TaxTMI 
TaxTMI 
1998 (4) TMI 531
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....cordingly sentence the contemner for his conviction for the offence of the criminal contempt as under: (a) The contemner Vinay Chandra Mishra is hereby sentenced to undergo simple imprisonment for a period of six weeks. However, in the circumstances of the case, the sentence will remain suspended for a period of four years and may be activated in case the contemner is convicted for any other offence of contempt of court within the said period; and (b) The contemner shall stand suspended from practising as an advocate from a period of three years from today with the consequence that all held by him in his capacity as an advocate, shall stand vacated by him forthwith. Aggrieved by the direction that the "Contemner shall stand suspended from practising as an Advocate for a period of three years" issued by this Court by invoking powers under Articles 129 and 142 of the Constitution, the Supreme Court Bar Association, through its Honorary Secretary, has filed this petition under Article 32 of the Constitution of India, seeking the following relief: " Issue and appropriate writ, direction, or declaration, declaring that the disciplinary committees of the Bar Councils set up under the ....
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....lled by any statute. Neither, therefore, the Contempt of Courts Act, 1971 nor the Advocates Act, 1981 can be pressed into service to restrict the said jurisdiction. The Court repelled the arguments advanced on behalf of the contemner, the U.P. Bar Association and the U.P. Bar Council, that the Court cannot while publishing the contemner with any of the "traditional" or "accepted" punishments for contempt, also suspend his licence to practice as an advocate. Since that power is specifically entrusted by the Advocates Act, 1961 to the disciplinary committees of the State Bar Council and/or the Bar Council of India. The Bench opined: What is further, the jurisdiction and powers of this Court under Article 142 which are supplementary in nature and are provided to do complete justice in any matter, are independent of the jurisdiction and powers of this Court under Article 129 which cannot be trammeled in any way by any statutory provision including the provisions of the Advocates Act or the contempt jurisdiction of the court including of this Court and the contempt of Courts Act, 1971 being a statute cannot denude, restrict or limit the powers of this Court to take action for contempt....
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.... India. Article 129 however, declares the Supreme Court to be a Court of Record, while Article 216 declares a High Court also to be a Court of Record. A court of record is a court, the records of which are admitted to be of evidentiary value and are not to be questioned when produced before any court. The power that courts of record enjoy to punish for contempt is a part of their inherent jurisdiction and is essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice. According to Jowitt, Dictionary of English Law, First Edition (p. 526) a court of record has been defined as: " A Court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has power to fine and imprison for contempt of its authority. Wharton's Law Lexicon, explains a court of record as:- " Record, courts of, those whose judicial acts and proceedings are enrolled on parchment, for a perpetual memorial and testimony; which rolls are called the Records of the Courts, and are of such high and supereminent authority that ....
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....or legislation in respect of : "Contempt of Court, but not including contempt of the Supreme Court." The language of entry 77 of List I and entry 14 of List III of the Seventh Schedule demonstrate that the legislative power of the Parliament and of the State legislature extends to legislate with respect to matters connected with contempt of court by the Supreme Court or the High Court, subject however, to the qualification that such legislation cannot denude, abrogate or nullify, the power of the Supreme Court to punish for contempt under Articles 129 or vest that power in some other Court. Besides, Articles 129, the power to punish for contempt is also vested in the Supreme court by virtue of Article 142(2). Article 142 of the Constitution reads:- " 142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. - (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before, it, and any decree so passed or order so made shall to enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by....
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....cature established by Letters patent shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice, in respect of contempts of courts subordinate to them as they have and exercise in respect of contempts of themselves." Since, the Act was enacted with a view to 'remove doubts about the powers of the High Court to Punish for contempt', it made no distinction between one Letters Patent High Court and another though it did distinguish between the Letter Patent High Courts and the Chief Courts. The doubt, as a result of conflict of judicial opinion, whether the High Court punish for contempt of a court subordinate to it, was removed by enactment of Section 2 of the Act (supra). The Contempt of Courts Act, 1926 was replaced by the contempt of Courts act, 1952. The 1952 Act made the significant departures from the 1926 Act, First, the expression "High Court" was defined to include the courts of judicial Commissioner which had been excluded from the purview of the 1926 Act and secondly, the High Courts, including the Court of Judicial commissioner which had been excluded from the purview of the 1920 Act and Secondly, the Hi....
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....ad taken place in the country, it was advisable to have to entire law on the subject scrutinised by a special committee to be set up for the purpose. Pursuant to that decision, the Ministry of Law on July 29, 1961 set up a Committee under the Chairmanship of Shri H.N. Sanyal, Additional Solicitor General of India. The Committee came to be known as Sanyal Committee and it was required: (i) to examine the law relating to contempt of courts generally, and in particular, the law relating to the procedure for the punishment thereof: (ii) to suggest amendments therein with a view to clarifying and reforming the law wherever necessary; and (iii) to make recommendations, for codification of the law in the light of the examination made." The committee inter-alia opined that Parliament or the concerned legislature has the power to legislate in relation to the substantive law of contempt of the Supreme Court and the High Court's Subject only to the qualification that the legislature cannot take away the powers of the Supreme Court or the High Court, as a Court of Record, to punish for contempt nor vest that power in some other court. After the submission of the Sanyal Committee Reports, th....
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.... with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation.- An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. (2) Notwithstanding any thing contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it. (3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary, shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. (4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the tim....
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....be imposed in normal circumstances. The statute, however, confers special power on the Court to pass a sentence of imprisonment if it thinks that ends of justice so require. Thus before a Court passes the extreme sentence of imprisonment, it must give special reasons after a proper application of its mind that a sentence of imprisonment along is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule." Section 10 of the 1971 Act like Section 2 of the 1926 Act and Section 4 of the 1952 Act recognises the power which a High Court already possesses as a Court of Record for punishing for contempt of itself, which jurisdiction has now the sanction of the Constitution also by virtue of Article 215. The Act, however, does not deal with the powers of the Supreme Court to try or punish a contemner for committing contempt of the Supreme Court or the courts subordinate to it and the constitutional provision contained in Articles 142(2) and 129 of the Constitution alone deal with the subject. In S.K. Sarkar, Member, Board of Revenue vs. Vinay chandra Misra, (1981) 1 SCC 436, this court opined: " Articles 129 and preserve al....
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....h the court can impose. 100. Other remedies. As a further alternative to ordering committal, the court may, in its discretion, adopt the more lenient course of granting an injunction to restrain repetition of the act of contempt. The court may also penalise a party in contempt by ordering him to pay the costs of the application. 103. Fine. The court may, as an alternative to committal or sequestration, impose a fine for civil contempt. In assessing the amount of the fine, account should be taken of the seriousness of the contempt and damage done to the public interest. 104. Other remedies. The court may, in its own discretion, grant an injunction, in lieu of committal or sequestration, to restrain the commission or repetition of a civil contempt. The court may in lieu of any other penalty require the contemner to pay the costs of the motion on a common fund basis. 105. Costs. The costs of an application for committal are in the discretion of the court, and should be asked for on the hearing of the application. The respondent can as a general rule only be ordered to pay costs if he has been guilty of contempt. An action is maintainable in the Queen's Beach Division to enfor....
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....can impose, in a case of established contempt, under the common law have now been specifically incorporated in the contempt of Courts Act, 1971 in so far as the High Courts are concerned and therefore to the extent the contempt of Courts Act 1971 identifies the nature of types of punishments which can be awarded in the case of established contempt, it does not impinge upon the inherent powers of the High Court under Article 215 either. No new type of punishment can be created or assumed. As already noticed, the parliament by virtue of Entry 77, List I is competent to enact a law relating to the powers of the Supreme Court with regard to contempt of itself and such a law may prescribe the nature of punishment which may be imposed on a contemner by virtue of the provisions of Article 129 read with Article 142(2). Since, no such law has been enacted by the parliament, the nature of punishment prescribed, under the Contempt of Courts Act, 1971, may act as a guide for the Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme Court, except that ....
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....er the Advocates Act and the Rules framed thereunder. When this Court is seized of a matter of contempt of court by an advocate, there is no "case, cause or matter" before the Supreme Court regarding his "professional misconduct" even though, in a given a case, the contempt committed by an advocate may also amount to an abuse of the privilege granted to an advocate by virtue of the licence to practice law but no issue relating to his suspension from practice is the subject matter of the case. The powers of this Court, under Article 129 read with Article 142 of the Constitution, being supplementary powers have "to be used in exercise of its jurisdiction" in the case under consideration by this Court. Moreover, a case of contempt of court is not stricto senso a cause or a matter between the parties inter se. It is a matter between the court and the contemner. It is not, strictly speaking, tried as an adversarial litigation. The party, which brings the contumacious conduct of the contemner to the notice of the court, whether a private person or the subordinate court, is only an informant and does not have the status of a litigant in the contempt of Court case. The contempt of court ....
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....are both punishments. There is no restriction or limitation on the nature of punishment that this Court may award while exercising its contempt jurisdiction and the said punishments can be the punishments the Court may impose while exercising the said jurisdiction. ( Emphasis supplied) In taking this view, the Bench relied upon Articles 129 and 142 of the Constitution besides Section 38 of the Advocates Act, 1961. The Bench observed: " Secondly, it would also mean that for any act of contempt of court, if it also happens to be an act of professional misconduct under the Bar Council of India Rules, the courts including this Court, will have no power to take action since the Advocates Act confers exclusive power for takingaction for such conduct on the disciplinary committees of the State Bar Council and the Bar Council of India, as the case may be. Such a proposition of law on the face of it observes rejection for the simple reason that the disciplinary jurisdiction of the State Bar council and the Bar Council of India to take action for professional misconduct is different from the jurisdiction of the Courts to take action ....
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....n the nature of supplementary powers. This power, exists as a separate and independent basis of jurisdiction, apart from the statutes. It stands upon the foundation, and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the court to prevent "clogging or obstruction of the stream of justice". It, however, needs to be ....
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....t the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject. In Bonkya @ B.S. Mane & Ors. Vs. State of Maharashtra (1995 (6) SCC 447) a bench of this court observed. " The amplitude of powers available to this Court under Article 142 of the Constitution of India is normally speaking not conditioned by any statutory provision but it cannot be lost sight of that this Court exercises jurisdiction under Article 142 of the Constitution with a view to do justice between the parties but not in disregard of the relevant statutory provisions." Dealing with the powers of this court under Article 142, in Prem Chand Garg vs. Excise Commissioner, U.P., Allahabad, (1963) Supp. 1. S.C.R. 885) it was said by the Constitution Bench: " In this connection, it may be pertinent to point out that the wide powers which are given to this court for doing complete justice between the parties, can be used by this court for instance, in adding parties to the proceedings pending before it, or in admitting addition....
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.... and Union Carbide Corporation Vs. Union of India (supra) by observing that statutory provisions cannot override the constitutional provisions and Article 142(1) being a constitutional power it cannot be limited or conditioned by any statutory provision. The Court has then observed that it is, therefore, clear that the power of the Apex Court under Article 142(1) of the Constitution Cannot be diluted by statutory provisions and the said position in law is now well settled by the Constitution Bench decision in Union Carbide's case (supra)." (Emphasis supplied) Commenting upon the observations in Prem Chand Garg's case (supra) the Bench further opined: " Apart from the fact that these observations are made with reference to the powers of this Court under Article 142 which are in the nature of supplementary powers and not with reference to this Court's power under Article 129, the said observation have been explained by this Court in its latter decisions in Delhi Judicial services Association v. State of Gujarat (supra) and Union Carbide corporation v. Union of India (1991) 4 SCC 574). In paragraph 51 of the former decision, it has been, with respect, rightly pointed ou....
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.... that Article 142(1) does not contemplate any order contrary to statutory provisions. He placed reliance on the Courts observations in Prem Chand Garg Vs. Excise Commissioner, U.P. Allahabad 91963 Supp. 1 SCR 885 at 889) and A.R. Anthulay Vs. R.S. Nayak and Anr. (1988 (2) SCC 602) where the Court observed that though the powers conferred on this Court under Article 142(1) are very wide, but in exercise of that power the court cannot make any order plainly inconsistent with the express statutory provisions of substantive law. It may be noticed that in prem Chand Garg's and Antulay's case (supra) observations with regard to the extent of this Court's power under Article 142(1) were made in the context of fundamental rights. Those observations have no bearing on the question in issue as there is no provision in any substantive law restricting this Court's power to quash proceedings pending before subordinate court. This Court's power under Article 142(1) to do "complete justice" is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. On....
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....e High Court. there was only an oral request said to have been made, admittedly, after the judgment was announced. Wide as the powers under Article 141 are, they do not in my view, envisage an order of the type presently in question. The Nanavati case, to which reference was made by Shri Jethmalani, involved a totally different type of situation. Secondly, it is one of the contentions of the appellant that an order of this type, far from being necessary for doing complete justice in the cause or matter pending before the court, has actually resulted in injustice, an aspect discussed a little later. Thirdly, however wide and plenary the language of the article, the directions given by the Court should not be inconsistent with, repugnant for in violation of the specific provisions of any statute. If the provisions of the 1952 Act had with Article 139-A and Sections 406-407 on the Cr. P.C. do not permit the transfer of the case a Special judge to the High Court, that effect cannot be achieve indirectly." (Emphasis supplied) In Union Carbide Corpn. Vs. Union of India, (1991) 4 SCC 584, a constitution Bench of this Court dealt with the ambit and scope of the powers of this court under ....
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....ea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of 'complete justice' of accuse of matter, the Apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise." (emphasis supplied) Thus, a careful reading of the judgements in Union Carbide Corporation ....
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....by removal of his name from the roll of the State bar Council, for proven professional misconduct, vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts. After the coming into force of the Advocates Act, 1961, exclusive power for punishing an advocate for "professional misconduct " has been conferred on the concerned state Bar Council and the Bar Council of India. That Act contains a detailed and complete mechanism for suspending or revoking the licence of an advocate for his "professional misconduct'. since, the suspension or revocation of licence of an advocate has not only civil consequence but also penal consequence, the punishment being in the nature of penalty, the provisions have to be strictly construed. Punishment by way of suspending the licence of an advocate can only be imposed by the competent statutory body after the charge is established against the Advocate in a manner prescribed by the Act and the Rules framed thereunder. Let us now have a quick look at some of the relevant provisions of the Advocates Act, 1961. The Act, besides....
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...."deemed" to be judicial proceeding for the purpose mentioned therein. Section 49 of the Act lays down that the Bar Council of India may make rules for discharging its functions under the Act and in particular such Rules may prescribe inter-alia the standards of professional conduct to be observed by the advocates and the procedure to be followed by the Disciplinary Committees of the Bar Council while dealing with a case of professional misconduct of an advocate. The Bar Council of India has framed rules called 'The Bar Council of India Rules' (hereinafter referred to as the Rules) in exercise of its rule making power under the Advocate Act 1951. Part VII of the Rules deals with disciplinary proceedings against the advocates. In chapter I of the part VII provisions have been made to deal with complaints of professional misconduct received against advocates as well as for the procedure to be followed by the Disciplinary committees of the State Bar Council and the Bar Council of India to deal with such complaints received under Sections 35 and 36 of the Act. Rule 1 of Chapter I of part VII of the Rules provides that a complaint against an advocate shall be in the form of a p....
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....appoint an advocate to appear as amicus curiae and in case either of the parties absent themselves, the committee may; proceed ex parte against the absenting party and decide the case. Sub-rule (1) of Rule 8 provides: " This Disciplinary Committee shall hear the Attorney General or the Additional Solicitor General of India or the Advocate General, as the Case may be or their Advocate, and parties or their Advocates, if they desire to be heard, and determine the matter on documents and affidavits unless it is of the opinion that it should be in the interest of justice to permit cross examination of the deponents or to take oral evidence, in which case the procedure for the trial of civil suits shall as far as possible be followed." Rules 9 and 10 deal with the manner of recording evidence during the enquiry into a complaint of professional misconduct and the maintenance of record by the committee. Rule 14(1) lays down as follows: "The finding of the majority of the numbers of the Disciplinary Committee shall be the finding of the Committee. The reason given in support of the finding may be given in the form of a j....
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....the Bar Council has reason to believe that any advocate has been guilty of professional or other misconduct it shall refer the case for disposal to its disciplinary committee. The Bar Councils of a State may also of its own motion if it has reason to believe that any advocate has been guilty of professional or other misconduct it shall refer the case for disposal to its disciplinary committee. It is apparent that a state Bar Council not only receives a complaint but is required to apply its mind to find out whether there is any reason to believe that any advocate has been guilty of professional or other misconduct. The Bar Council has very important part to play, first in the reception of complaints, second, in forming reasonable belief of quilt of professional or other misconduct and finally in making reference of the case to its disciplinary committee. The initiation of the proceeding before the disciplinary committee is by the Bar Council of a State. A most significant feature is that no litigant and no member of the public can straightway commence disciplinary proceedings against an advocate. It is the Bar Council of a State which initiates the disciplinary proceedings. Thus, a....
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....grieved" may very according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Against a person is aggrieved if a legal burden is imposed on him, the meaning of the words " a person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics. The words "persons aggrieved is sections 37 and 38 of the Act are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. The test is whether the words "person aggrieved" inc....
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....onal misconduct" in exercise of the appellate jurisdiction by convening itself as the statutory body exercising "original jurisdiction". Indeed, if in a given case the concerned Bar Council on being apprised of the contumacious and blame worthy conduct of the advocate by the High Court or this Court does not take any action against the said advocate, this court may well have the jurisdiction in exercise of its appellate powers under Section 38 of the Act read with Article 142 of the Constitution to proceed suo moto and send for the records from the Bar Council and pass appropriate orders against the concerned advocate. in an appropriate case, this Court may consider the exercise of appellate jurisdiction even suo moto provided there is some cause pending before the concerned Bar Council, and the Bar Council does "not act" or fails to act, by sending for the record of that cause and pass appropriate orders. However, the exercise of powers under the contempt jurisdiction cannot be confused with the appellate jurisdiction under Section 38 of the Act. The two jurisdictions are separate and distinct. We are, therefore, unable to persuade ourselves to subscribe to the contrary view expr....
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....aid of the Supreme Court". It must, whenever, facts warrant rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner advocate to enable the State Bar Council to proceed in the manner prescribed by the Act and the rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the courts and the majesty of the and prevent any interference in the administration of justice. Learned counsel for the parties present before us do not dispute and rightly so that whenever a court of record, records its findings about the conduct of an Advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the concern Bar C....