Sukhdev Singh Sodhi vs The Chief Justice and Judges of the Pepsu High Court

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: No. 304 of 1953

Decision Date: 25 November 1953

Coram: Vivian Bose, B.K. Mukherjea, Natwarlal H. Bhagwati

In the matter of Sukhdev Singh Sodhi versus The Chief Justice and Judges of the Pepsu High Court, the Supreme Court of India delivered its judgment on 25 November 1953. The petitioner was Sukhdev Singh Sodhi and the respondent was the Chief Justice and the Judges of the Pepsu High Court. The judgment was authored by Justice Vivian Bose, who sat on the bench together with Justices B. K. Mukherjea and Natwarlal H. Bhagwati. The case is reported in the All India Reporter at 1954 AIR 186 and in the Supreme Court Reporter at 1954 SCR 454, and it has been subsequently cited in later reports such as R 1963 SC 692, R 1971 SC 1132, R 1972 SC 858, R 1991 SC 2176, and R 1992 SC 904. The legal provisions relevant to the petition included the Contempt of Courts Act, 1952 (section 3), the Criminal Procedure Code of 1898 (sections 1(2) and 527), and Article 215 of the Constitution of India, which together define the powers of courts to punish contempt. The headnote of the judgment states that the Supreme Court possessed no authority under section 527 of the Criminal Procedure Code, nor under any other statute, to transfer from a High Court proceedings that the same High Court had initiated for contempt of itself to another High Court. The Court observed that section 527 did not apply because the power of a High Court to institute contempt proceedings against itself and to impose punishment is a special jurisdiction inherent in all courts of record, and that section 1(2) of the Criminal Procedure Code expressly excludes such special jurisdictions from its scope. The Court further noted, as a matter of general justice, that a judge who has been personally attacked should, as far as possible, not be required to preside over a contempt matter that directly concerns the judge. In reaching this conclusion the Court referred to a series of authorities, including In re Abdool and Mahtab (8 W.R. Cr. 32), Surendranath Banerjea v. Chief Justice and Judges of the High Court of Bengal (10 I.A. 171), Abdul Hasan Jauhar (I.L.R. 48 All. 711), In the matter of Sashi Bhushan Sarbadhicary (I.L.R. 29 All. 95), Crown v. Sayyad Habib (I.L.R. 6 Lah. 528 F.B.I.), In re Abdul Hasan Jauhar (I.L.R. 48 All. 711), In the matter of Muslim Outlook, Lahore (A.I.R. 1927 Lah. 610), In re Murli Manohar Prasad (I.L.R. 8 Pat. 323), Harikrishen Lal v. The Crown (I.L.R. 18 Lah. 69), Ambard v. Attorney-General for Trinidad & Tobago ([1936] A.C. 322), William Raini v. The Justices of Sierra Leone (8 Moo. P.C. 47), In the matter of K. L. Gauba (I.L.R. 23 Lah. 411), Parashuram Detaram v. Emperor (A.I.R. 1945 P.C. 134), Emperor v. B. G. Horniman (A.I.R. 1945 All. 1), In re Pollard (L.R.P.C. 106), In re Vallabhdas (I.L.R. 27 Bom. 394) and Ebrahim Mammojee Parekh v. King Emperor (I.L.R. 4 Rang. 257). The petition, numbered 304 of 1953, was filed under section 527 of the Criminal Procedure Code, with H. J. Umrigar appearing for the appellant and M. C. Setalvad, Attorney-General for India, assisted by G. N. Loshi, representing the respondent. The judgment was pronounced on 25 November 1953.

In this case, Bose J. delivered the judgment concerning an unusual petition that sought the transfer of certain contempt proceedings from the Pepsu High Court to any other High Court, and, in the alternative, requested that the matter not be heard by two specific judges of that High Court. The petition immediately raised the question of whether the Supreme Court possessed the jurisdiction to order such a transfer. The counsel appearing for the petitioner relied upon section 527 of the Criminal Procedure Code. In brief, the counsel argued that section 527 authorises the transfer of any “case” from one High Court to another whenever it is shown to the Supreme Court that such a transfer would be expedient for the ends of justice. Although the word “case” is not defined in the Code, the term “offence” is defined in section 4(o) as any act or omission made punishable by any law then in force. Because contempt is punishable under the Contempt of Courts Act, 1952, it qualifies as an offence punishable by a law that is presently in force, and therefore it is an offence. The counsel further contended that, being an offence, contempt is triable under the Criminal Procedure Code, since section 5 extends the Code’s applicability not only to offences under the Indian Penal Code but also to offences against “other laws.” Consequently, the matter is triable under the Code and must fall within the meaning of “case” in section 527, enabling the petitioner to invoke the provision for transfer.

The Court was unable to agree with that line of reasoning. It held that the power of a High Court to institute contempt proceedings and to impose punishment where necessary constitutes a special jurisdiction that is inherent in all courts of record. Section 1(2) of the Criminal Procedure Code expressly excludes special jurisdictions from its scope, stating that, in the absence of a specific provision to the contrary, nothing in the Code should affect any special law now in force or any special jurisdiction or power conferred by any other law for the time being in force. Although “special jurisdiction” is not defined in the Code, “special law” is defined in section 41 of the Indian Penal Code as a law applicable to a particular subject. Applying the ordinary and natural meaning of “special jurisdiction,” the Court concluded that contempt, being a special subject, falls within a jurisdiction conferred by a distinct set of laws peculiar to courts of record. This view has long been accepted in Indian law. For instance, in 1867, Chief Justice Peacok, in In re Abdool and Mahtab, declared that every court of record possesses the power to summarily punish for contempt. Accordingly, the Court found that section 527 could not be used to transfer contempt proceedings, as such proceedings are governed by a special jurisdiction excluded by section 1(2) of the Criminal Procedure Code.

In discussing the source of the power to punish contempt, the Court observed that the jurisdiction of the Calcutta, Bombay and Madras High Courts derived originally from the common law of England, as indicated in the decision of Surendranath Banerjea v. Chief Justice and Judges of the High Court of Bengal. The Court noted, however, that later decisions of the Judicial Committee broadened that jurisdiction beyond the common-law basis. Nonetheless, Sir Barnes Peacock had clarified that the expression “any other law” in section 5 of the Criminal Procedure Code did not encompass contempt punishable summarily by the three Chartered High Courts. The Court then turned to the historical foundations of that jurisdiction. It recorded that the Charter of 1774 which created the Supreme Court of Bengal, in clause 4, provided that its judges would enjoy the same jurisdiction as the Court of King's Bench in England, and in clause 21 expressly empowered the court to punish for contempt. When the Supreme Court of Bengal was abolished, the High Courts Act of 1861 transferred those powers to the Chartered High Courts through sections 9 and 11, and clause 2 of the Letters Patent of 1865 reaffirmed their status as courts of record. Although the Privy Council in 1883 traced the Calcutta High Court’s contempt jurisdiction to the common law rather than to clause 15 of its charter, the Court explained that the common law simply recognized contempt-punishment power as inherent in every court of record. Supporting this view, Justice Sulaiman cited English authorities spanning pages 728 to 730 of his judgment in In re Abdul Hasan Jauhar, concluding that the English High Court’s authority over contempt of inferior courts rested on its inherent jurisdiction rather than on historical foundations. The Court also referenced the 1853 Privy Council decision concerning the Recorder’s Court at Sierra Leone, which held that because that court was a court of record, it possessed the same inherent power to determine contempt, stating that “in this country every court of record is the sole and exclusive judge of what amounts to a contempt of court… we are of opinion that it is a court of record and that the law must be considered the same there as in this country.” Finally, the Court mentioned the 1884 edition of Belchamber’s Practice of the Civil Courts, which at page 241 affirmed that every superior court of record, whether in the United Kingdom or in colonial possessions, inherently possessed the power to punish contempt without limitation.

In this passage the Court noted that every superior court of record in the United Kingdom, as well as courts situated in the Crown’s colonial possessions or dependencies, possessed an inherent authority to punish contempt. That authority was said to operate without regard to the physical precincts of the court and to apply in the face of the court itself. The same principle was reflected in Halsbury’s Laws of England, Hailsham edition, page 2, where it was stated that “the superior courts have an inherent jurisdiction to punish criminal contempt etc.” Turning to the historical development in India, the Court observed that the High Court of Allahabad had been created in 1866 under the High Courts Act of 1861 and was expressly constituted as a court of record. In a 1906 decision of the Privy Council, reported at page 108 of the judgment in In the matter of Sashi Bhushan Sarbadhicary, the Council held that the publication of a libel was undeniably a contempt of court and that the High Court could have dealt with it summarily by imposing a fine, an imprisonment, or both. Subsequently, the Government of India Act of 1915 was enacted. Section 106 of that Act preserved for each High Court then existing the same jurisdiction, powers and authority that they possessed at the commencement of the Act. Section 113 authorized the creation of new High Courts by Letters Patent, granting them the same jurisdiction, powers and authority “as are vested in or may be conferred on any High Court existing at the commencement of this Act.” Under that provision the Lahore High Court was established by Letters Patent in 1919 and was similarly constituted as a court of record. In 1925 a Special Bench of the Lahore High Court punished a contempt of itself in the case Crown v Sayyad Habib (1925 I.L.R. 6 Lah. 528 (F.B)). After that episode, the question of contempt concerning a subordinate court was again raised before the Allahabad High Court in 1926. A Full Bench was convened, and the judges reaffirmed the powers discussed in Abdul Hasan Jauhar (1). Two of the judges based their reasoning broadly on the inherent jurisdiction of a court of record. Justice Sulaiman, citing page 727, declared that the matter was not determined by the territorial limits of the jurisdiction of a Supreme Court of Bengal but by the very nature of its constitution. Justice Boys, however, preferred to ground his view on the statutory and Letters Patent provisions that had conferred on the Allahabad High Court powers analogous to those given to the High Court of Calcutta, and he noted at page 733 that such powers applied to every other High Court in the country. In light of this historical background, the Contempt of Courts Act of 1926 was enacted. The heading of the Act declared that its purpose was “to define and limit the powers of certain courts in Punishing contempts of courts.” Its preamble further explained that doubts had arisen regarding the powers of a High Court of Judicature to punish contempts of courts, and that it was expedient to resolve those doubts and to define and limit the powers exercisable by High Courts and Chief Courts in punishing contempts.

Section 2 of the Contempt of Courts Act, 1926 provided that, subject to the provisions of sub-section (3), every High Court of judicature created by Letters Patent was to enjoy and exercise the same jurisdiction, powers and authority, following the same procedures and practices, in relation to contempt committed against courts subordinate to it as it did in relation to contempt committed against itself. By incorporating this language the legislature acknowledged that each Letters-Patent High Court already possessed the inherent power to punish contempt of its own authority, and that the only restriction placed upon that power concerned the quantum of punishment that could subsequently be imposed. The Act made no differentiation among the various Letters-Patent High Courts, although it did draw a line between those High Courts and the Chief Courts. Because the statute was enacted expressly to dispel doubts regarding the powers of the High Courts, it can be inferred that the legislature would have expressly conferred such powers had any uncertainty existed about a High Court’s ability to punish contempt of its own jurisdiction. The single doubt that the Act sought to resolve was whether a High Court could sanction contempt of a court lower in the hierarchy; the provisions eliminated that uncertainty and simultaneously capped the severity of any punishment that could be imposed. Consequently, the Act confirmed that all Letters-Patent High Courts possessed an existing authority to punish contempt, and since the non-chartered High Courts could not have derived this authority from common law, the power must be inherent, arising from their status as courts of record.

In 1927 a full bench of the Lahore High Court, composed of five judges, revisited this issue in the matter of Muslim Outlook, Lahore. The bench reaffirmed the earlier decision in The Crown v. Sayyad Habib and held that the jurisdiction to punish contempt was inherent in every High Court, not limited to the three chartered High Courts. The following year, a full bench of the Patna High Court examined the question in In re Murli Manohar Prasad and subsequently committed the respondent for contempt. In 1936 a special bench of the Lahore High Court, hearing Harkishen Lai v. The Crown, adhered to the earlier Lahore judgments, maintaining the same view of inherent jurisdiction. The Privy Council, in the 1936 Trinidad case Ambard v. Attorney-General for Trinidad & Tobago, classified contempt as a quasi-criminal offence and, in its reasoning, referred to the earlier Sierra Leone decision William Rainy v. The Justices of Sierra Leone. In that Trinidad judgment the Lords declined to accept the sweeping assertion that every court of record is the sole and exclusive judge of what amounts to contempt, thereby limiting the claim of universal judicial authority over contemptuous conduct. (1) A.I.R. 1927 Lah. 610. (2) (1925) I.L.R. 6 Lah. 528. (3) (1929) I.L.R. 8 Pat. 323. (4) (1937) I.L.R. 18 Lab. 69. (5) [1936] A.C. 322. (6) 8 Moo. P.C. 47.

In reviewing the earlier authority, the Court referred to the decision in Surendranath Banerjea v. the Chief Justice and Judges of the High Court of Bengal(1) and observed that, apart from that judgment, there was no doubt about the correctness of the earlier rulings. The Court then noted that in 1942 the Lahore High Court, sitting as a Full Bench for the third time on the same issue, again arrived at the identical conclusion in the matter of K. L. Gauba(2). On this occasion the Lahore judges highlighted that the High Courts of Sind, Rangoon and Nagpur had likewise imposed summary punishments for contempt. They also cited two American cases in which, although the power to punish for contempt was said to be derived from the common law, the judgments emphasized that “the power to fine and imprison for contempt from the earliest history of jurisprudence has been regarded as a necessary incident and attribute of a court without which it could no more exist than without a judge.” Finally, the Privy Council, in Parashuram Detaram v. Emperor(3), affirmed that “this summary power of punishing for contempt … is a power which a court must of necessity possess.” The Court explained that references to later decisions of the Bombay and Madras High Courts after 1883 were omitted because the Judicial Committee had already settled the powers of the three Chartered High Courts. What the Court endeavoured to demonstrate was that, with the exception of the Chartered High Courts, virtually every other High Court in India had exercised the contempt jurisdiction, and whenever that authority was challenged each court held that it was an inherent power of a court of record arising from the very nature of the court itself. This point was deemed crucial for interpreting later statutes, since by that time the power had become judicially accepted throughout India as a special jurisdiction intrinsic to the court. The only contrary example known to the Court was the decision in Emperor v. B. G. Horniman(4), where a Division Bench of the Allahabad High Court ruled that, after the Act of 1926, contempt was punishable under an Indian Penal statute and therefore the Code of Criminal Procedure applied because section 5 contained the words “any other law.” The Court disagreed with that view, holding that the 1926 Act did not confer any new jurisdiction nor create the offence; it merely limited the maximum punishment and removed a specific doubt. Consequently, the power to commence contempt proceedings and to take seisin of the matter remained as it had always been. The Court also recalled that the Pepsu High Court had been created in 1948 and that section 33 of the establishing Ordinance expressly described it as a court of record with the power to punish for contempt, just as the Charter of 1774 had done for the Supreme Court of Bengal, although the Privy Council had not traced that power to the Charter but to the common law.

In the opinion of the Court, the authority to punish for contempt had, by the time of the case, become firmly entrenched in common law, and the expressions “court of record” and “power to punish for contempt” had acquired a distinct and specialised significance. Consequently, the Court held that it was irrelevant whether, in 1948, the power of the Pepsu High Court to act against contempt originated from section 33 of the establishing Ordinance or whether it was an inherent attribute of the court’s nature. In either circumstance, the jurisdiction was a special one, and any legislative intent to remove it or to substitute a different form of jurisdiction would have required the use of express words, given the well-settled case law existing at that time.

The Court noted that the Constitution of India, which came into force in 1950, contains article 215, which declares that “Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” The Court observed that, whether this constitutional provision represented a fresh conferment of power or merely a continuation of the pre-existing power, the result was the same: the jurisdiction remained a special one and therefore lay outside the reach of the Criminal Procedure Code. The Court further explained that the Contempt of Courts Act, 1926, was repealed by Act XXXII of 1952, and that section 3 of the new Act closely mirrors section 2 of the old Act. Rather than creating a new jurisdiction, the new provision assumed, as the earlier statute did, that each High Court possessed a right to punish for contempt and that a special practice and procedure applied. The new language, which requires every High Court to exercise the same jurisdiction, powers and authority “in accordance with the same procedure and practice,” would be unsuitable if the Criminal Procedure Code were applicable.

Regarding contempt of a High Court as opposed to contempt of a subordinate court, the Court affirmed that the Constitution vests the power to punish for contempt in every High Court, meaning that no legislative enactment could withdraw that power and re-grant it afresh. While section 5 of the 1952 Act does broaden the scope of the authority beyond what had previously been regarded as possible, the Court clarified that this amendment does not create a new jurisdiction; it merely expands the range of an existing, highly specialised jurisdiction. On reflection, the Court concluded that the Criminal Procedure Code could not be invoked in such matters because, if it were applicable, it would have to apply in its entirety, raising the question of how contempt proceedings could then be instituted. The 1952 Act limits the maximum punishment for contempt to six months’ simple imprisonment, a fine of Rs 2,000, or both. Accordingly, under the second schedule to the Code, contempt would be triable by a Magistrate rather than by a High Court and would have to follow a summons procedure, which would deprive the High Court of its long-established right to deal with contempt matters summarily.

The Court noted that the authority of a High Court to try contempt of itself summarily and to impose punishment was firmly established by decisions up to 1945 and no subsequent legislation had sought to withdraw that authority. It further observed that section 556 of the Code of Criminal Procedure could not be applied to such matters, nor could the rule that prohibits a judge from introducing his own knowledge of the facts be invoked. Consequently the Court held that the Code of Criminal Procedure did not govern contempt proceedings that were triable by a High Court. The High Court therefore retained the power to try the contempt summarily and to follow its own procedural rules, provided that the procedure is fair, that the alleged contemnor is informed of the charge, and that he is given a reasonable opportunity to present a defence. The Court pointed out that this principle had been announced by the Privy Council in In re Pollard (1) and had subsequently been adopted in India and Burma in In re Vallabhdas (2) and in Ebrahim Mamoojee Parekh v. King Emperor (3), and affirmed that it remained the governing law. Since the Code of Criminal Procedure did not apply, the Court stressed that it possessed no additional power to exercise in the matter. The Constitution, however, conferred upon every High Court the inherent right and power to punish contempt of itself. The Court explained that ordering a transfer of the contempt case to another court would deprive the Pepsu High Court of a right expressly vested in it, and that the Court’s authority to order such a transfer was no greater than the power of a legislature. Likewise, the Court found no jurisdiction to transfer the matter from one judge to another, observing that such a transfer was not a fundamental right, that article 32 therefore did not apply, and that no other statutory provision was available for recourse. For these reasons the petition was deemed incompetent and was dismissed. The Court added, however, that although it lacked power to direct a transfer in an original petition of this nature, it considered it desirable, on general principles of justice, that a judge who had been personally attacked should, as far as possible, not preside over a contempt proceeding that directly implicated him. The Court clarified that this recommendation did not create a general rule, because situations may arise—such as a court having only one or two judges who are both attacked—where the rule would be impossible to follow. The Court also recognized that in certain circumstances, for example when the contempt is in facie curiae, it may be more appropriate for the judge himself to adjudicate the matter. Ultimately, the Court left the decision to the sound judgment of individual judges, trusting that they would conduct themselves with the dispassionate dignity and decorum appropriate to their high office and would keep in mind the well-known maxim that justice must not only be done but must also be seen to be done.

The Court explained that the duty to ensure fairness applied to everyone involved in the proceedings, and it was especially important for an accused person. The Court said that an accused individual must, to the greatest extent that is possible for any human being, be given a feeling of confidence that the trial he or she would face would be fair, just and impartial. This confidence had to arise from the knowledge that the judges hearing the case possessed no personal interest, bias or concern relating to the accused or the matters of the case. By emphasizing this principle, the Court highlighted the necessity for the judiciary to remain detached and neutral so that the accused could trust that justice would be administered without any influence of personal attachment. After considering the submissions and the arguments presented, the Court concluded that the petition was without merit and therefore dismissed it. The petitioner's representative was identified as Ratnaparkhi Anant Govind, who acted on behalf of the petitioner. The respondent was represented by G. H. Rajadhyakska, who acted as the respondent’s agent. The dismissal of the petition therefore marked the final resolution of the matter before the Court.