Judgment

BOSE, J. : This is an unusual application asking for a transfer of certain contempt proceedings from Pepsu High Court to any other High Court and, in the alternative, asking that at least the matter should not be heard by two of the Judges of that High Court who are named. This at once raises a question about our jurisdiction to order such a transfer.

2. The learned counsel for the applicant relied on Section 527 of the Criminal Procedure Code. Briefly his reasoning was this. Section 527 authorises the transfer of any "case" from one High Court to another whenever if is made to appear to the Supreme Court that such transfer is expedient for the ends of justice. The word "case" is not defined but" offence" is defined in Section 4 (O) to mean "any act or omission made punishable by any law for the time being in force".

Contempt is punishable under the Contempt of Courts Act, 1952; therefore it is an offence punishable by a law which is in force; consequently it is an offence. Being an offence it is triable under the Criminal Procedure Code because Section 5 makes the Code applicable not only to the trial of offence under the Indian Penal Code but also to the trial of offences against "other laws". As it is matter triable under the Criminal Procedure Code, it must be a "case" within the meaning of Section 527 and accordingly the Section can be invoked here.

3. We are unable to agree. In our opinion, the power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all Courts of Record and Section 1(2) of the Code expressly excludes special jurisdictions from its scope. The Section runs

" In the absence of any specific provision to the contrary, nothing herein contained shall affect any special ..... law now in force or any special jurisdiction or power conferred, by any other law for the time being in force."

4. The term "special jurisdiction" is not defined in the Criminal Procedure Code but the words "special law" are defined in Section 41 of the Indian Penal Code to mean "a law applicable to a particular subject". In the absence of any specific definition in the Criminal Procedure Code, we think that that brings out the ordinary and natural meaning of the words "special jurisdiction" and covers the present case. Contempt is a special subject and the jurisdiction is conferred by a special set of laws peculiar to Courts of Record.

5. This has long been the view in India. In 1857 Peacock, C. J., laid down the rule quite broadly in these words in "In re Abdool: 8 W.R. Cr. 32 at p. 33(A) ,

"there can be no doubt that every Court of Record has the power of summarily punishing for contempt .

It is true the same learned Judge sitting in the Privy Council in 1883 traced the origin of the power in the case of the Calcutta, Bombay and Madras High Courts to the Common Law of England; see - Surendranath v. Chief Justice and Judges of the High Court of Bengal , 10 Ind App. 171 at p. 179 (PC) (B), but it is evident from other decisions of the Judicial Committee that the jurisdiction is broader based than that. But however that may be, Sir Barnes Peacock made it clear that the words "any other law" in Section 5 of the Criminal Procedure Code do not cover contempt of a kind punishable summarily by the three Chartered High Courts.

6. Now it is relevant to note in this connection that whatever the origin of the jurisdiction may be in the case of those three Courts, the Charter of 1774 which established the Supreme Court of Bengal, while providing in clause 4 that its Judges should have the same jurisdiction as the Court of King s Bench in England, also expressly stated in clause 21 that the Court is empowered to punish for contempt.

When the Supreme Court of Bengal was abolished, the High Court s Act of 1861 continued those powers to the Chartered High Courts by Sections 9 and 11 and clause 2 of the Letters Patent of the year 1865 continued them as Courts of Record. Despi