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TMI Blog2001 (8) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned single Judge also directed notice to be issued to the said respondents appellants herein directing them to appear personally before the Court. 3. Mr. V. B. Upadhyaya, learned senior advocate assisted by Mr. V. K. Upadhyaya, learned advocate for the appellants have submitted before us that the learned single Judge had no jurisdiction to pass such an order under Article 215 of the Constitution of India. Mr. Upadhyaya has further submitted that the learned Judge, who has been assigned the determination in respect of matters relating to contempt, is only competent to exercise such jurisdiction. The learned Judge at the material time not having conferred with such determination by the Chief Justice, has exceeded his jurisdiction in passing the order on the application under Article 215 of the Constitution in respect of matters relating to contempt and by directing issuance of notice to respondents therein. He has further submitted that contempt in respect of High Court means the contempt of the entire composite High Court comprising of the Chief Justice and all other Judges of the High Court under Article 216 of the Constitution of India. It Is the Chief Justice alone who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge is empowered to issue contempt. The learned counsel has also referred to Section 19 of the Contempt of Courts Act and has submitted that the special appeal is barred In the instant case. For the purpose of defining the word contempt of court, he has also referred to Jowitt's Dictionary of English Law Vol. I. page 441 wherein the expression 'contempt of court' is defined in the following manner : Contempt of court, where a person who is a party to a proceeding in a superior Court of record fails to comply with an order made against him or an undertaking given by him (R. V. Barnardo (1889) 23 QBD 305), or where a person, whether a party to a proceeding or not does not act which may tend to hinder the course of justice or show disrespect to the Court's authority. Contempts are either direct, which only insult or resist the powers of the Court, or the persons of the Judges who preside there ; or consequential which, without such gross Insolence or direct opposition, plainly tend to create a universal disregard to their authority. Contempts may be divided into acts of contempt committed in the Court itself (in facie curiae) and out of Court. It has also been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re High Court, meaning thereby that the High Court comprising of the Chief Justice and all other Judges can exercise the power of contempt of the High Court itself. The power exercisable by the High Court is, therefore, exercisable by the entire High Court comprising of the Chief Justice and other Judges and that includes as one of its powers to punish for contempt of itself. 7. The Rules of the Court provide for jurisdiction of Judges sitting alone or in Division Bench. Provisions contained in Rules 1, 6 and 17 of Chapter V and Rule 2 of Chapter VIII relate to constitution of Benches and to the exercise of judicial power. The said provisions are set out herein below : Chapter V 1. Constitution of Benches.--Judges shall sit alone or in such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his directions. 6. Reference to a larger Bench,--The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question so formulated shall be returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment can be issued by this Court under revisional jurisdiction. The relevant portion of the order reads as under : Revisional Jurisdiction in criminal cases is conferred on the High Court by Section 435 of the Code of Criminal Procedure. The jurisdiction that this Section confers is on the 'High Court' and not on any individual Judge of the Court or on any Bench of the Court. The powers which the High Court can exercise while 'exercising its revisional jurisdiction are provided for in Section 439 of the Code of Criminal Procedure and here too it may be noticed, the powers that are described there are the powers of the 'High Court' and not of any individual Judge or any individual or particular Bench of the High Court. If there is nothing else in the law then whenever any revisional power had to be exercised by the High Court that power could only be exercised by the entire Court and not by any single Judge or a Division Bench of the Court. The jurisdiction of the High Court and the powers are provided for by Article 225 of the Constitution. The perusal of that article necessitates the consideration of the provisions contained in Section 223 of the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l168 . In that case, the Chief Justice P. D. Desai assessed how the power to be exercised by the High Court. The relevant portion of the said judgment is quoted below : 11. The High Court Act or the Charter Act, 1861 (24 and 25 Vict, C. 104), hereinafter called the Charter Act, which received the Royal assent on August 6, 1861, the parent legislation which authorised the establishment of High Courts of Judicature in India. Section 1 of the said Act providing, inter alia, that it shall be lawful for Her Majesty, by Letters Patent, to erect and establish a High Court of Judicature at Fort William in Bengal for the Bengal Division of the Presidency of Fort William and, by like letters patent, to erect and establish like High Court at Madras and Bombay for those Presidencies respectively, and that the High Court to be established under such letters patent shall be deemed to be established from and after the publication of such letters patent in the same presidency, or such other time as in such letters patent may be appointed in this behalf. Section 13 of the Charter Act provided that subject to any laws or regulations which may be made by the Governor-General in Council, the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of India Act, 1915. Section 106 of the said Act provided, inter alia, that several High Courts are courts of record and have all such powers and authority over or in relation to the administration of justice, including power to make rules for regulating the practice of the Court, as are vested in them by letters patent, and, subject to the provisions of any such letters patent all such jurisdiction, powers respectively at the commencement of the said Act. Section 108 of the said Act reads as follows : 108 (1) Each High Court may by its own rules provide as it thinks fit for the exercise, by one or more Judges or by division courts constituted by two or more Judges of the High Court of the original and appellate jurisdiction vested in the Court. (2) The Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several division courts. 15. The Government of India Act, 1915, was repealed and re-enacted with modifications by the Government of India Act, 1935, Section 223 of the said Act read as follows : 223. Subject to the provisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate legislation. 18. It is thus, clear that the Chief Justice of the High Court has the constitutional power to determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several division courts. In other words, the function of assignment of judicial business amongst the Judges of the High Court, whether sitting singly or in division courts, is entrusted by law to the Chief Justice and the Judge or Judges derive jurisdiction to deal with and decide the cases or class of cases assigned to them by virtue of the determination made by the Chief Justice. This power is derived not only from the provisions of Section 108 Sub-section (2) of the Government of India Act, 1915, which still subsists and the power where-under still continues to be there, as held in National Sewing Thread Co. Ltd.'s case, but also inheres in the Chief Justice. 23. The foregoing review of the constitutional and statutory provisions and the case law on the subject leaves no room for doubt or debate that once the Chief Justice has determined what Judges of the Court are to sit alone or to constitute the several division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder has been placed before him for orders either by the Chief Justice or in accordance with his directions. Any order which a Bench or a single Judge may choose to make in a case that is not placed before them or him by the Chief Justice or in accordance with his directions is an order which, in my opinion, if made, is without jurisdiction. 24. It is pertinent to remember that the jurisdiction of the Court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to value, place, nature of the subject-matter and age of the case. The power of the Court may be exercised within the defined territorial limits. It may be qualified or confined to subject-matter of prescribed value. The Court may have competence to deal only with the cases of a specified character, for instance, testamentary or matrimonial appeals, revisions or writs, or specified subjects, such as, land or service, and so on and so forth. The jurisdiction may be further restricted with reference to the age of cases if the authority concerned directs the hearing of cases to take place before the Court according to the date of filing. This classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the extent and it places a case of civil contempt before a Bench or a division of a Court which may not have passed the order, direction or judgment. A matter of civil contempt may be placed before a learned Judge, but this would be a jurisdiction so nominated by the Hon'ble the Chief Justice, of cases referred by the subordinate courts to the High Court. But of contempt, that is, civil contempt alleged for the violation of an order, direction or Judgment of the High Court, as a Court of Record, the only Court would be the Court which passed such an order, direction or judgment and no other. Consequently and for the reasons given in this order Sub-clause (a) of Rule 4 of Chapter XXXV-E of the rules framed under Section 23 of the Contempt of Courts Act, 1971, and appended to the Allahabad High Court Rules, for the presentation and hearing of civil contempt case, in so far as they relate to the examination and allegation of a civil contempt on the breach or violation of an order, direction or judgment of a Bench of the High Court, but misplaces the case before a Court which may not have passed the order, direction or judgment, render this particular Rule inconsistent in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved by the said Court and it shall have all the powers of such a superior court of record including the power to punish for contempt of itself. As a superior court of record the High Court is entitled to preserve its original record in perpetuity. Even apart from the aforesaid attribute of a superior court of record the High Court as such has two fold powers. Being a court of record the High Court (i) has power to determine the question about its own jurisdiction and (ii) has inherent power to punish for its contempt summarily. As regards the contention that the Full Court of the Allahabad High Court by framing the impugned Rule had enacted a provision which fell foul on the touchstone of Article 215 of the Constitution it may be staled that the High Court as an institution has the seisin of the relevant record pertaining to all the cases tried before it. Record cannot be said to be in the custody of the author of the order giving rise to contempt proceedings. The cases may be pending or might have been disposed of. Civil contempt might be alleged in connection with interim orders in pending matters and can also be alleged in connection with final orders in matters which are al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do with Article 215. Article 215 saves the inherent powers of the High Court as a court of record to suitably punish the contemnor who is alleged to have committed civil contempt of its order. Order might have been passed by any of the learned Judges exercising the jurisdiction of the High Court as per the work assigned to them under the Rules by the orders of the Chief Justice, but once such an order is passed by a learned single Judge or a Division Bench of two or more Judges the order becomes the order of the High Court. Breach of such an order which gives rise to contempt proceedings also pertains to the contempt of the High Court as an institution. At that stage Article 215 does not operate, but it is only Article 225 read with the Rules framed by the High Court on administrative side and the power inhering in the Chief Justice, of assigning work to the appropriate Bench of Judge or Judges, under Section 108 of the Government of India Act, 1915, read with Section 223 of the Government of India Act, 1935, which would have its full play. Consequently if under the impugned rules the task of considering the grievances of the aggrieved party in connection with civil contempts of Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court alone and it is the prerogative to distribute business of the High Court both judicial and administrative. The Chief Justice is the master of the order. He alone has the right and power to decide how the Benches of the High Court are to be constituted : which Judge is to sit alone and which cases he can and is required to hear as also as which Judges shall constitute a Division Bench and what work those Benches shall do. The puisne Judge can only do that work which is allotted to them by the Chief Justice or under his directions. No Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court unless the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the High Court. No departure from it can be permitted. Till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the Bench themselves, and one or both the Judges constituting such Bench cannot sit singly and take up any other kind of judicial business not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andan Agarwal v. Commissioner, Faizabad Division, Dr. L. P. Misra, advocate, the appellant in Criminal Appeal No. 483 of 1994 along with his associates entered in the courtroom raising slogans and asking the Court to rise and stop functioning. The Court, however, continued to function whereupon Dr. L. P. Misra along with Shri A. K. Bajpaie. Sri Anand Mohan Srivastava, Sri Y. C. Pandey and Shri Shamim Ahmad (appellants in connected appeals) came on the dais and tried to manhandle and in that process, Dr. L. P. Misra caught hold of Justice A. P. Singh forcing the Court to rise and then used abusive language against Justice B. M. Lal in the following words : Turn sale utth jaao nahien to jaan se maar daalenge. Tumne Chief Justice se kaha hai ki Lucknow ke Judges 5,000 rupya lekar stay grant karte hain our stay extend karte hain. Aaj 2 baje tak agar tum apna boriya bister lekar yahan se nahien bhag jaate to tumhe jaan se maar daalenge. 4. In view of an alarming and threatening situation, the Court was forced to retire and consequently both the Hon'ble Judges retired to the chamber of Justice B. M. Lal. Dr. L. P. Misra then entered the chamber and repeated the same unciviliz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the impugned order on the same day after it reassembled without issuing a show-cause notice or giving an opportunity to the appellants to explain the alleged contemptuous conduct it was also urged that the minimal requirement of following the procedure prescribed by law had been overlooked by the Court. Learned counsel for the appellants had referred to Section 14 of the Contempt of Courts Act, 1971, as also the provisions contained in Chapter XXXV-E of the Allahabad High Court Rules, 1952. In support of his contention. Emphasis was laid to Rules 7 and 8, which read as under : 7. When it is alleged or appears to the Court upon Its own view that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and at any time before the rising of the Court, on the same day or as early as possible thereafter, shall : (a) cause him to be informed in writing of the contempt with which he is charged, and if such person pleads guilty to the charge, his plea shall be recorded and the Court may in its discretion, convict him thereon. (b) if such person refuses to plead, or does not plead, or claims to be trie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how the Benches of the High Court are to be constituted : which Judge is to sit alone and which cases he can and is required to hear as also which Judges shall constitute a Division Bench and what work those Benches shall do. (3) The puisne Judges can only do that work which is allotted to them by the Chief Justice or under his directions. No Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court unless the case is allotted to him or them by the Chief Justice. (4) Any order which a Bench or a single Judge may choose to make a case that is not placed before them or him by the Chief Justice or in accordance with his direction is an order without jurisdiction and void. (5) Contempt jurisdiction is an independent jurisdiction of original nature whether emanating from the Contempt of Courts Act or under Article 215 of the Constitution of India. (6) For exercising the jurisdiction under Article 215 of the Constitution of India, the procedure prescribed by law has to be followed. 17. It appears that on 26.3.2001, when the learned Judge passed the said order, he was allotted and assigned the determination with regard to the following matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment but only those orders mould be judgment which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. The Supreme Court in this connection, in paragraph 86 of the said judgment has quoted a portion of the judgment of Calcutta High Court in the case of Shorab Merwanji Modi v. Mansata Film Distributors AIR1957Cal727 , inter alia, as follows : On a strict construction of the Calcutta test, the right or liability must mean some right or liability which is a subject-matter of controversy in the suit or proceeding, but in its application to individual cases, that strict construction has not been adhered to and was indeed often departed from by Couch, C. J., himself who was the author of the test. Orders concerning the jurisdiction of the Court to entertain a suit, as distinguished from matters of the actual dispute between the parties, were held by him to come within the category of judgment. 22. In the instant case, the learned Judge has exercised the jurisdiction not vested in him and as such, the order concerning the jurisdiction to entertain the contempt proceeding clearly falls within the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of the suit itself or any part thereof or the same affects the question of Court's jurisdiction or the question of limitation, such an order will normally constitute 'judgment' within the meaning of Clause 15 of the letters patent. 24. In the instant case, admittedly, the question of jurisdiction is involved and, as such, the order falls within the meaning of 'judgment' under the relevant clause of Rule 5 of Chapter VIII of the High Court Rules and accordingly appears to us to be appealable. 25. In the instant case, since the order passed by the learned single Judge was beyond his competence or Jurisdiction to pass such order, it is void and non-est and is accordingly appealable. The appellant being Vice Chancellor of the Banaras Hindu University, who is holding a responsible position, issue of notice by the order impugned, which is without jurisdiction, has adversely affected his rights and the rights of the appellant having been adversely affected, the appeal appears to be maintainable. 26. Considering the facts on record as also the principle of law as laid down in various decisions noted hereinbefore, we are of the view that the learned single ..... X X X X Extracts X X X X X X X X Extracts X X X X
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