Civil Judge Cum Judicial Magistrate, Barmer vs S.H.O. Police Station, Chohtan

This contempt petition has been registered by the office based on a communication received from Civil Judge & Judicial Magistrate, Barmer addressed to Registrar General, Rajasthan High Court, Jodhpur for initiating contempt proceedings against SHO, Police Station, Chohatan.

It is inter alia indicated in the communication dated 15/12/2018 that on 23/10/2018 in FIR No. 230/2018 the statement of victim under Section 164 Cr.P.C. was recorded by the Magistrate and were forwarded to the concerned court; a carbon copy of the statement was sent to the S.H.O, Police Station, Chohatan in a sealed envelope, which was returned back on 25/10/2018 through a constable openly without envelope for getting it sealed as a carbon copy. It is indicated that the said action of sending the statement openly i.e. not in sealed envelope is in violation of directions issued by Hon'ble Supreme Court in State of Karnataka vs. Shivanna alias Tarkari Shivanna : (2014) 8 SCC 913 as the Hon'ble Supreme Court in the said judgment had directed that till report under Section 173 Cr.P.C. is not filed, the statement under Section 164 Cr.P.C. be not disclosed. Based on the said incident, wherein, the Magistrate first sought explanation of the S.H.O. and feeling dissatisfied with the same, has sought initiation of proceedings against the S.H.O. for having committed contempt of directions of Hon'ble Supreme Court.

Hon'ble Supreme Court in State of Karnataka (supra) insofar as relevant directed as under:

"10.On considering the same, we have accepted the suggestion offered by the learned counsel who appeared before us and hence exercising powers under Article 142 of the Constitution, we are pleased to issue interim directions in the form of mandamus to all the Police Stations- in-charge in the entire country to follow the directions of this Court which are as follows:

10.1. Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. A copy of the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till charge-sheet/report under Section 173 Cr.P.C. is filed."

The allegations made in the letter pertain to the respondent S.H.O. having violated the directions of Hon'ble Supreme Court and, therefore, committing contempt of directions issued by Hon'ble Supreme Court in the case of State of Karnataka (supra).

The issue with regard to power of the High Court to initiate proceedings either suo moto or otherwise for contempt of Supreme Court has been considered in detail with reference to Section 10 of the Contempt of Courts Act, 1971 ('the Act, 1971') and Article 215 of the Constitution of India in Vitusah Oberoi & Ors. vs. Court of Its Own Motion : (2017) 2 SCC 314, wherein, after reproducing Articles 129, 215 and Section 10 of the Act, 1971 in para 10 and 12 it has been observed and laid down as under:

"10. There is, from a plain reading of the above, nothing in the Contempt of Courts Act, 1971 or in Article 215 of the Constitution which can be said to empower the High Court to initiate proceedings suo-motu or otherwise for the contempt of a superior Court like the Supreme Court of India. As a matter of fact, the Supreme Court under Article 129 and High Court under Article 215 of the Constitution are both declared to be Courts of Record. One of the recognised attributes of a court of record is the power to punish for its contempt and the contempt of courts subordinate to it. That is precisely why Articles 129 and 215, while declaring the Supreme Court and the High Courts as Courts of Record, recognise the power vested in them to punish for their own contempt. The use of the expression "including" in the said provisions is explanatory in character. It signifies that the Supreme Court and the High Courts shall, as Courts of Records, exercise all such powers as are otherwise available to them including the power to punish for their own contempt."

"12. The power to punish for contempt vested in a Court of Record under Article 215 does not, however, extend to punishing for the contempt of a superior court. Such a power has never been recognised as an attribute of a court of record nor has the same been specifically conferred upon the High Courts under Article 215. A priori if the power to punish under Article 215 is limited to the contempt of the High Court or courts subordinate to the High Court as appears to us to be the position, there was no way the High Court could justify invoking that power to punish for the contempt of a superior court. That is particularly so when the superior court's power to punish for its contempt has been in no uncertain terms recognised by Article 129 of the Constitution. The availability of the power under Article 129 and its plenitude is yet another reason why Article 215 could never have been intended to empower the High Courts to punish for the contempt of the Supreme Court. The logic is simple. If Supreme Court does not, despite the availability of the power vested in it, invoke the same to punish for its contempt, there is no question of a Court subordinate to the Supreme Court doing so. Viewed from any angle, the order passed by the High Court appears to us to be without jurisdiction, hence, liable to be set aside."

As the allegations made in the communication dated 15/12/2018 pertain to the respondent S.H.O. having committed contempt of an order passed by Hon'ble Supreme Court, in the light of the above judgment in the case of Vitusah Oberoi (supra) the contempt petition before this Court is not maintainable.

In view of the above discussion, the contempt petition is dismissed as not maintainable.