1991 Supreme(SC) 466

SUPREME COURT OF INDIA
K.N. SINGH, KULDIP SINGH AND N.A. KASLIWAL, JJ.
Delhi Judicial Service Association, Tis Hazari Court, Delhi, Petitioner

Versus

State of Gujarat and others, Respondents
Writ Petn. (Cri.) Nos. 517 with 518 of 1989 With Contempt Petn. (Cri.) Nos. 6, 523-524, 525-26, 527 of 1989 With Cri. Misc. Petn. Nos. 1110 of 1990 With 4271, 4272, 4274, 4277-4282 of 1989 With Cri. Contempt Petn. No. - of 1989 With Cri. Misc. Petn. No. 1110 of 1990

Decided on 11-9-1991.
WITH
A. K. Srivastava and others, Petitioners

Versus

Union of India and others, Respondents
WITH
N. L. Patel, v. Petitioner

Versus

State of Gujarat and others, Respondents
WITH
Bhushan B. Oza and another, Petitioners

Versus

Union of India and others, Respondents 2177
WITH
Gujarat Judicial Service Association, Petitioner

Versus

State of Gujarat and others, Respondents
WITH
Bar Council of Gujarat, Ahmedabad, Petitioner

Versus

State of Gujarat and others, Respondents.
WITH
Complaint received from Delhi Judicial Service Association, Tis Hazari, Delhi, Petitioner

Versus

State of Gujarat and others, Respondents.
WITH
Delhi Judl. Service Association, Petioner

Versus

State of Gujarat and others, Respondents.
WITH
R.L. Panjwani, Advocate, SC, Petitioner

Versus

S. R. Sharma, Police Inspector, Nadiad and others, Respondents.
WITH
N. L. Patel, CJM, Nadiad, Petitioner

Versus

State of Gujarat and others, Respondents.

IMPORTANT POINTSupreme Court as court of Record has the power to punish for contempt of subordinate court also.[Editorial Note: This land mark judgment condemns the Police Raj in Gujarat. As it is a very long and important judgment, only part of it is published in this part, the rest will be given in next part to keep the reader to make use of it promptly.]

Headnote:(i) Constitution of India 1950, Art. 20(3) - Violation of rule that no person accused of any offence shall be compelled to be a witness against himself - Incident of arrest, assault and handcuffing of a chief Judicial Magistrate by police in police station - Petition to Supreme Court. Rival versions. Notice issued to contemners for contempt - Commission appointed to enquire about incident and report #22; Police officer involved in incident and other contemners also filed affidavits & cross examined before commission - Whether any finding recorded on the basis of their evidence is violation of Art 20(3)? (No)

       Held: In order to avail the protection of Article 20(3) three conditions must be satisfied. Firstly, the person must be accused of an offence. Secondly, the element of compulsion to be a witness should be there and thirdly it must be against himself.

       A criminal contempt is punishable by the superior courts by fine on imprisonment, but it has many characteristics which distinguishes it from ordinary offence. An offence under the criminal jurisdiction is tried by a Magistrate or a Judge and the procedure of trial is regulated by the Code of Criminal Procedure, 1973 which provides an elaborate procedure for framing of charges, recording of evidence, cross-examination, argument and the judgment. But charge of contempt is tried on summary process without any fixed procedure as the court is free to evolve its own procedure consistent with fair play and natural justice. In contempt proceedings unlike the trial for a criminal offence no oral evidence is ordinarily recorded and the usual practice is to give evidence by affidavits. Under the English Law a criminal offence is tried by criminal courts with the aid of jury but a criminal contempt is tried by courts summarily without the aid and assistance of Jury. Ordinarily, process of trial for contempt is summary. A summary form of trial is held in the case of civil contempt and also in the case of criminal contempt where the act is committed in the actual view of the court or by an offence of justice. The summary procedure is applicable by immemorial usage when criminal contempt was committed out of court by a stranger.

       The jurisdiction to initiate the proceedings and take seisin of the contempt is inherent in a court of record and the procedures of the Criminal Procedure Code do not apply to contempt proceedings.

       Since, the contempt proceedings arc not in the nature of criminal proceedings for an offence, the pendency of contempt proceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemner. A contemner is not in the position of an accused, it is open to the Court to cross-examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence. The peculiar feature distinguishes contempt proceedings from criminal proceedings. In a criminal trial where a person is accused of an offence there is a public prosecution who prosecutes the case on behalf of the prosecution against the accused but in contempt proceedings the court is both the accuser as well as the judge of the accusation as observed by Hidayatullah, CJ in Debabrata Bandopadhyayas5 case. Contempt proceeding is sui generis, it has peculiar features which are not found in criminal proceedings. In this view the contemners do not stand in the position of a "person" accused of an offence" merely on account of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority to record the testimony of the contemners. Commission issued notice and directed Sharma, Police Inspector and other Police Officials to place their version of the incident before it and there was no element of compulsion. In this view there has been no violation of Article 20(3) of the Constitution and Commissions findings are not vititated. (Para 12)

       (ii) Constitution of India 1950 - Article 129 Contempt of court Act, 1971 - Section 15(1) Power of Supreme Court to punish for contempt as court of record - Whether Supreme Court has inherent jurisdiction or power to punish for contempt of subordinate or inferior courts u/A 129 of the constitution as court of record? (Yes) Whether this inherent jurisdiction and power of Supreme Court is restricted by Contempt of Courts Act, 1971? (No) - Parliaments power under Entry 77 of List I in VIIth schedule - Whether can curtail above inherent. Power (No)

       Held: In India, the courts have followed the English practice in holding that a court of record has power of summarily punishing contempt of itself as well as of subordinate courts. (Para 20)

       The English and the Indian authorities are based on the basic foundation of inherent power of a Court of Record, having jurisdiction to correct the judicial orders of subordinate courts. The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of contempt to protect the subordinate courts. The Supreme Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exercise similar jurisdiction and power as the. High Courts had prior to Contempt Legislation in 1926. Inherent powers of a superior Court of Record have remained unaffected even after, Codification of Contempt Law.

       We have scanned the provisions of the 1971 Act, but we find no provision therein curtailing the Supreme Courts power with regard to contempt of subordinate courts, Section 15 on the other hand expressly refers to this Courts power for taking action for contempt of subordinate courts. (Para 25)

       Entry 77 of List I states: "Constitution, organisation, jurisdiction and power of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court". This Entry read with Article 246 confers power .on the Parliament to enact law with respect to the constitution, organisation, jurisdiction and power of the Supreme Court including the contempt of this court. The Parliament is thus competent to enact a law relating to the powers of Supreme Court with regard to contempt of itself such a law may prescribe procedure to be followed and it may also prescribed the maximum punishment which could be awarded and it may provide for appeal and for other matters. But the Central Legislature has no legislative competence to abridge or extinguish the jurisdiction or power conferred on this Court under Article 129 of the Constitution. The Parliaments power to legislate in relation to law of contempt relating to Supreme Court is limited, therefore the Act does not impinge upon this Courts power with regard to the contempt of subordinate courts under Article 129 of the Constitution. (Para 28)

       (iii) Constitution of India 1950 - Article 129 Supreme Court as court of record - Meaning of court of record.

       Held: This expression is well recognised in juridical world. In Jowitts 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". (Para 18)

       Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself (emphasis supplied). -The expression used in Article 129 is not restrictive instead it is extensive in nature. (Para 29)

       The conferment of appellate power on the court by a statute does not and cannot affect the width and amplitude of inherent power of this Court under Article 129 of the Constitution. (Para 30)

       (iv) Constitution of India 1950 - Article 32, 136, 141 as 142 - Powers of Supreme Court under (See Paras 14 to 17 and 37) - Supreme court has supervisory jurisdiction over " all courts in India (Para 17) - It can thus punish for the contempt of the subordinate courts.

       Held: We therefore hold that this Court being the Apex Court and a superior court of record has power to determine its jurisdiction under Article 129 of the Constitution, and as discussed earlier it has jurisdiction to initiate or entertain proceedings for contempt of subordinate courts. This view does not run counter to any provision of the Constitution. (Para 38)

       (v) Contempt of Subordinate Court - Patel C. J.M. Nadiad was assaulted, arrested and handcuffed by 7 Police Officers - They humiliated him by tying with a thick rope #22; object being to wreck vengeance and to humiliate the CJM who had been policing the police with judicial orders - No justification of this misbehaviour on ground that Patel was drunk and violent - Whether amounts to Criminal Contempt? (Yes)

       Held: In the instant case, Patel, CJM, was assaulted, arrested and handcuffed by Police Inspector Sharma and other Police Officers. The Police Officers were not content with this they tied him with a thick rope round his arms and body as if N.L. Patel was a wild animal. As discussed earlier, he was taken in that condition to the hospital for medical examination where he was made to sit in varanda exposing him to he public gaze, providing opportunity to the members of the public to see that the Police had the power and privilege to apprehend and deal with a Chief Judicial Magistrate according to its sweet will. What was the purpose of unusual behaviour of the police was it to secure safety and security of N.L. Patel, or was, it done to prevent escape or any violent activity and ropes on the body of N.L. Patel. The Commission has recorded detailed findings that the object was to wreck vengeance and to humiliate the CJM who had been policing the police by his judicial orders. (Para 40)

       We agree with the findings recorded by the Commission that there was no justification for this extraordinary and unusual behaviour of Police Inspector Sharma and other Police Officers although they made an attempt to justify their unprecedented, dehumanising behaviour on the ground that Patel was drunk, and he was behaving in violent manner and if be had not been handcuffed or tied with ropes, he could have snatched Sharmas revolver and killed him. We are amazed at the reasons given by Sharma justifying the handcuffs and ropes on the body or N.L. Patel. Patel was unarmed, he was at the Police Station in a room, there were at least seven police officials present in the room who were fully armed, yet, there was apprehension about Patels escape or violent behaviour justifying handcuffs and roping. The justification given by them is flimsy and preposterous. S.R. Sharma acted in utter disregard of this Courts direction in Prem Shanker Shuklas case. His explanation that he was not aware of the decision of this Court is a mere pretence as the Commissioner has recorded findings that Gujarat Government had issued Circular letter to the Police incorporating the guide lines laid down by-this Court in Prem Shanker Shuklas case with regard to the handcuffing of prisoner. (Para 41)

       The conduct of Police Officers in assaulting and humiliate the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice. "The summary power of punishment for contempt has been conferred on the courts to keep a blaze of glory around them, to deter people from attempting to render them contemptible in the eyes of the public. These powers are necessary to keep the course of justice free, as it is of great important to society". (Oswald on Contempt of Court). The power to punish contempt is vested in the Judges not for their personal protection only, but for the protection of public justice, whose interest, requires that decency and decorum is preserved in Courts of Justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties, any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contemplated the courts must take serious cognizance of such conduct. (Para 43)

       (vi) Bombay Prohibition Act 1949 - Sections 85(1)(3) r/w 86(1)(b) and no - Indian Penal Code, 1860 - Sections 332,504 & 506 - Charge sheet submitted in court by police against CJM Nadiad for offences of consumption of liquor and slapped Police Inspector in that state in police station - Petition to Supreme Court for contempt - Supreme Court issued notices got incident inquired by commission - Found commission of criminal contempt -. Question against which of the contemners contempt is made out - Objection by contemners that no action can be taken against them as facts in issue in present contempt proceedings are the same as in the Criminal Prosecution of CJM. Nadiad - Whether tenable? (No)

       Held: The question raised on behalf of the contemners need not detain us long. Proceedings for contempt of court are different than those taken for the prosecution of a person for an offence under the criminal jurisdiction. Contempt proceedings are peculiar in nature although in certain aspect they are quasi-criminal in nature but they do not form part of criminal jurisdiction of the court. Criminal prosecution pending against the CJM or against the contemners has no bearing on the contempt proceedings initiated by this court as the present proceedings are not for the purpose of punishing the contemners for the offence of wrongful detention and assault on N.L. Patel, Chief Judicial Magistrate, instead these proceedings have been taken to protect the interest of the public - in the due administration of justice and to preserve the confidence of people in courts. We, accordingly, reject the contemners objection. (Para 44)

       (vii) Constitution of India 1950 - Article 32 and 129 - Petitions against contempt of subordinate court - Question against whom contempt is made out? - (Police Officers and who abetted and helped the police officers).

       Held: We have already recorded findings that Sharma, Police Inspector, Nadiad had preplanned the entire scheme, he deliberately invited Patel to visit Police Station where he was forced to consume liquor and on his refusal he was assaulted, arrested, handcuffed and tied with rope S.R. Sharma, K.H. Sadia, Sub-Inspector, Valjibhai Kalajibhai, Head Constable and Pratap Singh, Constable, all took active part in this shameful episode with a view to malign and denigrade the CJM on account of his judicial orders against the Police, We, therefore, hold S.R. Sharma, Police Inspector, K.H, Sadia, Sub-Inspector, Valijibhai Kalajibhai Head Constable

       and Pratap Singh, Constable guilty of contempt of court. M.B. Savant, Mamlatdar had been summoned by Sharma, Police-Inspector, to the Police Station in advance for purposes of being-witness to the Panchnama drawn up by Sharma describing drunken condition of Patel, CJM. The document was false and deliberately prepared to make out a case against Patel, CJM. M.B. Sawant was in complicity with Sharma, he actively participated in the preparation of the document to malign and humiliate the CJM and to prepare a false case against him, he is also, therefore, guilty of contempt of court. (Para 45)

       As regards D.K. Dhagal, the then District Superintendent of Police, Kheda, we have already recorded findings that he was hand in glove with Sharma, Police Inspector. The circumstances pointed out by the Commission and as discussed earlier, show that though D.K. Dhagal, had not personally participated in the shameful episode but his conduct, act and omission establish his complicity in the incident. It is difficult to believe or imagine that a Police Inspector would arrest, humiliate, assault and handcuff would be indifferent, or a mute spectator. The circumstances unequivocally show that Sharma was acting under the protective cover of Dhagal as he did not take any immediate action in the matter instead he created an alibi for himself by interpolating the entries in the register at the Government Rest House, Balasinor. In his report submitted to the Addl. Chief Secretary (Home) on 27-9-1989, Dhagal did not even remotely mention the handcuffing and roping of the CJM. It is unfortunate that Dhagal as the District Superintendent of Police did not discharge his duty like a responsibile Police Officer instead he identified himself with Sharma, Police Inspector and actively abetted the Commission of onslaught on the CJM. We, accordingly, hold D.K. Dhagla, the then D.S.P., Kheda guilty of contempt of court. (Para 46)

       (viii) Bombay Prohibition Act, Section 85(1) (3)r/w 66(1)(b) and 110 - Indian Penal Code, 1860 - Sections 332, 353, 186 and 506 Criminal Cases initiated against N.L. Patel, CJM on the allegations that Patel had consumed liquor without permit or pass and under the influence of alcohol entered into Police Inspector Sharmas chamber and behaved in an indecent manner by catching hold of Police Inspector Sharma and slapped him. Petition to quash these criminal cases. Contention that as charge sheets have already them submitted therefore Supreme Court should not interfere - Whether proceedings be quashed? (Yes) Whether S.C. has power to quash Criminal Proceedings? (Yes).

       Held: The Commissions as well as our findings clearly demonstrate that the allegations contained in the two F.I.R.s are false. If Police is permitted to prosecute Patel on those allegations merely on the basis that charge sheets have been submitted by it, it would amount to gross abuse of the process of the court. In the circumstances, proceedings against N.L. Patel are liable quashed. (Para 48)

       Article 142(1) of the constitution provides that Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The expression cause or matter would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal. The inherent power of this Court under Article 142 coupled with the plenary and residuary powers under Articles 32 and 136 embraces power to quash criminal proceedings pending before any court to do complete justice in the matter before this Court. If the court is satisfied that the proceeding in a criminal case are being utilised for oblique purposes or if the same are continued on manufactured and false evidence or if no case is made out on the admitted face, it would be in the ends of justice to set aside or quash the criminal proceedings. It is idle to suggest that in such a situation this-Court should be a helpless spectator. (Para 50)

       (ix) Contempt of Subordinate Court. Punishment to be awarded to contemners according to degree and extent of part played keeping in mind how it was played.

       Held: The question arises what punishment should be awarded to the contemners found guilty of contempt. In determining the punishment, the degree and the extent of part played by each of the contemners has to be kept in mind. Sharma, Police Inspector who was the main actor in the entire incident and who had planned the entire episode with a view to humiliate the CJM in the public eye is the main culprit, therefore, he deserves maximum punishment. Sadia, Sub-Inspector took active part in assaulting and tying the CJM at the behest of Sharma, Police Inspector. Valijibhai Kakajibhai, Head Constable and Pratap Singh, Constable also took active part in handcuffing and tying the CJM with ropes, but as subordinate officials they acted under the orders of his superior officer. M.B. Sawant, Mamlatdar was friendly to Sharma, Police Inspector, he had no axe to grind against the CJM but he acted under the influence of Sharma, Police Inspector. So far as D.K. Dhagal is concerned, he actively abetted the commission of onslaught on the CJM. Having regard to-the facts and circumstances and individual part played by each of the aforesaid contemner we hold them guilty of contempt and award punishment as under:

       S.R. Sharma, the then Police Inspector, Nadiad shall undergo simple imprisonment for a period of six months and he shall pay fine of Rs. 2,000/-K.H. Sadia, Sub-Inspector, Nadiad shall undergo simple imprisonment for a period of five months and will pay a fine of Rs. 2,000/- and in default he will undergo one months simple imprisonment. Valjibhai Kalajibhai, Head Constable and Pratap Singh, Constable, both are convicted and awarded simple imprisonment for a period of two months and a fine of Rs. 500/- each, in default they would undergo simple imprisonment for afurtherperiodofl5 days. M.B. Savant, Mamlatdar is convicted and awarded two months simple imprisonment and a fine of Rs. 1,000/- and in default he would undergo one months simple imprisonment. D.K. Dhagal, the then District Superintendent of Police, Kheda, is convicted and sentenced to imprisonment for a period of one month and to pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for 15 days. So far as other respondents against whom notices of contempt have been issued by the Court, there is no adequate material on record to hold them guilty of contempt of court, we accordingly discharge the notices issued to them. (Para 52)

       (x) Power of Commission appointed by Supreme court whether can record evidence? (Yes) -Report of commission - request to recall CJM for further examination - Whether properly rejected by commission? (Yes) - Findings of commission whether based as proper evidence? (Yes) - Whether Report of Commission be accepted? (Yes)

       Held - Justice Sahai was acting on behalf of this Court and he had full authority to record evidence and cross-examine witnesses and to collect evidence on behalf of this Court.

       We have gone through the order and we find that the Commissioner has given good reasons for rejecting the recall of CJM for further cross-examination, as he had been cross-examined by the counsel appearing on behalf of the Police officials including Sharma. The Police Officers and the State Government and CJM were represented by counsel before the Commissioner and every opportunity was afforded to them for cross-examining the witnesses. Dr. Jhalas evidence was not necessary, the Commissioner rightly refused sharmas prayer. (Para 8)

       Further Held: The learned Commissioner has considered the evidence as well as the circumstances in support of his finding that Patel had been invited by Sharma to visit the Police Station and he had sent a Police jeep on which Patel went to the Police Station. This fact is supported by, indepedent witnesses as discussed by the Commissioner. If Patel had gone on the invitation of Sharma on Police jeep and not in the manner as alleged by Sharma, Patel could not be drunk and there appears no reason as to why he would have assaulted Sharma as alleged by the Police. The circumstances as pointed out by the Commissioner fully justify the findings recorded against the Police Officers. It is settled law that even in a criminal trial, accused is convicted on circumstantial evidence in the absence of any eye witness. Learned Commissioner acted judicially in a fair and objective manner in holding the inquiry, he afforded opportunity to the affected Police Officers and other persons and submitted his Report based on good reasons in respect of his findings which arc amply supported by the material on record. The Commissioner did a commendable job in a record time. After hearing arguments at length and on perusal of the statements recorded by the Commissioner and the documentary evidence submitted by the parties, and a careful scrutiny of the affidavits and objections filed in this Court, we find no valid ground to reject the well-reasoned findings recorded by the learned Commissioner. The Commissioners Report runs into 140 pages, which is on record. The contemners and other respondents have failed to place any convincing material before the Court to take a different view. We accordingly accept the same. (Para 9)

       (xi) Contempt of Subordinate Court by Police Officers of State - Displeasure of Supreme Court on the passive conduct of Director General of Police, Gujarat (para 53) and State Govt. (Para 54) Guide Lines to be followed in future in case of arrest and detention of a judicial officer.

       (xii) Contempt of Subordinate Court by Police - Visit of Judicial Officer to Police Station - Prior Intimation to District & Sessions. Judge necessary.

       Held: In our opinion, no Judicial Officer should visit a Police Station on his own except in connection with his official and judicial duties and functions. If it is necessary for a Judicial Officer or a Subordinate Judicial Officer to visit the Police Station in connection with his official duties, he must do so with prior intimation of his visit to the District & Sessions Judge. (Para 56).