Kerala High Court
Berely vs Xavier And Anr. on 6 August, 1986
Equivalent citations: 1988CRILJ90
JUDGMENT U.L. Bhat, J.
1. An affidavit was filed before the Sessions Judge alleging that he committed contempt of his own Court, with a request to make reference to the High Court under Section 15(2) of the Contempt of Courts Act, 1971 (for short 'the Act'). Learned Sessions Judge declined to make reference. This action is challenged under Article 226 of the Constitution of India.
2. Petitioner herein is one of the accused in Sessions Case 61/1985 of the Fourth Additional Sessions Court, Ernakulam facing charges under Sections 302, 324 and 447 I.P.C. read with Section 34 I.P.C. At the stage of examination of P.W. 2, petitioner filed Crl. M.C. 313/1986 in this Court seeking transfer of the case to one of the other benches of the Sessions Court. Learned Sessions Judge offered remarks, on being required to do so. This Court accepted his remarks, substantially found against the allegations levelled against him and dismissed the transfer petition with the expression of hope that learned defence counsel and the learned Sessions Judge will ignore whatever had transpired and cooperate in the further trial of the case. In the course of the order (Ext. P2), learned single Judge, who dismissed the transfer petition, extracted a part of the remarks submitted by the learned Sessions Judge and commented on the "intemperate language" used in remarks, noticed that the remarks cast as - persons, inter alia, on the learned defence counsel and observed that more restrained language should have been used in the remarks. This order was passed on 26-6-1986.
3. It appears, subsequently, the learned defence counsel withdrew from the case and the accused told the learned Sessions Judge that they had paid the full fee to the counsel and they were particular that they should be represented by that counsel. Learned Sessions Judge could very well have appointed counsel for the accused at the cost of the State and proceeded with the trial of the case which was already part-heard. Instead, the learned Sessions Judge, making a significant, though misplaced, gesture (I hope this will not be a precedent), wrote to the High Court requesting that he may be relieved from the duty of conducting trial of the case. In deference to his request, the case has been transferred to the file of one of the other Sessions Judges at Ernakulam.
4. On 1-7-1986, petitioner submitted Ext. P3 affidavit and Ext. P3(a) petition before the learned Sessions Judge. The affidavit extracted the remarks of the learned Sessions Judge quoted in the order in Crl. M.C. 313/1986 and the comments made by the learned single Judge and proceeded to state that the remarks made by the learned Sessions Judge constitute contempt of his own Court. In Ext. P3(a) petition, he prayed that the affidavit may be referred to the High Court for taking appropriate action against the learned Sessions Judge under the Act. Learned Sessions Judge dismissed the petition under Ext. P4 order stating that the remarks did not constitute contempt of Court and the petition was ill-conceived and devoid of merits. It is this order which is challenged under Article 226 of the Constitution of India.
4A. The original petition came up for admission before me on 14-7-1986. I then asked learned Counsel for the petitioner whether the present attempt to initiate contempt proceedings against the learned Sessions Judge was not contrary to the hope expressed in Ext.P2 order. Learned Counsel requested for time for consideration. I adjourned the original petition to 16-7-1986. Learned Counsel again asked for a day's time and I adjourned the case to 17-7-1986. A leading Malayalam daily, on that day, published a fairly detailed summary of Ext. P2 order, with particular reference to the observations made by the learned single Judge against a part of the remarks offered by the learned Sessions Judge. On 17-7-1986, learned Counsel for the petitioner submitted that he has been instructed to press the O.P. Thereupon, I heard learned Counsel and reserved orders, on the same day. On 21-7-1986, learned Counsel for the petitioner filed memo in the office stating that petitioner has "now" given instructions that the O.P. need not be pressed further and therefore it may be dismissed as withdrawn. I reported the case again to 31-7-1986 and. sought clarification from learned Counsel for the petitioner regarding certain aspects arising in the case. Learned Counsel reiterated that his present instruction is not to press the O.P.; however, he made submissions on the aspects pointed out by me. Several important questions affecting due and fair administration of criminal justice arise in the case and therefore I have chosen to consider these questions in this judgment.
5. At the outset, I would refer to the manner in which the case progressed before the Sessions Court. Learned Sessions Judge framed charges against two accused on 3-12-1985 and since accused pleaded not guilty, posted the case for trial to 17-3-1986 and succeeding days and ordered summons to prosecution witnesses. On 17-3-1986, third accused was not present and his counsel moved application for adjournment on the ground that his client was laid up with dysentery. The application was allowed and the case was adjourned to 18-3-1986 and the witnesses present were bound over. On 18-3-1986, P.W. 1 was examined and P.W. 2 was examined in part and the case was adjourned to 19-3-1986, with the witnesses present being bound over for appearance. On 19-3-1986, all the witnesses were present. First accused filed an application for adjournment levelling certain allegations against the learned Sessions Judge and expressing his intention to move the appropriate forum for legal redress. Learned Sessions Judge again adjourned the case to 1-4-1986 to afford an opportunity to the accused to seek legal redress. On 1-4-1986, first accused was absent. His counsel filed application for exemption from appearance on the ground of illness. Learned Sessions Judge adjourned the case to 2-4-1986. On that day, counsel for the first accused filed application for adjournment stating that the High Court had been moved for transfer of the case. Learned Sessions Judge adjourned the case to 27-5-1986, awaiting order of stay, if any, from the High Court.
6. Though, even on 19-3-1986, submission was made before the learned Sessions Judge that the appropriate forum will be moved for legal redress, the transfer petition Crl. M.C. 313/1986 was filed only on 2-4-1986. Application for stay was also moved, but no order was passed. The transfer petition was dismissed on 26-6-1986.
7. On 1-7-1986, certain steps were taken before the learned Sessions Judge. The defence counsel had relinquished his vakalath. However, on the same day, petitioner herein filed Ext.P3 affidavit and Ext.P3(a) petition before the learned Sessions Judge and that was dismissed on the same day. Learned Sessions Judge gave a week's time to the accused to engage another counsel of their choice and adjourned the case to 8-7-1986. On that day, accused appeared before him and stated that they had given entire fee to their counsel who had relinquished vakalath, that they did not have sufficient funds to engage another counsel and therefore they should be allowed to defend the case through their original counsel. It was thereupon that the learned Sessions Judge requested the High Court to transfer the case and adjourned the case to 15-7-1986.
8. The progress of the trial has not been satisfactory. Learned Sessions Judge went out of his way to accommodate the accused by repeated adjournments, even ignoring the provisions of Section 309 of the Code of Criminal Procedure and the administrative instructions of the High Court.
9. Remarks offered by the learned Sessions Judge (which gave rise to the present proceedings) were only in response to the allegations made against him in the transfer petition. The remarks therefore must be appreciated in the background of these allegations. The allegations mainly deal with the manner in which the learned Sessions Judge conducted himself and recorded evidence of P.Ws. 1 and 2, It is unnecessary to refer to the details. However, it is necessary to advert to the following sentences in the transfer petition:
"This clearly shows that the learned Judge has studied the entire prosecution records meticulously and has got a complete picture of the case even before the examination of the witnesses commenced. This clearly shows that the learned Judge has already formed impressions about the prosecution case before the witnesses were cross-examined. That may be the reason that the learned Judge was trying to get explanation for the injuries found on the body of the accused even during the chief-examination of P.W. 1."
"The Court was only ignoring all the requests made to the Court and was giving an encouragement to the witness to continue her statement in the most low tone."
"The attitude of the learned Judge is that the Court can dispense justice even without the assistance of the defence. It appears that the learned Judge can complete the trial if the Judge alone hears what is spoken to by the witnesses. This has created a serious . apprehension in the mind of the petitioner that the learned Judge is not recording the evidence according to law, but is recording a version which will suit the prosecution case which he had occasion to study from the case file even before the trial commenced His expressions during the examination of these two witnesses are clearly indicative of his opinion which he has already formed from the copies of the statements and the documents produced before Court by the prosecution. It is also clear that the learned Judge is not particular about the legal procedure that is to be followed in a most serious trial under the Crl. Procedure Code. He is ignoring the statutory principles to be observed in the most serious trial in a Sessions Court. This has created great apprehension and anxiety in the mind of the petitioner that he will not get proper justice at the hands of that Court."
"The petitioner's lawyer submitted that this statement should not be denied if it is incorporated in the petition requesting for a transfer of the case."
10. In his remarks, the learned Sessions Judge admitted an irregularity in not reading out the deposition of P.W. 1 in the presence of the accused, but substantially denied the other allegations made against him. Learned single Judge, who dismissed the transfer petition, accepted the correctness of the remarks offered by learned Sessions Judge in regard to these allegations in the transfer petition and found no merit in the allegations. From the order in the transfer petition, it is clear that unfounded allegations touching the integrity and impartiality of the learned Sessions Judge were levelled in the transfer petition, which was signed by the defence counsel.
10A. In the remarks offered by the learned Sessions Judge, he characterised the allegations as false, baseless and unfounded and "calculated with some ulterior motive of which the counsel for the petitioner alone knows and such dubious methods of the counsels appearing for the accused persons in the murder cases to make cheap popularity among the litigant public that they are capable of even transferring a murder case pending in one Court to another Court of their choice on flimsy grounds should be discouraged by the Hon'ble High Court by all means..." In Ext. P4 order, these remarks were characterised as "intemperate". It is these remarks which have led to the present proceedings. There is no doubt that the learned Sessions Judge was extravagent in his language. However, this has to be appreciated in the light of the fact that unfounded allegations were made against him and aspersions were cast on his integrity and impartiality when all along he was trying to discharge his duties in a fair manner. He was not allowed to take up the case on the date on which it was posted : Frequent adjournments were sought for on one ground or other. Even after trial started, adjournments were sought for and granted. I am satisfied that the learned Sessions Judge was overconscious of the need to safeguard the interests of the accused and acceded to almost all their requests for adjournments. Yet, he found that unfounded allegations were hurled against him and he reacted using strong language. Learned single Judge who dismissed the transfer petition noticed that the petitioner as well as the learned Sessions Judge had used strong language. It is in this backdrop that the remarks should be appreciated.
11. Remarks of the learned Sessions Judge referred to the motive of the defence counsel in making unfounded allegations against him, the motive being to get the murder case transferred from one bench to another by making serious allegations and thereby create an impression that murder cases could be got easily transferred. It was in this background that he requested the High Court to discourage such motivated moves. At the same time, in the remarks, learned Sessions Judge pointed out that he had no objection for transfer.
12. This Court has noticed an increasing tendency to file such transfer petitions on the basis of unfounded allegations against Criminal Courts. Sessions Judges and Magistrates had occasion to complain that they are facing considerable difficulties in the conduct of trials. Very often they are told to their face "you may dismiss the petition, I will go to the High Court" (In this case also, the defence counsel told the Sessions Judge that when he makes a particular averment in the transfer petition before the High Court, the Sessions Judge should not deny it). Such actions have a demoralising effect on the criminal judiciary and seriously affect administration of criminal justice. No person, not a litigant, not a counsel, not a prosecutor, not a court should contribute anything to the demoralisation of the criminal judiciary. Apparently, threat of filing transfer petition is being held as Democles sword against judicial officers. I see only a reaction, perhaps an avoidable one, on the part of the learned Sessions Judge to this situation, Viewed in the background of the findings recorded in the order dismissing the transfer petition, there is no doubt that the allegation of bias against the learned Sessions Judge was -baseless and unfounded.
13. Why was it that such baseless and unfounded allegations were made? Why was it that when a witness, though weeping, was giving answers audible to everyone in the small court room, allegations were made that answers were inaudible and the Sessions Judge was writing in the deposition whatever he fancied? These are questions which should find an echo in the minds of all who cherish our system of administration of criminal justice.
14. It is axiomatic that counsel do form an integral part of the machinery of administration of justice. Any abuse, insult or aspersions cast on them in the course of discharge of their duties which will interfere with the administration of justice by deterring them from doing their duty should be discouraged. Counsel who appear for parties are also, in a way, officers of the Court and must be fully protected. But excessive or extravagent language should be differentiated from contempt as observed by the Privy Council in Parashuram Detaram v. Emperor AIR 1945 PC 134.
15. Viewed in the background explained above, I am unable to agree that there was any justification of any sort to make reference to the High Court with a view to initiate proceedings of contempt of Court against the learned Sessions Judge. He is more sinned against than sinning. Prima facie, it does not appear that the remarks were calculated to poison the fountain of justice or undermine confidence of the people in the Court or to interfere with due and fair administration of justice. I therefore do not think there is any ground to interfere under Article 226 of the Constitution of India.
16. Sub-section (1) of Section 15 of the Act states that in the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by the Advocate-General or any other person, with the consent in writing of the Advocate-General, or 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. Sub-section (2) states that in the case of any criminal contempt of a subordinate Court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette specify in this behalf. Section 11 states that a High Court shall have jurisdiction to inquire into or try a contempt of itself or of any Court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits. Section 10 states that every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself (except where such contempt is an offence punishable under the Indian Penal Code).
17. Under Section 15(2) of the Act, a subordinate court may make a "reference" to the High Court regarding criminal contempt of the subordinate Court. The word "reference" has not been defined in the Act. It has obviously no technical connotation. "Reference" only means "conveying information". How does a subordinate Court become aware of facts giving rise to contempts of Court? It may come to know of the facts on its own i.e., facts may be within its knowledge. The Court may be made aware of the facts by some other person. It is open to such person to bring the facts to the notice of the subordinate Court. That could be by way of an application. I do not understand the law to be that whenever such facts are brought to the notice of a subordinate Court, that Court has merely to refer the same to the High Court, without any scrutiny. The subordinate Court has to examine the facts and see whether reference is required to be made to the High Court. In doing so, the Subordinate Court has to observe some procedure based on principles of natural justice, though such procedure is not expressly prescribed in the Act. The alleged contemner has to be informed about the facts, giving an opportunity to file an affidavit in reply. Thereupon, the subordinate court has to decide whether reference has to be made or not. I find that this procedure has been indicated by the High Court of Bombay in P. L. Mokashi v. S.T. Yardi (1974) 76 Bom LR 191 : 1975 Cri LJ 531.
18. What then is the position if the alleged contemner is the officer presiding over the subordinate Court? Can he be compelled to make a reference, on application? I think not. The reason is obvious. The subordinate Court is not required to make reference in all cases brought to its notice. The Court obviously has a discretion in the matter. The Court cannot be required to exercise its discretion when the Court itself is involved as an alleged contemner. The Court cannot be expected to give information to itself about the facts alleged in the application. The Court is not expected to examine the facts alleged against itself and see whether circumstances justify or do not justify making reference. Obviously, when it is apprehended that the presiding officer of a subordinate court himself is guilty of contempt of Court, no person can approach that court to make a reference. Procedure of making a reference cannot apply in such a case. To permit a person to go to the subordinate Court and tell the Court that it has committed contempt would be most undesirable and may amount to intimidation of the Court. Such a course cannot be permitted.
19. Learned Counsel for the petitioner submitted that in such a case there will be no "remedy" for the "aggrieved". Learned Counsel also submitted that when a subordinate Court refrains from making reference, that act is justiciable under Article 226 of the Constitution. This takes us to another aspect of the case. Both sub-sections of Section 15 permit the Advocate- General to make a motion for contempt of Court. Sub-section (1) permits the Advocate-General to consent to a motion being made by any person. Obviously, the Advocate-General can be moved to make a motion before the High Court. In such a case, the Advocate-General is required to consider the facts and see whether a motion him to make a motion or refrain from making a motion. Is his order justiciable A Division Bench of the Karnataka High Court had occasion to consider this question in N. Venkataramanappa v. D.K. Naikar . V. S. Malimath J. (as he then was) speaking for the Bench, observed:
It appears to us that absolute discretion is vested in the Advocate-General in the matter of according consent under Section 15(1)(b) of the Act. Grant or refusal of consent by the Advocate-General under Section 15 of the Act, in our opinion, is not justiciable.
I respectfully agree. On the same footing, it appears to me that making reference or refraining from making reference by a subordinate Court under Section 15(2) is not justiciable.
20. Learned Counsel for the petitioner referred me to a decision of Full Bench of five Judges of this Court in Simon v. Advocate-General and contended against the above proposition. In that case, the Court dealt with the question whether an order of the Advocate-General granting or refusing consent under Section 92(1) of the Code of Civil Procedure is justiciable. The Court held that while grant of consent is not justiciable, refusal of consent is justiciable. The decision rested entirely on the provisions of Section 92 of the Code. Section 92 relates to Suits relating to breach of trust created for public purposes of a charitable or religious nature. . Such a suit can be instituted only by the Advocate-General or by two or more persons having an interest in the trust and having obtained consent in writing of the Advocate-General. None else can maintain such a suit. The Advocate-General must satisfy himself that the applicants are solvent, that they are persons really interested in the trust and are not those whose motives are impure, that there has been breach of trust and that direction of Court is necessary. Satisfaction of the Advocate-General, the Full Bench observed, must be objective, though he is not to act judicially or quasi-judicially. Section 92(2) imposes a very serious restriction that no suit can be instituted except in the manner provided by Section 92(1). The fact of refusal of consent by the Advocate-General would amount to grant of complete immunity to those guilty of breach of trust from any action of the nature described in Section 92(1). Such an action, the Full Bench pointed out, would have serious consequences as far as persons interested in the trust are concerned. Naturally, it follows that they would be aggrieved by the refusal of consent. To be left without "remedy" when persons interested are adversely affected would cause substantial injury and it is seriously prejudicial in case refusal to consent was without any reason or without application of mind dispassionately to the matter before the Advocate-General. In the opinion of the majority Judges of the Full Bench, persons having interest in the trust and having no other remedy are seriously prejudiced by refusal of consent and can challenge the refusal under Article 226 of the Constitution, though the scope of examination is limited. The Advocate-General acts as a statutory administrative authority performing the parens patriae jurisdiction of the State in regard to public trusts, and while acting thus can and does cause substantial injury at times, preventing the taking of a step in aid of vindicating a right and this can cause injury for Section 92(2) bars any action for the reliefs mentioned in Section 92(1). When the Advocate-General gives consent, no one is adversely affected so as to sustain a petition under Article 226 of the Constitution.
21. There are vital differences between the provisions in and the intendment of Section 92 of the Code of Civil Procedure and those of Section 15 of the Act. Section 92 of the Code bars a suit except by the Advocate-General or by persons having interest in the trust and such persons have no other remedy if consent is refused by the Advocate-General. Section 15 of the Act does hot clothe anyone with the right to approach the Advocate-General for a motion or the subordinate Court for a reference. When a person approaches them under Section 15, he is only providing information to them. That person does not have "interest" in the subject-matter of the case. He suffers no prejudice or adverse consequence and is not "aggrieved" on account of the refusal of the Advocate-, General to make a motion or of the subordinate Court to make a reference. His interest is only as a member of the public and nothing more. Society at large is interested in the administration of justice and in maintaining its purity and integrity. The act of contempt is not an act against an individual; it is an act against due administration of justice. It is punishable not because it affects the rights of individuals but because it poisons the fountain of justice and undermines the confidence of the people in the administration of justice. If public confidence in judiciary is lost, due administration of justice suffers. The wrong committed is a public wrong, not a private wrong. When a person brings to the notice of the Advocate-General or a subordinate Court or even the High Court, the conduct of an alleged contemner, he is not exercising a right; he can perhaps be described as discharging a duty. Therefore, the ratio of the decision in Simon's case cannot be applied to the refusal of the Advocate-General to make a motion or of the subordinate Court to make a reference under Section 15 of the Act, Petitioner cannot maintain this petition under Article 226 of the Constitution of India.
22. It is difficult to agree with the argument of the learned Counsel for the petitioner that the petitioner has a "grievance" and must have a "remedy". In law, the petitioner has no grievance. He need not have a remedy. If it is only a question of safeguarding public interest, he has another method of doing it. He can bring the matter to the notice of the High Court, though he has to leave it to the High Court the question whether action should be initiated or not The purpose of making reference by the subordinate Court is to bring the facts to the notice of the High Court. That is something which petitioner can very well do, even without a reference.
23. It cannot be said that the High Court cannot initiate suo motu proceedings regarding contempt of subordinate Courts. High Court is a court of record. Every Court of record has inherent power to punish for contempt. In Corpus Juris Vol. XV at pages 720 to 721, it is stated:
A Court of record has been defined as a Court where acts and judicial proceedings are enrolled in a parchment for a perpetual memorial and testimony and which has power to find and imprison for contempt of its authority; a Court that is bound to keep a ] record of its proceeding and that will fine or imprison; a Court whose proceedings are enrolled for perpetual memorial and testimony, which rolls are called records court, and are of such high and pre-eminent authority that they are true is not to be called in question.
24. This inherent power is preserved by Art 215 of the Constitution which states that every High Court shall be a Court of record and so have all the powers of such a Court including the power to punish for contempt of itself. This power will take in the power to punish for contempt of subordinate Court also. Article 215 evidences constitutional recognition of the power of the High Court as Court of record to punish for contempt of itself or a subordinate Court Section 15 of the Act can be read only in the light of this backdrop. It does not confer any new power on the High Court. It deals only with the existing power of the High Court Section 15(1) also takes in power to punish for contempt of subordinate Court. There can be no doubt that the High Court has power to punish for contempt of a subordinate Court, suo motu, even without a motion by the Advocate-General or motion by any person with the consent of the Advocate General, or reference of a subordinate Court See Jose v. Alice Francis 1979 Ker LT 262.
25. I therefore hold that the petitioner could not have filed an affidavit before the learned Sessions Judge demanding a reference to the High Court Petitioner has no right to move this Court under Article 226 of the Constitution. Assuming that he can maintain such an application, in the circumstances referred to already, I do not think this is a fit case for interference.
26. Courts have always indicated that counsel take risk when they sign transfer petitions which should ordinarily be signed by the parties. Whenever counsel signs transfer petition containing allegations, he should see that irresponsible allegations are not made by way of bias against the Judge. If allegations are made and if he yet signs the petition as counsel, he is deemed to be as much responsible as the party. The legal profession has a serious duty in regard to pleadings in transfer petitions. The allegations must be prima facie true and should not be baseless. When unfounded allegations are made, the person responsible cannot escape the consequences of such rash disregard of proprieties leading to lowering the prestige of Court in the eyes of the public - See page 568 of Contempt of Court by V. G. Ramachandran, 5th Edn. It is no duty of counsel to his client to take interest in such applications. On the other hand, it is his duty to advise his client from making allegations of such nature in such applications. To state facts in a transfer application is one thing; to make allegations of bias and injustice against a Judge is quite a different thing. Statement of facts must be made and must be avowed to speak for themselves. Statement of facts must be prima facie true. Parties and counsel naturally take a risk when they proceed further and make untrue statements of fact or hurl allegations of bias and injustice against the Judge.
27. In this connection, I find the following observation of the Supreme Court illuminating:
It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel is acting in the interests of his client or in accordance with his instructions, he is discharging his legitimate duty to his client even when he signs an application or pleading which contains matter scandalising the Court They think like that when there is a conflict between their obligations to the Court and their duty to the client, the latter prevails.
This misconception has to be rooted out by a clear and emphatic pronouncement and we think it should be widely known to the counsel who sign applications and pleadings containing matter scandalising the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds thereof with a view to prevent or delay the course of justice, are themselves guilty of contempt of Court and that it is no duty ot counsel to his client to take interest in such applications. On the other hand, it is his duty to advise his client from making-allegations of such a nature in such applications.
In the result, original petition is dismissed. Petition dismissed.