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TMI Blog1953 (9) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... this case to consider the larger question whether the words accused of are restrictive and mean a person against whom proceeding in a criminal court for any offence committed by him has in fact been started. To similar provision in the Constitution of the United States though slightly differently worded, the American Courts have given a much wider meaning. Confining myself, therefore , to the word 'offence', (sic) the word has not been defined in the Constitution but Article 367 provides that unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution. The word 'offence' has been defined in the General Clauses Act (No. 10 of 1897) as meaning any act or omission made punishable by any law for the time being in force'. I think the words made punishable by any law for the time being in force are important. In Article 13(3) of the Constitution law is defined as including any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Law as in forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion contrary to the provisions thereof...... And Section 5 is to the effect that: Nothing in this Act is intended to repeal, vary, suspend, or affect any of the provisions of the Statute 3 4, William IV, Chapter 85, or of any Act of Parliament passed after that Statute in anywise affecting the East India Company or the said territories, or the inhabitants thereof; or any of the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of Her Majesty ......or of any special or local law. A special or local law was thus saved by Section 5. (5) Coming to the definition of the word offence , in the Penal Code, Section 40 of the Code provides that: Except in the chapters and Sections mentioned in Clauses 2 and 3 of this Section, the word offence denotes a thing made punishable by this Code. Clause 2 mentions certain Sections of Chapter 4 and Chapter 5A and lays down that in this Section the word offence denotes a thing punishable under the Code or any special law or local law as hereinafter defined ; and in certain Sections mentioned in Clause 3 the word offence , it is laid down, has the same meaning when the thing punishable unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 11. Soon after the Penal Code became law the Letters Patent of various High Courts were drafted and the Letters Patent of this Court, Clause 23 is to the following effect: And we do further ordain that all persons brought for trial before the said High Court of Judicature at Allahabad either in the exercise of its original jurisdiction or in the exercise of its jurisdiction as a Court of appeal reference or revision charged with any offence for which provision is made by Act No. 45 of 1860 called the Indian Penal Code or by any Act amending or excluding the said Act which may have been passed prior to the publication of these presents shall be liable to punishment under the said Act or Acts and not otherwise. 12. This provision was made to make it clear that the Penal Code alone was to be applied to all cases provided for in that Code. Thus any other system that may have been followed before was to be deemed to be superseded by the Code which alone was to apply to cases provided for by it. In this connection, I may mention that Maharaj Nund Coomar was tried and hanged for the offence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve enactments to the contrary and, if on those points personal law is silent, the rule for guidance of the Courts is to be the rule of justice, equity and good conscience. 16. That being the legal position that nothing can be treated as a crime unless made so under some statutory provision, the word law in the definition of the word offence in the General Clauses Act must mean statute law. In other words, the definition in the General Clauses Act, Section 3(37) that 'offence' shall mean any act or omission made punishable by any law for the time being in force , means made punishable by the Penal Code or by a Statute passed by a competent legislature. If I am right in my view that offence in Article 20(3) of the Constitution must mean what is made an offence by statute, then the answer to the third question must be that a contemner is not a person accused of an offence within the meaning of Article 20(3) of the Constitution unless it can be held that contempt has been made punishable by any law passed by a competent legislature. 17. The only other point that remains to be considered is whether contempt of court has been made an offence under any statute. The history as rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta High Court in 'Moti Lal Ghosh's case, (D)', had taken the view that the High Court had no such jurisdiction. The Madras High Court in the case Of 'K. Venkat Rao 12 Ind Cas 293 (Mad) (E), held that the High Court had jurisdiction. In the Bombay High Court in -- 'Emperor v. Balkrishna Govind Kulkarni AIR 1922 Bom 52(F) there was some difference of opinion between Sir Norman MacLeod, C. J. and Shah, J. In the Allahabad High Court in -- 'Hadi Husain v.Nasir Uddin Haider AIR1926All623 , it was held that the High Court had jurisdiction to take cognizance of cases of contempt of subordinate civil Courts but the question whether it had similar powers to take cognizance of contempt of inferior criminal courts was left undecided. It was on that account that the Contempt of Courts Act of 1926 was passed for resolving these doubts and to define and limit the powers exercisable by High Courts and Chief Courts in punishing contempts of court, as the Preamble of the Act would show. The Act does not define what is contempt and all that it provides is that the High Court will have jurisdiction, power and authority in respect of contempt of subordinate courts, as it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court to protect subordinate courts against contempt. ...... So far as I can see, therefore, there is no statute law which makes contempt an offence and punishable as such. 23. The question then arises that if nothing can be an offence unless the law, i.e., statute law, makes it so, how is it that contempt, specially the contempt that is classed as criminal contempt, is punishable by the High Court as Courts of Record. 24. My learned brothers have pointed out that contempt has been divided into two broad heads of criminal contempt and civil contempt. In --'Moti Lal Ghosh's case (D)', Mookerjee, J. thus distinguished the two: The distinction between criminal and civil contempt is of a fundamental character,, though it has been sometimes overlooked. A criminal contempt is conduct that is directed against the dignity and authority of the Court. A Civil contempt is failure to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein. Consequently, in the case of a civil contempt the proceeding for its punishment is at the Instance of the party interested and is civil in its character; in the case of a criminal contempt, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erference with the course of justice and for maintaining the authority of law as is administered in the Courts. In 'Ex parte Robinson (1873) 19 Wal 505 (J), Field J. said: The power to punish for contempt is inherent in all Courts. Its existence is essential to the preservation of order in judicial proceedings and to the enforcement of the judgments, orders and writs of Courts, and consequently to the due administration of justice. In 'Cartwright's case (1873) 114 Mad 238 (K), Gray, C. J. observed: the summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in Courts of Chancery and other superior Courts, as essential to the execution and to the maintenance of their authority....,... IN this connection it may be pointed out that for similar reasons the legislature has jurisdiction to punish as contempt a breach of the privilege of the legislature. Articles 105 and 194 of the Constitution define the powers, privileges and immunities of Parliament and the State legislatures in Part A States and its members and Clause 3 of the two Articles provide that in other respects the powers, privileges and immunities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which he wants to rely, or goes into the witness-box, he cannot object to his being subjected to cross-examination. 27. On a careful consideration I am of the opinion, in agreement with my learned brothers, that a contemner being tried by the High Court under its inherent jurisdiction, as a Court of Record, is not a person accused of an offence within the meaning of Article 20(3) of the Constitution. 28. The only other question that remains to be answered is the first question which is as follows: (1)(a) Whether contempt of court is an offence within the meaning of Section 5(2), Criminal P. C.? (b) If it is, whether the procedure prescribed by that Code for the investigation, enquiry and trial of an offence must be followed? In view of what I have already said while dealing with the third question it must follow that contempt of court is not an offence within the meaning of Section 5(2), Criminal p. C. I have already quoted Section 5(2) which deals with offences created by special or local law, which, I have already said, must mean enacted law. The second part of the question, therefore, does riot arise. M.C. Desai, J. 29. The following questions have been referred to us by a Div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences . 32. Offence is defined in Section 4(o) of the Code to mean any act or omission made punishable by any law for the time being in force . It was argued on behalf of the opposite party that contempt of court is an act made punishable by the Contempt of Courts Act, 12 of 1926, that consequently it is an offence within the meaning of the Code and that it must be investigated, enquired into and tried according to the Code. Section 342 of the Code lays down that no oath shall be administered to the accused. The word accused is not defined in the Code, but if contempt of court is an offence within the meaning of the Code, there would be no difficulty in holding that the contemnor is an accused within the meaning of Section 342. The word, accused evidently means a person accused of an offence as defined in the CODE. On behalf of the learned Government Advocate, it was contended that contempt is not an act made punishable by the Contempt of Courts Act, that it is made punishable under the inherent and the supervisory powers of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g their own authority is coeval with their first foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for a contempt to the Court, acted in the face of it. And the issuing of attachments by the Supreme Courts of Justice in Westminster Hall, for contempts out of Court, stands upon the same immemorial usage, as supports the whole Fabric of the Common Law; it is as much the 'lex terrae', and within the exception of Magna Charta, as the issuing of any other legal process whatsoever . Cooley, in his Constitutional Limitations , 8th edition, Vol. 1, p. 668, footnote 2, writes: The power to punish contempts summarily is incident to courts of record, and the courts have generally held that cases of contempt are not triable by jury. The object of the power would be defeated in many cases if they were. Sutherland, J. said in -- 'Michaelson v. United States', (1924) 69 Law Ed 162 (N): That the power to punish for contempts is inherent in all courts * * * may be regarded as settled law. It is essential to the administration of justice. The courts of the United States, when called into existence and vest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reynolds said as regards the Act in -- 'Myers v. u. S. (1923) 68 L Ed 577 (P): To disobey a judicial order is not declared criminal by the Clayton Act, it recognizes that such disobedience may be contempt, and having prescribed limitations, leaves the court to deal with the offender . 34. Exactly the same is the position of our 1926 Act. 35. The legislature cannot define what shall be considered contempt of court ; see Cooley, Vol. 1, p. 181. In the case of 'Bessette', at p. 1005 (O), Mr. Justice Brewer re-affirmed the view taken by the Supreme Court in 're Debs (1899) 158 US 564 (Q), that the inquiry as to the question of disobedience has been from time immemorial, the special function of the court , that it is not technical rule and that to submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency . Every court of record in Englana is the sole and exclusive Judge of what amounts to a contempt of Court ; -- 'Rainy v. The Justices of Sierra Leone', (1852) 8 M PC 47 (B). That is why the Judicial Committee denied to itself the power to interfere with an order of a cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as it is within the exclusive jurisdiction of courts of record to decide what amounts to contempt of court, there was nothing to be done by the legislature except to recognise it and regulate its exercise. The position in India is not different from that in America which is described in 'Corpus Juris Secundum, Vol. 17, p. 58' in the following words: Except where the Constitution otherwise provides, the legislature may not destroy or abridge, or limit, as by definition, the inherent power of courts to punish for contempt. Although there is authority to the contrary, the legislature may however, regulate the use of the power, and in some jurisdictions, ........the punishment that may be imposed. Statutes purporting to grant a court power to punish acts which it has the inherent power to punish are simply declaratory of the Common Law, and such statutes, as well as those defining contempts, or regulating contempt proceedings, do not limit the inherent power to punish . In 'Michaelson's case, (N)', Sutherland, J. said at P. 167, with regard to the power to punish for contempts: The attributes which inhere in that power and are inseparable from it can neither be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remarked on page 4 that the offence of contempt of the High Court can be enquired into according to the provisions of that Code as set out in Section 5(2) . The word used in Section 5(2) of the Code is shall and how that word was changed into can is not explained. If contempt of court were an offence within the meaning of the Code, it was bound to be investigated, enquired into and tried according to the Code, there being no enactment in force regulating the manner and place of investigating, enquiring into or trying the offence. Common law is not an enactment. The Act of 1926 did not regulate the manner or place of investigating, enquiring into or trying contempts of courts. It laid down that a High Court should adopt the same procedure and practice for punishing the contempt of subordinate courts as it adopts for punishing its own contempts but did not in any manner specify or regulate the procedure and practice. Not a single authority was cited before us laying, down that the procedure for the punishment of, contempts of courts is governed by the Code. On the other hand, besides the authorities already mentioned there is -- 'In re K. L. Gauba AIR 1942 Lah 105(U), in which F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ultra vires' the legislature to define contempt in the case of 'P. L. Jaitley, (S),' the learned Judges held that contempt proceedings are of a criminal nature and that contempt is an offence . They did not refer to the definition of offence in the Code and seem to have described contempt as offence in a general way. Their Lordships of the Judicial Committee also had described contempt as an offence in a general way in the case of 'Surendra Nath Banerjee, (B)'. The learned Judges did not express any opinion on the decision in the Bombay case of 'B. G. Horniman, (T)'. 38. My answer to question l(a) is No . The other part of the question does not arise. If the first part were answered in the affirmative, the second part also would have to be answered in the affirmative. 39. Article 20(3) of the Constitution lays down that no person accused of an offence shall be compelled to be a witness against himself. This provision is based on the fifth amendment to the American Constitution stating that no person shall be compelled in any criminal case to be a witness against himself. The word offence is interpreted in the General Clauses Act in exactly the same lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are criminal and punitive in their nature, and the government, the courts, and the people are interested in their prosecution. The latter are civil, remedial, and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce. The contempt that was being considered by Brewer, J., consisted of violation of a perpetual injunction decreed by a court. It was treated as coming more fully within the punitive class than within the remedial class. It was regarded like misconduct in a court room or disobedience of a subpoena. According to Corpus Juris (11), p. 8: Although a contempt of court is in a sense sui generis, it is commonly regarded as in the nature of a crime although not necessarily as a criminal offence. However, criminal contempts ... .are offences against organised society and public justice..... .and the proceedings to punish it (them?) are punitive . When their Lordships of the Judicial Committee remarked in the case of 'Surendra Nath Banerjee, (B)', that a contempt of a High Court by a libel is an offence which by the Common Law of England ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity exists laying down that there is a difference as regards the procedure also. All contempts punishable under the inherent and the supervisory powers, civil or criminal, are governed by the same procedure. In -- 'Gompers V. Buck's Stone and Range Co., (Zl)', Lamar, J. referred to many elements of similarity in procedure and punishment between the two classes. McReynolds, J. made it clear in the case of 'Myers, (P)', at p. 580 that the proceedings to punish contempts are not criminal prosecutions ' within common understanding. The fact that the contempt in the instant case was criminal contempt does not attract the provision in Article 20(3) any more than it attracts the provision of Section 5(2) of the Code. A contemner is not accused of an offence and cannot claim immunity from being sworn as a witness. 43. The privilege against self-crimination is merely an option of refusal, not a prohibition of enquiry. When an ordinary witness is on the stand and a criminating fact is desired to be proved through him, the question may be asked, and it is for him then to say whether he would exercise the option given him by the law. It cannot be known beforehand whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s voluntary offer of testimony upon any fact is a waiver as to all other relevant facts, because of the necessary connection between all. (ibid pp. 440-41). Wigmore further observes on p. 441 that: The spirit and the purpose of the privilege cannot be violated by any questioning after the accused has once voluntarily taken the stand . There is no unanimity about the effect of the waiver, but the greatest support accord to Wig-more (pp. 445-449) is for the view that the waiver extends to all matters relevant to the issue meaning thereby to exclude collateral matters, i.e., facts merely affecting credibility. If the opposite party were entitled to the privilege conferred by Article 20(3) he had to exercise the privilege at the very outset and should not have sworn the affidavit at all. By swearing the affidavit on oath, he waived the privilege. Swearing the affidavit was tantamount to entering the witness box. He was sworn once and that was enough to make him forfeit his privilege. 45. When the opposite party swore the affidavit and filed it in court and the court accepted it, he became liable to be cross-examined on the affidavit. The other party had a right to cross-examine him on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough the contempt committed by him is of criminal nature, is not an accused in the narrow sense in which the word is used in Criminal p. c. The proceedings against him may be criminal proceedings for certain purposes but not for the purpose of deciding whether an oath should be administered to him or not. I have already shown that contempt proceedings are special proceedings not governed by any rule. I have also referred to the passage in 'Corpus Juris (11)' at p. 108 suggesting that a contemner can file an affidavit on oath. The opposite party has already sworn an affidavit. If Section 5, Oaths Act, prevented an oath being administered to him, he has not explained how he swore the affidavit. He is sought to be cross-examined on the affidavit itself and if the Oaths Act did not stand in the way of his swearing the affidavit it cannot stand in the way of his being administered oath again in the witness-box. My answer to the second question is No . B. Mukerji, J. 49. This reference to a Full Bench arises out of certain contempt proceedings which were initiated against the opposite parties on a petition made to this Court by a court subordinate namely, the court of the City M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even if this right had not been specifically, recognised by the Constitution, the right of the High Courts, which were Courts of record, would not have been impaired inasmuch as the existing jurisdictions of the High, Courts, unless altered or curtailed by appropriate law, were to continue, even on the coming into force of the Constitution. It may here be pointed out that the jurisdiction under which High Courts act for punishing contemners is a very special and a very important jurisdiction of these Courts. By a long course of precedents the procedure followed in the exercise of this jurisdiction had become so thoroughly settled that it enjoyed the same legal status as other procedural law of the land contained in statutes. 53. No statute law from the earliest times to the present day has ever defined or even attempted to define contempt . It was always for the courts, when faced with any particular case, to determine whether or not the facts alleged amounted to contempt. Precedents became the only guide for determining and knowing the meaning of contempt. The action of Legislatures in not attempting to define contempt or hedge in the jurisdiction of High Courts to punish for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unishable by any law for the time being in force . As has been pointed out earlier, there is no statute law which makes the offence of contempt or defines it and makes it thereby, punishable. The question then is whether the word law in the definition refers to statute law only or does it include all that other law which though not contained in statutes yet has the same force and binding effect as law contained in statutes. The Criminal P. C. does not define law . The General Clauses Act has not defined law as such but has defined Indian Law . It cannot be contended with any force that we are not in effect concerned with Indian law when we are attempting to find the true meaning of the word law as used in Section 4(1)(o), Criminal P. C. The definition of Indian law in the General Clauses Act is in these words: 'Indian law' shall mean any Act, Ordinance, Regulation, rule, order, bye-law or other instrument which before the commencement of the Constitution had the force of law in any Province of India or part thereof, or thereafter has the force of law in any Part A State or Part C State or part thereof, but does not include any Act of Parliament of the United Kingdom or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain quarters as to whether or not the courts of judicial commissioners had the power to punish for such contempts. The Contempt of Courts Act 1926 resolved these doubts and made certain provisions. This Act, however, did not attempt a definition of contempt . By Section 2 of the Act the power of the superior courts to punish for contempts was recognised. The same Section by Sub-section (2) stated that a Chief Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of itself as a High Court referred to in Sub-section (1). By Section 3 a limit on the power to punish for contempt was placed. The provisions of this Act, which consists only of three Sections, indicate that it neither made contempt an offence nor provided for any punishment, in terms, for such an offence. 60. Section 1(2), Criminal p. C. lays down the extent of the Code. This Section is in these words: It extends to the whole of British India; taut, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r pointed out in this case that the provisions of Section 5, Criminal P. C., 1882, relating to the procedure under which all offences under the Indian Penal Code and all offences under any other law are punished, to not include a contempt of the High Court committed by the publication of a libel out of court, when the court is not sitting, although such contempt may include defamation. Their Lordships pointed out that such a contempt was more than mere defamation, and was of a different character . Their Lordships, however, refrained from considering the true meaning of the words any special jurisdiction or power conferred by any other law now in force as used in Section 1(2), Criminal P. C. This case, in my judgment, supports the view that I have expressed that the offence that a contemner commits is not in 'pari materia' with offence to which Criminal P. C. applies. The authority of this decision is not shaken by anything that has been enacted by the Contempt of Courts Act of 1926. A contrary view was expressed by Collister and Allsop, JJ. in AIR1945All1 '. In this case Collister, J. held that a contempt of the High Court is an offence which can be enquired into in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay view is to be found in. In this case Beaumont, C. J. held that: The power to punish for contempt of Court is a power inherent in superior courts of record, which in this country are the High Courts. Each court has inherent power to punish contempt of itself. 65. The learned Chief Justice further held that the nature of proceedings in contempt were such, as not to bring them within definition of an offence within the meaning of Criminal P. C. Reliance was placed by Beaumont, C. J. on the decision of the Privy Council in 10 Cal 109 (B)'. Beaumont, C. J. also pointed out the distinction that there was between those classes of contempt which fell directly either within the ambit of Civil P. C. or within the ambit of the Penal Code. The conflict that arose on account of the divergent views expressed by the Allahabad High Court and the Bombay High Court in regard to the power of the court to arrest a contemner from outside the jurisdiction of the Court has now been set at rest by an amendment of the Contempt of Courts Act. The amendment to the Act has not, however, touched the procedure which the High Courts have consistently followed during the long course of their existence i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nswer the second question also in the negative. 71. The last question that has been referred to the Full Bench is, whether an alleged contemner is a person accused within the meaning of Article 20(3) of the Constitution and whether he can, if he voluntarily makes an affidavit, be cross-examined on it. Article 20(3) is in these words: No person accused of any offence shall be compelled to be a witness against himself . 72. This provision of our Constitution is analogous to the provision contained in the 5th amendment of the American Constitution wherein they provide a similar prohibition in these words: Nor shall any person be compelled, in any criminal case, to be a witness against himself . 73. The guarantee which was thus furnished by the 5th amendment was a guarantee apart from the due process . The American lawyers have given this guarantee a short name -- the name under which this guarantee is popularly referred to is the Guarantee against self-incrimination . The prohibition which is contained in our Constitution is a prohibition against compelling a man to be a witness against himself; so appears to be the import of the American guarantee. 74. Counsel for the applicants atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected to cross-examination thereon? This question stands on a slightly different footing from the question already considered. 77. The guarantee which has been given in Article 20(3) is a guarantee against self-incrimination and not a guarantee against being cross-examined in regard to the truth or falsity of any statement made by a person in an affidavit. The applicant who put in the affidavit cannot, in my judgment, refuse to be cross-examined by taking shelter behind Article 20(3). He can, however, refuse to answer a question which, if answered, would incriminate him. Reference was made to the case of -- 'Brown v. Walker (1895) 40 LEd 819(24). It is not necessary for me to notice this decision in any detail. In America this guarantee has been interpreted by the courts and applied to particular situations and a good synopsis of these decisions can be found in Weaver's Constitutional Law 1946 Edn. p. 457 as also in Willis' Constitutional Law 1936 Edn. pp. 517. Willoughby refers to it in his Constitution of the United States in Vol. 2, p. 1165 onwards, It has been stated by Willoughby at p. 1166 that this constitutional privilege against self-incrimination is available ..... X X X X Extracts X X X X X X X X Extracts X X X X
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