there was a sharp distinction between the inferior courts and the
superior courts. Whatever may have been the reason for this distinction, it is no longer valid.
There has been no case on the subject for the last one hundred years at least. And during this
time our judicial system has changed out of all knowledge. So great is this change that it is now
appropriate for us to consider the principles which should be applied to judicial acts. In this new
age I would take my stand on this, as a matter of principle the judges of superior courts have no
greater claim to immunity than the judges of the lower courts. Every judge of the courts of this
land - from the highest to the lowest - should be protected to the same degree, and liable to the
same degree."

On behalf of the petitioners reference was also made to the view expressed by Shri V. G.
Ramchandran in his Book 'Contempt of Court', 5th Edition at page 730, where he had said as
follows : - "The remedy is not lost even if the offending Judge was a Judge of the High Court.
The matter can be heard by a specially constituted Bench of the High Court." Merely on basis of
the aforesaid views it cannot be held that after coming in force of the Act a Judge of the Supreme
Court or High Court is also answerable to a charge of having committed contempt of the
Supreme Court or the High Court for having conducted the proceeding of the Court in a manner
which is objectionable to the members of the Bar.

(16.) There cannot be two opinions that Judges of the Supreme Court and High Courts are
expected to conduct the proceedings of the Court in dignified, objective and courteous manners
and without fear of contradiction it can be said that by and large the proceedings of the higher
courts have been in accordance with well settled norms. On rare occasions complaints have
been made about some outrageous or undignified behaviour. It has always been impressed that
the dignity and majesty of court can be maintained only when the members of the Bar and
Judges maintain their self imposed restriction while advancing the cause of the clients and
rejecting submissions of the counsel who appear for such cause. But, it is difficult to lay down
any hard and fast rule as to what expression a lawyer can use while addressing a court and what
should ordinarily be tolerated by the Judge. It is admitted on all counts that a counsel appearing
before a court is entitled to press and pursue the cause of his client to the best of his ability while
maintaining the dignity of the court. The Judge has also a reciprocal duty to perform and should
not be discourteous to the counsel and has to maintain his respect in the eyes of clients and
general public. This is, in my view, very important because the system through which justice is
being administered cannot be effectively administered unless the two limbs of the Court act in a
harmonious manner. Oswald on Contempt of Court, 3rd Edition at page 54 remarked "an over
subservient bar would be one of the greatest misfortune that could happen to the administration
of justice". At the same time celebrated authors on Legal Ethics have pointed out that a lawyer
should not conduct in a manner which lowers the dignity of the court or interferes with the
administration of justice. Warvelle, on Legal Ethics at page 182 observed : -

"A lawyer is under obligation to do nothing that shall detract from the dignity of the court, of which
he is himself a sworn officer and assistant. He should at all times pay deferential respect to the
Judges, and scrupulously observe the decorum of the court-room."
Administration of justice in its true spirit is only possible when members of Bar and Bench both
are conscious not only of their rights but also of their limitations, when a case is being heard.
Hyper-sensitiveness on the one side or rudeness on the other must be avoided at all cost. It is
not uncommon in history of the administration of justice that tempers have risen high on either
side but only for moments and the members of the Bar and Bench have forgotten what passed
between them no sooner the cases are over.

(17.) This application is, accordingly, dismissed in limine.

(18.) S.K. CHOUDHURI, J.: -I had the advantage of going through the judgment prepared by N.
P. Singh, J. In my opinion, S. 15(1)(b) of the Contempt of Courts Act, 1971 cannot be ignored
and the petition cannot be filed ignoring the Advocate-General. A person should in the first
instance approach the Advocate-General for his consent, who is supposed to act judiciously.
Criminal contempt is primarily a matter between the Court and the contemnor. If consent is
refused, then ordinarily the Court will be reluctant to entertain a petition for contempt unless in
the opinion of the High Court the case is of such a nature and importance that the High Court
should exercise its power suo motu. This view aforesaid, in my opinion, is the resultant of several
decisions discussed in the judgment of N. P. Singh, J., on the point of maintainability.

(19.) With the rest of the judgment, I have nothing further to add and I agree.

(20.) UDAY SINHA, J.:- I agree with the judgments just delivered by N. P. Singh, J. and S.K.
Choudhuri, J.

(21.) BIRENDRA PRASAD SINHA, J. :- With greatest of respect for my learned Brethren it is not
possible for me to agree with the proposition that the Judges of the High Courts and the
Supreme Court are immune from a contempt of courts proceeding nor do I agree that an
application filed without the consent in writing of the Advocate-General is not maintainable.

(22.) I do not propose, however, to elaborate the reasons for my dissent, for, I agree that the
present application should be dismissed but on other ground.

(23.) Section 15 of the Contempt of Courts Act (hereinafter referred to as the Act) provides, inter
alia, that the Supreme Court or the High Courts may take action on its own motion or on a motion
made by the Advocate-General or any other person with consent in writing of the Advocate-
General. In the case of S. K. Sarkar, Member Board of Revenue, U.P., Lucknow v. Vinay
Chandra Mishra AIR 1981 SC 723 it was observed that if the High Court is directly moved by a
petition by a private person feeling aggrieved, the High Court has, in such a situation, a
discretion to refuse or entertain the petition, or take cognizance on its own motion on the basis of
the information supplied to it in that petition. A Bench of Karnataka High Court in the case of S.
N. Nagaraja Rao v. Chikkachennappa 1981 Cri LJ 843 has rightly pointed out that while
construing S. 15(1)(b) of the Act as directory it did not mean that the provision should be ignored
or 'that the consent of the Advocate-General provided for in S. 15(1) was of no importance at all.
A directory provision must be given due weight and should not be rendered useless. Having due
regard to the purpose for which the above provision has been made in all cases of motions made
under S. 15(1)(b) of the Act where consent of the Advocate-General was not obtained or it had
been refused the Court should take that circumstance into account and the Court may reject the
petition presented without consent of the Advocate-General or where consent had been refused,
in limine. 23A. In para 7 of the supplementary affidavit filed on behalf of the petitioners on 16-8-
1985 it has been stated thus : -
"That the petitioners bring on record that the day before filing the instant contempt petition i.e. on
21-7-85 the petitioners approached Shri R. B. Mahto the Advocate-General of Bihar for giving his
consent for filing the instant contempt petition, but the Advocate-General preferred to abstain
himself from giving his consent advising the petitioners to defer the filing of the petition for some
time during which he would like to settle the matter at his own level."

From the above it is clear that the learned Advocate-General did neither give nor refuse consent
on that date and wanted the petitioners to wait for a few days so that he could settle the matter at
his own level. Ignoring this advice the petitioners filed the contempt petition the next day. In all
fairness they should have waited for some time and should have approached the learned
Advocate-General at least once again whether or not he was willing to give consent.

(24.) The provision of S. 15(1)(b) of the Act is not just for nothing and cannot be dealt with in the
manner it has been done in the present case. This provision has been inserted with a definite
purpose so that unnecessary and frivolous cases are not allowed to be brought before the court.
The Advocate-General of a State is the leader of the Bar of the State. In the present case the
Advocate-General wanted only a few days' time to look into the matter before either giving or
refusing his consent but the petitioners were not willing to heed his advice. The Bench and the
Bar are the two vital limbs of our judicial system and nothing should be done on either side in
haste to impair the age old cordial relationship between these two limbs. It is no mean
achievement of this system that in spite of strains and stresses the Bench and the Bar have
maintained the ideal and harmoneous relationship. When the Advocate-General was trying to
make some effort in this behalf the petitioners were only ill advised to pre-empt the whole thing.
This is a circumstance which has got to be considered while exercising the discretion of the
Court for taking any suo motu action on an application under S. 15(1)(b) of the Act. It is not a
case where consent of the Advocate-General has been refused. It is also not a case where
consent of the Advocate-General was not sought for at all. This is a case where after applying for
the consent of the Advocate-General the petitioners rushed to this Court when they were told by
the Advocate-General that he might settle the matter outside. I would not exercise my discretion
in such a case in favour of the petitioners and dismiss the application on this point alone.

(25.) P.S. SAHAY, J.:- This is rather an unfortunate case, in which a Judge and a member of the
Bar after a wordy duel in the midst of a case came to a clash, resulting in filing of this application.
N. P. Singh, J. has rightly observed that such things have happened in Court rooms in the past
as well but they were happily buried in the spirit of forget and forgive. We, Judges, and the
members of the Bar are the two limbs of the Court and all of us (who constitute this Full Bench)
and the opposite party were members of the Bar previously. It is an unpleasant ta