Andhra HC (Pre-Telangana)
Advocate General, Andhra Pradesh vs A.V. Koteswara Rao on 20 September, 1983
ORDER
1. This contempt application has been filed by the Advocate General against the respondent who was acting as an Additional District and Sessions Judge at Cuddapah. I do not propose to mention the various allegations made in the Contempt application but it is sufficient to say that the allegation is that the action of the respondent on 16-4-82 and 4-5-82 amounted to contempt of a stay order granted by this court on 15-4-82 in Crl. MP. 835/82 in Crl. MP 834/82. This contempt application has been filed in the High Court on 2-11-82 and was posted before a learned co-single Judge on 3-12-82 who was the same Judge who passed the stay orders on 15-4-82 and therefore he directed that the contempt case be posted before another learned judge. Thereafter this contempt petition was posted before another learned judge on 7-12-82 who adjourned the matter for a period of six months. Thereafter the petition was first listed before me on 24-6-83 and the learned Advocate General requested for an adjournment by four weeks which was granted by me. The matter was again posted on 19-8-83 and on that day I issued notice before admission and Sri C. Padmanabha Reddy, Advocate appeared for the respondent and stated that the petition cannot be proceeded with inasmuch as a period of one year has elapsed from the date of the alleged contempt and relied upon Section 20 of the Contempt of Courts Act, 1971 (hereinafter called the 1971 Act). Thereafter I heard the matter on 23-8-83, 9-9-83 and 16-9-83. That is how it has become necessary to decide the question of limitation.
2. Two questions arise in this case. The first one is whether the period of limitation prescribed by Section 20 of the 1971 Act is attracted to cases of contempt of the High Court which is a Court of Record under Art. 215 of the Constitution of India. The second question is : Whether for purposes of Section 20 of 1971 Act the material date was the date of filing of the contempt application or the date of initiation of the contempt proceedings and as to what is meant by initiation. I shall now deal with these two questions.
3. The first question that arises for consideration in the contempt application is whether the provisions of Section 20 of the Contempt of courts Act, 1971 prescribing a period of limitation for initiation of a contempt proceeding applies to contempts of the High Court which is a Court of Record. S. 20 of the contempt of Courts Act, 1971 reads as follows :-
"Section 20, Limitation for action of contempt : No court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
4. There is no dispute that the above section applies to cases where the High Court initiates proceedings for contempt of a court subordinate to it. The Constitution of India provides in Article 215, that :-
"Every High Court shall be Court of Record and shall have all the powers of such a court including the power to punish for contempt of itself.
There is no doubt that the special status of the High Court under Art. 215 of the Constitution of India and of the Supreme Court under Art. 129 is expressly declared. A Court of Record has not been defined either in the constitution or in the General Clauses Act.
5. Courts of Record are those whose acts and judicial proceedings are enrolled for a perpetual memorial and testimony. Their proceedings are preserved in their archives and are conclusive evidence of that which is recorded therein. Whether a court is a Court of Record or not depends on whether it has power to fine and imprison, whether for contempt of itself or for other substantive offences.
6. I have to decide whether the' 'constitutional provisions cannot be made subject to any limitations and whether the provision in Section 20 of 1971 Act is ultra vires or is to be read down and to be confined in its application to contempt proceedings initiated by the High Court for contempt of Subordinate Courts only and not for contempt of itself, it being a Court of Record. In other words, the question is whether as a Court of Record, the High Court's powers for committing for contempt of itself are placed in such a position as not to be restricted by any law.
7. I shall now advert to the other provisions of the constitution in this behalf.
8. Art. 19(2) of the Constitution of India states, (with reference to the Freedom of Speech provided in Article 19(1), as follows :-
"Nothing in sub-clause (a) of cl (1) shall affect the operation of any existing law, or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in relation to contempt of court ...."
Parliament can make a law as provided by Art. 246(1) of the Constitution in respect of Entry 77, List I of Sch. VII, which reads :
"Constitution, organisation, Jurisdiction and powers of the Supreme Court (including contempt of such court) and the fees taken therein; persons, entitled to practise before the Supreme Court".
Under Article 246(2), Parliament, and, subject to Art. 246(1), the Legislature of any state, have power to make laws with regard to Entry 14 of List III of Sch. VII which reads :
"Contempt of Court, but not including contempt of the Supreme Court."
Therefore the Constitution clearly provides for a law being made in respect of contempt of court by Parliament or the State Legislature to the extent mentioned in Entry 77. List I and Entry 14 in List III.
9. After the commencement of the Constitution, Parliament stepped in to bring in the Contempt of Courts Act (Act 32) of 1952) in the place of the 1926 Act. S. 4 of the 1952 Act limited the quantum of punishment that could be imposed for contempt of the High Court also. It stated that save as otherwise expressly provided by any law for the time being in force, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both. The second proviso to section 4 of the 1952 Act stated :
"Provided further that notwithstanding anything elsewhere contained in any law for the time being in force, no High Court shall impose a sentence in excess of that specified in this section for any contempt either in respect of itself or of a court subordinate to it."
Therefore even under the 1952 Act, the power vested in the High Court under Art. 215 to commit for contempt of itself was subject to the limitations made in Section 4 of that Act regarding the quantum of punishment. That is why it was observed in Sukhdev Singh v. Teja Singh C.J. AIR 1954 SC 186 : (1954 Cri LJ 460) by the Supreme Court in paragraph 24 :
"The maximum punishment is now limited to six months simple imprisonment or a fine of Rs. 2,000/- or both because of 1952 Act."
and it was held that by virtue of Section 1(2) of the Code of Criminal Procedure (1898), the said Code was not applicable to a special law relating to contempt triable by the High Court. I shall have occasion to revert to this ruling of the Supreme Court later.
10. Under the Contempt of Courts Act, 1971 it is once again provided in section 12, in respect of the quantum of punishment, as follows :-
"Section 12(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of Court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both ....
(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it."
This Act used the general word "court" in Section 12.
11. When the quantum of punishment that can be imposed by the High Court for contempt of itself is thus specifically restricted by the 1952 Act as well as in the 1971 Act, the point for consideration is whether the limitation as to time introduced for the first time in the 1971 Act is ultra vires or intended to be limited only to the cases of contempt of subordinate courts and not of the High Court which is a Court of Record under Art. 215 of the Constitution of India.
12. I shall now advert to rulings, of the Supreme Court in this behalf. The Act of 1971 came into force front 24-12-71 and before that date the case in R. L. Kapur v. State of Tamil Nadu was decided on 8-2-72 by the Supreme Court. That case related to contempt of the High Court itself where the fine imposed by an order dated 25-2-1964 was not paid. But the amount of Rs. 500/- earlier deposited as security for appearance by him remained unattached till 1971 and the appellant filed an application for refund and the state filed another application for adjustment of the said amount towards the fine remaining unpaid. The appellant contended that under section 70 of the Indian Penal Code, six years having elapsed since the imposition of fine, the State's application was time barred.
13. It was pointed out by the Supreme Court that the power to punish for contempt of the High Court as a Court of Record is a special one, whether it was inherent or conferred by Art. 215 of the Constitution. But it was certainly not derived from the Contempt of Courts Act, 1952, and therefore not within the purview of the Penal Code or the Code of Criminal procedure. Section 5 of the Penal Code provided that its provisions did not apply to a special or local law and read with Section 41 of that Code, the period of limitation prescribed under section 70 of the Indian Penal Code did not apply.
"Since such a special law does not prescribe any period of limitation for collecting and satisfying a fine imposed thereunder, no question of limitation would arise."
These observations, in my opinion, clearly declare that it is open to Parliament to make a special law prescribing a period of limitation for collecting and satisfying a fine imposed by the High Court for contempt of itself as a Court of Record.
14. If therefore Parliament or the concerned legislature could make a law providing a period of limitation for collecting and satisfying a fine imposed for contempt of the High Court itself, can there be an objection for prescribing a period of limitation for initiation of proceedings of contempt of the High Court ?
15. Coming to the rulings of the Supreme Court rendered with reference to the 1971 Act which for the first time introduced a period of limitation in Section 20, I shall refer to Baradakanta Mishra v. Justice Gatikrushna Misra C.J. which again related to Contempt of the High Court. The question before the Supreme Court was whether an appeal lay to the Supreme Court under section 19(1) of the 1971 Act, while upholding the said objection and referring to the scheme of the Act in paragraph 7, Bhagwathi J. also referred to S. 20 of the Act as follows :
"S. 20 prescribes a period of limitation by saying that no court shall initiate any proceeding for contempt either on its own motion or otherwise after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
The fact that the Supreme Court thought fit to refer to S. 20 in the above case, even though the question of limitation did not arise, cannot however be ignored. I am of the view that, when the case related to contempt of the High Court, the Supreme Court would not have referred to Section 20 unless it was applicable to cases of contempts of the High Court also.
16. The case in Purshotam Das Goel v. Hon'ble Mr. Justice B. S. Dhillon also related to proceedings initiated for contempt of High Court. The High Court directed issue of notice to the appellant therein to show cause why he should not be proceeded against for contempt of the High Court. Against that order the appellant therein appealed to the Supreme Court under section 19(1) of the 1971 Act. The learned Solicitor General raised a preliminary objection that the appeal was not maintainable. Upholding the same, and after dealing with the various types of interlocutory orders that may be passed in a contempt case, Untwalia J. observed that no appeal can lie as a matter of right from every kind of interlocutory order made by the High Court in the proceeding for contempt. The proceeding is initiated under S. 17 by issuance of a notice and thereafter, there may be interlocutory orders passed in the said proceeding by the High Court. It was observed that it could not be the intention of the legislature to provide for an appeal to the Supreme Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding does not decide any question. However, even at an earlier stage of the contempt case, an order may be passed which does decide a contention raised by the alleged contemner asking the High Court to drop the proceedings. Then Untwalia J. stated further as follows :
"Our attention was drawn by Mr. Mohan Behari Lal to Section 20 of the Act ......
He submitted that initiation of the proceeding by the High Court will be without jurisdiction if it is in violation of S. 20. It may be so, if the alleged contemner in response to the notice appears before the High Court and asks it to drop the proceeding on the ground of its being barred under S. 20 of the Act but if the High Court holds that the proceeding is not barred, it may well be that an appeal would lie to this court under S. 19 from such an order although the proceeding has remained pending in the High Court. We are not called upon to express our final opinion in regard to such an order, but we merely mention this type of order by way of an example to show that even orders made at some intermediate stage in the proceeding may be appealable under Section 19."
In this ruling, their Lordships of the Supreme Court have expressly referred to Section 20 in connection with the powers of the High Court under Art. 215 for punishing for contempt of itself. If Section 20 was not applicable to a Court of Record, their Lordships would not have referred to that section in the above case. I cannot ignore the above observations of the Supreme Court.
17. Lastly, in S. K. Sarkar, member. Board of Revenue, U.P. v. Vinay Chandra , the Supreme Court was considering the question whether the High Court could suo motu take cognizance of a contempt of a subordinate/inferior court when it was not moved in either of the two modes mentioned under section 15(2) of the 1971 Act. In that connection the Supreme Court referred to Art. 215 of the Constitution of India and observed that the only limitations upon Art. 215 are those contained in the Contempt of Courts Act, 1971 Sarkaria J. observed :
"Entry 14 of List III of the Seventh Schedule is to this effect : 'Contempt of Court but not including contempt of the Supreme Court'. A provision analogous to Art. 215 is Art. 129 which preserved to the Supreme Court all the powers of a Court of Record including the power to punish for contempt of itself. Entry 77 of List I of the Seventh Schedule is relatable to Art. 129.
Art. 129 and 215 preserve all the powers of the Supreme Court and the High Court, respectively as a Court of Record which include the power to punish the contempt of itself. As pointed out by this court in Mohd. Ikram Hussain v. State of U.P. , there are no curbs on the power of the High Court to punish for contempt of itself except those contained in the Contempt of Courts Act .... Parliament has, by virtue of the aforesaid entries in List I and List III of the Seventh Schedule, power to define and limit the powers of the courts in punishing contempt of court and to regulate their proceedure in relation thereto".
The above observations that a law can be made regulating the 'Procedure', in my opinion, remove any doubt on the question. They make it abundantly clear that the power of the High Court for committing for contempt of itself is circumscribed by the provisions of the 1971 Act enacted by Parliament. I have therefore absolutely no doubt that the provisions of Section 20 are attracted to cases of contempt of the High Court also and that the judgments of the Supreme Court clearly accept this position.
18. Further while section 12 of the 1971 Act used the word 'court', the corresponding section in the 1952 Act namely Section 4 expressly referred to contempts of the High Court and of the Subordinate Courts. There is no doubt nor dispute that the word 'court' in Section 12 in the 1971 Act is applicable to contempts of the High Court as well as of the Subordinate Courts. In my opinion, the word 'court' in Section 20 is also used in the wider sense as being applicable to cases of contempt of the High Court and also of the subordinate courts for S. 20 is to apply to 'any' proceedings for contempt, whether initiated suo motu or otherwise. The word 'any' is of wide amplitude and cannot be restricted to cases of contempt initiated by the High Court for contempt of the Subordinate Courts. "Any" is a word which excludes limitation or qualification. It connotes wide generality. Its use points to distributive construction (see Stroud's Judicial Dictionary).
19. It is true that Section 22 of the 1971 Act provides that the provisions of the 1971 Act shall be in addition to and 'not in derogation of' the provisions of any other law relating to contempt. But, in my opinion, the said section is meant to clarify that the 1971 Act confers powers in addition to those existing. The words 'not in derogation of' in my opinion, mean that the substantive powers of contempt were, not meant to be eroded by the 1971 Act. At the same time, there can be no objection to regulate the 'procedure' for contempt as stated in S. K. Sarkar, member. Board of Revenue U.P. v. Vinay Chandra (1981 Cri LJ 283) (SC) Supra. Basically the prescription of a period of limitation is procedural - C. Beepathuma v. Shankaranarayana , and hence Section 20 like S. 12 cannot be said to derogate from the power mentioned in Art. 215; Bhuvier's Law Dictionary (Vol, 1 page 852) defines 'Derogation' as the partial abrogation of law. To derogate from a law is to enact something which impairs its utility and force; to abrogate a law is to abolish it entirely. In my opinion, S. 20 of the Act does not intend to 'abrogate' the powers under Art. 215 either wholly or partially. The powers can be exercised in all their amplitude within the period of one year prescribed in S. 20 of the Act.
20. I must now refer to certain observations in two of the cases already referred to by me and explain the context in which the observations therein were made.
21. In Sukhdev v. Teja Singh C.J. (1954 Cri LJ 460 (SC)) Supra, Bose J. while accepting in para 24 that the section 4 of 1952 Act 'limited' the powers of the High Court regarding the quantum of punishment to be imposed in cases of contempt of the High Court itself, still, observed :
"In any case, so far as contempt of a High Court itself is concerned, as distinct from one of a subordinate court, the Constitution vests these rights in every High Court. So no Act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority".
These observations were obviously not meant to negative Parliament's power under entry 14 of List III of Entry 77 of List I in the VII schedule of the Constitution. They were made in the context of emphasizing that under Art. 215, the Constitution declared the pre-existing substantive power of contempt inhering in a Court of Record and that neither Section 2 of the 1926 Act nor S. 3 of the 1952 Act conferred any new jurisdiction inasmuch as the pre-existing substantive power could not be taken away by any ordinary law and be reconferred. These observations were not, in my opinion, meant to imply that procedural limitations could not be imposed. For otherwise the law-making power conferred by the VII schedule on Parliament or other Legislatures would be rendered nugatory.
22. Similarly in Mohd. Ikram Hussain v. State of UP (1964 (2) Cri LJ 590) (SC) Supra, it was observed that the High Court's powers for punishment of contempt have been preserved by the Constitution and they are also inherent in a Court of Record. Hidayatullah J. (as he then was) then observed :
"The only curbs on the powers of the High Court to punish for contempt of itself are contained in the Contempt of Courts Act which limits the term for which a person can be imprisoned to six months' simple imprisonment".
The above observations were made in the context of the 1952 Act which imposed no other restrictions except those contained in Section 4 of the Act relating to the quantum of punishment. That Act did not contain any period of limitation as the one contained in Section 20 of the 1971 Act. That is why, in S. K. Sarkar, member, Board of Revenue, U.P. v. Vinay Chandra (1981 Cri LJ 283) (SC), supra the Supreme Court, while referring to Mohd. Ikram Hussain's case Supra, did not say that the restrictions, other than those relating to quantum of punishment, cannot be imposed. On the other hand, Sarkaria J. clearly observed that the curbs on the power of the High Court to punish for contempt of itself are those 'contained in the Contempt of Courts Act' (i.e., the 1971 Act).
23. Therefore these two rulings do not, in my opinion, lay down any rule that a period of limitation cannot be imposed by Parliament or the Legislatures in respect of the High Court's powers covered by Art. 215 of the Constitution of India to commit for contempt of itself.
24. I shall now consider certain rulings of the High Courts. In this court a Division Bench consisting of Sambasiva Rao (Acj) (as he then was) and Shiv Shankar, J. in Advocate General, A.P. v. Aradhi Subba Rao, 1975 A.P.H.N. 197 (CC24/75 dt. 20-6-75) applied S. 20 to a case of contempt of the High Court and of the subordinate court.
25. The Rajasthan High Court in Mohd. Vamin v. Om Prakash 1982 Cri LJ 322, the Karnataka High Court in Venkataramanappa v. D. K. Naickar AIR 1978 Kant 57 : (1978 Cri LJ 726), proceeded on the basis that S. 20 applied to cases of contempt of the High Court itself. True, the Andhra Pradesh, Rajasthan and Karnataka rulings do not very much help us inasmuch as the question of applicability of S. 20 of the 1971 Act to cases falling under Art. 215 was neither specifically raised nor decided but was assumed, but the fact remains that they applied S. 20 to cases of contempt of the High Court itself.
26. The Allahabad High Court, in Dr. J. P. Gupta v. O. P. Chakravarty 1975 Cri LJ 164 (All), was dealing with contempt of the High Court and with the question that the petitioner therein had not obtained permission of the Advocate General under section 15 of the 1971 Act. In that context, the Division Bench observed that section 20 limits the period. Rejecting the argument that section 15 of the 1971 Act was ultra vires Art. 215 of the Constitution, it was observed that while the powers of the High Court and Supreme Court cannot be taken away or abrogated, parliamentary legislation can legislate on the 'procedure', in view of Entry 77 of List I and Entry 14 of List III of the VII schedule to the Constitution. The same High Court in Harphool singh v. Ranbir Singh 1980 All LJ 1028 laid down that the High Court cannot take cognizance even of contempt of itself if the period of one year has already elapsed. I respectfully agree with the view taken by the Allahabad High Court.
27. However the Delhi High Court in Central Bank of India Delhi v. M/s. Current Transport and Finance Private Limited, New Delhi 1977 Cri LJ (NOC) 266 (Delhi) in a case relating to contempt of the High Court appears to have taken the view that in respect of contempts falling under Art. 215 of the Constitution of India and Order 39 C.P.C. the period of one year prescribed under the 1971 Act does not apply, and that the powers under Art. 215 and order 39, C.P.C. are in addition to and not in derogation of the provisions of the Act. On facts, it was held that the show cause notice was issued by the High Court within one year. Thereafter the observations regarding absence of limitation for case arising under Art. 215 are only obiter dicta. The other judgment of the Delhi High Court is reported in Mohinder Singh v. Iqbal Singh 1981 Cri LJ (NOC) 141 (Delhi). In the case the application before the Rent control court appears to have been filed beyond one year from the date of the alleged contempt and it was argued that the period of limitation does not apply even for contempts of subordinate courts. The learned judge held that though there was no limitations to period for cases arising under Art. 215, the period of limitation under section 20 does apply to contempts of subordinate courts. The case being related only to contempt of a subordinate tribunal, the observations are again obiter. Even assuming that the views of the Delhi High Court are not obiter, I respectfully dissent from the same.
28. The law may therefore be summarised as follows :- The Constitution declared in Art. 215 that the High Court is a Court of Record. As a Court of Record the High Court has therefore an inherent power to punish the contempt of itself. The power having been declared by the 'Constitution cannot surely be abrogated by an ordinary law but can certainly be regulated. The Constitution has made a clear provision for the passing of such a law by Parliament or the State Legislature as provided in Art. 19(2), Entry 14 of List III and Entry 77 of List I of the seventh schedule. The procedural restrictions regarding the quantum of punishment as made in S. 12 of the Contempt of Courts Act, 1971 and regarding the period within which contempt proceedings are to be initiated as made in S. 20 of the said Act are not ultra-vires Art. 215. Nor is it permissible to read down S. 12 or S. 20 by restricting their operation to cases other than the contempts of the High Court covered by Art. 215. Both Section 12 and Section 20 apply to cases initiated by the High Court for contempt of itself as well as to cases of contempt of the subordinate courts. The tenor of the judgments of the Supreme Court dealing with the provisions of the Contempt of Courts Act, 1971, in my opinion, leaves no doubt that S. 20 was held to apply to cases of contempt of the High Court itself. That answers the first question arising in this case.
29. The second question that remains to be answered is whether on the facts of the present case, the contempt proceedings were initiated within one year as provided in Section 20 of the Act. The petition was no doubt filed on 2-11-82 in this court by the Advocate General. But the alleged contempt is stated to have occurred on 16-4-82 and 4-5-82. The petition came up before a learned judge on 3-12-82 and then adjourned and posted before another learned judge on 7-12-82 who adjourned it by six months. The matter was posted before me on 24-6-83 for the first time, and I issued notice on 19-8-83 before admission as the respondent engaged counsel and raised a plea of limitation.
30. The Supreme Court in Baradakanta Mishra v. Justice Gatikrushna Mishra (1975 Cri LJ 1) supra, and Purshotam Dass Goel v. Hon'ble Mr. Justice B. S. Dhillon (1978 Cri LJ 772) supra, has clearly held that initiation of a contempt proceeding is the time when the court applied its mind to the allegations in the petition and decides to direct, under section 17 the alleged contemner to show cause why he should not be punished. In that view the date of filing of the petition is not the date of initiation of a contempt proceeding. This view is also followed by various High Courts. The Gujarat High Court in Dineshbhai v. Kripalu Co-op. Housing Society , the Karnataka High Court in N. Venkataramanappa v. K. Naikar (1978 Cri LJ 726) supra, the Allahabad High Court in Gulab Singh v. Ramji Das , the Punjab High Court in Court v. Kasturlal (FB) and the Rajasthan High Court in Mohd. Vamin v. Om Prakash (1982 Cri LJ 322) supra rejected contempt applications on account of their being barred by Section 20 by the time of 'initiation; of the proceedings by the court.
31. In the case before me, the contempt is alleged to have taken place on 16-4-82 and 4-5-82. Though the petition was filed on 2-11-82, this 'court' did not 'initiate' any proceedings before 4-5-83 and therefore Section 20 prohibits me from now initiating any such proceedings. I, therefore, reject the petition before admission on this ground alone, without going into the merits.
32. Petition dismissed.