Khetrabasi Mohanty vs State of Orissa and Others

The petitioner was the District Inspector of Schools, Pattamundai at the relevant time and has been found guilty of contempt of this Court for having wilfully violated this Court''s order dated 21-6-1990 passed in O. J. C. No. 1334 of 1990 in not disbursing the salary of the petitioner and other benefits due to the writ petitioner in O. J. C. 1334 of 1990 within the time prescribed by this Court as was indicated in the order dated 21-6-1990 and has been sentenced to civil imprisonment for a period of one month on that account by the order dated 10-2-1992 passed in Original Crl. Misc. Case No. 13 of 1991.

The contemner has filed an affidavit dated 21-2-1992 bringing certain facts to the knowledge of this Court which he considers relevant for the case. This petition has been numbered as Misc. Case No. 24 of 1992. In this Misc. case the petitioner has not made any prayer for any relief and on the very same day another petition has also been filed by the same contemner for stay of execution of warrant of arrest and also for staying the implementation of the order passed on 10-2-1992 in Original Crl. Misc. Case No. 13 of 1991 in view of the facts stated in Misc. Case No. 24 of 1992. Since the Court wanted to be satisfied if such applications are entertainable at this stage after the Original Crl. Misc. Case has been disposed of finally by the order dated 10-2-1992, the Misc. cases were posted for hearing only on the point of maintainability.

The Hon''ble Supreme Court in the case of State of Orissa Vs. Ram Chander Agarwala and Others, held thus ;

"...that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction."

The same view was also expressed by the Full Bench in State v. Kunjan Pillai Aiyappan Pillai, reported in AIR 1957 ker 210 According to the said decision of the Travancor-Cochin High Court, High Court has no power to review its own judgment in criminal cases except in a case where the Court acted without jurisdiction or where the decision was taken without giving an opportunity to a party of being heard. This view has also been followed by this Court in many of its judgments. According to what is stated above, if the order passed on 10-2-1992 in Original Crl.Misc. case No. 13 of 91 be treated as an order passed by this Court in exercise of its criminal jurisdiction, no petition for review can be entertained against the said judgment or order.

The only provision that is contained in the Criminal Procedure Code dealing with the power of review is provided in Section 362 Cr. P. C. which reads as follows :

"Section 362 : Court to alter judgment;

Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

The prayer of the contemner in Misc. Case. No. 32 of 1992 read with the facts contained in Misc. Case No. 24 of 1992 is not for correction of any clerical or arithmetical error in the judgment, but substantially to reconsider the order on merits. Because of this prayer, it becomes necessary for us to hear the counsel of both sides on the point of maintainability of these applications and ultimately came to the finding as follows :

If the impugned order dated 10-2-1992 be treated as one passed in exercise of original criminal jurisdiction of this Court, this is not available to be reviewed on merits. The most question is whether the proceeding for contempt of Court is an order governed by the Code of Criminal Procedure.

The proceeding of contempt of Court is not initiated in exercise of original criminal jurisdiction of the Court. It is quite true that a criminal contempt is punishable by superior Courts by fine or imprisonment. But it has many characteristics which distinguish it from an ordinary offence. While 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 of witnesses and argument before the judgment is delivered, a charge of contempt is tried summarily without any fixed procedure as the Court is free to evolve its own procedure consistent with fair play and natural justice. Though in certain aspects these proceedings are quasi-criminal, they cannot be treated as matters within the original criminal jurisdiction of the Court. The Hon''ble Supreme Court in V.G. Paterson Vs. O.V. Forbes and Others, approved the view taken earlier by the Apex Court in a case reported in AIR 1954 SC 186 holding that the Code of Criminal Procedure is not applicable to contempt.

The Supreme Court in case of Sukhdev Singh v. Hon''ble Chief Justice S. Teja Singh and the Hon''ble Judges of Pepsu High Court at Patiala, reported in AIR 1954 SC 186 held thus :

"We hold, therefore, that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. xx xx."

Article 215 of the Constitution of India provides that every High Court shall be a Court of record and shall have the powers of such a Court including the power to punish for contempt of itself. Being a superior Court of record it has the power to determine questions about its own jurisdiction.

In case of Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, the Supreme Court had said thus;

"xx xx. One distinguishing characteristic of such superior Courts is that they are entitled to consider questions of their jurisdiction raised before them, xx xx."

The above view was expressed by the Apex Court in connection with Special Reference No. 1 of 1964 reported in 1965 1 SCR 413 in which case it was urged before the Apex Court that in granting bail to Keshab Singh, the High Court had exceeded its jurisdiction and as such, the order was a nullity. Rejecting this argument, the Apex Court observed that in the case of a superior Court of Record, it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the Superior Court is entitled to determine for itself questions about its own jurisdiction.

Besides it has inherent power to punish for its contempt summarily.

It was held in Sukhdev Singh v. Hon''ble Chief Justice S. Teja Singh and the Hon''ble Judges of the Pepsu High Court at Patiala (supra), by the Apex Court that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. This being the position of law, we cannot brush aside these petitions numbered as Misc. Case Nos. 24 and 32 of 1992 as not maintainable as being hit by Section 362 Cr. P. C. or because of lack of jurisdiction to review under the Cr. P. C. since Cr. P. C. has no application to such a proceeding. Keeping in view that the High Court can adopt its own procedure and adopting such procedure it should be fair, we would like to allow the contemner to advance his argument on those two petitions even though the Court has already found him guilty of contempt of this Court by its order dated 10-2-1992 passed in Original Criminal Misc. Case No. 13 of 1991.

Our attention is then drawn to the recent decision in Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat and others, in which it was reiterated that the power to take proceedings for contempt of Court is an inherent power of the Court of record and the Code of Criminal Procedure does not apply to such proceedings (See para 13). In para 29, it was stated that Article 129 (which speaks about the power of the Supreme Court to punish for contempt, whose parallel provision so far as High Court is concerned is Article 215) recognised the inherent power of a Court of record. As it is open in a contempt proceeding to discharge the notice of contempt on acceptance of tendering of apology, which is a peculiar feature distinguishing these proceedings from Criminal Proceedings, such proceedings are really "sui generis", as stated in para 13 of the aforesaid judgment.

It is because of this that bar of Section 362 Cr. P. C. would not apply and so inherent power can be invoked, which could not have been done if Section 362 Cr. P. C. would have been applicable inasmuch as inherent power does nor take within its fold what is expressly barred by the Code, as stated in Simrikhia v. Dolley Mukherjee

We may also refer to Jaipur Mineral Development Syndicate, Jaipur Vs. The Commissioner of Income Tax, New Delhi, in para 5 of which the Court was examining whether in a tax reference proceeding High Court can exercise its inherent power to recall its order by which it had declined to answer the reference for absence of party and non-filing of paper book. It was opined that this could be done in exercise of inherent power. Similar view was taken relating to contempt proceeding by learned single Judge of Andhra Pradesh High Court in D.V.K. Kesava Raju Vs. S.R. Govinda Rajan and Another,

In ordinary course of events, however, we would not have adopted this procedure affording an opportunity to the contemner who though had been given full opportunity earlier to defend himself had failed to file his reply to the show cause issued to him. But in view of the assertions made in Misc. Case No. 24 of 1992, we would like to hear the contemner on Misc. Case Nos. 24 and 32 of 1992 and fix the hearing of those two applications to the 23rd of March, 1992 and direct that the warrant of arrest against the contemner may not be executed till 24th of March, 1992.