# B. MISHRA v. JUSTICE MISHRA

- **Citation:** [1975] 1 S.C.R. 524
- **Court:** Supreme Court of India
- **Decided:** 1974-06-21
- **Case number:** cOntempt initiated by thi! notice was Criminal Misc. case No. 8 of 1972
- **Bench:** D. G. Palekar, P. N. Bhagwati, V. R. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-mishra-v-justice-mishra-6350
- **Pages:** 10

## Headnote

Contempt of Cc1'rt Act, 1971--Sec. 19(1) lvhere the Court rejects a niotion
or a reference and declines to initiate a prodeeding for contempt, can such
a deciisidn be regarded as "a decision in the exercise of its
jurisdiotion Y\Ji
punish for contempt,
The appellant, a member of the Judicial service of Orissa was promoted
as Addi. District and Sessions Judge on 31st July, 1968. but on 30th March,
1972 he was suspended by the High Court as a disciplinary enquiry
wa:!
decided to be started against him.
On 29th April, 1972 the appellant was charge-sheeted and wa. called
upon to show cause why disciplinary action should not be taken against him.
ln the meantime the appellant appealed to the Governor, complainin& a,aaimt
tbe order of suspeiision and requesting him to cancel the order of suspension
on the ground that it was <>ut.side the authority of the High Court. The High
Court withheld the appeal of the appellant and refused to forward it to the
Governor since in its opinion, no appeal lay to the Governor against an order
of suspension _pa_ssed by the High Court.
The appellant. thereafter __ f.Qrwarded directly a
representation
to
tho
Governor with a copy to the High Court and by this representation be moved
the Governor to transfer the disciplinary enquiry against him to the Admini·
strative Tribunal.
'fhere were several submissions ma<le in this representation
Which scandalised the Higb Court and tended to lower its prestige etc.
The
High Court therefore, suo motu, issued a notice dated 3rd July, 1972 calling
upon the appellant to show cause .why he should not be punished for contempt
of Court.
The notice eet out the passages from the representation made by
the appellant and the proceedj,ng for cOntempt initiated by thi! notice
was
Criminal Misc. case No. 8 of 1972.
The appellant appeared in answer to the notice and ra~ed several contentions.
One of the contentions was that whatever he had said in regard to
the Judges of the High Court in the representation was in regard to their
conduct in the Qiscbarge of administrative functions and not judicial functions
and therfore, it did not amount to contempt of Court.
The appellant pleaded
before the Full Bench that this Contention should be tried as preliminary issue,
but the Full Bench rejected the plea of the appellant The appellant thereupon, preferred a petition for special leave to appeal to this Court and in this
vetition the appellant once again made submissions which prima facie ap&ared
to be criminal contempt of court. The petition wrut rejected by this Hon'ble
Court, but the High Court, taking note of the objectionable submissions con ..
tained in the petition, issued a supplementary notice dated 5th January. 1973
to the appellant to show cause why he should not be punished for havinJ
committed contempt of Court by publishing such statements.
The Full Bench, thereafter heard the proceedinl!l! for contempt on tht
charges contained in both the not;ces and beld the appellant guilty of con ...
tempt of Court and sentenced him to
two months' simple
imprisonment.
In the mean while, the displinary enquiry instituted against the appellant
was entrusted to a sing-le judge and the learned Judge submitted his re-port
1\Dding the appellant guilty of all the charges, except charge No. 4(a). The
High Court considered the report at a full Court meeting and thereafter
iS5ued show cause notice caUing upon the appcUant to show cause why ha
•hould not be reduced to the rank of Addi.
District Magistrate_ Judicial.
The appeUant was granted personal hearing and after considering the explanation given by him the High Court found the appellant guilty of the charse1
except charge 4(a) and reduced him to the rank of AD.M., Judicial.
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B. MISHRA V. JUSTICE MISHRA
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The appellant took the view that some of the issues arising in the disciplinary enquiry were the same as those arising in the proceeding for con·
tempt which was pending against him and the decision of thO

## Text

524
BARADAKANTA MISHRA
~.
MR. JUSTICE GATIKRUSHNA MISHRA
June 21, 1974
[D. G. PALEKAR, P. N. BHAGWATI, AND V. R. KRISHNA IYER, JJ.)
Contempt of Cc1'rt Act, 1971--Sec. 19(1) lvhere the Court rejects a niotion
or a reference and declines to initiate a prodeeding for contempt, can such
a deciisidn be regarded as "a decision in the exercise of its
jurisdiotion Y\Ji
punish for contempt,
The appellant, a member of the Judicial service of Orissa was promoted
as Addi. District and Sessions Judge on 31st July, 1968. but on 30th March,
1972 he was suspended by the High Court as a disciplinary enquiry
wa:!
decided to be started against him.
On 29th April, 1972 the appellant was charge-sheeted and wa. called
upon to show cause why disciplinary action should not be taken against him.
ln the meantime the appellant appealed to the Governor, complainin& a,aaimt
tbe order of suspeiision and requesting him to cancel the order of suspension
on the ground that it was <>ut.side the authority of the High Court. The High
Court withheld the appeal of the appellant and refused to forward it to the
Governor since in its opinion, no appeal lay to the Governor against an order
of suspension _pa_ssed by the High Court.
The appellant. thereafter __ f.Qrwarded directly a
representation
to
tho
Governor with a copy to the High Court and by this representation be moved
the Governor to transfer the disciplinary enquiry against him to the Admini·
strative Tribunal.
'fhere were several submissions ma<le in this representation
Which scandalised the Higb Court and tended to lower its prestige etc.
The
High Court therefore, suo motu, issued a notice dated 3rd July, 1972 calling
upon the appellant to show cause .why he should not be punished for contempt
of Court.
The notice eet out the passages from the representation made by
the appellant and the proceedj,ng for cOntempt initiated by thi! notice
was
Criminal Misc. case No. 8 of 1972.
The appellant appeared in answer to the notice and ra~ed several contentions.
One of the contentions was that whatever he had said in regard to
the Judges of the High Court in the representation was in regard to their
conduct in the Qiscbarge of administrative functions and not judicial functions
and therfore, it did not amount to contempt of Court.
The appellant pleaded
before the Full Bench that this Contention should be tried as preliminary issue,
but the Full Bench rejected the plea of the appellant The appellant thereupon, preferred a petition for special leave to appeal to this Court and in this
vetition the appellant once again made submissions which prima facie ap&ared
to be criminal contempt of court. The petition wrut rejected by this Hon'ble
Court, but the High Court, taking note of the objectionable submissions con ..
tained in the petition, issued a supplementary notice dated 5th January. 1973
to the appellant to show cause why he should not be punished for havinJ
committed contempt of Court by publishing such statements.
The Full Bench, thereafter heard the proceedinl!l! for contempt on tht
charges contained in both the not;ces and beld the appellant guilty of con ...
tempt of Court and sentenced him to
two months' simple
imprisonment.
In the mean while, the displinary enquiry instituted against the appellant
was entrusted to a sing-le judge and the learned Judge submitted his re-port
1\Dding the appellant guilty of all the charges, except charge No. 4(a). The
High Court considered the report at a full Court meeting and thereafter
iS5ued show cause notice caUing upon the appcUant to show cause why ha
•hould not be reduced to the rank of Addi.
District Magistrate_ Judicial.
The appeUant was granted personal hearing and after considering the explanation given by him the High Court found the appellant guilty of the charse1
except charge 4(a) and reduced him to the rank of AD.M., Judicial.
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B. MISHRA V. JUSTICE MISHRA
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The appellant took the view that some of the issues arising in the disciplinary enquiry were the same as those arising in the proceeding for con·
tempt which was pending against him and the decision of thOSe issues by
the High Court on the administrative side in the course of the disciplinary
enquiry~ amounted to pre-judging these issues in the proceeding for contem1>t
which was a judicial
proceeding and the Chief Justice and other Judges
of the High Court who decided
the disciplinarv
enqu;rv
were,
therefore,
guilty of criminal contempt of their own High Court. The appellant, therefore. as soon as the proceeding for contempt was decided by the High Court
inoved the Full Bench for initiating a proceeding for contempt against the
Chief Justice and otber Judges in their Personal capacity, The motion of
the appellant was heard by a Full Bench and the bench held that in its
opinion there was no contempt of Court committed by the Chief Justice and
other Judges and in any event by reason of Section 15, (I). the appellant
was not entitled to move the High Coyrt for taking action against the Chief
.lustice and other Judges since he had not obtained the. consent in writing of
the Advocate General and the Bt:nch a-ccordingly declined to take any action
on the motion of the appellant. The
rrppellant,
thereupon,
purporting
to
appeal under Section 19(1)
preferred the present appeal to this
Hon'ble
Court
Before this Hon'ble Court a preliminary objection against the maintainability of the appeal was raised by the respondent. According to the respon~
dent, no appeal lay under Section 19(1) against the refusal of the High Court
to take action on the motion made by the appellant. The apJ)ellant. on the
other hand, contended by relying on the words "Any order or decision ....
in the exercise of its jurisdiction to punicih or contempt" and urged that even
jf the decision was taken by the High Court not to take any action on the
motion made by the Advocate-General or any other person with the consent
in writing of the Advocate-Genera], it would still be a decision in the exercise
of its jurisdictfon to punish for contempt and therefore be appealable on the
plain terms of section 19(1),
Dismissing the appeal,
HELD ( 1) It is clear that under the law as it stood prior to the enactment
of the contempt of Court Act, 1971 even a person punished for criminal contempt had no right of appeal.
This unsatisfactory position was, however,
made right by Parliament by enacting the ContemPt of Courts
Act
1971.
which introduced Section 19(1) by which an appeal as of right was introduced
"from any order or decision of a High Court in the exercise of its jur~
diction to punish for contempt." [531 D]
(2) From the provision of the Act. of 1971 it is clear that the scheme
adopted by the Legislature is that the Court may initiate a proceeding for
contempt suo motu or on a motion Jllade by the Advocate General or on
a reference made by a subordinate Court. 'Where the Court initiates a pro- .
cecding for contempt suo motu, it assume~ jurisdiction for punishing for contempt and takes the first step in exercise of it; but when a· motion is made
by the Advocate·General or any other person with the consent in writin1
of the Advocate-General or when a reference is made by a Subordinate Court,
the Court, on a consideration nf ~uch motinn or reference woul(1 dl'cidc,
in exercise of its jurisdiction, whether to initiate proceedings for contempt.
TI1e Court may decline to take cognizance and to initiate a proceeding for
contempt. 1Jhe exercise of contempt jurisdiction.. being a matter entirely
between the court and the contemnt>r the Court though moved by mdtio•
or reference, may in its discretion decline to exercise
its
jurisdiction
for
contempt. It is only when the Court decides to take action and initiates
a. proceedings for contempt that it as~ume<; Jurisdiction to puni<;h for contemot.
The exercise of 1he jurisdiction to punlsh f0r contentpt commences with the
initiation of a proeeeding for contempt. whether suo mo~u or on a motion
or ai reference,
That is why the terminus a quo for the peri0d of Jimi~::ition
provided in Section 20 is the date when the proceeding for contempt is initiated
bv the Court.
Where the court reiect~ ::i. motiOn or reference and declineQ to
initiate a proceeding for contempt, it refuses to assun1e or exercise jurisdiction
to punish for contempt, and such a deci·.~ion cannot be regarded as a decision
in the exercise of its jurisdictien to punish for contempt. Such
a
decision
526
SUPREME COURT REPORTS
[1975] 1 S.C.R.
would not, therefore fall within the opening word~ of Section 19( 1) and no
appeal would lie against it as of right under that provision. l532 A-F]
(3) It does not,_ however mean that there is no re1nedy available where the
High Court, on an erroneous view disallows or unreasonably refuse_s to take
action on a motion or a reference.
Though no appeal lies under Section 19( I)
as of right. the Advocate-General or any other person with lhe consent in
writing of the Advocate-General who has moved the High Court, can alway<;
come to this Court by a petition for special leave to appeal and the power of
this Court to interfere with such order or decision in the exercise of its extraordinary jurisdiction under Article 136 is unfettered.
'[his Court can always in
suitable cases set right any order or deci'iion of the I-Iigh Court refusing to take
action for contempt against the alleged contcmner, if the inte1 csts of the administration of justice so require.
[532 F-f-Ij
CRIMINAL APPELLATE JURISDICTION :
Criminal Appeal No. 84
of 1973.
(Appeal under Section 19 of the Contempt of Court Act,
1971
from the Judgment and Order dated the 13th February, 1973 of the
Orissa High Court at Cuttack in original Criminal Misc. Case Nq. 3
of 1973).
BGradakanta Mishra, in person.
F. S. Nariman. Additional' Solicitor-General of India, and Vinoo
Bhagat, for the respondent.
The Judgment of the Court was delivered by
BHAGWATI, J., Since we are disposing of this appeal en a preliminary point, it is not necessary to state the facts in detail. It would be
sufficient if we state only so much of the facts as bear on the preliminary point.
The appellant was at all material times a member of the Judicial
Service of the State of Orissa.
He was promoted as an
Additional
District and Sessions Judge on 31st July, 1968 but by an order dated
30th March, 1972 made by the High Court of Orissa, he was suspended
as a disciplinary inquiry was decided to be instituted against him. On
29th April, 1972, a charge-sheet containing eight charges was served
on him and he was called upon to show cause why disciplinary action
shc1Uld not be taken against him. In the meantime, on 10th April,
1972, the appellant addressed an appeal to the Government complaining against the order of suspension passed by the High Court and requesting the Governor to cancel the order of suspension on the ground
that it was outside the authc~ity of the High Court. The High Court
withheld the appeal of the appellant and refused to forward it to the
Governor since in its opinion no appeal lay to the Governor against
an order of suspension passed by the
High Court.
The
appellant
thereupon forwarded directly to the Governor a representation dated
14th May, 1972 with a copy to the Registrar of the High Court and
by this representation the appellant moved the Governc~ to transfer
th·e disciplinary inquiry against him to the
Administrat:vc Tribunal.
There were several statements made in this representation which
scandalized the High Court and tended to lower its prestige, dignity
and authority and thus constituted criminal contempt of court within
the meaning of the Contempt of Cc)Urts Act, 1 '}71. The High Court,
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B. MISHRA v. JUSTICE MISHRA (Bhagwati, !.)
52 7
therefore, suo motu issued a notice dated 3rd July, 1972 calling upon
the appellant 'o show cause why he should not be punished for contempt of court. The ncitice set out the passages from the representation
made by the appellant to the Governor which, in the prima facie
opinion of the .High Court, amounted 1'0 contempt of court. The proceediug for cqntempt initiated by this notice was numbered as Criminal Miscellaneous Case No. 8 of 1972. The appellant appeared in
answer to the notice and raised several contentions with a view to
exonerating himself from the charge ot contempt.
One of the contentions was that whatever he had said in regard tCI the judges of the
High Court in the representation made by him to the Governor was in
regard to their conduct in the discharge of administrative functions
and not judicial 'functions, and therefcoce,
it did not amount
to
contempt of court.
The appellant pleaded before
the
Full Bench of five judges, which was constituted to hear the proceeding for contempt, that this contention should be tried as a preliminary issue, but the Full Bench rejected the plea of the appellant.
The appellant thereupon preferred a petition for special leave to appeal
to this Cciurt and in this petition, the appellant once again made statements which prima facie appeared to constitute criminal contempt of
court. The petition was rejected by this Court but the High Court taking note of the objectionable statements contained in the petition issued
a supplementary notice dated 5th January, 1973 tq the appellant to
show cause why he should not be punished for having committed oontempt of court by publishing such statements. The Full Bench thereafter heard the proceeding for contempt on the charges contained in
both the notices and by an c~der dated 5th February, 1973 held the
appellant guilty of oontempt of court and sentenced him to simple imprisonment for two months.
Meanwhile the disciplinary inquiry instituted under the charge-sheet
elated 29th April, 1972 was entrusted to K. B. Panda, J., and the
learned Judge, after holding a proper inquiry in accordance with the
principles of natural justice, submitted a report dated 2nd August 1972
finding the apr,dlant gui'.ty of all the eight charges set out in the chargesheet, except charge No. 4(a). The High Court considered the report
at a Full Court meeting of al! the judges and finding itself in agreement
with the report, the High C'.ourt issued a show cause notice calling
upon the appellant to show cause why he should not be reduced to the
rank of Additional District Magistrate (Judicial). The appellant was
granted personal hearing and after considering the explanation given by
him, the High Court again at a Full Court meeting of all the judges
held on 8th December, 1972, found the appellant guilty of the charges
levelled against him except charge No. 4(a) and reduced him to the
rank d Additional District Magistrate (Judicial). The appellant took
the view that &ome of the issues arising in the disciplinary inquiry were
the same as those arising in the proceeding fc~ contempt which was
pending against him and the decision of those issues by the High Court
on the Administrative side in the course of the disciplinary inquiry
amounted to pre-judging those issues in the prci:eeding for contempt
which was a judicial proceeding and the Chief Justice and other judges
528
SUPREME COURT REPORTS
(1975] 1 S.C.R.
of the High Court, who decided the disciplinary inquiry were, therefore, guilty of criminal contempt of their own High Court. The appellant, therefore, as soqn as the proceeding for contempt was decided by
the Full Bench on 5th February, 1973, moved the Full Bench for initiating proceeding for contempt against the Chief Justice and other
judges in their personal capacity. The motion of the appellant was
heard by a Full Bench of three judges and by an order dated 13th
February, 1973, the Bench held that in its opiniqn there was no contempt of court committed by the Chief Justice and the other judges and
in any event, by reason of section 15, sub-section ( 4), the appellant
was not entitled to move the High Court for taking action against the
Chief Justice and other judges since he had ncit obtained the consent
in writing of the Advocate General :md the Bench accordingly declined
to take any action on the motion of the appellant. The appellant
thereupon, purportiitg to avail of the right of appeal granted under
section 19, sub-secticjn ( 1), preferred the present appeal to this
Court.
When the appeal reached healing before us, the learned Additional
Solicitor General, appearing on behalf of the respondent, raised a preliminary objection against the maintainability of the appeal. The learned Additional Solicitor General contended that nq appeal lay under
section 19, su!J.-';ection ( 1) against the refusal of the High Court to
take action on the motion made by the appellant. It is only if the
High Court suo motu or Cl!l a motion made by t]je Advocate General
-0r any other person with the consent in writing of the Advocate General
takes action and initiates proceeding for contempt against the alleged
contemner and on arising at a finding of gnilt, punishes him for contempt that the alleged contemncr has a right of appeal under section
19, sub-section (1). Even if a proceeding for contempt is initiated
against the alleged contemner but the alleged contemner is found not
guilty and is ex<Jnerated, there is nc1 right of appeal, contended the
learned Additional Solicitor General, and neither the Advocate (J,:,neral
nor the person who has, with the consent in writing of the Advocate
General, moved the High Court, can appeal as of right. The appellant,
who appeared in person, CCl!llbated this oontention by relying on the
words "any order or decision-in the exercise of its jurisdiction to
punish for contempt" and urged that even if a. decision was taken by
the High Court not to take acti<Jn CII1 the motion made by the Advocate General or any other person with the consent in writing of the
Advocate General, it would still be a decision in the exercise of its
jurisdiction to punish for cc1I1tempt and would, therefore, be appealable on the plain terms of section 19, sub-section (1). It is difficult
to imagine, contended the appellant, that the legislature should have
conferred a right on the Advocate General or anv other person with
the cc111Sent in writing of the Advocate General to move the High Court
fcir taking action for contempt, but should have refused to grant a right
of appeal to the Advocate General or such other person even if his
motion was wrongly rejected by the High Court. These rival contentioos raise an interesting question of law depending for its determina·
tion on the true interpretation <Jf the language of section 19, sub-section
(1)_
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B. MISHRA '" JUSTICE MISHRA (Bhagwati, J.)
529
Now, while considering this question, we must bear in mind the
true nature of the contempt jurisdiction exercised by the High Court
and the law in regard to right of appeal which obtained immediately
prior to the enactment of the contempt of Courts Act, 1971. It has
always been regarded as well settled law that so far as criminal contempt is concerned, it is a matter entirely between the Court and the
alleged contemner. No one has a statutory or co=on law right lo
say that he is entitled as a matter of course to an order for committal
because the alkgcd conternner is guilty of contempt.
All that he can
do is to move the Oourt and draw its attention to the contempt alleged
to have been committed and it will then be for the Court, if it so thinks
fit, to take action tct vindicate its authority and co=it the alleged on·
temner for contempt. It is for the Court in the exercise of its discretion to decide whether or not to initiate a proceeding for contempt.
Even if the Court is prima facie satisfied that a ccotempt has been
committed, the Court may yet choose to ignore it and decline to take
action. There is no right in any one to compel the Court to initiate
a proceeding fc~ contempt even where a prima facie case appean to
have been made out. The same position obtains even after a proceeding for contempt is initiated by the Court on a motion made to it for
the purpose. The Court may in the exercise cif its discretion accept an
unconditional apology from the alleged contemner and drop the proceeding for contempt. Or, even after the alleged contemner is found
guilty, the Court may, having regard to the circumstances, decline to
ounish him. So far as the contempt jurisdiction is concerned, the only
actors in the drama are the Court and the alleged conteniner. An outside party comes in only by way of drawing the attention of the Court
to the contempt which has been co=itted : he does not become a
party to the proceeding for contempt which may be initiated by the
Court. It was far this reason that a Division Bench of the Bombay
High Court held in Narendrabhai Sarabhai Hatheesing v.
Chinublrai
Manibhai Seth(1) that an order made by the High Court refusing to
commit a man for breach of an undertaking given to the Court is not
a judgment within the meaning of clause 15 of the Lettres Patent as it
does not affect the metits of any question between the parties to the
suit.
Beaumont, CJ., pointed out : "the undertaking is given to the
Court; if it is broken, and that fact i• brought to the Court's notice,
the Court may take such action as it thinks fit. If it comes to the
conclusion that the order has been deliberately broken, it will mobably
commit the defaulter to jail, but the Court is free to adopt such course
as it thinks fit." Rangnekar, J., also spoke in the same strain when he
said : "Proceedings for contempt are matters entirely between the
Court and the person alleged to have been guilty of contemn!.
N" norty
has any statutory right to say that he is entitled as a matter of course
to an order for committal because his opponent is guilty of contempt.
All that he can dc1 is to come to the Court and complain that the
authority of the Court has been flouted, and if the Court thinlcs that
it was so, then the Ccl\lrt in its discretion takes action to vindicate i1'
authority. It is, therefore, difficult to 8eC how an application !or contempt raises any question between the parties, oo that any order made
(I) l.L.R 60 Born. 894.
530
SUPREME COURT REPORTS
[1975] I s.c.R.
on such an application by which the Court in its discretion refuses to
take any actic1n against the party alleged to be in the wrong can be
said to raise any question between the parties." It is, therefore, clear
that under the law as it stood prior to the enactment of the Contempt
of Courts Act, 1971 no appeal lay at che instance of a party moving the
High Court for taking actic1n for contempt, if the High Court in the
exercise of its discretion refused to take action on the motion of such
party. Even if the High Court took action and initiated a proceeding
for ccJitempt and in such proceeding, the alleged contemner,
being
found guilty, was punished for contempt, the order being one made by
the High Court in the exercise of its criminal jurisdiction, was not
appealable under clause 15 of the Letters Pat·~nt, and therefore, no
appeal lay against it from a Single Judge to a Division Bench and
equally, there was net appeal as of right from a Division Bench to this
Court.
The result was that in cases of criminal contempt, even
a
person punished for contempt had no right of appeal and he could
impugn the order committing him for contempt only if the High Court
granted the appropriate certificate under Art. 134 in fit cases er on tlte
refusal of the High Court to do so, this Court intervened by granting
special leave under article 136.
This was a highly unsatisfactory state of affairs and it was largely
responsible for the criticism against the large powers of th·o Court to
punish for contempt. This unsatisfactory feature of the law of contempt was adversely commented upon by Sanyal Committee in its Report dated 28th February, 1963 submitted to. the Gc1Vernment of India.
The Sanyal Committee pointed out in Paragraph 2. 1 in Chapter XI of
its Report :
"The present state of the law relating to appeal in cases
of criminal contempt appears to be more the result of accidents of legal history than a matter of policy. That this is so
is clearly evident from the fact that in those ca,es of cnntempt for which spedfic provision is made in the Indian
Penal Code and the Code of Criminal Procedure a right of
appeal is provided for under section 486 of the Code of
Criminal Procedure. In the case of contempt falling within
the purview of inherent powers of the High Courts, no
:Specific provision has been made in the Letters Patent of the
High Courts and the only explanation for this seems to be
that no such provision was made in England in regard to the
English superior courts. Further, under the provisions of the
Letters Patent, no appeal is ordinarily permissible where
the order of the court is made in the exercise of the criminal
jurisdiction. It has also been held that section 411A of the
Code of Criminal Procedure does not afford any remedy by
way of appeal in contempt cases. The result has been that
before the Constitution came into force, an appeal in contempt cases from the decision of a High Court could lie only
in special cases to the Judicial Committee. The Constitution
did not alter this position very much for the effect of articles
134 and 136 of the Constitution is merely to substitute the
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B, MISHRA \'. JUSTICE MISHRA (Bhagwati, J.)
531
Supreme Court for the Privy Council. In short, there is only
a discretionary right of appeal available at present m cases
of criminal contempt."
Then in Paragraph 3.1 in Chapter XI of its Report the Sanyal
Ccmmittec proceeded to state :
"we accordingly recommend that against an
order of
a single Judge, punishing for contempt, the appeal should
lie, in the High Court, to a Bench of Judges and against a
similar order of a Bench of Judges of a High Court, the
appeal should lie as of right to the Supreme Court."
Chapter XII of the Report contained the recommendations of the
Sanyal Committee and clause 25 of the recommendations was in the
following terms :
"Provision may be made for an appeal as of right from
any order or decision of a High Court in the exercise of its
jurisdiction to punish for contempt. The appeal should lie
to a Bench of Judges of the High Court where the order or
decision is of a single Judge. Where the order or decision is
of a Bench the appeal should lie to the Supreme Court."
It was in pursuance of this recommendation made by the Sanyai
Committee that the Parliament, while enacting the Contempt of Courts
Act, 1971, introduced section 19, sub-section(!) in that Act conferring an appeal as of right "from any order or decision of a High Court
in the exerc.ise of its jurisdiction to punish for contempt".
Before we examine the language of section 19, sub-section (l) in
order to arrive at its true interpretation, we may first look at sections
15, 17 and 20. Sub-section (1) of section 15 provides that in a case
of criminal contempt other than contempt in the face of the Court,
the Supreme Court or the High Court may take action on its own
motion or on a motion made by the Advocate General or any other
person with the consent in writing of the Advocate General and subsection ( 2) of that section says that in case of criminal contempt of
any subordinate court, the High Court may take action on a reference
made to it by the subordinate court or on a motion made by the
Advocate General or in relation to Union Territories, by such law
officer as the Central Government may specify in this behalf. Section
17 lays down the procedure to be followed by the Court when it
decides to take action and initiates a proceeding for contempt under
section 15. Sub-section (1) of that section provides that notice of
every proceeding under section 15 shall be served personally on the
person charged and according to sub-section ( 2) , such notice shall be
accompanied, in case of a proceeding commenced on a motion, bv a
copy of the motion as also copies of the affidavits, if anv. on which
such motion is founded, and in case of a proceeding commenced on a
reference by a subordinate court, by a copy of the reference. Section
20 prescribes a period of limitation by saying that no court shall initiate any proceeding for contemn! either on its own mot;nn or otherwise after the expiry of a period of one year from the date on which
the contempt is alleged to have been committed. It will be seen from
these provisions that the scheme adopted by the legislature is that the
532
SUPREME COURT REPORTS
(1975] 1 S.C.R.
Court may initiate a proceeding for contempt suo motu or on a motion
A
made by the Advocate General or any other persou with the consent
in wiiting of the Advocate General or on a reference made by a
subordinate court. Where the Court initiates a proceeding for contempt suo motu, it assumes jurisdiction to punish for contempt and
takea the first step in exercise of it. But what happens when a motion
is made by the Advocate General or any other person with the consent in writing of the Advocate General or a reference is made by a
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subordinate court. Does the Court enter upon the jurisdiction to
punish for contempt and act in exercise of it when it considers such
motion or reference for the purpose of deciding whether it should
initiat~ a proceeding for contempt? We do not think so. The motion
or reference is only for the purpose of drawing the attention of the
Court to the contempt alleged to have been committed and it is for the
Court, on a consideration of such motion or reference, to decide, in
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exercise of its discretion, whether or not to initiate a proceeding for
contempt. The Court may decline to take cognizance and to initiate
a proceeding for contempt either because in its opinion no contempt
11rima facie appears to have been committed or because, even if there
is prima facie contempt, it is not a fit case in which action should be
taken against the alleged contemn er. The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged
D
contemner, the Court, though moved by motion or reference, may in
its discretion, decline to exercise its jurisdiction for contempt. It is only
when the Court decides to take action and initiates a proceeding for
contempt that it assumes jurisdiction to punish for contempt. The
exercise of tho jurisdiction to punish for contempt commences with
the initiation of a proceeding for contempt, whether suo motu or on a
motion or a reference. That is why the terminus a quo for the period
E
of limitation provided in section 20 is the date when a proceeding for
contempt is initiated by "the Court. Where the Court rejects a motion
or a reference and declines to initiate a proceeding for contempt, it
refuses to assume or exercise jurisdiction to punish for contempt and
such a decision cannot be regarded as a decision in the exercise of its
jurisdiction to punish for eontempt. Such a decision would not, therefore, fall within the opening words of section 19, snb-m!ction (1) and
F
no appeal would lie against it as of right under that provision. This
of course does not mean that there is no remedy available where the
High Court on an erroneons view of the law or unreasonably and perversely refuses to take action for contempt on a motion or a reference.
Though no appeal lies under section 19, sub-section (1) as of right
against such order or decision of the High Court, the Advocate General
or any other person who has with the consent in writing of the
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Advocato General moved the High Court can always come to this
Court by a petition for special leave to appeal and the power of this
Court to interfere with such order or decision in the exercise of its
e:-;:traordinary jurisdiction under article 13 6 is unfettered. This Court
can always in suitable cases set right any order or decision of the High
Court refusing to take action for contempt against the alleged contemner, if the larger interests of administration of justice so require.
II
It is, therefore, clear that the order made by the Full Bench of the
Orissa High Court in the present ·case rejecting the motion made by
•• MISHRA v. JUSTICE MISHRA (Bhagwati, J.)
533
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the appellant and refusing to initiate a proceeding for contempt against
the Chief Justice and other judges was not appealable under section
19, sub-section (1). We may point out that in the present case it is
unnecessary to consider whether an appeal under section
19, sub·
section ( 1 ) is confined only to a case where the High Court after
initiating a proceeding for contempt finds
the alleged contemner
guilty and punishes· him for contempt as contended by the learned
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Additional Solicitor General or it extends also to a case where after
initiating a proceeding for contempt, the High Court finds that the
alleged contemner is not guilty of contempt and exonerates him, or
even if he is found guilty of contempt, declines to punish him. A
question may well arise whether in the latter case the Advocate
General or any other person who has, with the consent in writing of
the Advocate General, moved the High Court can. appeal as of right
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against the order or decision of the High Court. That question does
not arise in the present case and we need not, therefore, express any
opinion upon it, though we may point out that in England a right of
appeal is given to a disappointed applicant under section 13, snbsections (1) and (2) of the Administration of Justice Act, 1960.
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We are, therefore, of the view that the preliminary objection
raised by the respondent is well f011Dded and the appellant is not
entitled to maintain the pre.sent appeal under section 19, sub-section
(1). The appeal, therefore, fails and is dismissed.
There will be no
order as to costs.
s.c.
Appeal dismissed.
2-M185Sut.CI./7$