Topic: Delhi Judicial Service Association Tis Hazaricourt, Delhi Et Vs. State Of Gujarat And Ors

Delhi Judicial Service Association Tis Hazaricourt, Delhi Et Vs. State Of Gujarat And Ors
Bench: Singh, K.N. (J), Kuldip Singh (J) & Kasliwal, N.M. (J)
Citation: 1991 AIR 2176, 1991 SCR (3) 936, 1991 SCC (4) 406,  JT 1991 (3)617, 1991 SCALE (2)501 - DATE OF JUDGMENT11/09/1991


Constitution of India; 1950: Articles 32, 129, 136, 141, 142, 246,374(2) and Schedule VII List 1, Entry 77. Contempt of Court--Punishment of--Power and jurisdiction of the     Supreme Court--Held Court has    inherent power     and jurisdiction to take action for contempt of subordinate or inferior courts also-Power to be exercised sparingly--Only when contempt is likely to have repercussions throughout the country.

Contempt of Court--High Courts as Courts of Record    have inherent power and jurisdiction to take action for contempt of subordinate     or inferior courts--Supreme Court having judicial. superintendence over all courts in the country has same jurisdiction.

Contempt of Court--Civil and criminal contempt--Criminal contempt--Wide enough to include any act which would tend to interfere with     administration of justice or    which would lower the dignity and authority of court.

Chief Judicial Magistrate--Assaulted, arrested on flimsy grounds, handcuffed, tied with rope, photographs taken     and published by Police Officers--Held constituted clear case of criminal contempt--Contemners-punishment--Quantum of punish- ment determined according to degree and extent of    part played    by each contemner--Guidelines laid down     by Supreme Court in case     of arrest and detention of     a Judicial Officer--To be followed by State Governments as well as High Courts--Judicial Officer not to visit Police Station--Except in connection    with official and judicial duties and    with prior intimation to District and Sessions Judge. Contempt proceedings in Supreme Court--Dispute regarding facts--High Court Judge appointed as Commissioner--Inquiry made, evidence recorded and report submitted--Held contem- ners not persons accused of an offence.

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Supreme Court--Supervisory and appellate    jurisdiction of-Plenary jurisdiction unaffected by self imposed restric- tions of the Court--From plenary jurisdiction flows supervi- sory jurisdiction over all courts and Tribunals in India. Supreme Court's jurisdiction and power not    limited--Can determine its own jurisdiction and it will De final. Supreme Court taking cognizance of contempt matter arising out of an 2incident subject matter of     trial    before    a criminal court--Has ample power to do complete justice    and prevent abuse of process of court--'Cause' or 'matter' includes proceeding pending in Civil or criminal matter-Need to do 'complete justice' would depend on facts and circumstances of case.

precedents--Decisions of Federal Court--Not binding     but entitled to great weight--Changes brought about by Constitu- tion to be kept in mind while considering Federal Court, Privy Council decisions.

Contempt of Courts Act, 1971---Sections 2(c), 12 and 15. Criminal contempt--Object of punishing contemner--To protect administration    of public justice--Not     to protect Judges personally.

Police Officers assaulting, arresting and     handcuffing Chief Judicial Magistrate--Publishing photographs in news- papers--Held constituted criminal contempt--Punishment to contemners determined having regard to degree and extent of part played by each contemner-Guidelines laid down by     Su- preme Court to be followed by State Governments and    High Courts while arresting Judicial Officers.

Criminal contempt proceedings different from ordinary crimi- nal proceedings.

"Courts of Record'--Have power to summarily punish     for contempt of court--Contempt of Courts Act 1971 does     not curtail     inherent power of Supreme Court to punish for    con- tempt.

Statutory Interpretation.

Constitution--Interpretation of.    Not.permissible     to adopt a construction    which would render any expression super-fluous or redundant-Regard to be had to    the social, economic and political changes, need of the Community     and the independence of the judiciary--

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Supreme Court cannot be a helpless spectator bound by prece- dents of colonial days which have least relevance. Criminal Procedure Code, 1973. Section 6 and Chapter XII. Chief Judicial Magistrate--Position and role of--Coordi- nation,     Cooperation of police necessity for --Police to be scrupulously fair to offender--Magistrate to    ensure    fair investigation and }air trial of offender--Magistracy     and police--Purpose     and     object--Complementary     to    each other--Judicial     officer not to visit police station except in connection    with official and judicial duties and    with prior intimation to District and Sessions Judge. Words and Phrases--Meaning

'Contempt'--Contempt of Courts Act 1971: Section 2(c).. 'Court of record'--Constitution of India----Article 129. 'Persons accused o fan offence'---constitution of India, Article 20(3).

Including    the power to     punish     for contempt     of itself--Constitution of India, Article 129.

'Complete Justice'--Constitution of India, Article 142 (1).

HEADNOTE:

Mr.     N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He soon found that the local Police    was not cooperating with the courts in efficting service of summons, warrants and notices on accused persons, as a result of which the trials of cases were    delayed. He made complaint     against the local police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete    hap- pened.    On account of these complaints, Mr. S.R. Sharma, Police Inspector, Nadiad was annoyed with the Chief Judicial Magistrate and     he withdrew constables posted    in the     CJM Court. In April 1989, the CJM filed two complaints with     the Police    against the Police Inspector and other Police Offi- cials, Nadiad for delaying the process of the Court. On 25th July, 1989, the CJM directed the police to register a crimi- nal case against 14 persons who had caused obstruction in judicial proceedings but subsequently     since     unqualified apology was tendered, the CJM directed the Police Inspector to drop the cases. The Police Inspector reacted strongly to the CJM's direction and he made complaint against the CJM to the Registrar of the High Court through the District Super- intendent of Police. On account of the aforesaid facts there was hostility between the Police of Nadiad and the CJM. 939

On 25th September 1989, the Police Inspector met the CJM in his     chambers to discuss a case where the     Police     had failed    to submit the charge-sheet within 90 days. During discussion the Police Inspector invited the CJM to visit the police    station     to see the papers and assured him that he would mollify    the sentiments of the police officials. At 8.35 p.m. on the said date, the Police Inspector sent a Police Jeep to the CJM's residence and he went to the Police Station.

According to the    CJM when he arrived in     the Police Station     he was forced to consume liquor and on his refusal he was     assulted, handcuffed and tied with rope by Police Inspector, Sub-Inspector, Head Constable, and Constable     and that he was sent to Hospital for Medical Examination under handcuffs. A photographer was arranged to take     his photo- graph which was published in the newspapers.     The Police Inspector disputed these allegations and according to     him the CJM entered his chamber at the Police Station in a drunken     state,     shouting and abusing him and since he     was violent, he was arrested, handcuffed and sent    to Hospital for Medical Examination. He himself wanted to be photo- graphed     and that is why the photographs were taken by     the press photographer.

As the incident undermined the dignity of courts in     the country, Judicial Officers, Judges and Magistrates all    over the country were in a state of shock, they felt insecure and humiliated. A number of Bar Associations passed     Resolutions and went on strike. The Delhi Judicial Service Association, the All India     Judges Association, Bar Council of Uttar Pradesh     and many others approached this Court by means of telegrams and    petitions under Article 32 for     saving     the dignity and honour of the judiciary. The CJM also filed an application for quashing the two FIRs lodged against him and for directing the trial of his complaint as State case an award of compensation. On 29.9.1989 this Court took cogni- zance of the    matter by issuing notices to the State of Gujarat and other Police Officers.

Since there was serious dispute between the parties with regard    to the     entire incident, the Court appointed     the senior    puisne Judge of the Allahabad High Court to inquire into the incident and to submit a report to the Court.     The inquiry     was held on behalf of the Court and not under     the provisions of    the Commission of Inquiry Act.     A detailed report    was submitted to this Court and the Court directed copies to be delivered to the concerned parties and permit- ted the parties and the contemners to file their objections before this Court.

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The Learned Commissioner's Report establised the follow- ing facts and circumstances: that the CJM found that     the Police of Nadiad was not effective in service of summons and had adopted an attitude of indifference to    the court's orders, and as complaints were forwarded to the     authorities by the CJM there was confrontation between the local police and the magistracy. When the CJM visited the police station pursuant to the Police Inspector's request to    discuss     the matter,     he was forced to consume liquor and on his refusal he was assaulted. He was tied up with a rope by the Police personnel and    handcuffed deliberately in defiance of     the state's Police Regulations and Circulars and the decision of this Court in Prem Shankar Shukla v. Delhi Administration., A panchnama showing the drunken state of the CJM was    pre- pared by the Police Inspector and signed by two panchas--a Mamlatdar and a Fire Brigade Officer. A press    photographer was brought on the scene, the police personnel     posed    with the CJM for the press photographer and the same was    pub- lished in newspapers. A request made by the CJM to the Civil Hospital doctors to contact and inform the District Judge about the incident was not allowed. On examination at     the hospital, the body of the CJM was found to have a number of injuries. His    blood was taken and chemical examination conducted. The Chemical Examiner submitted a report holding that the blood sample contained alcohol. At    the initial stage only one case was registered against the CJM by     the Police under the Bombay Prohibition Act, but when lawyers met the Police Inspector for securing release of the CJM on bail, the offence being bailable, the Police Inspector, registered another case under Sections 332 and 506 IPC in order to frustrate the attempt. The District Superintendent of Police did not take immediate action in the     matter     but created     an alibi that he had gone elsewhere and stayed in the government Rest House there, the register of the    Rest House however indicating that the entry regarding the    stay was manipulated subsequently by making an interpolation. On    behalf of the contemners-Police Officers it     was contended that: (1) this Court had no jurisdiction or power to indict the Police Officers even if they are found to be guilty, as their conduct does not amount to contempt of this Court.    Articles 129 and 215 demarcate the respective areas of jurisdiction of the Supreme Court and the    High Courts respectively, and this Court's jurisdiction under Article 129 is confined to the contempt of itself only, and it     has no jurisdiction to indict a person for contempt of an infe- rior court subordinate to the. High Court. (2) Even if     the Supreme Court is a court of record, it has no power to    take action    for the contempt of a Chief Judicial    Magistrate's court as neither the constitution nor any statutory provi- sion confer any

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such jurisdiction-or power on this Court. So far as the High Court is concerned, it has power of judicial and administra- tive superintendence over the subordinate courts and Section 15 of the Contempts of Courts Act, 1971 expressly confers power on the High Court to take action for the contempt of subordinate courts. (3) Under Entry 77 of List I of     the Seventh     Schedule, Parliament has legislative competence to make a law curtailing the jurisdiction of the Supreme Court and Section 15 of the Contempts of Courts Act 1971 curtails the inherent power of this Court with regard to contempt of subordinate courts. Inherent powers are always preserved but they do not authorise a court to invest itself with juris- diction when that jurisdiction is not conferred by law.     (4) Assumption of contempt jurisdiction with regard to contempt of subordinate and inferior courts on the interpretation of Article     129 of the Constitution is foreclosed by the deci- sions of the Federal Court in K.L. Gauba v. The Honable     the Chief Justice and Judges of the High Court o]' judicature at Lahore & Anr., AIR 1942 FC 1. This Court being the successor to the     Federal Court was bound by the decisions of     the Federal Court under Article 374(2) of the Constitution.     (5) In our country there is no court of universal jurisdiction, as the     jurisdiction of all courts including    the Supreme Court is limited. (6) Article 142(1) does not     contemplate any order contrary to statutory provisions. (7) The findings recorded by the Commission cannot be taken into account as those findings are hit by Article 20(3) of the Constitution. The     Attorney-General urged that the power to punish contempt is a special jurisdiction which is inherent in a Court of record, that a superior court of record has inher- ent power to punish for contempt of itself and it necessari- ly includes and carries with it the power to     punish     for contempt committed in respect of subordinate    or inferior courts,     that a superior court of record having power to correct the order of an inferior court has power to protect that court by punishing those who interfere with the     due administration    of justice of that court. It was further urged that the Contempt of Courts Act 1971 recognises     and preserves the existing contempt jurisdiction and power of the court of record for punishing for contempt of subordi- nate or inferior courts, that the Act has not    affected or restricted the suo motu inherent power of the Supreme Court being a court of record which has received constitutional sanction under Article 129, that since this Court has taken cognizance of the contempt matter arising out of the inci- dent which is the subject matter of trial before the crimi- nal court, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and prevent abuse of process of the court and that there is no limitation on the power of this Court under Article 142 942

in quashing a criminal proceeding pending before a subordi- nate court.

The basic questions that arose for consideration of     the Court were: (a) whether the Supreme    Court has inherent jurisdiction or power to punish for contempt of     subordinate or inferior courts under Article 129 of the Constitution, (b) whether the inherent jurisdiction and power of     the Supreme Court is restricted by the Contempt of Courts    Act, 1971, (c) whether the incident interfered with the     due administration of justice and constituted contempt of court, and (d) what punishment should be awarded to the contemners found guilty of contempt.

Disposing of the writ petitions, Criminal Miscellaneous Petitions, and contempt petitions, this Court. HELD: 1.1    Contempt of court is an     act or commission calculated to    interfere with the due administration of justice. It includes civil and criminal contempt. [991D] Bowen L.J. in Helmore v. Smith, [1886] 35 Ch.D. 436 at 455, referred to.

1.2     The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower     the authority of court. The public have a vital stake in effec- tive and orderly administration of justice. The Court     has the duty of protecting the interest of the community in     the due administration of justice and, so, it is entrusted    with the power to commit for contempt of court, not     to protect the dignity of the Court against insult or injury, but, to protect     and vindicate the right of the public so that     the administration    of justice is    not perverted,     prejudiced, obstructed or interfered with Offutt v.U.S., [1954] 348 US 11, referred to. [991F]

1.3 The power to punish contempt is vested in the Judges not for their personal protecting only, but for the protec- tion of public justice, whose interest, requires that decen- cy and decorum is preserved in Courts of Justice. Those     who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties. Any deliberate     interference with the discharge of    such duties either in court or outside the court by attacking the presiding officers of the court, would amount    to criminal contempt and the courts must take serious cognizance of such conduct. [993B]

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The object and    purpose of punishing contempt     for interference with the administration of justice is not to safeguard or protect the dignity of the Judge or the Magis- trate,    but the purpose is to preserve the authority of     the courts to ensure an ordered life in society. [991H] Attorney-General v. Times Newspapers, (1974] A.C. 273 at p. 302, referred to.

1.5 The Chief Judicial Magistrate is head of the Magis- tracy in the District who administers justice to ensure, protect     and safaguard the rights of citizens. The subordi- nate courts at the district level cater to the need of     the masses    in administering justice at the base level. By     and large the majority of the people get their disputes adjudi- cated in subordinate courts. It is, in the general interest of the community that the authority of subordinate courts is protected. If    the CJM is led into a trap by unscrupulous Police    Officers, and if he is     assaulted, handcuffed     and roped,    the public is bound to lose faith in Courts, which would be destructive of the basic structure of     an ordered society. If this is permitted Rule of Law shall be supplant- ed by Police Raj. [992D-E]

1.6 The conduct of Police Officers in the instant case, in assaulting and humiliating the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice. [992G] 1.7 The incident is a clear interference with the admin- istration of justice, lowering its judicial authority.     Its effect    was not confined to one District or State, it had a tendency to affect the entire judiciary in the country.     The incident high-lights a dangerous trend that if the Police is annoyed     with the orders of a presiding officer of a court, he would be arrested on flimsy manufactured    charges, to humiliate him publicly as has been done in the instant case. [992F]

1.8 The facts of the instant case, demonstrate that a presiding officer of a court may be arrested and humiliated on flimsy and manufactured charges which could     affect     the administration of justice. In order to avoid any such situa- tion in future, it is necessary to lay down guidelines which should be followed in the case of arrest and detention of a Judicial Officer. [1000F]

1.9 In view of' the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are'     properly investigated     the following guidelines are to be

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followed: (a) If a judicial officer is to be arrested     for some offence,    it should be done under intimation to     the District Judge or the High Court as the case may be. (b) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected. (c) The fact of    such arrest    should be immediately communicated.to the District and Sessions Judge of the concerned District and the Chief Justice     of the High Court. (d) The Judicial     Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the     concerned District, if available. (e) Immediate facilities shall be provided to the Judicial    Officer     for communication with his family members, legal advisors     and Judicial Officers, including the District & Sessions Judge. (f) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor    any medical test be conducted except in the presence of the Legal Advi- sor of the Judicial Officer concerned or another Judicial Officer     of equal or higher rank, if available. (g) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over- powered and handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and    also to the Chief Justice of the High Court. But the burden would be on the Police to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and    hand-cuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily deter- mined by the High Court. [1000G-1001F]

1.10 These guidelines are not exhaustive but are the minimum     safeguards to be observed in case of arrest of a Judicial Officer. These should be implemented by the State Governments as well as by the High Courts. [1001G]

1. 11 No judicial officer should visit a Police    Sta- tion on his own except in connection with his official and judicial duties and functions, and this also     with prior intimation to the District and Sessions Judge. [1002B] 2.1 The Supreme Court as the Apex Court is the protec- tor and guardian of justice throughout the land, therefore, it has a right and also a duty to protect the courts whose orders    and judgments are amenable to correction, from    com- mission of contempt against them. This

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right and duty of the Apex Court is not abrogated merely because     the High Court also has this right and duty of protection of the subordinate courts. The jurisdictions are concurrent and not exclusive or antagonistic. [967G-H] 2.2 Article 136 vests the Supreme Court with wide powers to grant special leave to appeal from any judgment, decree determination sentence     or order in any cause or matter passed or made by any court or tribunal in the territory of India except a court or tribunal constituted     by or under any law relating to the Armed Forces. The Court's appellate power under Article 136 is plenary, it may entertain     any appeal    by granting special leave against any order made by any Magistrate, Tribunal or any other subordinate court. The width and amplitude of the power is not affected by     the practice and prcedure followed in insisting    that before invoking the jurisdiction under Article 136 the aggrieved party must exhaust remedy available under the law before the appellate authority of the High Court. Self imposed restric- tions do not divest it of its wide powers to entertain     any appeal against any order or judgment passed by any court or tribunal in the country without exhausting     alternative remedy before the appellate authority or the High Court. The power of the Court under Article 136 is unaffected by Arti- cles 132. 133 and 134(A) in view of the expression "notwith- standing anything in this Chapter" occurring in Article 136. [968E-969A]

Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955] 1 SCR    267 and Arunachalam v. P.S.R. Sadhananthm & Anr., [1979] 2 SCC 297, referred to.

2.3     In addition to the appellate    power,    the Supreme Court has special residuary    power to entertain appeal against     any order of any court in the country. The plenary jurisdiction of the Court to grant leave and hear appeals against     any order of a court or Tribunal, confers power of judicial superintendence over all the courts and Tribunals in the territory of India including subordinate courts of Magistrate and     District Judge. The Court has, therefore, supervisory jurisdiction over all courts in India. [970F] 2.4 Article 129 provides 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 contains similar provision in respect of    High Court.    Both the Supreme Court as well as High     Courts     are courts    of record having powers to punish for contempt     in- cluding the power to punish for contempt of itself..[970G] 946

2.5 The Constitution does not define "Court Of Record". A "Court of Record" is a court where     acts and judicial proceedings are enrolled in parchment for a perpetual memo- rial and testimony, which rolls are called the 'record' of the court and.are conclusive evidence of that which is recorded therein. [970H -971 E] '

Wharton's Law Lexicon: Words & Phrases (Permanent    Edi- tion) vol. 10 p. 429: Halsbury's Laws of England Vol. 10 p.

319.

2.6     In India prior to the enactment of the Contempt of Courts    Act, 1926, High Court's jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts in the absence of statutory provision exercised power of    con- tempt to protect the subordinate courts on the     premise of inherent power of a Court of Record. [974F-G] Rex v. Aimon, 97 ER 94; Rainy v. The Justices of Seirra Leone,    8 Moors PC 47 at 54; Surendra Nath Banerjee v.     The Chief Justice and Judges of the High Court at Fort William in Bengal, ILR to Calcutta 109; Rex v. Parke, [1903] 2    K.B. 432 at 442; King v. Davies, [1906] 1 K.B. 32; King v. Editor of the Daily Mail, [1921] 2 K.B. 733; Attorney     General v. B.B.C.,     [1980] 3 ALR 161; Venkat Rao 21 Madras Law Journal 832; Mohandas Karam Chand Gandhi [1920] 22 Bombay Law     Re- porter    368; Abdul Hassan Jauhar's AIR 1926 Allahabad    623; Shantha Nand Gir v. Basudevanand, AIR 1930 Allahabad 225 FB; Mr. Hirabai v. Mangal Chand, AIR 1935 Nagpur 46; Harkishan Lal v.     Emperor, AIR 1937 Lahore 497;     Mohammad Yusuf v. Imtiaz Ahmad Khan, AIR 1939 Oudh, 131 and Legal Remembrancer v. Motilal Ghosh, ILR 41 Cal. 173, referred to. 2.7 The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct     orders of subordinate courts enjoyed the inherent power of Contempt to protect the subordinate    courts.     The Supreme Court being a Court of Record under Article 129     and having wide power of judicial supervision over all     the courts    in the country, must possess and exercise similar jurisdiction and power as the High Courts had prior to Contempt Legislation in 1926. Inherent powers of a superior Court of Record have remained unaffected even after Codifi- cation of Contempt Law. [976G-977A]

Sukhdev Singh Sodhi v. The Chief Justice and Judges of the PEPSU High Court, [1954] SCR 454 and R.L. Kapur v. State of Tamil Nadu, AIR 1972 SC 858, referred to. 947

2.8     The Contempt    of Courts Act 1971 was     enacted to define and limit the powers of Courts in punishing contempts of courts and to regulate their procedure in relation there- to. There is no provision therein curtailing    the Supreme Court's power with regard to contempt of subordinate courts, Section 15 expressly refers to this Court's power for taking action    for contempt of subordinate courts.    The section prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court. It is not a substantive provision conferring power or jurisdiction on the High Court or on the Supreme Court for taking action for the contempt of its subordinate courts. The whole object of     prescribing procedural modes of taking cognizance in Section 15 is to safeguard to valuable time of the High Court and the Supreme Court being wasted by frivolous complaints of    contempt of court. Section 15(2) does not restrict the power of the High Court to the cognizance of the contempt of itself or of a subordinate court on its own motion although apparently the Section does not say so. [977A-C, 978G-979A] S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v. Vinay Chandra Misra, [1981] 2 SCR 331, referred to. 3.1     Under    Entry 77 of List I of the Seventh Schedule read with Article 246, Parliament is competent to enact a law relating to the powers of the Supreme Court with regard to 'contempt of itself'. Such a law may prescribe procedure to be followed and it may also prescribe the maximum punish- ment which could be awarded and it may provide     for appeal and for other matters. But the Central Legislature has no legislative competence to abridge or extinguish the juris- diction or power conferred on the Supreme Court under Arti- cle 129. The Parliament's power to legislate in relation to the law of contempt relating to the Supreme Court is limit- ed, therefore the Contempt of Courts Act does    not impinge upon the Supreme Court's power with regard to the contempt of subordinate courts under Article 129. [979C-F] 3.2     Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself The expression used in Article 129 is not restrictive, instead it is extensive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for    contempt of itself only, there was no necessity for inserting the expression "including the     power to punish for contempt    of itself." [979G]

3.3 Article 129 confers power on the Supreme Court to punish for

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contempt of itself and in addition, it confers     some addi- tional    power relating to contempt as would appear from     the expression "including". The expression "including" has    been interpreted by     courts, to extend and widen the scope of power.    The plain language of the Article clearly indicates that the Supreme Court as a Court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record. [979H-980A]

3.4 In interpreting the Constitution, it is not permis- sible to adopt a construction which would render any expres- sion superfluous or redundant. [980B]

3.5 While construing Article 129, it is not     permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. [980B]

3.6 The conferment of appellate power on the Court by a statute     section 19 of the Contempt of Courts Act 1971    does not and cannot affect the width and amplitude    of inherent powers of this Court under Article 129 of the Constitution. [981E]

K.L. Gauba v. The Honable the Chief Justice and Judges of the High Court of Judicature at Lahore & Anr AIR 1942 FC 1, distinguished.

4.1     Article 374(2) is in the nature of a transitory provision to meet the exigency of the situation on the abolition of the Federal Court and setting up of the Supreme Court.    There is no provision in the said Article to     the effect    that the decisions of the Federal Court shall be binding     on the Supreme Court. The decisions of the Federal Court and the Privy Council made before the commencement of the Constitution are entitled to great respect but these decisions are    not binding on the Supreme Court and it is always open to this Court to take a different view. [983F-G] Om     Prakash Gupta v. The United Provinces, AIR    1951 Allahabad 205 and State of Bombay v. Gajanan Mahadev Badley, AIR 1954 Bombay 352, approved.

The State of Bihar v. Abdul Majid, [1954] SCR 786     and Shrinivas Krishnarao Kango v. Narayan Devji Kango & Ors., [1955] 1 SCR 1, referred to.

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K.L. Gauba v. The Hon'ble the Chief Justice and Judges or the High Court of Judicature at Lahore & Anr., AIR    1942 FC 1 and Purshottam Lal Jaitly v. The King Emperor, [1944] FCR 364, explained and distinguished.

The     Federal Court exercised limited jurisdiction as conferred on it by the Government of India Act 1935.     The question regarding the inherent power of the Supreme Court as a Court of Record in respect of the contempt of subordi- nate Courts was neither raised nor discussed in its deci- sions. The Federal Court observed that if the High Court and the Federal Court both have    concurrent jurisdiction in contempt matters, it could lead to conflicting judgments and anamolous consequences. That may be so under the Government of India Act as the High Court and the Federal Court did not have concurrent jurisdiction, but under the Constitution, High Court and the Supreme Court both have concurrent juris- diction     in several matters, yet no anamolous consequences follow. [985H-986B]

4.2 The Federal Court did not possess the wide powers as the Supreme Court has under the Constitution. There     are marked    difference in the constitution and jurisdiction     and the amplitude    of powers exercised by the two     courts. In addition to civil and criminal appellate jurisdiction,     the Supreme Court has wide powers under Article 136 over all the courts    and Tribunals in the country. The Federal Court     had no such power, instead it had appellate power but that     too could be exercised only on a certificate issued by the    High Court. The Federal Court was a court of record under Section 203 but it did not possess any plenary or residuary appel- late power over all the courts functioning in the territory of India like the power conferred on the Supreme Court under Article     136 of the Constitution. Therefore,    the Federal Court had no judicial control or superintendence over subor- dinate courts. [986C-E]

4.3 Advent of freedom, and promulgation of the Constitu- tion have made drastic changes in the administration of justice     necessitating new judicial approach. The Constitu- tion has assigned a new role to the Constitutional Courts to ensure    rule of law in the country.    These changes    have brought new perceptions. In interpreting the Constitution, regard    must be had to the social, economic and political changes, need of the community and the independence of     the judiciary. The Court cannot be a helpless spectator, bound by precedents of colonial days which have lost relevance. Time has come to have a fresh look to tile old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution. [986F-G] 950

5.1     Courts constituted under a law enacted by the    Par- liament     or the State Legislature have limited    jurisdiction and they cannot assume jurisdiction in a matter, not     ex- pressly assigned to them, but that is not so, in the case of a superior court of record constituted by the    Constitution such a court does not have a limited jurisdiction, instead it has power to determine its own jurisdiction. No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of     the Constitution. In the absence of any express provision in the Constitution, the Apex Court being a Court of     record     has jurisdiction in every matter and if there be any doubt,     the Court has power to determine its jurisdiction. If    such determination is made by the High Court, the same would be subject to appeal to this Court, but if the jurisdiction is determined by this Court it would be final. [988C-E] Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra JUDGMENT:

[1965]    1 SCR 413 and Ganga Bishan v. Jai Narain, [1986] 1 SCC 75, referred to.

5.2 Since the Supreme Court has power of judicial super- intendence and     control over all the courts and Tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest of inferior courts to ensure the flow of the stream of justice in the courts without any interference or attack from     any quarter. The subordinate and inferior courts do not    have adequate power under the law to protect themselves, there- fore, it is necessary that this Court should protect them. Under the constitutional scheme it has a special role in the administration    of justice and the powers conferred on it under Article 32, 136, 141 and 142 form part of the basic structure of the Constitution. The amplitude of the power of the court under these Articles of the Constitution cannot be curtailed by law made by Central or     State    Legislature. [987A-C]

5.3 The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Articles 32 and 226 of the Constitution. Therefore, this Court's jurisdic- tion and power to take action for contempt of subordinate courts    would not be inconsistent to     any constitutional scheme. [987D]

5.4 The Apex Court is duty bound     to take effective steps within the constitutional provisions to ensure a    free and fair administration of justice through out the country. For that purpose it must wield the

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requisite power to take action for contempt of     subordinate courts. Ordinarily, the High Court would protect the subor- dinate courts from any onslaught on their independence,     but in exceptional cases, extraordinary situation    may prevail affecting the administration of public justice or where the entire    judiciary is affected, this Court may directly    take cognizance of contempt of subordinate courts. [987F] 5.5 The Supreme Court will sparingly exercise its inher- ent power in taking cognizance of the contempt of subordi- nate courts, as ordinarily matters relating to contempt of subordinate courts must be dealt with by the High Courts. The instant case is of exceptional nature as the incident created     a situation where functioning of the     subordinate courts    all over the country was adversely affected and     the administration    of justice was paralysed, therefore,    this Court took cognizance of the matter. [987G-988A] 6.1 Though there is no provision like section 482 of the Criminal Procedure Code conferring express power on     the Supreme Court to quash or set aside any criminal proceeding pending before a criminal court to prevent abuse of process of the     court, but the Court has power to quash any    such proceeding in exercise of its plenary and residuary powers under Article 136 of the Constitution, if on the admitted facts no change is made out against the accused or if     the proceedings are initiated on concocted facts,     or if     the proceedings are initiated for oblique purposes. [996E] Once the Supreme Court is satisfied that the criminal proceedings amount to abuse of process of court it would quash such proceedings to ensure justice. [996G] State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982]    3 SCR 121 and Madhavrao Jivajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors., [1988] 1 SCC    692, referred to.

6.2 The inherent power of the Supreme Court under Arti- cle 142 coupled with the plenary and residuary powers under Articles 32 and 136 embraces power to quash criminal    pro- ceedings pending before any court to do complete justice in the matter before this Court. If the court is satisfied that the proceedings in a criminal case are being utilised     for oblique     purposes or if the same are continued    on manufac- tured and false evidence or if no case is made out on     the admitted facts, it would be in the ends of justice to     set aside or quash the criminal proceeding. It is idle to    sug- gest that in such a situation this Court should be a help- less spectator. [997B-C]

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6.3 The Court's    power under Article 142(1) to do "complete justice" is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitu- tional power of this Court. Once this Court has seisin of a cause or matter before it has power to issue any order or direction to do "complete justice" in the matter.    This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law. [997G] 6.4 What would be the need of "complete justice" in a cause or matter would depend upon the     facts    and circum- stances     of each case and while exercising that power     the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete    jus- tice in the matter. [998D]

Prem Chand Garg v. Excise Commissioner, U.P. Allahabad, [1963] Supp. 1 SCR 885 and A.R. Antulay v.R.S. Nayak & Anr., [ 1988] 2 SCC 602, referred to.

In     the instant case, the foundation of the criminal trial of CJM-NL Patel is based on facts which have    been found to be false. It would be in the ends of    justice     and also to do complete justice in the cause to quash the crimi- nal proceedings. [998F]

7.1 Article 20(3) of the Constitution declares that no person    accused     of any offence shall be compelled to be a witness against himself. In order to avail the protection of Article     20(3) three conditions must be satisfied. Firstly, the person must be accused of an offence. Secondly,     the element     of compulsion to be a witness should be there,     and thirdly     it must be against himself. All the three ingredi- ents must necessarily exist before protection     of Article 20(3) is available. If any of these    ingredients do     not exist, Article 20(3) cannot be invoked. [964E-F] Balkishan Devidayal v. State of Maharashtra, [1980] 4 SCC 600, referred to.

7.2 Mere issue of notice or pendency    of contempt proceedings do not attract Article 20(3) of the Constitution as the contemners against whom notices were issued were     not accused of any offence. A Criminal contempt is punishable by the superior courts by fine or imprisonment,     but it     has many characteristics which distinguishes it from an ordinary offence. [964G]

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7.3 The power to take proceedings for contempt of Court is an    inherent power of a Court of record. The Criminal Procedure Code does not apply to such proceedings. Since the contempt proceedings are not in the    nature    of criminal proceedings for an offence, the pendency of contempt    pro- ceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemner. A contemner it is not in the position of an accused. It is open to the Court to cross-examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence. This peculiar feature distinguishes    con- tempt proceedings from criminal proceedings. In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of     the prosecution against the accused but in contempt     proceedings the court is both the accused as well as the judge of     the accusation. [966C-E]

Debabrata Bandopadhyaya's case, AIR 1969 SC 189, referred to.

7.4     In the instant case, the contemners do no stand in the position of a "person accused of an offence" merely on account of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority to record the testimony of the contemners. There has, therefore, been no violation of Article 20(3) of     the Constitution and the Commission's finding are not violated. [966F-G]

8.1 In determining, what punishment should be awarded to contemners found guilty, the degree and the extent of    part played    by each of the contemners has to be kept in mind. [998G]

8.2     In the instant case, Sharma, the Police Inspector was the main    actor in the entire incident and who     had planned the entire episode with a view to humiliate the     CJM in the     public eye is the main culprit     and therefore, he deserves maximum punishment.    The Sub     Inspector took an active part in assaulting and tying the CJM at the behest of the Police Inspector. The Head Constable and Constable    also took active part in handcuffing and tying the CJM    with ropes,    but as subordinate officials they acted under     the orders of the superior officers. The Mamlatdar was a friend of the Police Inspector, he had no axe to grind against     the CJM but he acted under the influence of the Police Inspec- tor. So far as the DSP is concerned, he actively abetted the commission of onslaught on the CJM. The contemners are    held guilty of contempt and awarded punishment. [998H-999B] 954

8.3 The Police Inspector to undergo simple    imprisonment for a period of six months and to pay fine of Rs.2,000.     The Sub-Inspector to undergo simple imprisonment for a period of five months and pay a fine of Rs.2,000 and in    default     one month's     simple imprisonment. Head Constable and Constable, each to undergo simple imprisonment for two months and a fine of Rs.500 and in default 15 days simple imprisonment. The Mamlatdar to undergo simple imprisonment for a period of two months and a fine of Rs.1,O00 and in default one month's simple    imprisonment. The DSP is sentenced to    imprisonment for a    period of one month and a fine of Rs.1,O00 and in default simple imprisonment for 15 days. So far as the other respondents against whom notices were issued    no adequate material on record holds them guilty. The contempt notices are therefore discharged. [999C-E]

9.1     The Court expressed displeasure on the     conduct of the DGP. As the head of the Police in the State, he     was expected to intervene in the matter and to ensure effective action    against the erring Police Officers. He    was totally indifferent to the news that a CJM was arrested, handcuffed, roped, and assaulted. He took this news as a routine matter without taking any steps to ascertain the correct facts     for effective action against the erring Police Officers. If     the head of the State Police Administration exhibits such indif- ference     to a sensitive matter which shook the entire judi- cial machinery in the State, nothing better could be expect- ed from his subordinate officers. The State Government should take action departmentally on the basis of the find- ings recorded by the Commission. [999F-1000A] 9.2     The discharge     of the contempt notices does     not absolve the officers of their misconduct. The State Govern- ment is directed to proceed with the disciplinary proceed- ings for taking appropriate action. [1000B]

&

ORIGINAL JURISDICTION: Writ Petition (CRL.) No. 517 of 1989 etc. etc.

(Under Article 32 of the Constitution of India). Soli. J. Sorabjee, Attorney General, Ashok H. Desai, Addl. Solicitor General, R.K. Garg,    G. Ramaswamy,    F.S. Nariman, Dr. L.M. Singhvi, G.A. Shah, T.U. Mehta,    V.M. Tarkunde, B.K.     Mehta S.S. Ray, A.K. Gupta, S.K. Dhingra, T.C. Sharma, Kishan Dutt, R.J. Trivedi, Manoj Swarup,    M.N. Shroff, Sudarsh Menon, Sushil Kumar Jain, Bahl Singh Malik, Gopala Subramanium, Ms. Binu Tamta, Shahid Rizi. D.K. Singh, T. Ray, Pramod Swarup, Praveen Swarup,

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P.H. Parekh, Sunil Dogra, C.L. Sahu, G.L. Gupta, Brij    Bhu- shan, N.S. Das Bahl, Mrs. H. Wahi, Harish Javeri and S. Ganesh. T.C. Sharma for the appearing parties. The Judgment of the Court was delivered by

K.N. SINGH, J. On 25th September,     1989,    a horrendus incident took place in the town of Nadiad, District Kheda in the State of Gujarat, which exhibited the berserk behaviour of Police undermining the dignity and independence of judi- ciary.    S.R. Sharma, Inspector of Police, with 25 years of service     posted     at the Police    Station, Nadiad, arrested, assaulted and handcuffed N.L. Patel, Chief Judicial Magis- trate, Nadiad and tied him with a thick rope like an animal and made a public exhibition of it by sending him in     the same condition to the Hospital for medical examination on an alleged     charge of having consumed liquor in breach of     the prohibition law enforced in the State of Gujarat. The     In- spector S.R. Sharma got the Chief Judicial Magistrate photo- graphed     in handcuffs with rope tied around his body along- with the constables which were published in the news papers all over the country. This led to tremors in the Bench     and the Bar throughout the whole country.

The     incident undermined the dignity of courts in     the country, Judicial Officers, Judges and Magistrates all    over the country were in a state of shock, they felt insecure and humiliated and it appeared that instead of Rule of Law there was Police Raj in Gujarat. A number of Bar    Associations passed    Resolutions and went on strike. The Delhi Judicial Service     Association, the All India Judges Association,     Bar Council     of Uttar Pradesh, Judicial Service of    Gujarat     and many others approached the Apex Court by means of telegrams and petitions under Article 32 of the Constitution of India for Saving the dignity and honour of     the judiciary. On 29.9.1989, this Court     took cognizance of the matter by issuing     notices to the State of Gujarat and other Police Officers. The Court appealed to the Members of the Bar     and Judiciary to resume work to avoid inconvenience to     the litigant public. Subsequently, a number of petitions    were filed under Article 32 of the Constitution of India     for taking    action    against     the Police Officers and also     for quashing the criminal proceedings initiated by the Police against     N.L. Patel, Chief Judicial Magistrate. A number of Bar Associations, Bar Councils and individuals appeared as interveners condemning the action of the police and urging the Court for taking action against the Police Officers. 956

In Petition No. 5 18 of 1989 alongwith Contempt Petition No. 6    of 1989 filed by the President, All India Judges Association, notices for contempt were issued by this Court on 4.10.1989 to seven Police Officials, D.K. Dhagal, D.S.P., A.M. Waghela,    Dy. S.P., S.R.     Sharma, Police Inspector, Kuldeep Singh Lowchab, Police Inspector (Crime), K.H. Sadia, Sub-Inspector of Police, Valjibhai Kalabhai, Head Constable and Pratap Singh, Constable. N.L. Patel, CJM,    Nadiad    also filed an application in W.P. No. 517 of 1989 with a prayer to quash the two FIRs lodged against him, to     direct     the trial of the complaint filed by him as State case and to award compensation.

On     13.2.1990 notices from contempt were issued to. K. Dadabhoy, Ex. D.G.P., Gujarat, Dr. Bhavsar, Senior Medical Officer of Govt. Hospital Nadiad and M.B. Savant, Mamlatdar, Nadiad. The Court during the proceedings also issued notices to R.    Bala Krishnan, Additional Chief Secretary (Home), Government of Gujarat and S.S. Subhalkar, District Judge, Nadiad to show cause why action be not taken against them in view of the Report of Justice Sahai.

N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988. He soon found that the local Police was not cooperating with the courts in effecting service of summons, warrants an notices on accused persons, as a result of which the trials of cases were delayed. He made complaint against     the local Police to the District Superintendent of Police    and forwarded a copy of the same to the Director General of Police but nothing concrete happened. On account of these complaints S.R. Sharma, Police Inspector Nadiad was annoyed     with the Chief Judicial Magistrate,    he withdrew constables posted in the CJM Court. In April,     1989 Patel filed two complaints with the Police    against Sharma     and other Police Officials, Nadiad for delaying the process of the court. On 25 July, 1989 Patel directed the Police to register a criminal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since they tendered    unqualified apology, the CJM directed the Police    Inspector to drop the cases against-those persons. Sharma    reacted     strongly to Patel's direction and he    made complaint against the CJM to the Registrar of the High Court through District Superintendent of Police. These facts    show that there was hostility between the Police of Nadiad     and the CJM. On 25.9. 1989, S.R. Sharma met Patel, CJM in     his Chambers to discuss the case of one Jitu Sport where     the Police    had failed to submit charge-sheet within 90 days. During discussion Sharma invited the     CJM to visit     the Police Station to see the papers and further his visit would mollify     the sentiments of the Police Officials. It is     al- leged that at 8.35 p.m. Sharma sent a Police Jeep at     Patel's residence, and on that vehicle Patel went to the Police Station.    What actual happened at the Police Station is a matter of serious dispute     between the parties. According to the CJM, he     ar- rived in the Chamber of Sharma in the Police Station, he was forced to consume liquor and on his refusal he was assault- ed, handcuffed and tied with rope by Sharma, Police Inspec- tor, Sadia Sub-Inspector, Valjibhai Kalajibhai, Head Consta- ble and Pratap Singh, Constable. It is further alleged    that Patal was sent to Hospital for Medical examination under handcuffs where he was made to sit on a bench in the varanda exposing him to the public gaze. Sharma, Police Inspector and other Police Officers have disputed these    allegations. According to Sharma, Patel entered his chamber at the Police Station     at 8.45 p.m. on 25.9. 1989 in a drunken state, shouting and abusing    him, he caught hold of     Sharma     and slapped     him, since he was violent he was arrested, hand- cuffed    and sent to Hospital for medical examination. Patel himself wanted to be photographed while he was handcuffed and tied with ropes, a photographer was arranged to take his photograph which was published in the newspapers. Since, there was serious dispute between    the parties with regard to the entire incident, the Court appointed Justice R.M. Sahai senior puisne Judge of the Allahabad High Court (as he then was) to inquire into the incident and to submit    report to the Court. Justice Sahai was appointed to hold the inquiry on behalf of this Court and not under     the provisions of the Commission of Inquiry Act. Justice Sahai visited Nadiad and held sittings there. The learned Commis- sioner/Judge invited affidavits/statements, and examined witnesses including S.R. Sharma the Police Inspector,    D.K. Dhagal,     D.S.P.     and other Police Officers, lawyers,    N.L. Patel,    CJM, and Doctors and other witnesses. Justice Sahai afforded full opportunity to all the concerned persons including the State Government, Police Officers and lawyers to lead evidence and to cross examine witnesses. He submit- ted a    detailed Report dated 28.11.1989 to this Court on 1.12.1989. On    receipt of the Report this Court directed copies    to be delivered to concerned parties and permitted the parties and the contemners to file their objections, if any, before this Court. The objections were filed by     the Police Officers and the contemners disputing the findings recorded by the Commissioner,

Re: Delhi Judicial Service Association Tis Hazaricourt, Delhi Et Vs. State Of Gujarat And Ors

On 12.12.1989, when the matter came up for final dispos- al the     Court issued notices to the Attorney-General     and Advocate-General of the State of Gujarat. On 10.1.1990     the Court directed the State of Gujarat to file affidavit stat- ing as to what action it had taken or pro-posed to take     against the officers in the light of     the Report of Justice Sahai. The Court further issued notices to R. Bala Krishnan, Additional Chief Secretary (Home), Govern- ment of Gujarat, K. Dadabhoy, Director General     of Police, S.S. Sudhalkar, District Judge, to show cause     as to     why action should    not be taken against them in view of     the Report    of Justice Sahai. The State Government    was further directed to explain as to why action against D.K. Dhagal, DSP, S.R. Sharma, Police Inspector and other police officers had not been taken. On 13.2. 1990 a notice for contempt of this Court was issued to K. Dadabhoy on the same date in view of the findings recorded by Justice Sahai, notices for contempt of court were issued to Dr. Bhavsar and M.B.     Sa- vant, Mamlatdar, Nadiad also.

in his affidavit, S.R. Sharma, Police Inspector has raised a number of objections to the findings recorded by     the Commissioner. The objections are technical in nature, chal- lenging     the authority and jurisdiction of the    Commissioner in collecting evidence and recording findings against    him. Sharma has further stated in his objections that the Commis- sioner acted as if he was sitting in judgment over the case. Other Police Officers have also raised similar     objections. We find no merit in the objections raised on behalf of Sharma,     Police Inspector and other contemners. The Commis- sioner had been appointed by this Court to hold inquiry     and submit his report to the Court. Justice Sahai was acting on behalf    of this Court and he had full authority to record evidence and cross-examine witnesses and to collect evidence on behalf of this Court. Since, the main incident of Chief Judicial Magistrate's    arrest,     assault, handcuffing     and roping was connected with several other incidents which     led to the confrontation between the Magistracy and local     po- lice, the learned Commissioner was justified in recording his findings on the background and genesis of     the entire episode. The Police Inspector Sharma raised a grievance that he was denied opportunity of cross-examination of Patel, CJM and he was not permitted to produce Dr. Jhala as a witness, Sharma's application for the recall of CJM    for further cross-examination and for permission to produce Dr. Jhala, retired Deputy Director, Medical and Health Services, Guja- rat, was rejected by a well reasoned order of    the Commis- sioner    dated 9.11.1989. We have gone through the order     and we find that the Commissioner has given good    reasons     for rejecting the recall of CJM for further cross-examination, as he    had been crossexamined by the counsel appearing on behalf of the Police officials including Sharma. The Police Officers and the State Government and CJM were     represented by counsel before the Commissioner and every opportunity was afforded to them for cross-examining the witnesses. 959

Dr. Jhala's evidence was not necessary, the    Commissioner rightly refused Sharma's prayer.

On    behalf    of the contemners it was urged that in     the absence of any independent testimony the Commission was     not justified in accepting interested version of the incident as given by the CJM with regard to his visit to     the Police Station and the incident which took place inside the Police Station. There was oath against oath and in the absence of any independent testimony the Commission was not justified in accepting the sole interested testimony of Patel, CJM. We find no merit in this objection. The learned    Commissioner has considered the evidence as well as the circumstances in support     of his findings that Patel had been     invited by Sharma to visit the Police Station and he had sent a Police jeep on which Patel went to the Police Station. This fact is supported by independent witnesses as discussed by     the Commissioner. If Patel had gone on the invitation of Sharma on Police jeep and not in the manner as alleged by Sharma, Patel could not be drunk and there appears no reason as to why he would have assaulted Sharma as alleged by the Police. The circumstances as pointed out by the Commissioner fully justify     the findings recorded against the Police Officers. It is settled law that even in a criminal trial, accused is convicted on circumstantial evidence in the absence of an eye witness, Learned Commissioner acted judicially in a fair and objective    manner in holding the inquiry,    he afforded opportunity to the affected Police Officers and other    per- sons and submitted his Report based on good     reasons in respect     of his findings which are amply supported by     the material on record. The Commissioner did a commendable     job in a record time. After hearing arguments at length and on perusal     of the statements recorded by the Commissioner     and the documentary evidence submitted by the parties, and a careful     scrutiny of the affidavits and objections filed in this Court, we find no valid ground to reject the well- reasoned findings recorded by the learned Commissioner.     The Commissioner's    Report    runs into 140 pages, which is on record. The contemners and other respondents have failed to place any convincing material before the Court to take a different view. We accordingly accept the same. After hearing learned counsel for the parties and on perusal of the affidavits, objections, applications and     the Report of the Commissioner, we hold that the following facts and circumstances are fully proved:

(1) N.L. Patel, Chief Judicial Magistrate found that     the Police of

960

Nadiad    was not effective in service of summons and it     had adopted     an attitude of indifference to court     orders. He tried to obtain the assistance of the District    Superintend- ent of Police in February, 1989 and addressed a letter to the Director General' of Police but no response came    from the Police Authorities, even though    the Government     had reminded D.K.    Dhagal,     D.S.P., Kheda to do the needful. Patel, the CJM filed two complaints against Police Officers of Nadiad Police Station and the Inspectors, and forwarded it to the District Superintendent of Police on 19th and 24th July, 1989 for taking action against     them.    Sharma,     the Police    Inspector who    had by then been posted at Nadiad reacted     to the CJM's conduct     by withdrawing constables working in the courts of Magistrates on the alleged pretext of utilising their services for service of summons. This led to confrontation between the local Police and the Magistracy commenced.

(2) On 25th July, 1989, the CJM had directed the regis- tration     of a case against 14 accused persons for misbeha- viour and causing obstruction in the judicial    proceedings. Since the accused persons had later expressed     regret     and tendered unqualified apology to the court, the CJM sent a letter to the Police Inspector, Sharma to drop    proceedings. Sharma went out of his way, to send a complaint to the    High Court through the D.S.P. saying that Patel was     functioning in an illegal manner in the judicial discharge of his     du- ties. The action of Sharma, Police Inspector     was highly irresponsible and Dhagal, D.S.P. should not have acted in a casual manner in forwarding Sharma's letter to the Registrar of the High Court directly.

(3)     Remand period of Jitu Sport was to expire on    27th September, 1989, the CJM directed the Police Inspector to produce     complete papers before the expiry of the period of remand    but he applied for the extension of the judicial remand.     The CJM directed the Police Inspector     to produce papers on 22.9.1989, Sharma did not appear before the CJM as directed, on the contrary he interpolated the order, sent to him indicating that he was required to appear before the CJM on 23.9.1989, which was admittedly a holiday. (4)     On 25th September, 1989, Sharma met the CJM in his Chamber and as a pretext requested him to come to the Police Station to see the papers which could not be brought to     the Court,    as that could satisfy him that the Police was doing the needful for complying with the orders of     the Court. Sharma    pleaded     with CJM that his visit to Police Station will remove the feeling of confrontation between the Police and Magistracy. The CJM agreed to visit the Police Station and

961

Sharma offered to send police jeep to CJM's house for bring- ing him to the Police Station.

(5) On 25.9.89 after the Court hours the CJM went to the officers' club where he remained in the company of Sudhal- kar, District Judge and Pande, Civil Judge till 8,30    p.m. Thereafter, he went to his residence. A Police jeep came to his residence at about 8.40 p.m. in the Officers Colony, he went on that Police jeep to the Police Station situated at a distance of about 2 kms. Patel had not consumed liquor before he went to the Police Station.

(6)     The Police version that Patel had consumed liquor before    coming to the Police Station and that he assaulted the Police Inspector Sharma and misbehaved with him at     the Police Station is a cooked up story. Patel did not go to the Police    Station     on foot as alleged by Sharma,    instead, he went to the Police Station in a Police jeep    on Sharma's invitation. Patel was handcuffed and tied with rope, and he received injuries at the Police Station, he was assaulted and forced to consume liquor after he was tied to the chair on which he was sitting, Police Inspector Sharma, Sub-In- spector Sadia, Head Constable Valjibhai Kalabhai and Consta- ble Pratap Singh took active part in    this episode.    They actively participated in the assualt on Patel and in forcing liquor in his mouth. They acted in collusion with Sharma to humiliate and teach a lesson to Patel.

(7) On the direction of Sharma, Police Inspector, Patel was handcuffed at the Police Station and he was further tied up with a thick rope by the Police Inspector, Sharma, Sadia, Sub-Inspector, Valjibhai Kalabhai, Head Constable and Pratap Singh, Constable. This was deliberately done in defiance of Police    Regulations and Circulars issued by    the Gujarat Government and     the law declared by this Court in Prern Shankar     Shukla v. Delhi Administration., [1980] 3 SCC    526. Patel had not committed any offence nor he was violent     and yet he was handcuffed and tied up with rope without there being any justification for the same. There     were seven police    personnel present at the Police Station and most of them were fully armed while Patel was empty handed, there was absolutely no chance of Patel escaping from the custody or making any attempt to commit suicide or attacking     the Police Officers and yet he was handcuffed and tied up with a thick rope like an animal with a view to humiliate and teach him a lesson. For this wanton act there was absolutely no justification and pleas raised by Sharma that Patel     was violent     or that he would have escaped from the custody     are figment of imagination made for the purpose of the case. 962

(8)     The panchnama showing the drunken state of Patel prepared on the dictation of Sharma, Police Inspector,     and signed    by Sharma as well as by two panches, M.B. Savant, Mamlatdar and P.D. Barot, Fire Brigade Officer, Nadiad,     did not represent the correct facts, instead, it was manufac- tured for the purpose of preparing a false case against     CJM PateI, justifying his arrest and detention.

(9)     On examination at the Civil Hospital Patel's    body was found to have a number of injuries. The injury on     the left eye was very clear which appeared to have been caused by external force. His body had bruises and abrasions which could be caused by fists and blows. While in the casualty ward of the Civil Hospital, Patel requested the Doctors to contact     the District Judge and inform him about the inci- dent. Dr. Parashar tried' to ring up the District Judge     but he was prevented from doing so by Sharma and other Police Officers who were present there. Dr. Parashar and Dr. Bhav- sar found the speech of Patel normal, gait steady, he     was neither violent, nor he misbehaved. His blood was taken     for chemical examination but the Forms used were not according to the rules and the blood was not taken in accordance    with procedure prescribed by the Rules and the Circulars issued by the Director of Medical Services, Gujarat. The chemical examination of the blood sample taken in the Civil Hospital was not correctly done. The blood sample was analysed by a teenager who was not a testing officer within     the Bombay Prohibition Act and necessary precautions at the time of analysis were not taken. The phial in which the blood sample had been sent to the Chemical Examiner did not contain     the seal on phial and the seal was not fully legible. The Chemi- cal Examiner who submitted the report holding that the blood sample of Patel contained alcohol on the basis of the calcu- lation made by him in the report clearly admitted before the Commission that he had never determined the    quantity of liquor    by making calculation in any other case and Patel's case was his first case.

(10) When Patel was taken to Civil Hospital handcuffed and tied with thick rope he was deliberately made to     sit outside     in the Varanda on bench for half an hour in public gaze, to enable the public to have a full view of the CJM in that condition. A Press photographer was brought on     the scene and the     Policemen posed with Patel for the press photograph. The photographs were taken by the Press Reporter without     any objection by the Police,    although a belated justification was pleaded by the Police that Patel desired to have himself photographed in that condition. This plea is totally     false. The photographs taken by the Press Reporter were published in `Jan Satta' and 'Lokmat' on 26th 963

September. 1989 showing Patel handcuffing and tied with rope and the Policemen standing beside him. This was deliberately arranged by Sharma to show to the public that Police weilded real power and if the CJM took confrontation with Police he will not be spared.

(11) At the initial stage, one case was registered against     Patel    by the Police under the     Bombay Prohibition Act. Two Advocates Kantawala and Brahmbhatt met Sharma at 11.30 p.m. for securing Patel's release on bail, as offences under the Prohibition Act were bailable. The    lawyers     re- quested Sharma to allow them to meet the CJM who was in     the police lock-up but Sharma did not allow them to do so.    With a view to frustrate lawyers' attempt to get Patel released on bail. Sharma registered another case against Patel under Sections 332 and 506 of Indian Penal Code as offence under Section 332 is non-bailable.

(12) D.K. Dhagal, the then District Superintendent of Police,     Kheda    exhibited total indifference to CJM's    com- plaint regarding the unsatisfactory state of affairs in     the matter    of execution of court processes. Dhagal identified himself with Sharma, Police Inspector who appeared to be his favourite. Instead of taking corrective measures in     the service     of processes, he became party along with Sharma in forwarding his complaint to the High Court against Patel's order in a judicial matter. The incident which took place in the night of    25/26 September 1989, had the    blessing of Dhagal.     He did not take any immediate action in the matter instead he created an alibi for himself alleging that he had gone to Lasundara and then to Balasinor Police Station     and stayed there in a Government Rest House. The register at the Rest House indicating     the entry regarding his stay     was manipulated subsequently by making interpolation. On     the direction of Additional Chief Secretary (Home) Dhagal    sub- mitted    his report on 27.9. 1989 but in that report he     did not make any reference of handcuffing and roping of the     CJM although it was a matter of common knowledge and there was a great resentment among the judicial officers and the local public. Dhagal's complicity in the sordid episode is further fortified by the fact that he permitted Sharma, the    main culprit     of the entire episode to carry on investigation against     Patel in the case registered against him by Sharma and also in the case registered by Patel against Sharma. (13) Police Inspector Sharma had pre-planned the entire incident and he had even arranged witnesses in advance     for preparing false case against N.L. Patel, CJM, as M.B.     Sa- vant, Mamlatdar in the

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Police    Station, immediately on the arrival of    PateI,    CJM, and they acted in complicity with Sharma in preparing     the panchnama which falsely stated that Patel was    drunk.    M.B. Sawant and P.D. Barot both were hand in glove with Sharma to flasely implicate Patel in Prohibition Case. Learned Commissioner has adversely commented upon     the conduct of various officers including K. Dadabhoy, the    then Director General of Police, Gujarat, Kuldip Singh Lowchab, CID Inspector, Dr. Bhavsar, Senior Medical Officer, Nadiad, M.B. Savant, Mamlatdar, P.D. Barot, Fire Brigade Officer and A.N. Patel, Chemical. Examiner, Nadiad. After     considering the material on record, we agree with the view taken by     the Commissioner that ,their conduct was not above board as expected from responsible officers. We do not    consider it necessary to burden the judgment by referring to the details of the findings as the same are contained in the Commis- sioner's Report.

Mr.     Nariman contended on behalf of the Po1ice Officers that the findings recorded by the Commission cannot be taken into account as those findings are hit by Article 20(3) of the Constitution. Inspector Sharma and other Police Officers against     whom criminal cases have been registered were    com- pelled to be witnesses against themselves by filing affida- vits and by subjecting them to cross examination before     the Commissioner. Any finding recorded on the basis of their evidence is violative of Article 20(3) of the Constitution. Article     20(3) of the Constitution declares that no person accused     of any offence shall be compelled to be a witness against himself. In order to avail the protection of Article 20(3) three conditions must be satisfied. Firstly,     the person must be accused of an offence. Secondly, the element of compulsion to be a witness should be there and thirdly it must be against himself. All the three ingredients    must necessarily exist before protection of Article 20(3.) is available. If any of these ingredients do not exist, Article 20(3) cannot be invoked see: Balkishan Devidayal v. State of Maharashtra., [1980] 4 SCC 600. In the instant case    this Court had issued notices for contempt     to Sharma, Police Inspector and    other contemners. Mere issue of notice or pendency of contempt proceedings do not attract Art. 20(3) of the Constitution as the contemners against whom notices were issued were not accused of any offence. A criminal contempt is punishable by the superior courts by fine or imprisonment, but it has many characteristics which distin- guishes     it from ordinary offence. An     offence under     the criminal jurisdiction is tried by a Magistrate or a Judge and the procedure of trial is regulated by the' Code of Criminal Procedure, 1973 which provides as elaborate 965

procedure for    flaming of charges, recording of evidence, crossexamination, argument and the judgment. But' charge of contempt is tried on summary process     without any fixed procedure as the court is free to evolve its own procedure consistent with fair play and natural justice. In contempt proceedings unlike the trial for a criminal offence no    oral evidence is ordinarily recorded and the usual practice is to give evidence by affidavits. Under the English Law a crimi- nal offence is tried by criminal courts with the aid of Jury but a criminal contempt is tried by courts summarily without the aid and assistance of Jury. Ordinarily, process of trial for contempt is summary. A summary form of trial is held in the case of civil contempt and also in the case of criminal contempt where the act is committed in the actual view of the court or by an officer of justice. The summary procedure is applicable by immemorial usage when criminal contempt was committed out of court by a stranger. The practice of    pro- ceeding     summarily for the punishment of contempt out of court has been the subject of comment and protest, but     the practice is founded upon immemorial usage, it has, since the eighteenth century, been generally assumed. We do not    con- sider it necessary to refer to decisions from English Courts which have been discussed in detail in the History of    Con- tempt of Court by Fox JC 1927. Proceedings for contempt of Court are not taken in the exercise of original criminal jurisdiction. Proceedings for contempt of Court are of a peculiar nature; though it may be that in certain aspects they are quasi criminal, but in any view they are-not exer- cised as part of the original criminal jurisdiction of     the Court,    as was held in re: Tushar Kanti Ghosh and Another. AIR 1935 Calcutta 419. The High Court held that since     the proceedings for contempt of Court do not fall     within     the original criminal jurisdiction of the Court no leave could be granted for appeal to Privy Council under Clause 41 of the Letters Patent of that Court.

In    Sukhdev Singh Sodhi v. The Chief Justice and Judges of the PEPSU High Court, [1954] SCR 454. Sukhdev Singh Sodhi approached this Court for transfer of contempt     proceedings from PEPSU High Court to any other High Court under Section 527 of the Criminal Procedure Code, 1898. This     Court. re- jected    the application holding that Section    527 of     the Criminal Procedure Code did not apply to the contempt    pro- ceedings as the contempt jurisdiction is a special jurisdic- tion which is inherent in all courts of record and the     Cr. P.C. excludes such a special jurisdiction from the Code. The Court further    held that notwithstanding the provisions contained in the Contempt of Courts Act, 1926 making an offence of contempt, punishable, the Act does not confer any jurisdiction or create the offence, it merely limits the 966

amount    of the     punishment which could be awarded and it removes     a certain doubt. The jurisdiction to initiate     the proceedings and take seisin of the contempt is inherent in a court of record and the procedures of the Criminal Procedure Code do not apply to contempt proceedings. Section 5 of     the Code of Criminal Procedure lays down that nothing contained in this Code shall, in the absence of a specific provision to the     contrary, affect any special or local law for     the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to take proceedings for the contempt of Court is an inherent power of a Court of record, the Criminal Procedure Code does     not apply to such proceedings. Since, the contempt     proceedings are not in the nature of criminal proceedings for an of- fence,    the pendency of contempt proceedings cannot be     re- garded as criminal proceedings merely because it may end in imposing punishment on the contemner. A contemner is not in the position of an accused, it is open to the Court to cross-examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology     is no defence to the trial of a criminal offence. This peculiar    feature distinguishes contempt     proceedings from criminal    proceedings. In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prsecution against the accused but in contempt proceedings the court is    both the accuser as well as the judge of the accusation as     ob- served    by Hidayatullah, CJ in     Debabrata Bandopadhyaya's, case AIR 1969 SC I89. Contempt proceeding is sui generis, it has peculiar features which are not found in criminal    pro- ceedings. In this view the contemners do not stand in the position of a person accused of an offence" merely on     ac- count of issue of notice of contempt by this Court and     the Commission which was acting on behalf of this Court had full authority to reord the testimony of the contemners. Commis- sion issued notice and directed Sharma, Police Inspector and other Police Officials to place their version of the inci- dent before it and there was no element of compulsion. In this view there has been no violation of Article 20(3) of the Constitution and Commission's findings are not vitiated. Mr. F.S.    Nariman     contended that this Court has no jurisdiction or power to indict the Police Officers even if they are found to be guilty as their conduct does not amount to contempt of this Court. He urged that Article 129 and 215 demarcate the respective areas of jurisdiction of the     Su- preme Court and the High Courts respectively. 967

This COurt's Jurisdiction under Article 129 is confined to the contempt of itself only and it has no jurisdiction to intict    a person for contempt of an inferior court subordi- nate to the High Court. The Parliament in exercise of     its legislative power under Entry 77 of List 1 read with Entry 14 of    List III has enacted Contempt of. Courts Act    1971 (hereinafter referred to as the 'Act') and that Act does not confer any jurisdiction on this Court for taking action     for contempt of subordinate courts. Instead the original juris- diction of High Courts in respect of contempt of subordinate courts    is specificially preserved by Sections 11 and 15(2) of the     Act. The Supreme Court has only appellate powers under Section 19 of the Act read with Articles 134(1)(c) and 136 of the Constitution. The Constitutional and statutory provisions confer exclusive power on the High Court     for taking action with regard to contempt of inferior or subor- dinate    court, and the Supreme Court has no jurisdiction in the matter. Shri Nariman further urged that in our country there is no court of universal jurisdiction, and the juris- diction of all courts including Supreme Court is limited and this Court can not enlarge its jurisdiction. Shri Soli J. Sorabji learned Attorney General (as he then was) urged that power to punish contempt is a special jurisdiction which is inherent in a court of record. A superior court of record has inherent power to punish for contempt of itself and it necessarily includes and carries with it the power to punish for contempt committed in respect of subordinate or inferior courts.     A superior court of record having power to correct the order of inferior court has power to protect that court by punishing those who interfere with the due administration of justice of the court. Articles 129 and 2 15 do not confer any additional     jurisdiction on the Supreme Court and     the High Court. The constitutional provisions as well as     the legislative enactment "The Contempt of Courts Act" recognise and preserve the existing contempt jurisdiction and power of the court of record for punishing for contempt of subordi- nate or inferior courts. The Act has not affected or     re- stricted the suo moto inherent power of the Supreme Court being a court of record which has received constitutional sanction under Article 129. Mr. Sorabji further urged    that even otherwise the Act does not restrict or affect the     suo moto exercise of power by the Supreme Court as a court of record    in view of Section 15(1) of the Act.    The Supreme Court as the Apex Court is the protector and    guardian of justice     throughout the land, therefore, it has a right     and also a duty to protect the courts whose orders and judgments are amenable to correction, form commission    of contempt against     them. This right and duty of the Apex Court is     not abrogated merely because the High Court also has this right and duty of protection of the subordinate courts. The juris- dictions are concurrent and not exclusive or antagonistic. 968

The     rival contentions raise the basic question whether the Supreme Court has inherent jurisdiction or power to punish for contempt of subordinate or inferior courts under Article     129 of the Constitution and whether the inherent jurisdiction and power of this Court is restricted by     the Act. The answer to the first question depends upon     the nature    and the scope of the power of this Court as a court of record, in the background of the original and appellate jurisdiction exercised     by this Court     under    the various provisions of the Constitution. It is necessary to have a look at the constitutional provisions relating to the origi- nal and appellate jurisdiction of this Court.    Article     124 lays down that there shall be a Supreme Court of India consisting of    Chief Justice of India.and other Judges. Article     32 confers original jurisdiction on this Court     for enforcement of     fundamental rights of    the citizens.    This jurisdiction can be invoked by an aggrieved    person    even without     exhausting his remedy before other courts. Article 129 provides that the Supreme Court shall be    a court of record and shall have all the powers of such a court includ- ing the power to punish for contempt of itself. Article 13 1 confers     original jurisdiction on the Supreme Court in    cer- tain matters. Article 132 confers appellate jurisdiction on this Court against any judgment, decree or final order of the High Courts in India. Articles 133, 134 and 134A confer appellate jurisdiction in the Supreme Court in appeals    from High Courts in regard to civil and criminal matters respec- tively on certificate to be issued by the High Court. Arti- cle 136 provides for special leave to     appeal     before     the Supreme Court, notwithstanding the provisions    of Articles 132, 133, 134 and 134A. Article 136 vests this Court    with wide powers to grant special leave to appeal from any judg- ment, decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the terri- tory of India except a court or Tribunal constituted by or under any law relating to the Armed Forces. The Court's appellate power under Article 136 is plenary, it may enter- tain any appeal by granting special leave against any order made by any Magistrate. Tribunal or any other     subordinate court. The width and amplitude of the power is not affected by the     practice and procedure followed by this Court in insisting that     before invoking the jurisdiction of    this Court under Article 136 of the Constitution, the aggrieved party must exhaust remedy available under the law before the appellate authority or the High Court. Self imposed restric- tions by this Court do not divest it of its wide powers to entertain any appeal, against any order or judgment passed by any court or Tribunal in the country without exhausting alternative remedy before the appellate authority or the High Court. The power of this Court under Article 136 is unaffected by Article 132, 133, 134 and 134(A) in view of the expression

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"notwithstanding anything in this Chapter" occurring in Article 136.

This Court considered the scope and amplitude of plenary power under Article 136 of the Constitution in Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955] 1 SCR    267. Mukherjee, J. speaking for the Court observed: "The powers given by Article 136 of the    Con- stitution however are in the nature of special or residuary powers which are     exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary juris- diction in the matter of entertaining     and hearing appeals, by granting of special leave, against any kind of judgment or order made by a court or Tribunal in any cause or matter and the powers could be exercised in spite of     the specific    provisions for appeal contained in the Constitution or other laws. The Constitu- tion for the best of reasons did not choose to fetter or circumscribe the powers     exercisable under this Article in any way."

In    Arunachalam v.P.S.R. Sadhanantham & Anr., [1979] 2 SCC 297 this Court entertained an appeal under Article     136 of the     Constitution of India by special leave at the     in- stance    of a complainant against the judgment and the order of acquittal in a murder case and on appraisal of evidence, it set aside the order of acquittal. Objections raised on behalf of the accused relating to the maintainability of the special     leave petition under Article 136 of the Constitu- tion, was rejected. Chinnappa Reddy, J. speaking for     the Court held as under:

"Article    136 of the Constitution of India invests the Supreme Court with a plentitude of plenary, appellate power over all courts     and Tribunals     in India. The power is     plenary in the sense that there are no words in Article 136 itself qualifying that power. But,     the very nature of the power has led the court to set limits to itself within which to exercise such power. It is now the well     established practice    of this Court to permit the invoca- tion of the power under ArtiCle 136 only in very exceptional     circumstances,     as when a question    of law of general public importance arises or a decision shocks the conscience of the Court. But, within the restrictions     im- posed by itself, this Court has the

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undoubted     power to interfere even with find- ings of fact, making no    distinction between judgments of acquittal and conviction, if     the High Court, in arriving at those findings, has acted "perversely or otherwise improperly"." With regard to the competence of a private party, distin- guished     from the State, to invoke the jurisdiction of    this Court under Article 136 of the Constitution, the Court observed:

"Appellate power vested in the Supreme Court under Article136 of the Constitution is not to be confused with ordinary appellate power exercised     by appellate courts and appellate tribunals under specific statutes. As we    said earlier,    it is a plenary     power,     exercisable outside the purview of ordinary law' to    meet the pressing demands of justice    (vide Durga Shankar Mehta v. Thakur Raghuraj Singh,). Article 136 of the Constitution neither    con- fers on anyone the right to invoke the juris- diction of the Supreme    Court nor inhibits anyone from invoking the Court's jurisdiction. The power is vested in the Supreme Court     but the right to invoke the Court's    jurisdiction is vested in no one. The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it."

There is therefore no room for any doubt that this Court has wide power to interfere and correct the Judgment     and orders    passed by any court or Tribunal in the    country. In addition to the appellate power, the     Court    has special residuary power to entertain appeal against any order of any court in the country. The plenary jurisdiction of this Court to grant leave and hear appeals against any order of a court or Tribunal, confers power of judicial superintendence    over all the courts and Tribunals in the    territory of India including subordinate    courts of Magistrate and District Judge. This Court has, therefore, supervisory    jurisdiction over all courts in India.

Article 129 provides 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 contains similar provision in respect of    High Court.    Both the Supreme Court as well as High     Courts     are courts    of record having powers to punish for contempt     in- cluding     the power to punish for contempt of    itself. The Constitution does not define "Court of Record". This expres- sion is well recognised in jurisdical world.    In Jowitt's Dictionary of English Law, "Court of Record" is defined as: 971

"A court whereof the acts and judicial    pro- ceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority."

In Wharton's Law Lexicon, Court of Record is defined as: "Courts are either of record where their acts and judicial proceedings are enrolled for a perpetual memorial and testimony and they have power to fine and imprison; or not of record being courts of inferior dignity, and in a less proper sense the King's Courts--and these are not    entrusted by law with any power to fine or    imprison the subject of     the realm, unless by the express provision of some Act

of Parliament. These proceedings are     not enrolled or recorded."

In Words and Phrases (Permanent Edition) Vol. 10 page    429, "Court of Record" is defined as under:

"Court of Record is a court where acts     and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the "record" of     the court, and are of such high and supereminent authori- ty that their truth is not to be questioned." Halsbury's Laws of England Vol. 10 page 319, states: "Another manner of division is into courts of record and courts not    of record. Certain Courts are expressly declared by statute to be courts of record. In the case of courts     not expressly declared to be courts of record, the answer to the question whether a court is a court of     record seems to depend     in general upon whether it has power to fine or imprison, by statute or otherwise, for    contempt of itself or other substantive offences; if it has such power, it seems that it is a court of record........ proceedings of    a Court of record preserved in its archives     are called records,    and are conclusive evidence of    that which is recorded therein."

In England a superior court of record has been exercised power to indict a person for the contempt of its authority and also for the contempt of its subordinate and inferior courts in a summary manner

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without     the aid and assistance of Jury. This power     was conceded as a necessary attribute of a superior court of record    under Anglo Saxon System of Jurisprudence. The    con- cept of inherent power of the superior court of record to indict    a person by summary procedure     was considered in detail    in Rex v. Almon, 97 ER 94 commonly known as Aimon's case. In that case King's Bench initiated proceedings     for contempt against John Almon, a book-seller for publishing a libel on the Chief Justice, Lord Mansfied. On behalf of     the contemner objection was taken to the summary procedure followed by the Court. After lengthy arguments judgment     was prepared by Chief Justice Wilmot holding that a libel on a Judge was punishable by the process of     attachment without the intervention of a Jury, as the summary form of procedure was founded upon immemorial usage. The judgment prepared with great learning and erudition could not be delivered as the proceedings were dropped following the change of Govern- ment. After long interval Wilmot's judgment was published in 1802. The judgment proceeded on the assumption that     the superior Common Law Courts did have the power to indict a person for contempt of court, by following a summary proce- dure on the principle that this power was 'a necessary incident to every court of justice'. Undelivered judgment of Wilmot, J. has been subject of great controversy in England' and Sir John Fox has severely criticised Almon's case, in his celebrated book "The History of Contempt of Court', The Form of Trial and Mode of Punishment: In spite     of serious criticism of the judgment of Wilmot, J. the    opinion     ex- pressed     by him has all along been followed by    the English and Commonwealth Courts. In Rainy v. The Justices of Seirra Leone,    8 Moors PC 47 at 54 on an application for leave to appeal    against the order of the Court of Seirra Leone     for contempt of court, the Privy Council upheld the order on the ground    that the court of Seirra Leone being    a Court of Record was the sole and exclusive judge of what amounted to contempt of court.

In India, the courts have followed the English practice in holding that a court of record has power of summarily punishing contempt of     itself as well     as of     subordinate courts.     In Surendra Nath Banerjee v. The Chief Justice     and Judges    of the High Court at Fort William in Bengal, ILR to Calcutta 109 the High Court of Calcutta in 1883 convicted Surendra Nath    Banerjee, who was Editor and Proprietor of Weekly newspaper for contempt of court and sentenced him to imprisonment for two months for publishing libel reflecting upon a Judge in his judicial capacity. On appeal the Privy Council upheld the order of the High Court and observed that the High Courts in Indian Presidencies were superior courts of record, and the powers of the High

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Court as superior courts in India are the same as in    Eng- land. The Privy Council further held that by     common     law every court of record was the sole and exclusive judge of what amounts to a contempt of court. In Sukhdev Singh Sodhi's     case this Court considered the origin, history     and development of     the concept of inherent jurisdiction of a court of record in India. The Court after considering Privy Council     and High Courts decisions held that the High Court being a court of record has inherent power to     punish     for contempt of subordinate courts. The Court further held    that even after the codification of the law of contempt in India the High Court's jurisdiction as a court of record to initi- ate proceedings and take seisin of the matter remained uneffected by the Contempt of Courts Act, 1926. Mr. Nariman contended that even if the Supreme Court is a court of record, it has no power to take action for     the contempt of a Chief Judicial Magistrate's court as neither the Constitution nor any statutory provision confer any such jurisdiction or power on this Court. He further urged    that so far     as the High Court is concerned, it has power of judicial and administrative superintendence over the subor- dinate    courts and further Section 15 of the Act expressly confers power    of the High Court to take action for     the contempt of subordinate courts. This Court being a court of record has limited jurisdiction to take action for contempt of itself under Article 129 of the Constitution, it has no jurisdiction to indict a person for the contempt of subordi- nate or inferior courts.

The     question whether in the absence of    any express provision a Court of Record has inherent power in respect of contempt of subordinate or inferior courts, has been consid- ered by English and Indian Courts. We would briefly refer to some of those     decisions. In the leading case     of Rex v. Parke, [1903] 2 K.B. 432 at 442. Wills, J. observed: "This Court exercises a vigilant     watch    over the proceedings of inferior courts and    suc- cessfully     prevents them from usurping powers which they do not possess, or otherwise acting contrary to law. It would seem almost a natu- ral corollary that it should possess correla- tive powers of guarding them against unlawful attacks and interferences with their independ- ence on the part of others."

In King v. Davies, [1906] 1 K.B. 32. Wills, J. further    held that the Kings Bench being a court of record must protect the inferior courts

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from unauthorised interference, and this could only be secured     by action of the Kings Bench as the inferior courts    have no power to protect themselves and for    that purpose     this power is vested in superior court     of record. Since the Kings Bench is the custos morum of the kingdom it must apply to it with the necessary    adaptations to     the altered     circumstances    of the present day to     uphold     the independence of the judiciary. The principle laid down in Rex v. Davies, was followed in King v. Editor of the Daily Mail, [1921] 2 KB 733 where it was held that the High Court as a court of record has inherent jurisdiction to punish for contempt of a court martial which was an inferior court. Avory, J. observed:

"The result of that judgment (Rex v. Davies ) is to show that wherever this Court has power to correct an inferior court, it also     has power to protect that court by punishing those who interfere with Due     administration     of ,justice in their court."

In Attorney--General v. B.B.C., [1980] 3 ALR 16 1 the House of Lords proceeded on the assumption that a court of record possesses protective jurisdiction to indict a     person     for interference with the     administration of justice in     the inferior courts but it refused to indict as it held that this protection is available to a court exercising judicial power of the State and not to a Tribunal even     though     the same may be inferior to the court of record. These authori- ties show that in England the power of the High Court to deal with the contempt of inferior court was based not so much on its historical foundation but on the High Court's inherent jurisdiction being a court of record having juris- diction to correct the orders of those courts. In     India    prior to the enactment of the    Contempt of Courts    Act, 1926, High Court's jurisdiction in     respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts in the absence of statutory provision exercised power of    con- tempt to protect the subordinate courts on the     premise of inherent power of a Court of Record. Madras High Court in the case of Venkat Rao, 21 Madras Law Journal 832 held    that it being a court of record had the power to deal with     the contempt of subordinate courts. The Bombay High Court in Mohandas Karam Chand Gandhi's, [1920] 22 Bombay Law Reporter 368 case held that the High Court possessed the same powers to punish the contempt of subordinate courts as the Court of the King's Bench Division had by virtue of the Common Law of England. Similar view was expressed by the

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Allahabad High Court in Abdul Hassan Jauhar's, case     AIR 1926 Allahabad 623 and Shantha Nand Gir v. Basudevanand., AIR 1930 Allahabad 225 (FB). In Abdul Hassan Jauhar's    case (supra)     a Full Bench of the Allahabad High    Court after considering the question in detail held:

"The High Court as a court of record and as the protector of public justice    through     out its jurisdiction has power to deal with    con- tempts' directed against the administration of justice, whether those contempts are committed in face of the court or outside it, and inde- pendently     or whether the particular court is sitting or not sitting,     and whether those contempts     relate to proceedings directly concerning itself or whether they relate to proceedings concerning an inferior court,     and in the latter case whether those     proceedings might or might not at some stage come before the High Court."

Similar view was taken by the Nagpur and Lahore High Courts in Mr. Hirabai v. Mangal Chand, AIR 1935 Nagpur 16; Harki- shan Lal v. Emperor, AIR 1937 Lahore 197 and the Oudh Chief Court took the same view in Mohammad Yusuf v. Imtiaz Ahmad Khan., AIR 1939 Oudh 13 1. But, the Calcutta High Court took a contrary view in Legal Remembrancer v. Motilal Ghosh,     ILR 41 Cal. 173 holding that there was no such inherent power with the High Court.

Judicial conflict with regard to High Court's power with regard to the contempt of subordinate court was set at    rest by the     Contempt of Courts Act 1926. The Act resolved     the doubt by recognising to the power of High Courts in regard to contempt of subordinate courts, by enacting Section 2 which expressly stated that the High Courts will continue to have jurisdiction and     power with regard to contempt of subordinate courts as they exercised with regard to their own contempt.    Thus the Act reiterated and recognised     the High Court's power as a court of record for taking action for contempt of courts subordinate to them. The only excep- tion to this power, was made in subsection (3) of Section 2 which provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is     an offence punishable under the Indian Penal Code. Section 3 of the Act restricted the punishment which could be passed by the    High Court.    Since doubt was raised whether the High Court as a court of record could punish contempt of itself and of courts    subordinate to it if contempt was committed outside its territorial jurisdiction, the Parliament    enacted     the Con-

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tempt of Courts Act 1952 removing the doubt. Section 3 of the 1952 Act again reiterated and reaffirmed     the power, authority and jurisdiction of the High Court in respect of contempt of courts subordinate to    it, as     it existed prior to the enactment. It provided that every     High Court shall have and exercise the same jurisdiction, power     and authority, in accordance with the same procedure and prac- tice in respect of contempt of courts subordinate to it as it has and exercise in respect of contempt of itself.    Sec- tion 5 further expanded the jurisdiction of the High Court for indicting    a person in respect of     contempt committed outside the local limits of its jurisdiction. The Parliamen- tary legislation did not confer any new or fresh power or jurisdiction on the High Courts in respect of    contempt of courts subordinate to it, instead it reaffirmed the inherent power of a Court of Record, having same jurisdiction, power and authority as it has been exercising prior to the enact- ments. The effect of these statutory provisions was consid- ered by this Court in Sukhdev Singh Sodhi's case, and     the Court held that contempt jurisdiction was a    special     one inherent in the very nature of a court of record and    that jurisdiction and power remained unaffected even after     the enactment of 1926 Act as it did not confer any new jurisdic- tion or create any offence, it merely limited the amount of punishment which could be awarded to a contemner. The juris- diction of the High Court to initiate proceedings or taking action for contempt of its subordinate courts remained as it was prior to the 1926 Act. In R.L. Kapur v. State of Tamil Nadu, AIR 1972 SC 858 the Court again emphasised that in view of Article 215 of the Constitution, the High Court as a court of record possesses inherent power and jurisdiction, which is a special one, not arising or derived from Contempt of Courts Act and the provisions of Section 3 of 1926    Act, do not affect that power or confer a new power or jurisdic- tion. The Court further held that in view of Article 215 of the Constitution, no law made by a Legislature     could    take away the Jurisdiction conferred on the High Court nor it could confer it afresh by virtue of its own authority. The English and the Indian authorities are based on     the basic foundation of inherent power of a Court     of Record, having jurisdiction to correct the judicial orders of subor- dinate courts. The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct orders of subordinate courts    enjoyed     the inherent power     of contempt to protect the     subordinate courts.     The Supreme Court being a Court of Record under Article     129 and having wide power of judicial supervision over all the courts in the country, must possess and exer- cise similar jurisdiction and power as the High Courts     had prior to Contempt Legislation in 1926. Inherent 977

powers of a superior Court of Record have remained unaffect- ed even after Codification of Contempt Law. The Contempt of Courts    Act 1971 was enacted to define and limit the powers of courts in punishing contempts of courts and to regulate their procedure in relation thereto. Section 2 of the     Act defines     contempt of court including     criminal contempt. Sections 5, 6, 7, 8, and 9 specify matters which do     not amount    to contempt and the defence which may be taken. Section     10 which relates to the power of High Court to punish    for contempt of subordinate courts. Section 10    like Section     2 of 1926 Act and Section 3 of 1952 Act reiterates and reaffirms the jurisdiction and power of a High Court in respect     of its own contempt and of subordinate courts.     The Act does not confer any new jurisdiction instead it reaf- firms the High Courts power and jurisdiction     for taking action for the contempt of itself as well as of its subordi- nate courts. We have scanned the provisions of the 1971 Act, but we     find no provision therein curtailing    the Supreme Court's power with regard to contempt of subordinate courts, Section     15 on     the other hand     expressly refers to    this Court's power for taking action for contempt of     subordinate courts. Mr. Nariman contended that under Section 15 Parlia- ment has exclusively conferred power on the High Court to punish for the contempt of subordinate courts. The legisla- tive intent being clear, this Court has no power under     its inherent jurisdiction or as a court of record under Article 129 of the Constitution with regard to contempt of subordi- nate courts. Section 15 of the Act reads as under: "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 a motion made by--

(a) the Advocate-General, or

(b) any other person, with the    con-

sent in writing of the Advocate-General (or) (c) in relation to the High Court for

the Union Territory of Delhi, such Law Officer as the Central Government may by    notification in the official     Gazette, specify in    this behalf or any other person, with the consent in writing of such Law Officer.

(2) In the case of any criminal    contempt of 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--In this section, the expression "Advocate General" means-

(a) in relation to    the Supreme

Court, the Attorney General or the Solicitor General;

(b) in relation to the High Court,

the Advocate General of the State or any of the States for which the High Court has    been established;

(c) in relation to the Court of a

Judicial Commissioner, such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf.

Re: Delhi Judicial Service Association Tis Hazaricourt, Delhi Et Vs. State Of Gujarat And Ors

Under sub-section (1) the Supreme Court and High Court both have power to take cognizance of criminal contempt     and it provides three modes for taking cognizance. The Supreme Court and the High Court both may take cognizance on its own motion or on the motion made by the Advocate-General or     any other person with the consent in writing of the Advocate- General. Sub-section (2) provides that in case of any crimi- nal contempt of 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, and in, relation to a Union Territory, on a motion made by any officer as may be specified by the Government. Thus Section 15 prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court, it is not a substantive provision conferring power or jurisdiction on the High Court or on the Supreme     Court    for taking action for the contempt of     its subordinate courts. The whole object of prescribing proce- dural modes of taking cognizance in Section 15 is to safe- guard the valuable time of the' High Court and the Supreme Court being wasted by frivolous complaints of    contempt of court.    Section 15(2)    does not restrict the power of the High Court to take cognizance of the

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contempt of itself or of a subordinate court    on its     own motion    although apparently the Section does not say so. In S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v. Vinay Chandra Misra, [1981] 2 SCR 331 this Court held that Section 15 prescribed procedure for taking cognizance and it does not affect the High Court's suo moto power to    take cogni- zance and punish for contempt of subordinate courts. Mr.     Nariman urged that under Entry 77 of List I of     the VIIth Schedule the Parliament has legislative competence to make law curtailing the jurisdiction of Supreme Court. He further urged that Section 15 curtails the inherent power of this Court with regard to contempt of subordinate courts. Entry 77 of List 1 states: "Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court." This Entry. read with Article 246 confers power on the Parliament to enact law with respect to the    constitution, organisation, jurisdiction and powers of the Supreme Court including     the contempt of this court. The Parliament is thus competent to enact a law relating to the powers of Supreme     Court    with regard    to 'contempt of itself' such a     law may prescribe procedure to be followed and it may    also prescribe     the maximum punishment which could be awarded and it may provide for appeal and for other matters. But the Central Legisla- ture has no legislative competence to abridge or extinguish the jurisdiction or power conferred on this    Court under Article     129 of the Constitution. The Parliament's power to legislate in relation to law of contempt relating to Supreme Court is limited, therefore the Act does not impinge    upon this Court's power with regard to the contempt of subordi- nate courts under Article 129 of the Constitution. Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court     shall    have all the powers of such a court including the power to punish for contempt of itself (emphasis supplied). The expression used in Article 129 is not restrictive instead it is exten- sive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for con'- tempt of itself only, there was no necessity for inserting the expression "including the power to punish for contempt of itself'. The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression '*including". The expression "including" has been interpreted by courts, to extend and widen the 980

scope of power. The plain language of Article clearly indi- cates that this Court as a court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record. In interpreting the Constitution, it is not permis- sible to adopt a construction which would render any expres- sion superfluous or redundant. The courts ought not accept any such construction. While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. Since,     the Supreme Court is designed by the Constitution as a court of record and as the Founding Fathers were aware that a superi- or court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to     it, the expression "including" was deliberately inserted in     the Article. Article 129 recognised the existing inherent power of a court of record in its full plenitude including     the power to punish for the contempt of inferior     courts. If Article 129 is susceptible to two interpretations, we would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and protect the subordinate judici- ary, which forms the very back bone of administration of justice. The subordinate courts administer justice at     the grass root level, their protection is necessary to preserve the confidence of people in the efficacy of Courts and to ensure unsullied flow of justice at its base level. Disputing the inherent power of this Court with regard to the contempt of subordinate courts, Mr. Nariman contended that inherent powers are always preserved, but they do     not authorise a court to invest itself with jurisdiction    when that jurisdiction is not conferred by law. He urged that the status    of an    appellate court like High Court, does     not enable    the High Court to claim original jurisdiction     not vested by law. Similarly, the Supreme Court having appellate jurisdiction under Section 19 of the Contempt of Courts     Act 1971, cannot invest itself with original jurisdiction     for contempt of subordinate courts. He placed reliance on     the decision of this Court in Raja Soap Factory & Ors. v.    S.P. Shantharaj & Ors., [1965] 2 SCR 800. We are unable to accept the contention. In Raja Soap Factory's case (supra),    High Court had entertained an original suit and issued injunction under the Trade and Merchandise Marks     Act 1958 although under the Act the suit was required to be instituted in     the District Court. In appeal before this Court, order of     the High Court was sought to be justified on the ground of    High Court's     power    of transfer under Section 24 read with     its inherent power under Section 151 of the Code of Civil Proce- dure. This Court rejected the submission on the ground    that exercise

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of jurisdiction under Section 24 of Code of Civil Procedure was conditioned by lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court. The Court observed that power to try and dispose of proceedings, after transfer from a court lawfully-seized of it, does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court. Referring to the claim of inherent powers under Section 151 to justify entertainment of the suit grant of injunction order, the Court observed that the inherent power could be exercised where there is a proceeding lawful- ly before the High Court, it does not,     however, authorise the High Court to invest itself with jurisdiction where it is not conferred by law. The facts and circumstances as available in the Raja Soap Factory's case, were quite    dif- ferent    and the view expressed in that case do not have     any bearing     on the inherent power of this Court. In Rata    Soap Factory's case there was no issue before the Court regarding the inherent power of a superior court of record instead the entire    case related to the interpretation of the statutory provisions conferring jurisdiction on the High Court. Where jurisdiction is conferred on a court by a statute,     the extent    of jurisdiction is limited to the extent prescribed under the statute- But there is no such limitation on a superior court of record in matters relating to the exercise of constitutional powers. No doubt this Court has appellate jurisdiction under Section 19 of the Act, but that does     not divest    it of its inherent power under Article 129 of     the Constitution- The conferment of appellate power on the court by a statute does not and cannot affect the width and ampli- tude of inherent powers of this Court under Article 129 of the Constitution.

We have already discussed a number of decisions holding that the High Court being a court of record has inherent power in respect of contempt of itself as well as of     its subordinate courts even in the absence of any express provi- sion in any Act. A fortiori the Supreme Court being the Apex Court of the country and superior court of record should possess the same inherent jurisdiction and power for taking action for contempt of itself, as well as, for the contempt of subordinate and inferior courts. It was contended    that since High Court has power of superintendence over     the subordinate courts under Article 227 of the Constitution, therefore, High Court has power to punish for the contempt of subordinate courts. Since the Supreme Court has no super- visory jurisdiction over the High Court or other subordinate courts,     it does not possess powers which High    Courts have under Article 215. This submission is misconceived. Article 227 confers supervisory jurisdiction on the High Court     and in exercise of that

982

power High Court may correct judicial orders of     subordinate courts, in addition to that, the High Court has     administra- tive control over the subordinate courts. Supreme Court's power to correct judicial orders of the subordinate courts under Article 136 is much wider and more effective than that contained under Article 227. Absence of administrative power of superintendence, over the High Court and     subordinate court does not affect this Court's wide power    of judicial superintendence of all courts in India. Once there is power of judicial superintendence, all the Courts whose orders are amenable to correction by this Court would be     subordinate courts    and therefore    this Court also possesses similar inherent power as the High Court has under Article 215 with regard to the contempt of subordinate courts. The jurisdic- tion and power of a superior Court of     Record     'to punish contempt of subordinate courts was not founded on     the court's administrative power of superintendence, instead the inherent jurisdiction    was conceded to     superior Court of Record    on the premise of its judicial power to correct     the errors of subordinate Courts.

Mr. Nariman urged that assumption of contempt jurisdic- tion with regard to contempt of subordinate and inferior courts on the interpretation of Article 129 of the Constitu- tion is foreclosed by the decisions of Federal Court, he placed    reliance-on the decisions of Federal Court in K.L. Gauba v. The Hon'ble the Chief Justice and Judges of     the High Court of Judicature at Lahore & Anr., AIR 1942 FC 1 and Purshottam Lal Jaitly v. The King Emperor., [1944] FCR    364. He urged that this Court being successor to Federal Court was bound by the decisions of the Federal Court under Arti- cle 374(2) of the Constitution. Mr. Sorabji, learned Attor- ney-General seriously contested the proposition, he contend- ed that there is a marked difference between    the Federal Court and this Court, former being established by a statute with limited jurisdiction while this Court is the    Apex constitutional court with unlimited jurisdiction, therefore, the Federal Court decisions are not binding on this Court. He urged that Article 374(2) does not bind this Court    with the decisions of the Federal Court, instead it provides     for meeting     particular situation during transitory period. In the alternative learned Attorney-General urged that     the aforesaid two decisions of Federal Court in Gauba's case and Jaitly's case do not affect the jurisdiction and power of this Court with regard to contempt of subordinate and infe- rior courts as the Federal Court had no occasion to inter- pret any provision like Article 129 of the Constitution in the aforesaid decisions. Article 374 made provision for     the continuance of     Federal Court Judges as the Judges of     the Supreme Court on the commencement of the Constitution and it also made

983

provisions for transfer of the proceedings pending in     the Federal     Court to the Supreme Court. Clause (2)     of Article 374 is as under:

"All suits, appeals and proceedings, civil or criminal, pending in the Federal Court at     the commencement of this Constitution shall stand removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear     and determine     the same, and     the judgments     and orders of the Federal Court delivered or    made before the commencement of this    Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court."

On the     promulgation of the Constitution, Federal Court ceased to exist and the Supreme Court was set up and with a view to meet the changed situation, provisions had to be made with regard to the matters pending before the Federal Court. Article 374(2) made provision for two things, firstly it directed the transfer of all suits, appeals and proceed- ings, civil or criminal pending before the Federal Court to the Supreme Court. Secondly, it provided that any orders and judgments delivered or made by the Federal Court before     the commencement of the Constitution shall have the same force and effect as if those orders or judgments had been deliv- ered or made by the Supreme Court. This was necessary     for the continuance of the proceedings before the Supreme Court. The Federal Court may have passed interlocutory orders, it may have delivered judgments in the matters pending before it and in order to maintain the continuance of validity of orders    or judgments of Federal Court a legal    fiction     was created     stating that those judgments and orders shall be treated as of Supreme Court. Article 374(2) is in the nature of transitory provision to meet the exigency of the situa- tion on the abolition of the Federal Court and     setting of the Supreme Court. There is no provision in the aforesaid Article     to the effect that the decisions of    the Federal Court shall be binding on the Supreme Court. Similar    view was taken by the Allahabad High Court in Om Prakash Gupta v. The United Provinces, AIR 195 1 Allahabad 205 para 43     and Bombay    High Court in State of Bombay    v. Gajanan Mahadev Badley., AIR 1954 Bombay 352 para 14. The decisions of Federal     Court    and the Privy Council made before the    com- mencement of the Constitution are entitled to great respect but those decisions are not binding on this Court and it is always    open to this Court to take a different view. In     The State of Bihar v. Abdul Majid, [1954] SCR 786 at 795     and Shrinivas Krishnarao Kango v. Narayan Devji Kango and    Ors. [1955] 1 SCR 1 at 24 and 25. Federal

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Court decisions were not followed by this Court. There     is, therefore, no    merit in the contention that this Court is bound by the decisions of the Federal Court. But     even otherwise the decisions of Federal Court in K.L. Gauba's case and Purshottam Lal Jaitly's case have no bearing on the interpretation of Article 129 of the Consti- tution. In K.L. Gauba's case the facts were that K.L. Gauba, an Advocate of Lahore High Court was involved in litigation of various kinds including a case connected with his insol- vency.    A Special Bench of the High Court of     Lahore     was constituted to decide his matters. His objection against the sitting     of a particular Judge on the    Special     Bench,     was rejected. His application for the grant of certificate under Section     205 of the Government of India Act to    file appeal against the order of the High Court before the Federal Court was refused. Gauba filed a petition before the Federal Court for the issue of direction for the transfer of his case to Federal     Court from High Court. The Federal Court held    that appeal against the order of the High Court refusing to grant certificate was not maintainable. Gauba argued that the High Court was guilty of contempt of Federal Court     as it     had deliberately and maliciously deprived the Federal Court's jurisdiction to hear the appeal against its orders. Gwyer, CJ. rejected the contention in the following words: "We have had occasion more than once to    con- strue the provisions of Section 205, and we repeat what we have already said, that no appeal lies to this Court in the     absence of the certificate prescribed by that Section: a certificate is the necessary condition prece- dent to every appeal. We cannot question     the refusal of a High Court to grant a certificate or investigate the reasons which have prompted the refusal; we cannot even inquire what those reasons were, if the High Court has given none. The matter is one exclusively for     the High Court; and, as this Court observed in an earlier case, it is not for us to speculate whether Parliament omitted per    incuriam to give a right of appeal against the refusal to grant a certificate or trusted the High Courts to act with reasonableness and impartiality: 1939 FCR 13 at page 16. The jurisdiction of the Court being thus limited by the statute in this way, how could it be extended by a    High Court acting even perversely or maliciously in withholding the certificate."

In Purshottam Lal Jaitly's case an application purporting to 985

invoke    extraordinary original jurisdiction of    the Federal Court under Section 2 10(2) of the Government of India    Act, 1935 was made with a prayer that the Federal Court should itself    deal directly with an alleged contempt of a Civil Court,    subordinate to the High Court. By a short order the Court rejected     the application placing reliance on     its decision in K.L. Gauba's case. The Court observed as under: "The expression    "any contempt of court" in that provision must be held to mean "any     act amounting to contempt of this Court". This was the view expressed in Gauba's case and we have been shown no reason for departing from    that view. Under the Indian Law the    High Courts have power to deal with contempt of any Court subordinate to them as well as with contempt of the High Courts. It could not have    been intended    to confer on the Federal Court a concurrent jurisdiction in such matters.     The wider construction may conceivably lead to conflicting judgments and to other anomalous con sequences."

In the     case of K.L. Gauba the Federal Court found itself helpless in the matter as the Government of India Act,    1935 did not confer any power on it to entertain an appeal against     the order of High Court refusing to grant certifi- cate. The decision has no bearing on the question which we are concerned. In Purshottam Lal Jaitly's case the decision turned    on the interpretation of Section 210(2) of the    1935 Act. Section 2 10 made provisions for the enforcement of decrees and orders of Federal Court. Sub-section (2) provid- ed that Federal Court shall have power to make any order for the purpose of securing the attendance of any    person,     the discovery or production of any documents or the investiga- tion or "punishment of any contempt of court", which     any High Court has power to make as respects the territory within its jurisdiction, and further the Federal Court shall have power to award costs and its orders shall be enforce- able by all courts. While interpreting Section 2 10(2)     the Federal     Court held that it had no power to deal with    con- tempt of any court subordinate to High Court and it further observed that the wider constructions may lead to conflict- ing judgments and to other anomalous consequences. It is not necessary for us to consider the correctness of the opinion expressed by the Federal Court, as in our view the Federal Court was a court of limited jurisdiction, it was not     the Apex Court like this Court as against the judgment, order and decree of the Federal Court appeals lay to the Privy Council. The Federal Court exercised limited jurisdiction as conferred on it by the 1935 Act. The question regarding     the inherent power of the

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Superior Court     of Record in respect of the    Contempt of Subordinate court was neither raised nor discussed in afore- said decisions. The Federal Court observed that if the    High Court and the Federal Court both have concurrent jurisdic- tion in contempt matters it could lead to conflicting judg- ments and anomalous consequences, that may be so under     the Government of India Act as the High Court and    the Federal Court did not have concurrent jurisdiction, but under     the Constitution, High Court and the Supreme Court both    have concurrent jurisdiction in several matters, yet no anomalous consequences follow.

While considering the decision of Federal Court, it is necessary to bear in mind that the Federal Court did     not possess     wide powers as this Court has under the Constitu- tion. There are marked differences in the constitution     and jurisdiction and the amplitude of powers exercised by     the two courts. In addition to civil and     criminal appellate jurisdiction, this Court has wide powers under Article     136 over all the courts and Tribunals in the country. The Feder- al Court had no such power, instead it had appellate power but that too could be exercised only on a certificate issued by the High Court. The Federal Court was a court of record under Section    203 but it did not possess any     plenary or residuary appellate power over all the courts functioning in the territory    of India like the power     conferred on    this Court under Article 136 of the Constitution, therefore,     the Federal Court    had no judicial control     or superintendence over subordinate courts.

Advent of freedom, and promulgation of Constitution have made drastic changes in the administration of justice neces- sitating new judicial approach. The Constitution has     as- signed    a new role to the Constitutional Courts to ensure rule of law in the country. These changes have brought     new perseptions. In interpreting Constitution, we must    have regard    to the social, economic and political changes,    need of the     community and the independence     of judiciary.     The court cannot be a helpless spectator, bound by precedents of colonial days which have lost relevance. Time has come to have a fresh look to the old precedents and to lay down     law with the changed perceptions keeping in view the provisions of the Constitution. "Law", to use the words of Lord Coler- idge, "grows; and though the principles of law     remain     un- changed, yet their application is to be changed with     the changing circumstances     of the     time."     The considerations which weighed with the Federal Court in rendering its deci- sion in Guaba's and Jaitley's case are no more relevant in the context of the constitutional provisions. 987

Since this Court has power of judicial superintendence and control over all the courts and Tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest    of inferior courts    to ensure the flow of the stream of justice in     the courts without any interference or attack from any quarter. The subordinate and inferior courts do not have adequate power under the law to protect themselves, therefore, it is necessary that     this court should protect them. Under     the constitutional scheme this court has a special role, in     the administration    of justice and the powers conferred on it under Articles     32, 136, 14 1 and 142 form part of basic structure of the Constitution. The amplitude of the power of this Court under these Articles of the Constitution cannot be curtailed by law made by Central or State Legislature. If the contention raised on behalf of the contemners is accept- ed, the courts all over India will have no protection    from this Court. No doubt High Courts have power to persist     for the contempt of subordinate courts but that does not affect or abridge the inherent power of this court under Article

129. The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Article 32     and 226 of the Constitution, therefore this Court's jurisdiction and power to take action for contempt of subordinate courts would not be inconsistent to    any constitutional scheme. There may be occasions then attack on Judges and Magistrate of subordinate courts may have wide repercussions through out the country, in that situation it may not    be possible for a High Court to contain the same, as a result of which the administration of justice in the country may be paraly- sed, in that situation the Apex Court     must intervene to ensure smooth functioning of courts. The Apex Court is    duty bound to take effective steps     within     the constitutional provisions to    ensure    a free and fair administration of justice     through out the country, for that purpose it    must wield the requisite power to take action for contempt of subordinate courts. Ordinarily, the High Court would protect the subordinate court from any onslaught on their independ- ence, but in exceptional cases, extra ordinary situation may prevail     affecting the administration of public     justice or where the entire judiciary is affected, this Court     may directly take cognizance of contempt of subordinate courts. We would like to strike a note of caution that     this Court will sparingly excercise its inherent power in taking cogni- zance of the contempt of subordinate courts, as ordinarily matters     relating to contempt of subordinate courts must be dealt with by the High Courts. The instant case is of excep- tional    nature,     as the incident created a situation where functioning of the subordinate courts all over the country was adversely affected, and the administration of justice was paralysed,

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therefore, this Court took cognizance of the matter. Mr.     Nariman contended that in our country there is no court of universal jurisdiction, as the jurisdiction of     all courts    including the Supreme Court is limited. Article     129 as well as the Contempt of Courts Act 1971 do not confer,any express power to this Court with regard to contempt of     the subordinate courts, this Court cannot by construing Article 129 assume jurisdiction in the matter which is not entrusted to it by law. He placed reliance on the observations of this Court in Naresh Shridhar Mirajkar & Ors. v. State of Maha- rashtra & Ors., [1966] 3 SCR 744 at 77 1. We have carefully considered the     decision but we find    nothing     therein to support     the contention of Mr. Nariman. It is true    that courts constituted under a law enacted by the Parliament or the State Legislature have limited jurisdiction and    they cannot    assume jurisdiction in a matter, not expressly     as- signed to them, but that is not so in the case of a superior court of record constituted by the Constitution. Such a court does not have a limited jurisdiction instead it     has power to determine its own jurisdiction. No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of the    Con- stitution. In the absence of any express provision in     the Constitution the Apex court being a court of     record     has jurisdiction in every matter and if there be any doubt,     the Court has power to determine its jurisdiction. If    such determination is made     by High Court, the same would be subject to appeal to this Court, but if the jurisdiction is determined by this Court it would be final. Halsbury's    Laws of England Vol. 10 Para 7 13, states:

"Prima facie no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the     particular court."

The above principle of law was approved by this Court in Special     Reference No. I of 1964 [1965] 1 SCR 413 at 499 in holding     that the, High Court being a     superior court of record    was entitled to determine its own jurisdiction in granting interim bail to a person against whom     warrant of arrest had been issued by the Speaker of a State Legisla- ture. In Mirajkar's case (supra) this Court again reiterated the principles     that a superior court of record unlike a court of limited jurisdiction is entitled to determine about its own jurisdiction. In Ganga Bishan v. Jai Narain, [1986] 1 SCC 75 the Court emphasised that the

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Constitution has left     it to the judicial discretion of Supreme     Court to decide for itself the scope and limits of its jurisdiction in order to render substantial justice in matters coming before it. We therefore hold that this Court being the Apex Court and a superior court of     record     has power to determine its jurisdiction under Article 129 of the Constitution, and as discussed earlier it has jurisdiction to initiate or entertain proceedings for contempt of subor- dinate courts. This view does not run counter to any provi- sion of the Constitution.

Constitutional hurdles over, now we would revert back to the incident which has given rise to these proceedings.     The genesis     of the unprecedented attack    on the     subordinate judiciary arose out of confrontational attitude of the local police    against the Magistracy in Kheda. The Chief Judicial Magistrate is head of the Magistracy in the District. Under the provisions of Chapter XII of the Code of Criminal Proce- dure, 1973, he exercises control and supervision over     the investigating officer.     He is-an immediate officer on     the spot at the lower rung of the administration of justice of the country to ensure that the Police which    is the     law enforcing machinery acts according to law m investigation of crimes    without indulging into excesses and causing harass- ment to citizens. The main objective of Police is to appre- hend offenders, to investigate crimes and to prosecute    them before    the courts and also to prevent commission of crime and above all to ensure law and order to protect the citi- zens life and property. The law enjoins the Police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and Police are complemen- tary to each other. It is unfortunate, that these objectives have remained unfulfilled even after 40 years of our Consti- tution.     Aberrations of Police officers and Police excesses in dealing with the law and order situation have been     the subject of adverse comments from this court as well as    from other courts but it has failed to have any corrective effect on it. The Police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the Police to take maximum care in exercising that power. The Police must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated. See: Sunil Batra v. Delhi Administration & Ors., [1978] 4 SCC 494. In Prem Shankar Shukla's (supra) case 526, this Court considered the question of placing     a prisoner under handcuff     by the Police. The Court declared that no prisoner shall be handcuffed or lettered routinely or merely for the convenience of custody or escort. The Court empha- sised that the Police did not enjoy any unrestricted or unlimited

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power to handcuff an arrested person. If having regard to the circumstances including the conduct, behaviour     and character of a prisoner, there is reasonable apprehension of prisoner's escape from custody or disturbance of peace by violence, the Police may put the prisoner under handcuff. If a prisoner is handcuffed without there being any justifica- tion, it would violate prisoner's fundamental rights under Articles 14 and 19 of the Constitution. To be consistent with Articles 14 and 19 handcuffs must be the last refuge as there are other ways for ensuring security of a prisoner. In Prem Shankar Shukla's case, Krishna Iyer, J. observed: "If today freedom of the ferlorn person fails to the police somewhere tomorrow the freedom of many    may fall else where with none to whimper unless the court process     invigilates and polices the police before it is too late." The prophetic words of Krishna Iyer, J. have come true as the facts of the present case would show.

In the instant case, Patel, CJM, was assaulted, arrested and handcuffed by Police Inspector Sharma and other Police Officers. The Police Officers were not content     with this, they tied him with a thick rope round his arms and body as if N.L. Patel was a wild animal. As discussed    earlier, he was taken in that condition to the hospital    for medical examination where he was made to sit in varanda exposing him to the public gaze, providing opportunity to the members of the public to see that the Police had the power and privi- lege to apprehend and deal with a Chief Judicial Magistrate according to its sweet will. What was the purpose of unusual behaviour of the police, was it to secure safety and securi- ty of N.L. Patel, or was it done to prevent escape or     any violent     activity on his part justifying the     placing of handcuffs and ropes on the body of N.L. Patel. The Commis- sion has recorded detailed findings that the object was to wreck vengeance and to humiliate the CJM who had been polic- ing the police by this judicial orders. We agree with     the findings recorded by the Commission that there was no justi- fication for this extraordinary and unusual behaviour of Police Inspector Sharma and other Police Officers although they made an attempt to justify their unprecedented, dehuma- nising behaviour on the ground that Patel was drunk, and he was behaving in violent manner and if he had not been hand- cuffed    or tied with ropes, he could have snatched Sharma's revolver and killed him. We are

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amazed    at the reasons given by Sharma justifying the hand- cuffs and ropes on the body of N.L. Patel. Patel was     un- armed, he was at the Police Station in a room, there were at least seven police officials present in the room who    were fully armed, yet, there was    apprehension about Patel's escape or violent behaviour justifying handcuffs and roping. The justification given by them is flimsy and preposterous. S.R. Sharma acted in utter disregard of this Court's direc- tion in Prem Shankar Shukla's case. His explanation that he was not aware of the decision of this Court is a mere pre- tence as the Commissioner has recorded findings that Gujarat Government had issued Circular letter to the Police incorpo- rating    the guide lines laid down by this Court in    Prem Shanker     Shukla's case with regard to    the handcuffing of prisoner.

What constitutes contempt     of court? The     Common     Law definition of    contempt of Court is: 'An act    or omission calculated to    interfere with the due administration of justice.' (Bowen L.J. in Helmore v. Smith, [1886] 35 Ch. D. 436 at 455. The contempt of court as defined by the Contempt of Courts Act, 1971 includes civil and     criminal contempt. Criminal contempt as defined by the Act: 'Means the publica- tion whether by words, spoken or written, or by signs, or by visible     representations, or otherwise of any matter or     the doing of any other act whatsoever which scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or prejudices, or    interferes or tends or to interfere with, the due course of any judicial     proceeding; or interferes, or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in     any other manner. The definition of criminal contempt is    wide enough    to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court. The public have a vital stake in effective and orderly administration of justice.     The Court has the duty of protecting the interest-of the commu- nity in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury,     but, to protect and vindicate the right of     the public so that the administration of justice is not pervert- ed, prejudiced, obstructed or interfered with. "It is a mode of vindicating the majesty of law, in its active manifesta- tion against obstruction and outrage." (Frank Furter, J. in Offutt v. U.S.) [1954] 348 US 11. The object and purpose of punishing contempt for interference with the administration of justice is not to safeguard or protect the dignity of the Judge or

the Magistrate, but the purpose is to preserve the authority of the     courts     to ensure an ordered life in    society. In AttOrney-General v. Times Newspapers, [1974] A.C. 273 at p. 302 the necessity for the law of contempt was summarised by Lord Morris as:

"In an ordered community courts     are estab- lished for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of     the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable inter- ference is suppressed it is not because those charged with the responsibilities of adminis- tering justice are concerned for their     own dignity:    it is because the very structure of ordered life is at risk     if the recognised courts of the land are so flouted and their authority wanes and is supplanted."

The Chief Judicial Magistrate is head of the Magistracy in the District who administers justice to ensure, protect and safeguard the rights of citizens. The subordinate courts at the     district level cater to the need of the masses in administering justice at the base level. By and large     the majority of the people get their disputes adjudicated in subordinate courts, it is, in the general interest of     the community that the authority of subordinate.courts is    pro- tected.     If the CJM is led into trap by unscrupulous Police Officers and if he is assaulted, handcuffed and roped,     the public    is bound to lose faith in courts, which would be destrictive of     basic structure of an ordered    society. If this is permitted Rule of Law shall be supplanted by Police Raj. Viewed in this perspective the incident is not a    case of physical assault on an individual judicial officer, instead it is an onslaught on the institution of the judici- ary itself. The incident is a clear interference with     the administration of justice, lowering its judicial authority. Its effect was not confined to one District or State, it had a tendency to affect the entire judiciary in the country. The incident highlights a dangerous trend that if the Police is annoyed with the orders of a presiding officer of a court, he would be arrested on flimsy manufactured charges, to humiliate him publicly as has been done in    the instant case. The conduct of Police Officers     in assaulting     and humiliate the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice. "The summary power of punish- ment for contempt has been conferred on the courts to keep a blaze of glory around them, to deter people from attempting to render

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them contemptible in the eyes of the public. These powers are necessary to keep the course of justice free, as it is of great importance to society." (Oswald on    Contempt of Court). The power to punish contempt is vested in the Judges not for their personal protection only, but for the protec- tion of public justice, whose interest, requires that decen- cy and decorum is preserved in Courts of Justice. Those     who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties, any deliberate     interference with the     discharge of    such duties either in court or outside the court by attacking the presiding officers of the court, would amount    to criminal contempt and the courts must take serious cognizance of such conduct.

It    takes us to the question against which of' the    con- temners     contempt is made out. On behalf of the     petitioners it was urged that the Police Officers' conduct     amounts to criminal contempt as their action lowered the authority of the Chief Judicial Magistrate and it further caused inter- ference with the administration of justice. Mr. Soli Sorab- jee, learned Attorney-General contended that all those     who abetted and helped the Police Officers' in their conduct and design    are also guilty of contempt of court. On behalf of the contemners     it was urged that the incident     which    took place in the Police Station does not make out any contempt of court. The Chief Judicial Magistrate had consumed liquor and in     druken     state he went to the    Police    Station     and slapped     the Police Inspector, Sharma, thereby he committed offence     under the Bombay Prohibition Act as well as under Section 332, 504 and 506 of the Indian Penal Code. Criminal cases have been registered against N.L. Patel, CJM and after investigation charge-sheets have been submitted to     the court. In this context, it was urged that no action could be taken against the contemners as the facts in issue in     the present proceedings are the same as involved in the criminal prosecutions pending against N.L. PateI, CJM. The question raised on behalf of the contemners need not detain us long. Proceedings for contempt of court are different than those taken for the prosecution of a person for an offence under the criminal jurisdiction. Contempt proceedings are peculiar in nature although in certain aspects they are quasicriminal in nature but they do not form part of criminal jurisdiction of the court. Criminal prosecution pending against the     CJM or against the contemners has no bearing on the contempt proceedings initiated by this Court as the present proceed- ings are not for the purpose of punishing the contemners for the offence of wrongful detention and assault on N.L. Patel, Chief Judicial Magistrate, instead these proceedings    have been taken to protect the interest of the public in the 994

due administration of justice and to preserve the confidence of people in Courts. We, accordingly, reject the contemner's objection.

We    have already recorded findings that Sharma, Police Inspector, Nadiad had     preplanned the entire     scheme, he deliberately invited Patel to visit Police Station where he was forced to     consume liquor and on his refusal he     was assaulted, arrested, handcuffed and tied with rope    S.R. Sharma, K.H. Sadia, Sub-Inspector, Valjibhai     Kalajibhai, Head Constable and Pratap Singh, Constable, all took active part in this shameful episode with a view to     malign     and denigrade the CJM on accout of his judicial orders against the Police. We, therefore, hold S.R. Sharma, Police Inspec- tor, K.H. Sadia, Sub Inspector, Valujibhai Kalajibhai    Head Constable and Pratap Singh, Constable guilty of contempt of court.    M.B. Savant, Mamlatdar had been summoned by Sharma, Police    Inspector, to    the Police Station in    advance     for purposes of being witness to the Panchnama drawn up by Sharma    describing drunken condition of Patel, CJM.     The document was false and deliberately prepared to make out a Case against Patel, CJM. M.B. Sawant was in complicity    with Sharma,     he actively participated in the preparation of     the document to malign and humiliate the CJM and to prepare a false case against him, he is also, therefore, guilty of contempt of court.

As regards D.K. Dhagal, the then District Superintendent of Police, Kheda, we have already recorded findings that he was hand in glove with Sharma, Police Inspector. The circum- stances pointed out by the Commission and as discussed earlier, show that though D.K.     Dhagal, had not personally participated in the shameful episode but his Conduct,     act and omission establish his complicity in the incident. It is difficult to believe or imagine that    a Police Inspector would arrest, humiliate, assault and handcuff a CJM and     the Police Chief in the District would be indifferent, or a mute spectator. The circumstances unequivocally show that Sharma was acting under the protective cover of Dhagal as he     did not take any    immediate action in the     matter     instead he created an alibi for himself by interpolating the entries in the register at the Government Rest House, Balasinor. In his report    submitted to the Addl. Chief Secretary (Home) on 27.9.1989, Dhagal did not even remotely mention the hand- cuffing and roping of CJM. It is unfortunate that Dhagal as the district Superintendent of Police did not discharge     his duty like a responsible Police Officer instead he identi- fied himself with Sharma, Police Inspector and actively abetted the commission of onslaught on the CJM. We, accord- ingly,    hold D.K. Dhagal, the then D.S.P. Kheda guilty of contempt of court.

Re: Delhi Judicial Service Association Tis Hazaricourt, Delhi Et Vs. State Of Gujarat And Ors

This takes us to the petition filed by N.L. Patel     for quashing the criminal cases initiated against him on     the basis of two First Information Reports made by     Police     In- spector     S.R. Sharma.    As noticed earlier Sharma, Police Inspector, had registered two FIRs on 25.9.1989 against N.L. Patel for the offences under Section    85(1)(3) read    with Section 66(1)(b) and also under Section 110 of Bombay Prohi- bition     Act on the allegations that    Patel had consumed liquor    without     permit or pass and under the influence of alcohol     entered into Sharma's     chamber and behaved in an indecent manner. The FIR further alleged that Patel caught hold of PoliCe Inspector Sharma and slapped him. The second FIR was lodged by Sharma against Patel for offences under Sections 332,353, 186 and 506 of the Indian Penal Code on the same allegations as contained in the earlier FIR. During the pendency of the contempt proceedings before this Court, the Police continued the investigation and submitted charge sheet in both the cases against N.L. Patel and     at present Criminal Cases Nos. 1998/90 and 1999/90 are pending in     the Court of Chief Judicial Magistrate, Nadiad. These proceed- ings are sought to be quashed.

On    behalf of the State and the Police Officers, it     was urged that since charge sheets have already been submitted to the     Court, Patel will have full opportunity to defend himself     before the court where witnesses would be examined and cross-examined, therefore, this Court should not inter- fere with the proceedings. The gravamen of the charge in the two cases registered    against N.L. Patel is that he     had consumed liquor without a pass or permit and under     the influence of liquor, he entered the chamber of     Police     In- spector Sharma at the Police Station and assaulted him.     The Police    over-powered and arrested him and a panchnama     was prepared and he was taken to the Hospital for medical exami- nation, and the report of medical examination indicates that he had consumed liquor. These very facts have been inquired into by the Commissioner and found to be false. We    have recorded findings that Police Inspector Sharma and other Police    Officers manipulated records and manufactured     the case against N.L. Patel with a view to humiliate and teach him a    lesson as the Police was annoyed with his judicial orders.     We have already recorded findings holding    S.R. Sharma,     Police Inspector, Sadia, Sub-Inspector, Valjibhai Kalabhai, Head-Constable, Pratap Singh, Constable,    M.B. Savant,     Mamlatdar, and D.K. Dhagal, D.S.P. guilty of    con- tempt of court. These very persons are specified as witness- es in the two charge sheets. The Commission's as well as our findings clearly demonstrate that the allegations contained in the two FIRs are false. If Police is permitted to prose- cute Patel on those allegations merely on the basis 996

that charge sheets have been submitted by it, it would amount    to gross abuse of the process of the Court. In     the circumstances, proceedings against N.L. Patel are liable to be quashed.

Learned counsel, appearing on behalf of the State of Gujarat     and the Police Officers, urged that in the present proceedings this Court has no jurisdiction or power to quash the criminal proceedings pending against N.L.    Patel,    CJM. Elaborating his contention, learned counsel submitted    that once a criminal case is registered against a person the     law requires that the court should allow the case to proceed to its' normal conclusion and there should be no    interference with the process of trial. He further urged that this Court has no power to quash a trial pending before the criminal court either under the Code of Criminal Procedure or under the Constitution, therefore, the criminal proceedings pend- ing against Patel should be permitted to continue. Learned Attorney-General submitted that since this Court has taken cognizance of the contempt matter arising out of the inci- dent which is the subject matter of trial before the crimi- nal court, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and to prevent abuse of process of the court.    The learned Attorney-General elaborated that there is no limitation on the power of this Court under Article 142 in     quashing a criminal proceeding pending before a subordinate court. Before    we proceed to consider the width and amplitude of this Court's power under Article 142 of the Constitution it is necessary to remind ourselves that though there is no provision like Section 482 of the Criminal Procedure    Code conferring express power on this Court to quash or set aside any criminal proceedings pending before a criminal court to prevent     abuse of process of the court, but this Court     has power to quash any such proceedings in exercise of     its plenary and residuary power under Article 136 of the Consti- tution,     if on     the admitted facts no charge is made     out against     the accused or if the proceedings are initiated on concocted facts, or if the proceedings are initiated     for oblique     purposes. Once this Court is    satisfied that     the criminal proceedings amount to abuse of process of court it would quash such proceedings to ensure justice. In State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., [1982] 3 SCR 121 this Court quashed First Information Report and issued direction prohibiting    investigation into the     allegations contained in the FIR as the Court was     satisfied that on admitted facts no offence was made out against the persons named in the FIR. In Madhavrao Jivajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors., [1988]     1 SCC     692 criminal proceedings were quashed as this Court Was satis- fied that the     case was founded on false facts, and     the proceedings

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for trial had been initiated for oblique purposes. Article 142(1) of the Constitution provides that Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete    jus- tice in any 'cause' or 'matter' pending before it.     The expression 'cause' or 'matter' would include any proceeding pending     in court and it would cover almost every kind of proceeding in court including civil or criminal. The inher- ent power of this Court under Article 142 coupled with     the plenary     and residuary powers under Article 32 and 136     em- braces power to quash criminal proceedings pending before any court to do complete justice in the matter before    this Court.    If the court is satisfied that the proceeding in a criminal case are being utilised for oblique purposes or if the same are continued on manufactured and false evidence or if.no case is made out on the admitted facts, it would be in the ends of justice to set aside or    quash the criminal proceedings. It is idle to suggest that in such a situation this Court should be a helpless spectator.

Mr.     Nariman urged that Article 142(1) does not contem- plate any order contrary to Statutory provisions. He placed reliance on the Court's observations in Prem Chand Garg v. Excise Commissioner. U.P. Allahabad, [1963] Supp. 1 SCR     885 at 899 and, A.R. Antulay v. R.S. Nayak & Anr. [1988] 2     SCC 602 where the Court observed that though the    powers    con- ferred on this Court under Article 142(1) are very wide, but in exercise of that power the' court cannot make any order plainly     inconsistent with the express statutory provisions of substantive     law. It may be noticed that in     Prem Chand Garg's    and Antulay's case (Supra) observations with regard to the     extent of this Court's power under Article 142(1) were made in the context of fundamental rights. Those obser- vations have no bearing on the question in issue as there is no provision in any substantive law restricting this Court's power to quash proceedings pending before subordinate court. This Court's power under Article 142(1) to do "complete justice" is entirely of different level and of a different quality. Any prohibition or restriction contained in ordi- nary laws cannot act as a limitation on the constitutional power of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do "complete justice" in the matter.    This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law. In Har- bans Singh v. U.P. State, [1982] 3 SCR 235 at 243 the Court observed:

"Very wide powers have been conferred on    this Court for

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due and    proper    administration    of justice.

Apart from the jurisdiction and    powers    con- ferred on this Court under Articles 32 and 136 of the Constitution I am of the opinion    that this Court retains and must retain, an inher- ent power and jurisdiction for dealing    with any extra-ordinary situation in    the largest interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used    only in exceptional circumstances for furthering the ends of justice."

No enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must take into considera- tion the statutory provisions regulating the matter in dispute. What would be the need of "complete justice" in a cause or matter would depend upon the     facts    and circum- stances     of each case and while exercising that power     the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete    jus- tice in the matter. This has been the consistent view of this Court as would appear from the decisions of this Court in State of U.P. v. Poosu & Anr. [1976] 3 SCR    1005; Ganga Bishan    & Ors. v. Jai Narain, [1986] 1 SCC 75; Navnit R. Kamani & Ors. v. R.R. Kamani, [1988] 4 SCC 387; B.N. Nagara- jan &    Ors. v. State of Mysore & Ors., [1966]    3 SCR    682: Special Reference No. I of 1964, (supra), and Harbans Singh v. State of U,P. Ors. (supra). Since the foundation of     the criminal trial     of N.L. Patel is based on the    facts which have already been found to be false, it would be in the ends of justice and also to do complete justice in the cause to quash the criminal proceedings. We accordingly quash     the criminal proceedings pending    before    the Chief Judicial Magistrate, Nadiad in Criminal Cases Nos. 1998/90 and 1999/

90.

The question arises what punishment should be awarded to the contemners found guilty of contempt. In determining     the punishment, the degree and the extent of part played by each of the contemners has to be kept in mind. Sharma, Police Inspector who was the main actor in the entire incident     and who had planned the entire episode with a view to humiliate the CJM in the publis eye is the main culprit, therefore, he deserves maximum punishment.    Sadia,    Sub-Inspector    took active part in assaulting and tying the CJM at the behest of Sharma,     Police Inspector. Valijibhai Kalajibhai, Head    Con- stable and Pratap

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Singh,    Constable also took active part in handcuffing     and tying the CJM with ropes, but as subordinate officials    they acted under the orders of his superior officer. M.B. Sawant, Mamlatdar was friendly to Sharma, Police Inspector, he     had no axe     to grind against the CJM but he acted under     the influence of Sharma, Police Inspector. So far as D.K. Dhagal is concerned,    he actively abetted the     commission of     on- slaught     on the CJM. Having regard to the facts and circum- stances and individual part played by each of the aforesaid contemner we hold them guilty of contempt and award punish- ment as under:

S.R. Sharma, the then Police Inspector, Nadiad shall undergo     simple imprisonment for a period of six months     and he shall pay fine of Rs.2,000. K.H. Sadia, Sub-Inspector, Nadiad    shall undergo simple imprisonment for a period of five months and will pay a fine of Rs.2000 and in default he will undergo one month's simple imprisonment. Valjibhai Kalajibhai, Head Constable and Pratap Singh, Constable, both are convicted and awarded simple imprisonment for a period of two     months and a fine of Rs.500 each, in default    they would undergo simple imprisonment for a further period of 15 days. M.B. Savant, Mamlatdar is convicted and    awarded     two month's     simple imprisonment and a fine of Rs. 1000 and in default     he would undergo one month's simple imprisonment. D.K. Dhagal, the then District Superintendent     of Police, Kheda,    is convicted and sentenced to    imprisonment for a period    of one month and to pay a fine of Rs. 1000 and in default     to undergo simple imprisonment for 15 days. So     far as other respondents against whom notices of contempt    have been issued by the Court, there is no adequate material on record to hold them guilty of contempt of court, we accord- ingly discharge the notices issued to them.

Before we proceed further, we would like to express     the Court's displeasure on the conduct of K. Dadabhoy, the    then Director General of Police, Gujarat. As the head of     the Police    in the State he was expected to intervene in     the matter    and to ensure effective action against     the erring Police Officers. We are constrained to observe that he     was totally     indifferent to the news that a CJM was arrested, handcuffed, roped and assaulted. He took this     news as a routine     matter     without taking any steps to ascertain     the correct facts or effective action against the erring Police Officers. If the head of the Police administration in     the State exhibits such indifference to a sensitive matter which shook the entire judicial machinery in the State, nothing better    could be expected from his subordinate officers. K. Dadabhoy did not act like a responsible officer. The State Government should

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take action against him departmentaly on the basis of     the findings recorded by the Commission. The State Government has initiated proceedings against other erring officers in respect     of whom the Commission has adversely commented, we would make it clear that discharge of contempt notices    does not absolve those officers of their misconduct, the State Government is    directed to proceed with the    disciplinary proceedings for taking appropriate action against them. We are constrained to observe that the State Government did not immediately take effective steps against the erring officials. In spite of the direction issued by     this Court the erring Police Officers were neither arrested nor placed under suspension. It was only after this Court took serious view of the matter and directed the State Government to suspend     the erring Police Officers and arrest them, the State Government moved in the matter. The apathy of     the State Government in taking effective    action    against     the erring    Police Officers leads to an impression that in     the State of Gujarat, Police appears to have upper-hand, as     the administration    was hesitant in taking action    against     the erring    Police    Officers. If this practice and    tendency is allowed     to grow it would result in serious erosion of     the Rule of Law in the State. We hope and trust that the State Government will take effective measures to avoid re-occur- rence of any such instance. The State Government should further take immediate steps for the review and revision of the Police Regulations in the light of findings recorded by the Commission.

The facts of the instant case demonstrate that a presid- ing officer of a court may be arrested and humiliated on flimsy    and manufactured charges which could     affect     the administration of justice. In order to avoid any such situa- tion in future, we consider it necessary to lay down guide- lines which should be followed in the case of     arrest     and detention of a Judicial Officer. No person whatever     his rank, or designation may be, is, above law and he must    face the penal consequences of infraction of criminal law. A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in     view of the paramount necessity of preserving     the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, we think    that the following guidelines should be followed. (A) If a judicial officer is to be arrested for some     offence, it should be     done under intimation to the District Judge or the    High Court as the case may be.

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(B) If facts and circumstances necessitate the immediate arrest of a judicial officer of     the subordinate judiciary, a technical or formal arrest may be effected.

(C) The facts of such arrest should be immedi- ately communicated to the District and    Ses- sions Judge of the concerned District and     the Chief Justice of the High Court.

(D) The Judicial Officer so arrested shall not be taken     to a police station,    without     the prior order or directions of the     District & Sessions    Judge of the concerned District, if available.

(E) Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers,     including the District     & Sessions Judge.

(F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned     or another Judicial    Office of equal or higher rank,     it' available.

(G) There should be no handcuffing of a Judi- cial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over-powered and' handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned     and also to the Chief Justice of the High Court. But the    burden    would be on the Police to establish     necessity for     effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would    also be personally liable for compensation and/or damages as may be summarily determined by     the High Court.

The     above guidelines are not exhaustive but these     are minimum safeguards which must be observed in case of arrest of a judicial officer. These guidelines should be implement- ed by the State Government as well as by the High Courts. We, accordingly, direct that a copy of the guidelines shall be forwarded to the Chief Secretaries of all the State Governments and to all the High Courts with a direction that the

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same may be brought to the notice of the concerned officers for compliance.

We do not approve N.L. Patel's conduct in visiting the Police Station on the invitation of Police Inspector Sharma. In our opinion,     no Judicial Officer should visit a Police Station     on his own except in connection with his official and judicial duties and functions. If it is necessary for a Judicial Officer or a Subordinate Judicial Officer to visit the Police Station in connection with his official duties, he must do so with prior intimation of his visit to     the District & Sessions Judge.

Pursuant to this Court's appeal made on September 29, 1989, the     members of the Bar as well as the members of     the Judiciary throughout the country refrained from going on strike as a result of which inconvenience to general public was avoided and the administration of justice continued. The Court is beholden to the members of the Bar and members of the Judiciary for their response to this Court's appeal. We record our appreciation of the able assistance rendered to the Court by the learned counsel for the    par- ties. We are beholden to Sri Soli Jl. Sorabjee, the    then Attorney-General, who at our request ably assisted the Court in resolving complex questions of law.

The Writ Petitions, Contempt Petitions and Criminal Miscellaneous Petitions are disposed of accordingly. N.V.K.     Petitions disposed