M Ranka vs Honble Mr Justice PS Mishra High Courtt930629COM810808

MANU/TN/0637/1993
IN THE HIGH COURT OF MADRAS

FULL BENCH
Contempt Appln. Diary No. 14283 of 1992 and Contempt Appln. No. 527 of 1993
Decided On: 29.11.1993
M. Ranka Vs. Hon'ble Mr. Justice P.S. Mishra, High Court and Ors.
Hon'ble Judges/Coram:
M. Srinivasan, K.S. Bakthavathsalam and M.S. Janardhanam, JJ.
Case Note:
Contempt of Court - Requirement of Consent - Disobedience of Order - Judges
(Protection) Act, 1985, Article 215 of Constitution of India, 1950 and Sections
15, 16 and 22 of Contempt of Courts Act, 1971 - Petition presented with
prayer to 'deal with Respondent No. 1 in accordance with law for committing
contempt of his own Court and Respondent No. 2 for committing contempt of
High Court - Respondent no. 1 was Justice of High Court and Respondent no.
2 was advocate commissioner - Registry returned papers pointing out certain
defects and also requiring production of written consent of Advocate General -
Petitioner represented them giving his answers and stated that consent of
Advocate General was not necessary - Petitioner contended that Registry
ought to have numbered petition and taken it on file - Requirements of Rules
framed by High Court under Act had been satisfied in present case - Petitioner
had contended that written consent of Advocate General was not necessary
for maintaining present Petition - If provision in Section 15 of Act relating to
consent of Advocate General in writing was considered to be mandatory then
it would be in conflict with inherent power of High Court, recognised not only
by Constitution but also by first parts of Section 15 of Act - Therefore two
parts of Section of Act should be interpreted harmoniously in such way that
latter part did not impinge upon or cut down power of Court recognised in
first part of Section 15 of Act - Written consent of Advocate General was not a
condition precedent and Court had discretion to act on information contained
in Petition - Petitioner was informant and proceeding in contempt was not a
list between him and Respondents - Therefore Petition could not be thrown
out as not maintainable for want of written consent of Advocate General
Contempt of Court - Disobey of Order - Maintainability of Petition - Whether
Petition to punish Judge of High Court for committing contempt of his own
Court was maintainable - Held, Section 16 of Act would include within its
scope a Judge of High Court - But other provisions of Act and state of law that
was prevailing at time of passing of enactment could not be ignored - There
was no provision for proceeding against Judge of High Court for contempt of
his own Court before Act was passed - According to Section 9 of Act nothing
contained in Act shall be construed as implying that any disobedience, breach,
publication or other act is punishable as contempt of court which would not
be so punishable apart from Act - Expression "nothing contained in Act"
would include provisions of Section 16 of Act - According to Section 22 of Act
if an act is punishable as contempt of Court under any other law, Act does not
interfere with same - Provisions of Act should be read in addition to such
18-04-2024 (Page 1 of 32) www.manupatra.com Mr. Ramnath Prabhu

provisions in other laws - Section 16 of Act itself, appeared that it was
expressly made 'subject to provisions of any law for time being in force' -
Considering Sections 9, 16 and 22 of Act together it showed that law of
contempt as it existed in 1971 was not altered by provisions of Section 16 of
Act - Fact that Parliament did not intend to change law by provisions of
Section 16 of Act was also evident from later enactment of Act, 1985 -
Therefore Court held that Petition was not maintainable as against
Respondent no. 1
ORDER
M. Srinivasan, J.
1 . This unusual proceeding which has no parallel in the annals of this Chartered High
Court arises out of a most unfortunate event that occurred in an appeal directed against
the order of a single Judge sitting on the original side of this Court. But for such event,
there would have been no occasion for us to undergo the painful experience of hearing
this application for contempt against one of our learned brothers in this Court.
2. A branch of M/s. Indian Overseas Bank filed C.S. No. 113 of 1991 in this Court for
recovery of a sum of Rs. 11,43,743.80 with interest against M/s. Tara Electronics and
two others. There was a prayer for a direction to sell the immovable properties set out
to Schedule 'A' and the movable properties described in Schedule 'B' to the plaint. In
Application No. 865 of 1991,the Plaintiff prayed for appointment of an Advocate-
Commissioner to take charge of all the movables described in Schedule 'B' to the plaint,
dispose of the same and deposit the sale proceeds to the credit of the suit. By order
dated 15-2-1991, the second Respondent herein was appointed as Commissioner to
take charge of the movables and submit a report to this Court. By order dated 15-3-
1991, the Commissioner was directed to advertise in two specified newspapers the sale
of the movables calling for sealed tenders and place such tenders before Court for
orders. As the offers were found to be inadequate, the Court directed, by order dated
23-4-1991, fresh advertisements in different newspapers calling for fresh tenders. The
Commissioner was also permitted to negotiate and receive open offers and place them
before Court along with sealed tenders. Once again by order dated 1-8-1991, the Court
rejected all the tenders and directed the Commissioner to hold a sale in public auction
after fresh advertisements in newspapers. The auction was held on 25-8-1991.
According to the report of the Commissioner, one Ramakrishna, son of Appa Rao, was
the highest bidder for item No. 4 with an offer of Rs. 1.60,200/- and one Rameshkumar,
son of Deepchandji was the highest bidder for item No. 17 with an offer of Rs. 39,000/-
. It is not necessary to refer to the other 15 items auctioned by the Commissioner, as
there was no dispute regarding the same. When the report of the Commissioner came
up for orders before Court on 19-9-1991. there was a representation by the Defendants
that the offers for items 4 and 17 were very low and they should not be accepted. It is
evident from the order that Mr. Ramesh Kumar made an offer of Rs. 1,75,000/- for item
4 in open Court through a counsel. The said fact is referred to in the memorandum of
O.S.A. No. 189 of 1991 in ground No. 7. Earlier, the first Defendant had filed
Application Nos. 4351, 4352 and 4353 of 1991 for direction to the Commissioner to
reauction the machinery after fixation of upset price, stay of confirmation of the sale
held by the Commissioner and stay of delivery of the machinery to the auction
purchaser. As the first Defendant represented that it would bring better offers for items
4 and 17, the Court adjourned the matter by three weeks without confirming the sale of
those two items while confirming the sale of other items. The Commissioner was
directed to receive the best offer from the parties and complete the sale. On 24-10-

1991, the Court recorded that the first Defendant could not get abetter offer in spite of
its best efforts and endeavour, with the result, the Court accepted the offer of Rs.
1,75,000/- made by Ramesh Kumar for item 4 and Rs. 39,000/- by the same person for
item 17. The Court directed the Commissioner to collect the sale price and deliver the
machinery to the purchaser. On 2-11-1991, the said Ramesh Kumar paid the entire
amount to the Commissioner and obtained a receipt from him. He got delivery of the
machinery too.
3 . It is better at this stage to mention one circumstance which is to some extent the
cause of the subsequent trouble. At the time when the Commissioner held the auction,
Ramesh Kumar had given his address as Son of Deepchandji, 29, Venkatramair Street,
Mint Street Cross, Madras-600 079. It is the case of the applicant that the said address
was that of an uncle of Ramesh Kumar with whom he was staying at that time.
However, when Ramesh Kumar paid money to the Commissioner and took delivery of
the machinery, he gave the address - "C/o. Rajesh Corporation, No. 17, Mathaji
Complex, Mount Road, Madras-2" - which was entered in the receipt issued by the
Commissioner. According to the applicant that is the office address of Ramesh Kumar
where the machinery purchased in auction was kept.
4 . The first Defendant filed O.S.A. No. 189 of 1991 against the order of the single
Judge dated 24-10-1991 in Application No. 865 of 1991. In the appeal, the Plaintiff in
the suit was shown as the first Respondent and Ramesh Kumar was shown as second
Respondent. He was described as 'Implead Respondent'. Initially, Defendants 2 and 3 in
the suit were shown as Respondents 2 and 3 in the appeal, but their names were struck
off and the name of Ramesh Kumar was written as No. 2. Along with the appeal, C.M.P.
Nos. 14946 of 1991, 14947 of 1991 and 14948 of 1991 were filed respectively for
impleading Ramesh Kumar as party Respondent in the appeal, for an interim injunction
restraining him from using, leasing or alienating the properties purchased by him in
auction sale pending disposal of the appeal and for appointing an Advocate
Commissioner to take delivery of the machinery in item 4 and keep it in safe Custody
pending the appeal. On 12-11-1991 the Division Bench comprising of Justice Mishra
and Justice Swamidurai passed the following order on the appeal: "Notice of Motion one
month. The auction purchaser-Respondent shall keep the equipment in "as is where is
condition" until further orders." There was no separate order in any of the C.M.Ps. But
the Registry drafted an order as if it was made in C.M.P. No. 14947 of 1991. In the
application for service of process on the Respondents in the appeal filed along with the
appeal, the names and addresses of Respondents 1 to 3 were written and the names
and addresses of Respondents 2 and 3 (Defendants 2 and 3) were struck off. The name
of Ramesh Kumar was written as Serial No. 4. No address or other particulars such as
father's name or age were mentioned therein. In spite of the absence of the particulars
of address, the Registry had chosen to accept it, as if in order. After the Bench ordered
notice of motion on 12-11-1991, the Appellant's counsel filed batta in O.S.A. No. 189 of
1991 and C.M.P. Nos. 14947 and 14948 of 1991 affixing a court-fee of Rs. 8/-. We do
not know why batta was filed in the appeal as it had been already filed along with
memorandum of appeal; nor do we know why the numbers of two only out of three
C.M.Ps. were mentioned in that batta Form when the Court had not ordered notice in
any of them. The address of Ramesh Kumar is given as follows: "S/o. Deepchandji,
Venkataraman Road, Mint Cross Street, Madras-79. " It is to be noted that the door
number is not mentioned and the name of the street is also differently given. The
Registry did not bother about the defects but issued notice in the appeal only and not in
the C.M. Ps through the office of the Sheriff of Madras. The notice to the first
Respondent/Plaintiff was received by it on 12-12-1991. The notice to Ramesh Kumar
was returned by the bailiff with the following endorsement:

The within named Respondent could not be served at the address given herein.
Hence, the notice is returned unserved for want of clear address.
5 . The Registry should have either called upon the Appellant's counsel to furnish full
address after intimating them of the return or posted the matter before Court with a
note setting cut the reason for return of notice. The Registry did neither but merely
made the following endorsement on 16-12-1991 on the docket of the notice paper:
"Notice sent. Service awaited. Not ready in notice "
6 . The appeal was posted before Court on 29-11-1992. The Court passed an unusual
order reading as follows:
In course of this proceeding a dispute has arisen as to whether one Mr. Ramesh
Kumar S/o. Deepchandji 29 Venkataramiar Street, Mint Street, Cross, Madras-
600079 existed at ail or somebody else impersonated and disclosed his name
as Ramesh Kumar and participated in bid held for sale of certain articles under
order of the Court. Notice issued to Mr. Ramesh Kumar at the said address has
been returned with endorsements "No such name" and "No such person". It is
necessary for the proper adjudication of the dispute in the instant case to locate
Ramesh Kumar, son of Deepchandji. Thus it is necessary to summon all
concerned who know about him. This can be done only by finding out first the
whereabouts of Ramesh Kumar and his father Deepchandji. Before we make any
further order, we heed a report in this behalf, we accordingly direct the
Commissioner of Police Madras City to depute a Senior officer to locate Ramesh
Kumar, son of Deepchandji 29 Venkataramiar Street, Mint Street cross, Madras-
79 and report to this Court. For the purpose of appearance of Ramesh Kumar,
son of Deepchandji in the instant case, let a bailable warrant of arrest issue.
The report must reach this Court within ten days. Post on 10-2-1992.
7 . There is nothing on record to show who informed the Bench wrongly that notice
issued to Ramesh Kumar returned with endorsements 'No such name and 'No such
person'. Nor is there any record to show who raised a dispute as to whether such a
person existed at all or somebody else impersonated. There is no material on record
warranting the direction to the Commissioner of Police or issue of a bailable warrant of
arrest.
8 . On 10-2-1992, when the matter was called in Court, there was no report from the
Commissioner of Police and the Bench passed the following order: "Send express
reminder to the Commissioner of Police, Madras to expedite the report pursuant to the
order of this Court on 29-1-1992. Report by two weeks." It is the case of the applicant
that on 10-2-1992, Ramesh Kumur appeared before the Bench in the 4th Court Hall but
the first Respondent herein refused to record his presence suspecting him to be an
imposter even though the second Respondent herein was present in Court to identify
him. It is also the case of the applicant that Ramesh Kumar had left for Rajasthan after
taking delivery of the machinery and returned only during the second week of February,
1992, when he made a courtesy call on the second Respondent herein, who informed
him of the warrant of arrest issued against him and requested him to appear in person
before the Division Bench. On 14.2.1992, the applicant herein filed vakalath of Ramesh
Kumar in the appeal. That was returned by the Registry for want of stamp for The
Tamilnadu Advocates Welfare Association Fund on 18-2-1992. The applicant
represented it on 21.2.1992 with the endorsement that he is not a member of the
Advocates Welfare Fund and the stamp is not necessary.

9 . As directed by the Bench, the matter was posted on 24-2-1992. The applicant
appeared before Court along with his client Ramesh Kumar. The Court in the first
instance passed the order: "It is stated by Mr. Ranka that the vakalathnama which has
been returned has been resubmitted. Let that be traced and placed on record. Pass
over." Obviously, after the Vakalath was placed before the Bench, the applicant was
directed to produce his client. According to the applicant, as soon as the auction
purchaser appeared before Court, the Bench lost no time to direct some police officer at
once to arrest him and put him in Jail. The Bench passed an order referring to its earlier
orders dated 12-11-1991,29-1-1992 and 10-2-1992. Then the Bench proceeded to say
that no petition or affidavit has been filed on behalf of Ramesh Kumar and there was no
prayer to recall the order passed on 29-1-1992. The Bench said that the stand of the
auction purchaser on the facts was not known as there was no petition before it. After
referring to the address of Ramesh Kumar found in the receipt issued by the
Commissioner, the Bench said:
Thus, if the articles have to be located, they have to be found with Ramesh
Kumar, C/o. Rajsukh Corporation, 17, IInd Floor, Matajee Business Complex,
No. l, Wallers Lane, Mount Road, Madras-600 002: Factory, 724, Mount Road,
Near Anand Theatre, Madras-600 006. Until any further order is passed, item 4,
Otari video cassette tape winding machine has to be kept in "as is where is
condition". That can be achieved by a direction to the Advocate-Commissioner
to forthwith proceed and seize the same and deliver in the custody of Ramesh
Kumar or some other person, fully identified by him with a seal of his own put
on it so that it may not be used, removed or appropriated in any manner.
(7) There is no application to recall the bailable warrant on behalf of Ramesh
Kumar. There is no undertaking on his behalf that he shall appear at the next
hearing or shall make any. petition in the proceeding which he may make as a
matter of right. However, on the facts of the instant case, since he has already
entered appearance, we may not allow the warrant to continue if the purpose
for which the order has been passed is achieved by the visit of the Advocate-
Commissioner to the premises of Rajsukh Corporation aforementioned and/or
its factory. It is, however, necessary that before Ramesh Kumar is allowed to
leave the Court, he gives an undertaking in writing duly identified by a counsel
of this Court that he shall appear at the next hearing in person and shall take
such orders that this Court may finally pass in the proceeding. Accordingly,
Ramesh Kumar is directed to give the undertaking as above in writing in the
course of the day. In case such undertaking is not filed, he may be sent to a
local prison and kept in civil prison at the cost of the Appellant. The warrant,
however, is recalled. The Advocate-Commissioner is directed as above to
proceed forthwith and report compliance by tomorrow.
(8) Let a copy of this order issue in the course of the day and a copy delivered
to the Advocate-Commissioner for the needful. Put up the matter again on
26.2.1992.
10. Later in the day, an affidavit of undertaking was filed by Ramesh Kumar. The Bench
recorded the same and directed his release. On 26-2-1992 when the matter was called,
the Bench passed the following order in. C.M. PiNo. 14947 of 1991:
Application Nos. 14946 and 14947 of 1991 have already been ordered. They
stand disposed of by the reason of the order passed in C.M.P. No. 14947 of

1991. The order "The auction-purchaser-Respondent shall keep the equipments
in 'as is where is condition', however, stands achieved as it appears from the
report of the Advocate-Commissioner who acted pursuant to the order of this
Court dated 24-2-1992 in the main appeal itself. A prayer has been made on
"behalf of the auction-purchaser who has been added as a Respondent in this
appeal to give him time to file counter-affidavit. The counter-affidavit, if any,
thus is required only in C.M.P. No. 14947 of 1991. Put up the said application
after four weeks along with the appeal.
We searched the records thoroughly but we do not find any order in the two
applications C.M.P. Nos. 14946 and 14948 of 1991. We have chosen to cull out the facts
from the original records of this Court as the applicant had no occasion to look into
them. In order to decide the important question raised in this case, we have considered
it necessary to ascertain the facts fully and correctly and place them on record here.
11. Thereafter Ramesh Kumar filed C.M.P. Nos. 3478 to 3480 of 1992 with the applicant
herein as his counsel. In the affidavits filed in support of the applications, the
maintainability of the appeal was challenged. The description of Ramesh Kumar as a
party to the appeal in its cause title was also challenged. The affidavit referred to the
fact that the Commissioner compelled him to swear to another affidavit on 25-2-1992 to
his detriment in spite of his having already filed an affidavit of undertaking on 24-2-
1992 in Court. Ultimately it is stated that he was not interested in item No. 4 and he
wanted back the sum of Rs. 1,75,000/- paid by him to the Commissioner together with
interest at 18% per annum from the date of seizure thereof, that is, 25-2-1992. Thus,
the prayers in the three petitions were mainly to direct the advocate-Commissioner to
repay the sum of Rs. 1,75,000/- paid by him as the price for item No. 4 to vacate the
order of injunction passed in C.M.P. Np.14947 of 1991 and to direct the Appellant in the
appeal to pay a sum of Rs. 50,000/- by way of compensatory costs and compensation
for obtaining personal arrest of the Petitioner therein and an order of injunction
respecting item No. 4, machinery.
1 2 . The appeal was ultimately disposed by order dated 22-4-1992. The appeal was
allowed and the case was remitted to the trial Court. The auction sale in favour of
Ramesh Kumar was set aside and he was declared entitled to withdraw the purchase
money, if any, deposited in Court. We are not concerned with the disposal of the appeal
as such. The applicant, however, refers to some portions of the judgment in order to
sustain his prayer in this application. We have already referred to C.M.Ps. 3478 to 3480
of 1992 filed by Ramesh Kumar. Referring to the said petitions, the Bench said:
They have all been filed on behalf of Ramesh Kumar through Mr. M. Ranka.
Nothing with respect to the merit of the appeal or the conduct of the auction
sale is stated therein. Nothing is stated which shall have any bearing on the
merits of the appeal or the validity of the auction sale. What is stated therein,
to say the least, has to be described as an attempt to brow-beat the Court or to
scandalise the Court. We would have avoided even these observations and
ignored the petitions but for the fact that it is not a first or new for Mr. M.
Ranka. He has been making such applications scandalising the Courts and
Judges and in the past, has been once, in a writ petition himself before this
Court. A Bench of this Court, of which one of us was a member, had to deal
with a petition filed by Mr. M. Ranka, in which he prayed for a mandamus
directing the Chief Justice not to post cases in which he appeared as a counsel
before a Bench of which Nainar Sundaram J., (as he then was) was a member.
The Bench, with utmost constraint, had to say in the judgment in Ranka, M. v.

Honourable Chief Justice of Tamil Nadu 1991 2 LW 225 as follows:
Why should a counsel unless he has got some preconceived ideas think
that any order as above was unjust and unfair or such order was
passed to harass his clients? We do not wish to say and we make it
clear that we do not intend these words to be read as any stigma,
censure or condemnation of what the Appellant did. Yet, we are saying
because we must say that it would be only to scandalise the Court by
creating the story of some anguish arising out of the so called crisis of
confidence in the Bench, if such story is taken to the fourth Respondent
who is an officer of the Court who could not and cannot do anything in
the matter or to the Chief Justice in Chambers or any Court or in the
two petitions. W.P.S.R. No. 60735 of 1990 before S. Ramalingam J.
and or W.P. No. 18704 of 1990 and the present writ appeal. Everything
stated to have happened subsequently was created by the Appellant.
Nothing happened in the Court that ordinarily does not happen in the
proceedings before it. The Appellant could not just assume that a
particular Bench of the Court was making orders in which he appeared
because it was angry or hostile. If there were orders that could not
have been posted and caveators were not satisfied, they had a right of
appeal, if not under any other provision under A136 of the Constitution
of India. The Appellant could not, for that reason, find a new
jurisdiction in the Chief Justice of the Court or in any other person to
seek transfer of his cases from one Bench of the Court to another
Bench of the Court.
For the reason that we know that it will be difficult to remind Mr. Ranka that he is an
Officer of the Court, that he has got a duty towards the Court, and that he shall act as
an advocate to assist the Court, we propose to ignore all the petitions which have been
filed through him. We cannot, however, but express our concern that a person who
entered the premises of the Court as an auction purchaser, and that too, in the
circumstances which we shall hereinafter notice, has been made to file petitions in this
proceeding stating things which can never be truly to his knowledge. Many of the
statements therein we do not propose to advert, appear to have been introduced and
forced into his mouth. All that has happened in course of this proceedings in relation to
the second Respondent-Ramesh Kumar has been duly recorded in one or the other
order. Even today, he has not clarified how and why he gave two different addresses
and it is not known why a wrong address was furnished in the proceeding on his behalf,
when in fact, he had obtained a receipt with the Advocate-Commissioner mentioning a
different location and a different address. It is not understandable as to how a person
who has been under the threat of arrest and a bailable warrant for his appearance in the
proceeding issued under the orders of the Court declined to make any petition for the
recall of the warrant of arrest. The Court had one and only concern to ensure that the
property involved in the appeal was brought back into the custody of the Court. That
has been achieved, though by the methods that have been already recorded by us.
Ramesh Kumar, by violating the undertaking has clearly committed contempt of Court.
(Underlining ours.)
We are informed that the petitions have not yet been posted for disposal. The Petitioner
contends that petitions filed in this Court cannot be disposed by simply being ignored.
According to him, however grave the sin of the party or his counsel may be, the
petitions have to be given a disposal according to law. of course, the prayer for

repayment of Rs. 1,75,000/- has been granted in the main appeal itself. The other
prayers remain undisposed.
1 3 . It is alleged by the applicant in his affidavit in this proceeding that during the
course of dictating the judgment in the appeal, Justice Mishra announced that he was
inclined to direct the Bar Council of Tamilnadu to remove the applicant's name from the
Rolls and invited Mr. R. Gandhi, the President of the Advocates' Association to give his
views. It is stated that when Mr. Gandhi entered the Court hall, the applicant was
directed by the learned Judge to go out and he complied with the said direction. But the
records of the Court do not contain any reference to the same. The judgment in the
appeal does not mention it.
1 4 . This petition was presented on 13-7-1992 with the prayer to 'deal with the
Respondent No. l in accordance with Law for committing contempt of his own Court and
Respondent No. 2 for committing contempt of this Hon'ble Court. The provision of law
quoted in the petition is Article 215 of the Constitution of India read with Section 16 of
the Contempt of Courts Act (70 of 1971). The first Respondent is Justice Mishra and the
second Respondent is the advocate-commissioner. It is not necessary to set out in detail
the averments contained in the affidavit as the points raised therein have been argued
in extenso before us and we will be referring to the same. The Registry returned the
papers pointing out certain defects and also requiring production of written consent of
the Advocate General. The Petitioner represented them giving his answers and stating
that the consent of the Advocate General was not necessary. The Registry returned the
papers again stating that in view of the principle enunciated in MANU/BH/0019/1986 :
A.I.R.1986 Pat 65 (F.B.), the petition is not maintainable. The Petitioner represented the
papers setting out his contentions. The matter was posted before a Division Bench
comprising Justice Ratnam and Justice Somasundaram for orders on maintainability.
They heard the Petitioner on 19-8-1992 and 20-8-1992 and reserved orders. The Bench
heard further arguments on 16-11-1992 and reserved orders once again. On 13-4-1993,
the Bench passed an order, the relevant part of which reads as follows:
In response to the request made for posting the Diary before Court for orders
regarding its maintainability, the matter has come up before us and in view of
the rather unusual nature of the proceedings and the reliefs sought, we thought
it right as well as appropriate to invite the Petitioner at a Preliminary hearing so
as to satisfy ourselves whether the stand of the Petitioner or that of the Registry
is right. Accordingly, the Petitioner appeared before us and argued the matter in
person at great length and with persuasion combined with moderation. Indeed,
the arguments addressed covered a very wide range touching upon the
jurisdiction of the Court under the Law of Contempt and whether such
jurisdiction could be extended to proceed against the first Respondent, the
scope of Section 15 of the Contempt of Courts Act, the necessity of obtaining
the consent of the Advocate General under that Section, the scope of operation
of Section 16 of the Contempt of Courts Act in relation to the first Respondent
and the correctness of the decision of the Full Bench of the Patna High Court
reported in Harish Chandta v. Justice S. Ali Ahmed MANU/BH/0019/1986 : AIR
1986 Pat 65 (FB). Though in the course of the arguments the Petitioner
strenuously attempted to sustain the stand taken as per the endorsements in
the return and compliance referred to earlier, ultimately, on the matter being
posted again for further supplementing the arguments already advanced, the
Petitioner prayed that having regard to the importance of the questions
agitated, it would be appropriate and proper that the matter is considered and
dealt with by a larger Bench in order to settle and set at rest authoritatively, the

several questions, which have arisen. We have given our anxious thought to the
request so made by the Petitioner and we are also of the view that several
important questions of far-reaching consequences arises for decision and,
therefore, this is eminently a fit matter to be considered and dealt with by a
larger Bench. Accordingly, we direct the entire matter to be placed before a
larger Bench and the Registry is directed to take the necessary steps in this
regard as early as possible.
15. This Bench was constituted by the Chief Justice to hear this matter and thus it has
come before us. We heard the Petitioner on 27-10-1993, 1-11-1993, 4-11-1993 and 9-
11-1993. On 1-11-1993 before the hearing began, we pointed out to the Petitioner that
certain expressions used in his affidavit are objectionable and should be removed. He
submitted that he would be able to justify the user of those expressions but, however,
expressed his willingness to delete the same. As he stated that the expressions pointed
out by us may be treated as deleted, we passed an order recording the same and
proceeded with the hearing, treating the said expressions as deleted.
16. The first contention of the Petitioner is that the Registry ought to have numbered
the petition and taken it on file. The requirements of the Rules framed by this Court
under the Contempt of Courts Act have been satisfied in this case. He draws our
attention to Rule 3 and 4 and submits that numbering a case is ministerial and the
Registry cannot refuse to number a case once the papers are in conformity with the
Rules.
The said rules read thus:
(3). Every case initiated for contempt of Court under the Contempt of Courts
Act, 1971 or under any other law, shall be received by the First Assistant
Registrar (Original Side) and registered as a contempt case.
(4). Every application for contempt shall be in the form of a petition
accompanied by an affidavit specifying details of the contempt alleged together
with all the documents in support thereof.
Learned Counsel submits that Rule 3 is mandatory inasmuch as it used the expression
'shall'. According to him, if the requirements of Rule 4 are Complied with, the Registry
has no option but to register the case under Rule 3. He places reliance on the judgment
of Andhra Pradesh High court in Hakeen Raltimullah Khan v. Syed Sabir Alias Syed
Makhdeem and Ors. MANU/AP/0011/1980 : 1981 Cri. L J. 395. A Division Bench of the
Court held that in the absence of any specific Rule requiring the Petitioner in a contempt
petition to file all the orders or documents referred to in the petition it is not open to
the Registry to return the petition for filing all papers referred to therein, much less,
insist upon filing those material papers in triplicate duly stitched in book form, paged,
indexed and authenticated. It is stated that while the Registry would not be competent
to return the petition, the Court may find that there is no sufficient material before it to
warrant initiation of proceeding. Our attention is also drawn to an observation made by
a Division Bench of this Court in the Advocate-General of Tamil Nadu. v. R.M. Krishna
Raju I.L.R. (1981) Mad 246 that the Court is governed by the Contempt of Courts Act
and the Rules in the matter of procedure and that there is no provision either in the Act
or in the Rules for third parties allowed to intervene in contempt proceedings. Neither of
the above rulings has a direct bearing in this case.
17. But there is considerable force in the contention of Learned Counsel. Theoretically it
appears to be well founded. In every proceeding in this Court, there are four stages: (l)

Presentation, (2) Filing, (3) Admission and (4) Final hearing. Whenever any proceeding
is presented, the Registry enters the same in the Stamp Register or General Diary. The
serial number of the proceeding represents the number of the proceeding presented in
the year. In this Court, matters presented on the Original Side are entered in the
register called Diary and the serial number is known as Diary Number. In fact, this
petition is bearing Diary No. 14283/92. On the appellate Side, the registers are called
Stamp Register and Unstamped Register. If a proceeding is filed with Court-fee stamps
affixed, it is entered in the Stamp Register and papers which do not bear Court-fee
stamps such as memos or affidavits filed independently and not as part of a proceeding
bearing Court-fee stamps will be entered in the unstamped Register. Then the Registry
scrutinises the papers and if the requirements of the rules are satisfied, they will be
passed and taken on file. At that stage, they will be entered in the registers separately
kept for each class of proceeding. A suit will be entered in the Suit Register; an Original
Petition will be entered in the O.P. Register; an appeal will be entered in the Register
for Appeals. The serial number in such register is the number by which the proceeding
will be referred to thereafter. From that number one will be able to know the class of
the proceeding. For example, a Contempt Petition is numbered as C.A. No..../93. An
appeal is numbered as A.S. No...../93. A suit on the Original Side of this Court is
numbered as C.S. No..../93. That number will show the number of the proceeding taken
on file in the year. Taking the case on file by assigning a number to the proceeding
does not tantamount to admission of the case. After the proceeding is taken on file,
some matters are posted before Court for admission and some matters are admitted by
an Official in the Registry according to the Rules, for example, an appeal under Section
96, Code of Civil Procedure, is admitted by the Deputy Registrar automatically after it is
taken on file. Similarly, a Civil Suit is admitted by an Officer in the Original Side. In this
Court, Contempt Petitions are posted for admission before Court. At that stage, counsel
for the Petitioner, is heard and if the Court is satisfied that there is a prima facie case,
the Court admits the petition and directs issue of notice to the Respondent. The last
stage of the proceeding is the final hearing of the matter when both sides will be heard.
Thus, the first two stages, viz., presentation and filing are matters attended to by the
Registry while the last two stages viz., admission and final hearing' are done by the
Court. The Registry is concerned only with the procedural requirements and "the
scrutiny of papers in any proceeding presented is only for the purpose of ascertaining
whether proper stamps are affixed, whether the petition or plaint is in the prescribed
form and whether the papers required by the rules to be enclosed are filed, etc. The
Registry is certainly bound to see whether this Court has jurisdiction to entertain the
proceeding or whether the proceeding should be presented in some other Court. Once it
is found that this Court has jurisdiction and the Rules relating to the Form and Court-
fees are satisfied, the Registry is bound to take the proceeding on file and give a
number to it. A distinction must be made between want of jurisdiction and non-
maintainability on other grounds. In the case of former, the proceeding cannot be taken
on file at all. In the later case, the proceeding can be taken on file and posted before
Court for orders as to maintainability. No doubt, the Registry must raise the objection
as to jurisdiction as well as non-maintainability on other grounds. If the party or
counsel accepts the objections of the Registry and takes back the papers, there ends the
matter. But if the party or counsel contends that the objections of the Registry are
unsustainable, the question must be decided by the Court However, the practice in this
Court has always been to place the papers before the concerned Judge for orders
whenever the Registry has a doubt as to the maintainability or jurisdiction. The Judge,
on perusal of the papers, directs the Registry to take the proceeding on file and assign a
number to it if he disagrees with the office and finds that the objection taken by the
office is unsustainable. If on the other hand he finds that the office objection is well

taken, he causes the matter to be called in open Court and hears the counsel or the
party if the latter appears in person. Depending on his, orders after such hearing, the
Registry takes further steps in the matter. In this Court, the Registry does not make any
distinction between objection as to jurisdiction and objection as to maintainability on
other grounds.
18. The practice has been in vogue for quite a long time and in no case, the Registry
takes a decision on its own to reject the papers. In all cases of doubtful maintainability,
the matter is heard by the Court and orders are passed. Hence, it makes no difference to
the litigant whether the proceeding bears a Diary Number or Stamp Register Number or
a number which is assigned after it is taken on file. In this case also, the Petitioner has
not suffered any prejudice by the petition not being registered and taken on file. We
have heard him fully not only on the question of maintainability but also its fitness for
admission on a prima facie case being made out. We are of the view that this petition
should be numbered for two
(1) This petition is directed not only against a Judge of this Court but also against the
Advocate-Commissioner by name R. Subburam. There is no question of a petition being
not maintainable against him. In so far as he k concerned, the question will be whether
a prima facie case is made out in the affidavit for admission of the petition and issue of
notice to him. (2) Secondly, this is the first time the question has arisen in this Court
and being an important one, it is heard by this Full Bench. This is a Court of Record and
in order to make the papers in this proceeding a part of the record of this Court for
future reference and guidance, the petition must be taken on file. Hence, the Registry is
hereby directed to number the Contempt petition and take it on file. This order will be
the order in the said Contempt Petition.
19. The next contention of the Petitioner is that a written consent of the Advocate-
General is not necessary for maintaining this petition According to him, such consent is
not a condition precedent and the relevant Section in the Contempt of Courts Act
confers discretionary powers on this Court to exercise its jurisdiction even without such
a consent. It is contended that the provision in the section is not mandatory and it is
only directory. It is also submitted by the Petitioner that the Court can take suo motu
action against the Respondents on the basis of the information contained in this
petition. He has made oral prayer for taking such suo motu action.
2 0 . Section 15 of the Contempt of Courts Act prescribes the modes by which the
Supreme Court or this Court can be moved in a contempt matter. Sub-section (l) of
Section 15, which is relevant in this case reads as follows:
In the case of a criminal contempt, other than a contempt referred to in Section
14, the Supreme Court or the High Court may take action on its own motion or
on a motion made by:
(a) the Advocate-General, or
(b) any other person, with the consent in writing of the Advocate-
General, 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.

While the first part of the Sub-section preserves the power of the Court to take action
on its own motion, the latter part refers to motions which can be made by others. The
objection raised by the Registry is based on Clause (b) of Sub-section (1).
The Section refers to Criminal contempt other than that mentioned in Section 14. That
Section deals with contempt in the face of the Court, The power of this Court to take
action against a person for committing contempt is not derived from the Section. It is
an inherent power of the Court as recognised by Article 215 of the Constitution of India,
which declares that every High Court shall be a court of record and shall have all the
powers of such a court including the power to punish for contempt of itself. This power
is available whether any application is made before the Court or not. If the provision in
the Section relating to the consent of the Advocate-General in writing is considered to
be mandatory, then it will be in conflict with the inherent power of the Court recognised
not only by the Constitution of India but also by the first parts of the very same section.
Hence the two parts of the section should be interpreted harmoniously in such a way
that the latter part does not impinge upon or cut down the power of the Court
recognised in the first part of the Section.
2 1 . The question is not res integra and the above principle has been laid down in
several rulings. In C.K. Daphtary v. O.P. Gupta MANU/SC/0065/1971 : AIR 1971 S.C.
1132, the Court said that advocates of that Court including the President of the Supreme
Court Bar Association were perfectly entitled to bring to its notice any contempt of that
court. The petition in that case was filed by Shri C.K. Daphthary and three other
advocates bringing to the notice of the Court the contempt alleged to have been
committed by the Respondents in the petition. The following paragraphs in the
judgment are relevant:
(92.) In this connection we may also deal with his objection in Para 10 of the
application that the Petitioners have no locus standi this Court can issue a
notice suo mom. Further, the advocates of this Court, including the President of
the Supreme Court Bar Association, are perfectly entitled to bring to our notice
any contempt of this Court.
(93.) The first Respondent referred to Lord Shaweross Committee's
recommendation that "proceedings should be instituted only if the Attorney-
General in his discretion considers them necessary". This is only a
recommendation made in the light of circumstances prevailing in England. But
it is not law. We may mention that the Attorney-General in England has quite a
different position than the Attorney-General of India or the Advocates-General
of the States. The Attorney-General in England is a member of the Cabinet, and
as far as we are aware, unlike the Attorney-General in India, he does not have
to receive instructions, from Government whether to move a contempt petition
or not.
(94.) Be that as it may, there is nothing in law which prevents this Court from
entertaining a petition at the instance of the President of the Supreme Court Bar
Association and three other advocates of the Court. The Bar is vitally concerned
in the maintenance of the dignity of Courts and the proper administration of
justice.
22. In the matter of B. Yegnanarayaniah AIR 1974 Mad 313 : 1974 L.W. (CrI.) 228 a
Division Bench of this Court had to consider whether the Court had jurisdiction to
initiate contempt proceedings suo motu even in the case of a civil contempt. The Bench,

after referring to several earlier judgments, said that the Court had jurisdiction to
initiate "contempt proceedings suo motu even in a civil contempt and that no particular
form of procedure is necessary so long as the proceedings are initiated giving an
opportunity to the contemner to defend himself and that A.21 of the Constitution is not
violated in any way thereby.
23. In Board of Revenue, U.P. v. Vinay Chandra MANU/SC/0506/1980 : AIR 1981 S.C.
723, it was held that Sub-section (2) of Section 15 of the Contempt of Courts Act did
not restrict the power of the High Court to take cognizance of and punish contempt of a
Subordinate Court on its own motion. It is to be noted that Sub-section (2) of Section
15 does not make any reference to the suo motu power of the High Court to take action.
Under that Sub-section, the Court may take action on a reference made to it by the
subordinate Court or on a motion made by the Advocate-General. Dealing with that
aspect of the matter, the Supreme Court said:
(18.) It is, however, to be noted that Section 15 does not specify the basis or
the source of information on which the "High Court can act on its own motion.
If the High Court acts on information derived from its own sources, such as
from a perusal of the records of a subordinate Court or on reading a report in a
newspaper or hearing a public speech, without there being any reference from
the subordinate Court or the Advocate-General, it can be said to have taken
cognizance on its own motion. But if the High Court is directly moved by a
petition by a private person feeling aggrieved, not being the Advocate-General,
can the High Court refuse to entertain the same on the ground that it has been
made without the consent in writing of the Advocate-General? It appears to us
that the High Court has, in such a situation, a discretion to refuse to entertain
the petition or to take cognizance on its own motion on the basis of the
information supplied to it in that petition. If the Petitioner is a responsible
member of the legal profession, it may act suo motu. more so, if the Petitioner-
advocate, as "in the instant case, prays that the Court should act suo motu. The
whole object of prescribing these procedural modes of taking cognizance in
Section 15 is to safeguard the valuable tie of the High Court or the Supreme
Court from being wasted by frivolous complaints of contempt of court. If the
High Court is prima facie satisfied that the information received by it regarding
the commission of contempt of a subordinate Court is not frivolous, and the
contempt alleged is not merely technical or trivial, it may, in its discretion, act
suo motu and commence the proceedings against the contemner. However, this
mode of taking suo motu cognizance of contempt of a subordinate Court,
should be resorted to sparingly where the contempt concerned is of a grave and
serious nature. Frequent use of this suo motu power on the information
furnished by an incompetent petition, may render these procedural safeguards
provided in Sub-section (2), otiose. In such cases, the High Court may be well
advised to avail of the advice and assistance of the Advocate-General before
initiating proceedings. The advice and opinion, in this connection, expressed by
the "Sanyal Committee is a pertinent reminder: "In the case of criminal
contempt, not being contempt committed in the face of the Court, we are of the
opinion that it would lighten the burden of the Court, without in any way,
interfering with the sanctity of the administration of justice, if action is taken on
a motion by some other agency. Such a course of action would give
considerable assurance to the individual charged and the public at large.
Indeed, some High Courts have already made Rules for the association of the
Advocate-General in some categories of cases at least... the Advocate-General
may also, move the Court not only on his own motion but also at the instance

of the court concerned....
(19.) In the peculiar circumstances of the instant case, we do not think that the
High Court has acted improperly or illegally in taking suo motu cognizance on
the petition of the Respondent-advocate.
(underlining mine)
2 4 . In State of U.P. v. Radhey Shyam Tripathi MANU/UP/0273/1983 : 1983 Cri.
L J.1153, a Division Bench of the Allahabad High Court said that there was not even any
necessity for an affidavit by the Petitioner in order to take action in contempt. The
Bench observed that the Court could take notice of the contumacious act without any
extraneous aid and information to the Court could come from any source and
proceedings could be initiated by Court suo motu without any affidavit.
25. The question arose directly before a Full Bench of five Judges in Harish Chandra
Mishra v. Vie Hon'ble Mr. Justice S. Ali Ahmed MANU/BH/0019/1986 : AIR 1986 Pat 65.
Three advocates of the Patna High Court filed an application alleging that a Judge of
that Court had committed contempt of Court by making insulting and uncharitable
remarks against an Advocate while hearing a civil revision application for admission.
That application was dismissed on the ground that the written consent of the Advocate-
General was not obtained and that an application for punishing a Judge of the High
Court for contempt was not maintainable. In so far as the requirement of the written
consent of the Advocate-General is concerned, three of the learned Judges-N.P. Singh,
J., S.K. Choudhuri, J. and Uday Sinha, J. held that it was absolutely necessary without
which the application was not maintainable. Reference was made by them to several
earlier cases including that of the Supreme Court in Vinay Chandra's case
MANU/SC/0506/1980 : AIR 1981 S.C. 723. After referring to the judgment of the
Supreme Court in U.N.R. Rao v. M. Shanmugavel MANU/SC/0080/1976 : AIR 1977 S.C.
639, it was observed:
In my view, this judgment of the Supreme Court indirectly supports the view
that requirement of written consent in application for initiating proceeding for
criminal contempt by private individual is a must. The framers of the Act
consciously wanted to put a bar on the power of private individuals while
charging any persons for having committed criminal contempt of a court with
an object to curtail vexatious petitions for settling personal scores, being filed
by persons who are purporting to uphold the majesty and dignity of Court. A
criminal contempt is primarily a matter between the Court and the contemner
and not a matter between a citizen and the contemner. Every citizen has no
unfettered right in this respect because in some cases he may act more out of
personal prestige and vendetta than out of motive to uphold the dignity of
Court. In order to safeguard such a situation the framers of the act thought it
that a restriction should be imposed on such applications being filed directly
and required them to be filed with the Written consent of the Advocate-General
who holds a constitutional position and can scrutinise any such application
before coming to Court. In my opinion, the application filed on behalf of the
Petitioners without the consent in writing of the Advocate-General cannot be
entertained, and, as such, is not maintainable.
2 6 . With great respect to the learned Judges, We are unable to accept that the
judgment of the Supreme Court in U.N.R. Rao's case MANU/SC/0080/1976 : AIR 1977
S.C. 639, indirectly supported the view that written consent of the Advocate-General is
necessary. In U.N.R. Rao's case MANU/SC/0080/1976 : AIR 1977 S.C. 639, the consent

of the Advocate-General had been factually obtained by the applicant before filing the
petition for contempt. Overlooking that fact, the High Court dismissed the application as
not maintainable. When the Supreme Court found that there was consent in writing of
the Advocate-General factually, the judgment of the High Court was set aside and the
matter was remanded for disposal in accordance with law. No inference can be drawn
from that judgment that the Supreme Court accepted the proposition that the written
consent of the Advocate-General is necessary before any petition for taking action in
contempt is considered. It is too well settled that a decision is only an authority for
what it actually decides. In State of Orissa v. Sudhantu Sekhar Misra
MANU/SC/0047/1967 : AIR 1968 S.C. 647, the Court said at pages 651 and 652:
A decision is only an authority for what it actually decides. What is of the
essence in a decision is its ratio and not every observation found therein nor
what logically follows from the various observations made in it. On this topic
this is what Earl of Halsbury LC said in Quinn v. Leathern 1901 AC 495:
Now before discussing the case of Allen v. Flood (1898) AC 1 and what
was decided therein, there are two observations of a general character
"which I wish to make, and one is to repeat what I have very often said
before, that every judgment must be read as applicable to the particular
facts proved, or assumed to be proved, since the generality of the
expressions which may be found there are not intended to be
expositions of the whole law, but governed and qualified by the
particular facts of the case in which such expressions are to be found.
The other is that a case is only an authority for what it actually decides.
I entirely deny that it can be quoted for a proposition that may seem to
follow logically from it. Such a mode of reasoning assumes that the law
is necessarily a logical code, whereas every lawyer must acknowledge
that the law is not always logical at all.
It is not profitable task to extract a sentence here and there from a
judgment and to build upon it.
The said proposition was reiterated by the Supreme Court in Sreenivasa General Traders
v. State of A.P. MANU/SC/0278/1983 : (1983) 4 SCC 353 : 96 LW 159 (SC) (SN) at
page 379.
The Supreme Court said:
A case is an authority only for what it actually decides and not for what may
logically follow from it. Every judgment must be read as applicable to the
particular facts proved, or assumed to be proved, since the generality of the
expressions which may be found there are not intended to be expositions of the
whole law but governed or qualified by the particular facts of the case in which
such expressions are to be found.
27. In the above/tana case (MANU/BH/0019/1986 : AIR 1986 Pat 65), Birendra Prasad
Sinha, J. expressed a dissenting opinion. He said that he did not agree that an
application filed without the consent in writing of the Advocate-General was not
maintainable. However, be proceeded to say that on the facts of the case, he was not
inclined to exercise his discretion in favor of the Petitioners and dismissed the
application on that point alone. The relevant observations are found in the following
passage:

24. The provision of Section 15(1) (b) of the Act is not just for nothing and
cannot be dealt with in the manner it has been done in the present case. This
provision has been inserted with a definite purpose so that unnecessary and
frivolous cases are hot allowed to be brought before the Court. The Advocate-
General of a State is the leader of the Bar of the State. In the present case the
Advocate-General wanted only a few days' time to look into the matter before
either giving or refusing his consent but the Petitioners were not willing to heed
to his advice. The Bench and the bar are the two vital limbs of our judicial
system and nothing should be done on either side in haste to impair the age old
cordial relationship between these two limbs. It is no mean achievement of this
system that in spite of strains and stresses the Bench and the Bar have
maintained the ideal and harmonious relationship. When the Advocate-General
was trying to make some effort in this behalf the Petitioners were only ill
advised to pre-empt the whole thing. This is a circumstance which has got to be
considered while exercising the discretion of the Court for taking any suo motu
action on an application under Section 15(1)(b) of the Act. It is not a case
where consent of the Advocate-General has been refused. It is also not a case
where consent of the Advocate-General was not sought for at all. This is a case
where after applying for the consent of the Advocate-General the Petitioners
rushed to this Court when they were told by the Advocate-General that he might
settle the matter outside. I would not exercise my discretion in such a case in
favour of the Petitioners and dismiss the application on this point alone.
28. The other learned Judge P.S. Sahay, J. agreed with the majority that the application
before the Full Bench was not maintainable in view of Section 15(1)(b) of the Act.
However, he proceeded to observe that in appropriate cases, the Court can take
cognizance under Section 15(l) when the matter comes to its knowledge. He said:
I fully agree that this application is not maintainable in view of Section 15(1)
(b) of the Act. But, at the same time in appropriate cases, when the matter
comes to the knowledge of the Court, cognizance can be taken under Section
15(l) of the Act. From the facts stated in this application this is one of those
cases which requires consideration, more so, when the matter has been brought
to our notice. A Judge has every right to control the proceeding of the Court in
a dignified manner and, in a case of misbehaviour or misconduct on the part of
a lawyer, proceedings in the nature of contempt can be started against the
lawyer concerned. But, at the same time a Judge cannot make personal remarks
and use harsh words in open Court which may touch the dignity of a lawyer and
bring him to disrepute in the eyes of his colleagues and litigants. Lawyers are
also Officers of the Court and deserve the same respect and dignity which a
Judge expects from the members of the Ban In my opinion, this application
cannot be brushed aside and has been rightly contended by the Learned
Counsel for the Petitioners that the matter can be resolved only after issuance
of notice to the opposite party.
29. In Vijay Kumar v. The D.I.G. of Police MANU/KE/0186/1986 : 1987 Cri. L.J. 2018, a
single Judge of the Kerala High Court has, while holding that the requirement of written
consent of the Advocate-General is mandatory expressed his opinion that under certain
peculiar circumstances, the Court can be moved in the form of giving information and
praying that the Court itself could take action on its own motion. The relevant passage
in the judgment reads thus:
(9.) It is clear that the Sub-section delineates the limit to three types of motion.

The Section plainly keeps out and puts under a ban a private citizen from
setting criminal contempt in motion unless he makes the motion with the
consent of the Advocate General. So far as criminal contempt of this Court is
concerned, a controlling rein has been anchored to the power of taking action
for contempt at the instance of a private citizen. The clear intention behind this
restraint is to eliminate vindictiveness, malice or a desire to harass by
exploiting the contempt of court action. of course, the High Court or the
Supreme Court must initiate the action itself if so satisfied or the Advocate
General must intervene, and make a motion or must give his consent in writing
for the making of a motion by a private citizen. The power of an initial
screening is given to the Advocate General, for the obvious reason that the
Advocate-General being highest law officer in the State, is rightly considered to
be the most " competent functionary with whom this power can safely be
entrusted with, since he will be jealously guarding the dignity of the Court. I
am of opinion that Section 15 places clearly a statutory bar on a citizen moving
the High Court or the Supreme Court for taking action for punishment for
criminal contempt without complying with the third alternative mentioned in the
section. But, I feel that under certain peculiar circumstances, a party to a
proceeding can make a motion in the form of giving information to the Court
praying the Court itself to take action on its own motion. I can treat this
application as an application of laying information about certain facts which the
Petitioner feels, would amount to contempt of this Court, for this Court's
examination as to whether this Court should initiate action on its own motion.
3 0 . In P.N. Duda v. P. Shiv Shanker MANU/SC/0362/1988 : AIR 1988 S.C. 1208,
Ranganathan, J. said:
Section 15 is quite clear that the written consent of only those officers "as have
been specifically authorised by the Section would be taken note of for
entertaining a petition under the section. But this does not in any way, deprive
the Petitioner of his remedy as he can come to Court, as indeed he has done
requesting the court to take suo motu action.
3 1 . In Vidya Charan Shukla v. Tamil Nadu Olympic Association, K. Murugan
MANU/TN/0059/1991 : 1991 2 L.W.295, a Full Bench of this Court described the
jurisdiction of this Court in contempt matters as a special jurisdiction. The relevant
passage in the judgment reads thus:
2 7 . Thus this Court's special Jurisdiction as well as inherent jurisdiction to
make orders ex debito justitiae on the one hand and to punish for its contempt
on the, other, cannot be doubted and if a jurisdiction exists in a court, the
Court always has the right and duty to exercise that power as effectively as
possible as it is always an inherent jurisdiction of the Court to make its power
effective even though there is no specific provision of law to cover that
particular power.
(28.) Article 215 of the Constitution has made no distinction between a civil
contempt or a criminal contempt and covers the whole field of litigation, civil or
criminal and anything that tends to curtail or impair the freedom of the limbs of
the judicial proceedings. The courts in their attempt to identify the nature of
contempt have noticed however three different sorts of contempt viz., (1)
scandalising the Court itself, (2) abusing parties who are concerned in causes
before it and (3) prejudicing mankind against persons before the case is heard.

We need not however wander into this arena as the Parliament has enacted the
Contempt of Courts Act, 1971 and defined "contempt of court" to mean civil
contempt or criminal contempt, "civil contempt" to mean wilful disobedience to
any judgment, decree, direction, order, writ or other process of a court or wilful
breach of an undertaking given to a court" and, "Criminal contempt" to mean
the publication 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 scandalises or tends to scandalise or lowers or tends to lower
the authority of any Court or prejudices or interferes or tends 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 present appeal is concerned with civil contempt only although it is
conceded before us that there are several allegations in the contempt
application, which make out a case of criminal contempt. Civil contempt is thus
essentially concerned with the enforcement of judgment, decree, direction,
order, writ or other process of a Court. The administration. of justice can only
be effective if it has the means to enforce the court's judgment and orders. That
is why civil contempts are also called contempt in procedure. Courts also do not
easily resort to the contempt procedure. Contempt is a blunt weapon. It is used
sparingly and only in cases where when it is found difficult to generate
obedience and respect for the court or when a court attempts to secure
obedience to its orders, directions etc., or to elicit respect to it. It rarely does
any such thing to grandiose its officers of the manpower including the judges.
It does so, first to undo the wrong done and secondly to ensure that the
administration of justice is not brought into a scorn or ridicule because there is
no interest of the Court, which is not public interest.
3 2 . In Delhi Judicial Service Association, Tis Hazari Court v. State of Gujarat
MANU/SC/0478/1991 : AIR 1991 S.C. 2176, the Supreme court referred to the fact that
the High Court and the Supreme Court are courts of Record having powers to punish for
contempt, but rejected the contention that it had no power to take action for a contempt
of a Chief Judicial Magistrate's Court. Referring to the expression "Court of record" used
in Article 129 and 215 of the Constitution of India, the Court said:
(19.) Article 129 provides that the Supreme Court shall be a Court of Record
and shall have all the powers of such "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 including the power to punish for
contempt of itself. The Constitution does not define "Court of Record". This
expression is well recognised in juridical world. In Jowitt's Dictionary of English
Law, "Court of Record" is defined as:
A Court whereof the Acts and Judicial Proceedings are enrolled for a
perpetual memorial and testimony, and which has power to fine and
imprison for contempt of its authority.
In Warton'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 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
"record" of the Court, and are of such high and super eminent authority 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 are 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.
After tracing the law in England and the law laid down by judicial pronouncements by
that Court prior to the enactment of the Contempt of Courts Act, 1971, the Court
observed:
(25.) 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 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 exception to this power was made in Sub-section
(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
Contempt 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 has and exercise
in respect of contempt of itself. Section 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 Parliamentary 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 enactments. The effect of these statutory provisions
was considered by this Court in Sukhdew Singh Sodhi's case (AIR 1954 S.C.
186), and the Court held that contempt jurisdiction was 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
jurisdiction or create any offence, it merely limited the amount of punishment
which could be awarded to a contemner. The jurisdiction 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
MANU/SC/0065/1972 : AIR 1972 S.C. 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 jurisdiction. 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.
Proceeding to refer to Section 15 of the Contempt of Courts Act, 1971, the Court said:
(27.) Under Sub-section (l) 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 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, 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 procedural modes of taking cognizance in Section 15 is to safeguard
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 contempt of itself or of a
subordinate court on its own motion although apparently the section does not
say so.
3 3 . In Contempt Application Diary No. 8648 of 1993, by order dated 13-7-1993, a
Division Bench of this Court comprising Ratnam and Somasundaram, JJ. held that the
application was not maintainable without obtaining the consent of the Advocate-General
in writing, which was a condition precedent. The Bench observed:
(5.) Regarding the third aspect, we find that Section 2(c) of the Act defines
criminal contempt and even according to paragraph 16 of the affidavit, the
Respondent had committed a grave and gross criminal contempt. If, even
according to the applicant, the alleged contempt is of a nature which falls under
Section 2(c)(iii) of the Act, then under Section 15(1)(b) of the Act, the High
Court may take action on a motion made by any other person with the consent
in writing of the Advocate General. In this case, the Petitioner has not
approached the Advocate General to obtain a written consent. However, what

was urged was, before such consent is sought for and obtained, the period of
one year prescribed under Section 20 of the Act may run out. We are unable to
see any basis for this totally erroneous assumption. We have every reason to
believe that if the applicant should move the Advocate General for his consent
in writing as envisaged under Section 15(1)(b) of the Act, it will be looked into
and considered and appropriate orders passed, well before the expiry of the
period of one year. We, therefore, hold that the application is not maintainable
without satisfying the condition precedent of obtaining the consent in writing of
the Advocate General under Section 15(1)(b) of the Act.
34. The same question came to be considered by another Division Bench, comprising of
the Hon'ble the Chief Justice and Somasundaram, J. in Mrs. Saroj Goenka v. Vivek
Goenka and Ors. in C.A. No. 330 of 1993 : Contempt Application Diary No. 12513 of
1993. The Bench held that even without the written consent of the Advocate-General,
the application was maintainable and the Court could take action on the same. The
Bench relied on the observations made by the Supreme Court in C.K. Daphthary v. O.P.
Gupta MANU/SC/0065/1971 : 1971 (1) S.C.C. 626 : AIR 1971 S.C. 1132 already
extracted in this judgment and said:
(5.) Thus, the view taken by us receives support from the aforesaid decision of
the Supreme Court. In our view, filing of a petition by a party to the proceeding
through a member of the Bar and filing of a Petition by the President of the Bar
Association for taking suo motu action should not make any difference.
However, Learned Counsel has brought to our notice a Division Bench decision
of this Court in Contempt Application Diary No. 8648 of 1993 dated 13.7.1993,
to which one of us (Somasundaram, J.) was a party. It is relevant to notice that
in that decision the first portion of Section 15 viz., "may take action on its own
motion" was not pressed for consideration and as such, this aspect of the
matters, not considered. Therefore, we are of the view that the point raised for
consideration before us as to maintainability of the complaint has not been
urged for consideration and is not considered in Contempt Application Diary No.
8648 of 1993. As such, the said decision cannot be held to cover the point in
question.
3 5 . With respect, the view expressed by the Division Bench in the latter case is in
accord with the principles laid down by the Supreme Court in the cases already referred.
The written consent of the Advocate-General is not a condition precedent and the Court
has a discretion to act on the information contained in the petition. The Petitioner is
after all an informant and the proceeding in contempt is not a list between him and the
Respondents. Hence, We hold that this petition cannot be thrown out as not
maintainable for want of the written consent of the Advocate-General. The contents of
the affidavit filed in support of the petition could be looked into by this Court and it is
open to the Court to decide whether an action should be taken for contempt against the
Respondents.
3 6 . The next question is whether a petition to punish a Judge of this Court for
committing contempt of his own Court is maintainable. The Patna High Court has
answered it in the negative in Shri Harish Chandra Mishra and Ors. v. T Jie Hon'ble Mr.
Justice S. Ali Ahmed MANU/BH/0019/1986 : AIR 1986 Pat 65. There is no other decision
of any Court in India directly considering the question, the Petitioner contends that the
view expressed by the Patna High Court is not correct as it is based on a wrong
interpretation of Section 16 of the Contempt of Courts Act, 1971. According to the
Petitioner, the Parliament has introduced Section 16 in the Act deliberately using the

expression "a judge, Magistrate or other person acting judicially", which will
undoubtedly include a judge of the High Court. So long as there is no express exclusion
of the Judges of the High Court, there is no question of restricting the scope of its wide
amplitude or its application to judges of all Courts high or low. Section 9 and 22 of the
Act do not at all impinge upon the operation of Section 16. There is no ambiguity in the
Section. The provisions of the Act have widened the Court's jurisdiction in contempt
matters. In R.L. Kapur v. State of Tamil Nadu MANU/SC/0065/1972 : AIR 1972 S.C.
858, the Supreme Court said that 'the effect of Section 5 of the Act is only to widen the
scope of the existing jurisdiction of a special kind and not conferring a new
jurisdiction'. In Shri Baradakanta Mishra v. Shri Bhimsen Dixit MANU/SC/0067/1972 :
AIR 1972 S.C. 2466, the Supreme Court said that the absence of a precedent should not
preclude an act being held to be contempt merely because it is novel or unusual,
provided it is comprehended by the principles underlying the law of Contempt of Court.
Reading a few passages from K.J. Aiyar's 'Law of Contempt of Courts, Legislatures and
Public Servants' (8th Edition), the Petitioner argued as follows: The Act has only
classified contempt into Civil Contempt and Criminal contempt and not defined the
expression 'Contempt of Court;. That expression has not been defined by the
Constitution or any other enactment. A contempt can assume any form, any act, any
slander, any contemptuous utterance which may affect administration of justice or
impede fair trial. The question has to be decided in the facts and circumstances of the
case. Contempt of Court does not postulate any mens tea, any mental element such as
intention or knowledge or even reason to believe to accompany the act. The offence is
one of absolute liability, lying in the evil tendency of the act, irrespective of whether or
not there is subjective guilt.
37. Relying upon the judgment of a Division Bench of the Karnataka High Court in K.
Adiharayana v. S. Mariyappa 1984 Cri.L J. 992, the Petitioner submitted that the
jurisdiction to make an order for contempt is, per se, neither civil nor criminal but is sui
generis. The Petitioner drew our attention to the following passage in the judgment of
the Supreme court m H.C. Puttaswamy v. The Hon'ble Chief Justice of Karnataka High
Court MANU/SC/0062/1991 : AIR 1991 S.C. 295 at pages 298 and 299:
(11.) The Judiciary is the custodian of constitutional principles which are
essential to the maintenance of rule of law. It is the vehicle for the protection of
a set of values which are integral part of our social and political philosophy.
Judges are the most visible actors in the administration of justice. Their case
decisions are the most publicly visible outcome. But the administration of
justice is just not deciding disputed cases. It involves great deal more than
that. Any realistic analysis of the administration of justice in the Courts must
also take account of the totality of the Judges behaviour and their
administrative roles. They may appear to be only minor aspects of the
administration of justice, but collectively they are not trivial. They constitute, in
our opinion, a substantial part of the mosaic which represents the ordinary
man's perception of what the Courts are and how the judges go about their
work. The Chief Justice is the prime force in the High Court. Article 229 of the
Constitution provides that appointment of officers and servants of the High
Court shall be made by the Chief Justice or such other Judge or Officer of the
Court as may be directed by the Chief Justice. The object of this Article was to
secure the independence of the High Court which cannot be regarded as fully
secured unless the authority to appoint supporting staff with complete control
over them is vested in the Chief Justice. There can be no disagreement on this
matter. There is imperative need for total and absolute administrative
independence of the High Court. But the Chief Justice or any other

Administrative Judge is not an absolute ruler. Nor he is a free wheeler. He must
operate in the clean world of law, not in the neighbourhood of sordid
atmosphere. He has a duty to ensure that in carrying out the administrative
functions, he is actuated by same principles and values as those of the Court he
is serving. He cannot depart from and indeed must remain committed to the
constitutional ethos and traditions of his calling. We need hardly say that those
who are expected to oversee the conduct of others must necessarily maintain a
higher standard of ethical and intellectual rectitude. The public expectations do
not seem to be less exacting.
38. The Petitioner attempted to draw support from the judgment of the Supreme Court
in K. Veeraswami v. Union of India MANU/SC/0610/1991 : (1991) 3 SCC 655, holding
that Section 5 and 6 of the Prevention of Corruption Act, 1947 are applicable to Judges
of High Courts and Supreme Court, including the Chief Justice of India. According to
him, the ruling in that case has declared that Judges of the High Courts stand on the
same pedestal as any layman in the matter of criminal offences and a fortiori, the
Judges will be liable also for contempt of Court. Our attention is drawn to the following
passage in the judgment:
(56.) There are various protections afforded to Judges to preserve the
independence of the Judiciary. They have protection from civil liability for any
act done or ordered to be done by them in discharge of their judicial duty
whether or not such judicial duty is performed within the limits of their
jurisdiction. That has been provided under Section 1 of the Judicial Officers
Protection Act, 1850. Likewise, Section 77, IPC gives them protection from
criminal liability for an act performed judicially. Section 77 states that "nothing
is an offence which is done by a Judge when acting judicially in the exercise of
any power which is, or which, in good faith he believes to be, given to him by
law". A discussion on the conduct of Judges of the High Courts and the
Supreme Court in the discharge of their duties shall not take place in the State
Legislatures or in Parliament (Article 121 and 211). The High Courts and the
Supreme Court have been constituted as Courts of Record with the power to
punish anybody for committing contempt. (Article 129 and 215). The Contempt
of Courts Act, 1971 (Act 70 of 1971) provides power to "the Court to take civil
and criminal contempt proceedings. But we know of no law providing protection
for Judges from criminal prosecution. Article 361(2) confers immunity from
criminal prosecution only to the President and Governors of Slates and to no
others. Even that immunity has been limited during their term of office. The
Judges are liable to be dealt with just the same way as any other person in
respect of criminal offence. It is only in taking of bribes or with regard to the
offence of corruption the sanction for criminal prosecution is required.
39. It is submitted that the above principle is projected in Section 16 of the Contempt
of Courts Act. Reliance is placed on the following passages in V.G. Ramachandran's
'Contempt of Court", 5th Edition:
The remedy is not lost even if the offending Judge was a Judge of the High
Court. The matter can be heard by a specially-constituted Bench of the High
Court. (page 730).
This humble Author's view view was noticed by Justice William Doughlas and
approved by him as but the logical culmination of the Anglo Saxon concept of
the law of contempt. This humble writer's opinion was later accepted by the

Parliamentary Committee (before which he tendered evidence). That Committee
set earnestly to effect changes in the law of contempt. The result was the
incorporation of Section 16 in the Contempt of Courts Act, 1971 which enables
statutory enforcement of contempt by Judge of his own court. Vide Ch. III for
Comment under Section 16. The procedure to be adopted in case of contempt
by a Judge of his own court is not clearly set out in the 1971 Act This may be
effected under the rule making power in Section 23 of that Act., (Pages 735 and
736).
40. Finally, the Petitioner referred to the case pending in the Supreme Court against
Ramaswami, J. to punish him for contempt of Court. It is argued that the Supreme
Court has taken the case on file only because it is maintainable.
41. We are unable to accept the contentions of Learned Counsel. With regard to the last
of the contentions, it can be immediately pointed cut that the Supreme Court has not
decided the question and we understand that the maintainability of the petition is one of
the issues raised in that case. The law of contempt in India prior to the passing of the
relevant enactments was developed by Courts by following the English practice. The law
in England is set out in Halsbury's Laws of England, Fourth Edition, Vol. 1, pages 197 to
201. Paragraphs 206 to 208 are relevant which read as follows:
206. Persons protected. - Persons exercising judicial functions in a court are
exempt from all civil liability whatsoever for anything done or said by them in
their judicial capacity, nor can any action be brought against the Crown in
respect of acts or omissions of persons discharging responsibilities of a judicial
nature or in connection with the execution of judicial process. A further
protection arises from the rule that the record of a Court of record cannot, if
subsisting and valid upon its face, be traversed in any action against the judge
of that court.
207. Reasons for protection. The object of judicial privilege is not to protect
malicious or corrupt judges, but to protect the public from the danger to which
the administration of justice would be exposed if the persons concerned therein
were subject to inquiry as to malice, or to litigation with those whom their
decisions might offend. It is necessary that such persons should be permitted to
administer the law not only independently and freely and without favour, but
also without fear.
208. Requirements for Protection. To entitle any person to the protection of
judicial privilege, the proceedings out of which the action arises must be the
judicial proceedings of a tribunal which is, in the eyes of the law, a court. The
protection applies to all courts of justice and to certain other courts having
similar attributes. Thus, among courts of justice it has been applied not only to
the superior courts, but also to inferior Courts of Record and to inferior courts
of justice not of record. The protection is also applied to analogous tribunals
acting judicially. It is not, "however, sufficient that the tribunal should be
acting judicially; it must also be a court or authorised tribunal.
42. In Sirros v. Moore and Ors. (1974) 3All ER 776. the Court of Appeal dealt with the
law on the subject. The Plaintiff in that case was fined-by Magistrate for breach of the
Aliens Order 1953. The Magistrate made a recommendation that he be deported; but he,
directed that the Plaintiff should not be detained pending the Home Secretary,s decision
whether he should be deported. The Plaintiff appealed to the Crown Court against the

recommendation for deportation. The appeal was heard by a circuit judge and two
Magistrates. The Judge accepted the prosecution's submission that the Court had no
jurisdiction to hear the appeal and dismissed the appeal. When the Plaintiff was going
out of the Court, the Judge sent police officers to stop him,. They found him in the
street and brought him back to the cells. When the matter was called in Court, his
counsel submitted that he should not be detained and prayed for bail. The judge refused
to grant bail and the Plaintiff was kept in custody. A writ of habeas corpus was issued
by the Divisional Court on the ground that the circuit judge has become, functus officio
when he ordered the Plaintiff to be detained. The Plaintiff claimed damage for assault
and false imprisonment against the Defendants, the Circuit Judge and the Police Officers
who had acted on the Judge's orders in detaining him. The Court of Appeal held that the
Plaintiff had no cause of action against the judge in respect of the unlawful detention.
Lord Denning Mr. said:
The liability of the judge who acts within jurisdiction Ever since the year 1613,
if not before, it has been accepted in our law that no action is maintainable
against a Judge for anything said or done by him in the exercise of a
jurisdiction which belongs to him. The words which he speaks are protected by
an absolute privilege. The orders which he gives, and the sentence which he
imposes, cannot be made the subject of civil proceedings against him. No
matter that the judge was under some gross error or ignorance, or was actuated
by envy, hatred and malice, and all uncharitableness, he is not liable to an
action. The remedy of the party aggrieved is to appeal to a Court of Appeal or
to apply for habeas corpus, or a writ of error or certiorari, or take some such
step to reverse his ruling. Of course, if the judge has accepted bribes or been in
the least degree corrupt, or has perverted the course of justice; he can be
punished in the criminal courts. That apart, however, a Judge is not liable to an
action for damages. The reason is not because the Judge has any privilege to
make mistakes or to do wrong. It is so that he should be able to do his duty
with complete independence and free from fear. It was well stated by Lord
Tenterden CJ in Garnett v. Feirand( (1824) 34 All ER rep. 244 at 246).
This freedom from action and question at the suit of an individual is
given by the law to the Judge, not so much for their own sake as for
the sake of the public, and for the advancement of justice, that being
free from actions, they may be free in thought and independent in
judgment, as all who are to administer justice ought to be.
Those words apply not only to judges of the superior courts, but to judges of
all ranks, high or low. Lord Tenterden C.J. spoke them in relation to a coroner.
They were reinforced in well-chosen language in relation to a County Court
judge by Kelly CB in Scott v. Stansfield (1868) LR 3 Exch 220 at 223; and to
Colonial Judge by Lord Esher Mr in Anderson v. Gorrie (1895) 1 QB 668 at 671.
2. Acts without jurisdiction
So much for acts done by a judge within his jurisdiction. I must now turn to
acts done outside his jurisdiction. And here a distinction must be drawn
between inferior courts and the superior courts of record. * * *
(ii) The superior courts
But the superior courts were never so strict against one of themselves. There is
no case in our books where a Judge of a superior court has ever been held

liable in damages. Even though a Judge of superior court has gone outside his
jurisdiction nevertheless, he is not liable, so long as he is acting judicially.
Conclusion
The judge had no jurisdiction to detain Sirros in custody. The Division Court
were right to release him on habeas corpus. Though the judge was mistaken,
yet he acted judicially and for that reason no action will lie against him.
Likewise, no action will lie against the police officers. They are protected in
respect of anything they did at his direction, not knowing it was wrong; see
London Corporation v. Cox (1867) LR 2 HL 239 at 269 per Willes, J.
I would, therefore, dismiss the appeal.
Buckley L.J. observed that the Crown Court was an inferior court when exercising its
appellate jurisdiction; but the Circuit Judge was acting within his jurisdiction when he
directed the Plaintiff to be detained in custody and although he adopted an erroneous
course of procedure he was immuned from personal liability to the Plaintiff. He said :
In my opinion, there is in truth no difference between the principle applicable in
the case of a Judge of a superior court and that applicable in the case of an
inferior Court.
Any difference that may arise in the operation of the rule between the one case
and the other is due to the difference in jurisdiction; see per Lord Eaher MR in
Anderson v.Gorrie (1895) 1 QB, 671. In determining whether a Judge is liable
for some act which he purports to have done in his judicial capacity, the sole
question may, I think, be said to be whether it was an act coram non judice. If
he were not then performing a judicial function, the act was not coram judice
and the judge has no protection. If he was purporting to perform a judicial
function but the matter was such that he had not jurisdiction to adjudicate on
it, again the act was not coram judice because he had no authority to act as a
judge for that purpose, and again he is without protection. If, however, he did
the act in question in the purported performance of his judicial function and it
was within his jurisdiction, then the act was coram judice and the judge is
protected notwithstanding any error in his reason for doing the act or his
method of doing it.
43. Ormrod L.J. agreed with Lord Denning Mr. that Crown court was a superior court of
record and the Judge was, therefore, immune. He said that though the Judge had
assumed a power which he did not have, he had not exceeded the limits of the court's
jurisdiction. As to the meaning of the word 'jurisdiction' in the context, the learned Lord
Justice said:
The use of the word 'jurisdiction' in this context requires careful examination,
because, as Diplock LJ. pointed out in W v. W (1927) I KB 804, a distinction
must be drawn between questions which are strictly questions of jurisdiction
and questions which relate to the powers which the court can exercise in the
course Of exercising jurisdiction. In my judgment, in the present context the
word is used in its strict sense. In other words, a Judge of an inferior court acts
outside his jurisdiction when he exceeds the limits imposed on his court; but
not when, having jurisdiction over the subject-matter, he assumes a power
which has not been given to him. Whether this is in accordance with the well-
known antithesis in the Marshalsea case ((1612) 10 Co Rep 762) between acts

which are 'inverso ordine' and acts which are 'coram non judice', I do not know,
because I find it virtually impossible to appreciate now the precise meaning
which these phrases conveyed to Coke and his contemporaries. I hope, and
think it is. It is certainly consistent with the cases up to and including Houlden
v. Smith (1850) 14 QB 841.
44. In India, the first enactment relating to the Law of Contempt was passed in 1926.
The Contempt of Courts Act, 1926, contained only three Sections. Section 2 recognised
the pre-existing jurisdiction of the High Court of Judicature in respect of Contempt of
Courts subordinate to them. Section 3 described the limit of punishment. That Act was
replaced by the Contempt of Courts Act, 1952. The Preamble described it as 'an Act to
define and limit the powers of certain Courts in punishing contempts of Courts. That Act
only expanded the existing jurisdiction of the High Court and reaffirmed the inherent
power of the Court of record in the matter of contempt. In neither of the enactments,
there was any provision providing for punishing Judicial Officers for contempt. It must
be borne in mind that the Judicial Officers' Protection Act, 1850 continues to be in force
even now. No doubt, it has been held that the Act cannot be used as a shield in
proceedings under the Contempt of Courts Act. (Vide Jai Prakash v. Ram Sarup AIR
1958 Pun 471. In fact, the only Section of the Act provides that 'no judge, Magistrate,
Justice of the Peace, Collector or other person acting judicially shall be liable to be sued
in any Civil Court. The Proviso enjoins that the Judicial Officer must have believed in
good faith to have jurisdiction to do or order the act complained of. The Government of
India Act declared that the Federal Court and the High Court were Courts of Record and
had power to punish for contempt of themselves. (Vide Section 203 and 220). The same
is reiterated in Articles 129 and 215 of the Constitution of India with reference to the
Supreme Court and the High Courts respectively. Thus, the statutory law which was in
Force in 1971 when the present Contempt of Courts Act (70 of 1971) was passed, had
no express provision to punish a Judicial Officer for contempt of Court. But, the power
of the High Court to punish a member of the subordinate Judiciary for contempt was
being exercised as and when necessity arose. There was no occasion when a Judge of
the High Court was sought to be punished for contempt of itself. However, an attempt
was made before the Federal Court to punish the Judges of the High Court of Judicature
at Lahore for contempt of the Federal Court in refusing to grant Certificate of Fitness of
an appeal to be taken to the Federal Court. The case is reported in K.L. Gauba v. The
Hon'ble the Chief Justice and Judges of the High Court of Judicature at LahoreAIR 1942
F.C. 1 : 55 L.W.3 F.C.K.L. Gauba, an Advocate of Lahore High Court was involved in
litigations of various kinds, including a case connected with his insolvency. A Special
Bench of the High Court of Lahore was constituted to decide his matters. His objection
that a particular Judge should not sit on the Special Bench was rejected. He applied for
grant of certificate under Section 205 of the Government of India Act to file an appeal
against the said order to the Federal Court. That was dismissed. He filed a petition
before the Federal Court for issue of directions to transfer his case to Federal Court
from the High Court. He contended 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 an appeal against its orders. That contention was rejected and the
petition filed by him was dismissed. The Federal Court said that it had no jurisdiction to
entertain an appeal without a certificate from the High Court. It was pointed out that the
refusal of the High Court to grant a certificate cannot be questioned before the Federal
Court.
In that context, the Court said:
If we assume for the moment that a High Court can in such circumstances be

guilty of a contempt of this Court, what follows? Even Mr. Gauba does not
suggest punishment by fine or imprisonment; he would be contented that the
High court should be served with an order to grant the certificate hitherto
perversely or maliciously withheld. But what is that but to ask this Court to do
by indirect means what it is admitted that it cannot do directly? The law of
contempt of Court has at times been stretched very far in British India; but no
one has ever contended that a Court could use its power to punish for contempt
for the purpose of extending its jurisdiction in other matters.
Thus, in that case, the question which has arisen here was not decided. Therefore, when
the present contempt of Courts Act was passed by the Parliament in 1971, there was
neither a judicial pronouncement nor a statutory provision to the effect that a Judge of
the High Court can be proceeded against for contempt of his own Court.
4 5 . The present Act is said to be the outcome of public agitation demanding a
comprehensive statute on the subject A Committee headed by the Solicitor-General of
India, called the Sanyal Committee, held a detailed enquiry and made a report dated
28-2-1963. The Bill drafted by the Sanyal Committee underwent many changes and
ultimately it was introduced in the Rajya Sabha on 29-2-1968. A motion for reference of
the Bill to a Joint Committee of the Houses was adopted on 27-11-1968, to which the
Lok Sabha concurred by a motion on 14-2-1968. The Joint Committee headed by a
Member of Parliament, again made a detailed inquiry examining many jurists, experts
and publicists and made a report on 20-2-1970. It was only at that stage, the provision
for Section 16 of the Act was introduced. Such a provision was not there in the original
Bill introduced in 1968. The Bill became an Act after some changes and it came into
force on 24-12-1971. According to V.G. Ramachandran's 'Contempt of Court', 5th
Edition, the then Law Minister, Shri H.R. Gokhale was reluctant to include in Section 16
the provision as to contempt of Court by a Judge of his own Court. But, the opinion of
the House was overwhelmingly in favour of. such a provision. We have already
extracted a passage in the same book in which he has made a reference to his tendering
evidence before the Parliamentary Committee. The question is whether Section 16 as
found in the Act would include within its scope a Judge of the High Court. No doubt, the
Section has used the general expression "a Judge, Magistrate, or other person acting
judicially". Normally, the expression would be wide enough to include a Judge of the
High Court.
But, the other provisions of the Act and the state of law that was prevailing at the time
of the passing of the enactment cannot be ignored. We have already pointed out that
there was no provision for proceeding against a Judge of the High Court for contempt of
his own Court before the Act was passed. In the Act, there are two important provisions
which enable the Court to construe Section 16 appropriately. Section 9 of the Act reads
thus:
Nothing contained in this Act shall be construed as implying that any
disobedience, breach, publication or other act is punishable as contempt of
court which would not be so punishable apart from this Act.
The terms of the Section are very clear. The expression "nothing contained in this Act"
would undoubtedly include the provisions of Section 16. In an Act is not punishable as
contempt of Court otherwise than under the provisions of this Act, it would continue to
be so and it cannot be considered to be punishable under this Act. In other words, the
Act does not enlarge the field of contempt. Conversely, Section 22 provides that the
provisions of the Act shall be in addition to and not in derogation of the provisions of

any other law relating to contempt of courts. According to that S, if an act is punishable
as contempt of Court under any other law, the present Act does not interfere with the
same. The provisions of the Act should be read in addition to such provisions in other
laws. Thus, the two Sections bring out clearly the intention of the Parliament not to
disturb the law of contempt which existed before passing the enactment. Turning to
Section 16 itself, it is seen that it is expressly made 'subject to the provisions of any
law for the time being in force'. In V.G. Ramachandran's 'Contempt of Court', 5th
Edition, at page 426, it is said that the opening words of Section 16 'subject to the
provisions of any law for the time being in force' are sufficiently indicative of the right
of a Judge to invoke the provisions of the Judicial Officers' Protection Act, XVIII of 1850
and Section 77 of the Indian Penal Code.
4 6 . A reading of the three Sections 9, 16 and 22 together shows that the law of
contempt as it existed in 1971 was not altered by the provisions of Section 16. If the
intention of Parliament had been to include a Judge of the High Court within the ambit
of the Section, it should have expressly provided therefore. The contention of the
Petitioner that in the absence of an express provision excluding a Judge of the High
Court, the terms of the Section would apply to such a Judge is unsustainable in view of
the pre-existing law and the provisions of Section 9 and 22 as well as the opening
words of Section 16. The fact that the Parliament did not intend to change the law by
the provisions of Section 16 is also evident from a later enactment viz., the Judges
(Protection) Act, 1985. The said Act No:59 of 1985 was passed by the Parliament 'for
securing additional protection for Judges and others acting' judicially and for matters
connected therewith'. A 'Judge' is defined by Section 2 of the Act as not only every
person who is officially designated as a Judge, but also every person who is empowered
by law to give, in any legal proceeding, a definitive judgment or a judgment which, if
not appealed against, would be definitive, or a judgment which, if confirmed by some
other authority, would be definitive; or who is one of a body of persons which body of
persons is empowered by law to give such a judgment. S3 reads as follows:
(1) Notwithstanding anything contained in any other law for the time being in
force and subject to the provisions of Sub-section @9-POINT: (2), no court
shall entertain or continue any civil or criminal proceeding against any person
who is or was a Judge for any act, thing or word committed, done or spoken by
him when, or in the course of, acting or purporting to act in the discharge of
his official or judicial duty or function.
(2) Nothing in Sub-section (1) shall debar or affect in any manner the power of
the Central Government or the State Government or the Supreme Court of India
or any High Court or any other authority under any law for the time being in
force to take such action whether by way of civil, criminal, or departmental
proceedings or otherwise against any person who is or was a Judge.
The Statement of Objects and Reasons of the said enactment reads thus:
Judiciary is one of the main pillars of Parliamentary democracy as envisaged by
the Constitution. It is essential to provide for all immunities necessary to enable
Judges to act fearlessly and impartially in the discharge of their judicial duties.
It will be difficult for the Judges to function if their actions in court are made
subject to legal proceedings, either civil or criminal.
47. No doubt, the Act refers only to civil or criminal proceedings and a proceeding in
contempt has always been recognised as sui generis and a special jurisdiction. It has

been held in some cases that a proceeding in contempt is quasi-criminal in nature.
Whatever it may be. the intention of the Parliament is made explicit by the provisions of
that Act. In the light of what is stated above, we have no doubt in holding that a Judge
of the High Court cannot be proceeded against for contempt of his own Court. In Shri
Harish Chandra Mishra v. The Hon'ble MrJustice S. Ali Ahmed MANU/BH/0019/1986 :
AIR 1986 Pat 65, N.P. Singh, J. said thus:
In view of Section 9 nothing contained in the Act shall be construed as implying
to make an act punishable as contempt of court which would not have been so
punishable apart from the Act. In other words an act or action which was not
contempt of court before the Act came in force shall not be punishable as
contempt of court under the Act. The provisions incorporated in the Act are
supplemental to already existing law of contempt as interpreted by the Supreme
Court and different High Courts. Now in this background can it be said that
Section 16 has purported to enlarge the scope of the Act to cover even the acts
and actions of the Supreme Court and High Court Judges while administering
justice and to make them punishable under the provisions of the Act, having
said in Section 9 that nothing shall be punishable as contempt of court which
would not be so punishable apart from the Act? In this connection it may also
be pointed out that Section 16 opens with the words "Subject to the provisions
of any law for the tie being in force.", which means that Section 16 is subject to
the existing law which was in force before the Act was enacted. On the day the
Act came in force neither the Supreme Court nor any High Court had held that
even a Judge of the Supreme Court or High Court was answerable to a charge
of contempt of court. If the framers of the Act wanted to make a change in this
respect they should have introduced a non obstante clause in Section 16 by
saying "notwithstanding anything contained in any other law," instead of
making it subject to the law for the time being in force. The Judges of the
subordinate courts were liable to be punished for having committed contempt
of superior courts or of their own court even before the Act came in force in
view of series of judgments of different courts. Reference in this connection
may be made to a Full Bench judgment of the Lahore High Court in the case of
Mohanmed Shafi v. Quadir Bakhsh MANU/LA/0007/1949 : AIR 1949 Lah 270
and Bar Association and Library, Moradabad v. Kothari, S.D.M. 1966 All WR
(HC) 197. In view of Section 9 and the language of Section 16 itself it has to be
held that Section 16 does not purport to enlarge the scope of the Act by
including even the Judges of the Courts of Record. In my opinion, it only gives
statutory recognition in respect of contempt of Court committed by Judges and
Magistrates presiding over subordinate courts.
With respect, we agree with the above observations.
48. There is no substance in the contention of the Petitioner that there was difference of
opinion even among the Judges of the Full Bench of the Patna High Court. Among the
five Judges, it was only Birendra Prasad Sinha, J, who expressed his dissent, but he has
not discussed the question. He was content with saying "it is not possible for me to
agree with the proposition that the Judges of the High Courts and Supreme Court are
immune from a contempt of court proceeding". Sahay, J. expressed his concurrence
with N.P. Singh, J. in the following words:
(27.) But, the moot question for consideration is whether such a notice can be
issued to a Judge of the High Court for committing contempt of his own Court?
Section 16 has been quoted in extenso in the main judgment and it is not

necessary to reproduce the same. Does the expression "Judge" refer to the
Judge of the High Courts or the Subordinate Judge alone has to be decided in
this case? "Judge" has not been defined under the Act of 1971 and in previous
Acts of 1926 and 1956 "Judge" of the High Courts were immune from the
provisions of the two Acts. There are decisions that High Courts are Courts of
Records, and, therefore, empowered to initiate contempt proceedings against
Subordinate Courts. Now this has been incorporated in the Constitution and
under Articles 129 and 215 Supreme Court and High Courts are Courts of
Records. The argument that under the Act of 1971 the position is different and
the decisions will not be attracted. But much will depend on the interpretation
of Section 16 of the Act. In absence of any specific provision it has to be
decided on the basis of some of the provisions of the Act, observations of the
Supreme court and High Courts and some of the Articles of the Constitution.
Section 9 of the Act says in clear terms that the provisions of the Act of 1971 is
not to imply enlargement of the scope of contempt and, therefore, it can be
legitimately argued that though the word "Judge" has been used in Section 16,
it cannot be stretched so as to include the Judges of the 'High Court and refer
only to the Judges of the Subordinate Court. I have given my most anxious
consideration to the submissions of Mr. Rash Bihari Singh and the Advocate-
General and the case law discussed by N.P. Singh, J. and, in my opinion, it is
not possible to accept the contention of Mr. Singh that a Judge of the High
Court will also be liable for contempt under Section 16 of the Act.
49. In the result, we hold that the petition is not maintainable as against Mr Justice
Mishra (first Respondent).
50. The Petitioner argued that a prima facie case is made out to issue notice to the
Respondents and call upon them to file counter affidavits. The argument is developed as
follows: The first Respondent is guilty of contempt inasmuch as he deprived Ramesh
Kumar, a citizen of this country, of his personal liberty for a few hours and caused him
to be kept in detention. He has also contravened the provisions of Article 300A of the
Constitution of India inasmuch as he deprived Ramesh Kumar of his property purchased
by him in Court auction. The first Respondent is guilty of abuse of process of Court. The
Judge had no jurisdiction to do so, as the main O.S. Appeal preferred by the first
Defendant was unsustainable and ultra vires. The inclusion of the name of Ramesh
Kumar in the cause title of the appeal was ah interpolation and he ought not to have
been treated as a party to the appeal. In fact, there could be no appeal proceeding
against Ramesh Kumar, who was a purchaser of movable property in an auction sale
held by the Court through its Commissioner. According to the provisions of Order 21,
Rule 77 and 78 of the Code of Civil Procedure, Ramesh Kumar had become the absolute
owner of the property purchased by him and no irregularity in the sale would vitiate the
same. The only remedy available to any person sustaining injury by reason of such
irregularity is to institute a suit for compensation and no appeal could have been filed
as against the auction purchaser. The Court was in error in not considering the
application for impleading Ramesh Kumar as a Respondent in the appeal and proceeding
as if the same had already been ordered. The Judge was also guilty of contempt as he
directed the Petitioner herein, who was appearing as counsel for Ramesh Kumar, to go
out of the Court in the course of dictating the judgment in the appeal and making
observations against him in the judgment. The Judge had acted maliciously by ignoring
the three petition filed by Ramesh Kumar, only because the Petitioner was his counsel.
The observations made by the Judge in the judgment in the appeal against the
Petitioner herein should be expunged by this Bench while exercising the jurisdiction in
contempt.

51. We do not propose to consider the merits of the above contentions, as it is wholly
unnecessary in the view we have expressed. If the petition had been filed against a
member of the subordinate Judiciary, we would have considered the above contentions.
As we are holding that the petition against a Judge of this Court is not maintainable,
there is no need for discussing the above contentions of the Petitioner.
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MANU/TN/0637/1993

IN THE HIGH COURT OF MADRAS

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