TaxTMI 
TaxTMI 
1971 (3) TMI 112
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....ng before this Court on various occasions and was ultimately heard by a Bench consisting of Shah, J., as he then was, and Hegde, J., on October 15, 1969 and October 16, 1969 (and, according to respondent No. 1, also on October, 17, 1969). It appears that the appeal was first heard on February 22, 1969 by Hidayatullah, C. J., and another Hon'ble Judge, but later on it was heard, as already stated, by Shah and Hegde, JJ, and the judgment was delivered on October 28, 1969 by Hegde, J. It is further stated in the petition that respondent No. 1 "with the deliberate design of bringing into disrepute and scandalizing this Hon'ble Court, wrote and got printed and published, by and through Respondent No. 2, a pamphlet which though ostensibly meant for the convenient use of members of Parliament was actually widely circulated and was made available for sale at M/s Kanak Book Depot, P. 0. Ramsanehi Ghat, Distt. Barabanki, U. P., Respondent No. 3." It is also stated that "the said pamphlet was, as the petitioners believe, sold or offered for sale to the public by Respondent No. 3." It is further stated in the petition that the pamphlet "disparages and brings into contempt the aut....
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....nha had to give up the arguments in disgust." "Shri O. P. Gupta went back to Allahabad greatly perturbed and upset at such open dishonesty of a Senior Judge of the highest Court of Justice in the land". "Whereas in the Lok Sabha every word that is spoken is written down, in the Supreme Court none of the arguments by the parties or observations by the Judge are noted. This is the reason why Shri J. C. Shah makes such illegal and dishonest observations orally in the Court in the belief that these observations will not find place on the record and nobody will be able to patch him." "Note : Although both the Judges who delivered this judgment are responsible for it, the responsibility of Shri J. C. Shah is much more serious as he was the Senior Judge and had been specifically charged with bias. The other Judge merely toed his line. His cleverness in getting the judgment delivered by his junior colleague will deceive no one." "It is not as if the judge has missed those contentions through carelessness. He has done so deliberately and dishonestly because the High Court had emphasized this contention very strongly and had given clear findings on it." "It was only the height of disho....
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....ahindroo, Advocate." In Para 10 it is submitted that "from the above mentioned facts it is clear that the Respondant No. 1 has personally distributed and published the aforesaid pamphlet." It is further stated in Para 1 1 that the pamphlet as a whole is ex facia contempt of Court and has the tendency and object of bringing into disrepute the authority of the court and to weaken the confidence of the public in its justice and fair play. it is prayed in the petition that this Court be pleased to issue notice to the Respondents to show cause why they should not be ,committed for contempt of Court and upon hearing the Respondents (a) order attachment and committal, (b) impose such other penalty as may be deemed fit, and (c) pass such order or orders as this Court may think proper. Shri S. N. Prasad,petitioner No. 3, has filed an affidavit with the petition. Shri B. P. Singh, Advocate, Supreme Court, has also filed an affidavit. In this affidavit it is stated, "Sometimes after the reopening of the Court after the summer vacations in July 1970, I saw Mr. 0. P. Gupta, moving about in the Supreme Court Bar Association. I recognise Mr. 0. P. Gupta, as I remember having seen him arg....
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....red Cover nor A.D. Card in respect of notice issued directly to Respondent No. 1, viz. Shri 0. P. Gupta has been received back so far. Similarly no report in respect of Respondent No. 1 has been received from the District Judge, Allahabad." On December 4, 1970, this Court directed that another notice be sent to respondents Nos. 1 and 3 returnable on December 9, 1970. It was further directed that notice be sent to respondent No. 1 at his Delhi address also, returnable on December 9, 1970. The notices were also directed to be served through the District Magistrates. It may be mentioned that respondent No. 2 was present in Court and had filed an affidavit to which we shall later refer. The Sub-Divisional Magistrate, Delhi, returned the notice in respect of 0. P. Gupta, unserved, with the following report : "The wife of the addressee, viz., Mrs. Mithles Kumari, who was present at the address given in the notice, has stated that her husband had gone out to Poona. She had no knowledge about the return of her husband. She did not inform us about his address at Poona. On enquiries being made from Shri Baij Nath Kureel, resident of 69, South Avenue (M. P. flats) he stated that he (....
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.... that he does not want to disclose his wherabouts so that proper processes may be issued to him...... In view of this letter, we are further fortified in our view that he is avoiding service and concealing himself. Warrants will be executed as ordered by us." The office reported again on January 4, 1971 that the autho- rities had informed that despite their best efforts they had not been able to arrest 0. P. Gupta nor his whereabouts could be found. Respondent No. 1 wrote another letter on December 24, 1970, objecting to the issue of non-bailable warrants. He stated: "As written in my previous letter I had planned to reach Delhi by about the 20th instant and to present myself in Court when it reopens on 4th January, 1971...... But the shocking news of a non-bailable warrant has upset all my plans." He further stated that he had thus no alternative but to go back; he wanted to reach the Court as a free man and before appearing in Court he wished to get about two or three weeks time for medical aid. He, therefore, prayed that the warrant be withdrawn and the case fixed for Monday, the 1st February, 1971. On January 5, 1971, this Court ordered that "warrants be executed....
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....ce of the notice so that he would not have to file his affidavit before the date of retirement of Mr. Justice Shah. We are also surprised at the inability of the Executive to have O. P. Gupta traced and warrants served. on him. Article 144 of the Constitution provided that ".%II authorities, civil and judicial, in the territory of India, shall act in aid of the Supreme Court." We have noticed with regret that in this case the Executive has not shown due diligence in complying with this constitutional provision. Respondent No. 1 filed another application on February 18, 1971, praying that the arguments on maintainability of the petition be heard first and that question decided. It was further requested that the petitioners be asked to produce all their evidence because he would like to cross-examine them. It was further stated that after the petitioners had closed their evidence, he "will summon documentary and oral evidence on his behalf, after which arguments may be heard." He requested that the petitioners be asked to produce the "book" or the "pamphlet" from which they had copied annexure 1 to their petition. It was suggested that it would throw great light-on their allegatio....
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....ered what exactly he meant by this passage, but he admitted that it meant that he had at one time decided to murder Mr. Justice Shah. He explained that it was some Member of Parliament who saved him from this act by suggesting that he might instead try to convince the Members of Parliament of the genuineness of his case and prepare them to file an impeachment motion. In para 8.5 it was stated that he had a right to approach and convince the Hon'ble Members and he exercised that right. Nobody has said before us that he had no right to approach and convince the Hon'ble Members. In para 8.6 and 8.7 he mentioned about the filing of the im- peachment motion in the Lok Sabha on May 15, 1970 and its rejection by the Hon'ble Speaker. In para 9 he said that "a large number of Hon'ble Members of Parliament made that draft, in the making of which I too took an active part and made my contribution." He submitted that (he "drafting" of the motion could not be a charge. We may mention that he has not been charged with the drafting of the motion. Regarding the printing of the pamphlet, he stated in para. 9.2 : "The Impeachment Motion was printed by respon- dent No. 2 and ....
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.... right." In para 10.2 he referred to the petition dated 27-10-69 under Art. 32 of the Constitution to demonstrate his great regard and respect for Mr. Justice Hegde. In para 10.3 he stated thus : "It is entirely wrong to say that the Impeachment Motion "disparages and brings into contempt the authority of this Hon'ble Court and tends to weaken the confidence of the people in it and in any event has the tendency and object of so doing." The Motion was solely aimed against a "decayed fish" and its laudable object was to save the "entire tank" from contamination, as explained above in para. 9.1. Therefore, the object of the motion clearly was to save the prestige and honour of the Hon'ble Court and to enhance public confidence in it and not the reverse." In para 10.4 he submitted that the judgment in question did not excite respect for Mr. Justice Shah. In para 10.5 he stated that the Impeachment Motion did not attribute any corruption like bribery, liquor, be--A, favoritism, etc. to Mr. Justice Shah. He further added: "What, however, was a fatal weakness in him, was that he made up his mind on the result of a case either when he read the file at home in a fe....
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....ng in the United States of America. Mr. C. K. Daphtary, on the other hand, contends, first, that Art. 19(1)(a) and Art. 19(2) do not apply to the law relating to contempt of this Court because of Art. 129 of the Constitution, which reads : "The Supreme Court shall be a Court of Record and shall have all the powers of such a court including the powers to punish for contempt of itself." Secondly, Mr. Daphtary urges that the existing law relating to. contempt of court is not a "law" covered by the definition of the word "law" in Art. 13(3)(a). Thirdly, Mr. Daphtary contends that the existing law only imposes reasonable restrictions within the meaning of Art. 19(2) of the Constitution. In Pandit M. S. M. Sharma v. Sri Krishna Sinha([1959] Supp. 1 S.C.R. 806) this Court held : "It would not be correct to contend that Art. 19(1) (a) of the Constitution controlled the latter half of Art. 194(3) or of Art. 105(3) of the Constitution and that the powers, privileges and immunities conferred by them must yield to the fundamental right of the citizen under Art. 19(1)(a). As Arts. 194(3) and 105(3) stood in the same supreme position as the provisions of Part III of the Constitution ....
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....er administra- tion of law and justice. (3) It is open to, anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because "justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men." (4) A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the Court. The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by this Court. It is only in the latter case that it will be punishable as Contempt. (5) Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public. To borrow from the language of Mukherjee, J. (as he then was) (Brahma Irakash Sharma's case)( (1953) S.C.R. 1169) the pub- lication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the pe....
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....titution there is no provision like Art. 19(2) of our Constitution. The relevant part of the First Amendment to the U. S. Con- stitution is as follows "Congress shall make no law......... abridging the freedom of speech or of, the press." The difference between the First Amendment and Art. 19(1)(a) was noted by Douglas J, in Kingsley Corporation v. Regents of the University of New York(2) where he observed: "If we had a provision in our Constitution for "reasonable" regulation of the press such as India has included in hers there would be room for argument that censorship in the interest of morality would be permissible." (In a footnote he get out Art. 19(2)). Even in the United States, as far as we have been able to ascertain, in some States the law is the same as in England (see Re Peter Breen (2) Annotation at page 572). We may here quote some passages from the decision of the Nevada Supreme Court in that case. An Attorney had made a statement about a reversal by the Supreme Court of a decision of the Trial Court. In proceedings for disbarment the Court observed : "In fact, the question is presented whether or not the language and order could. in any event, be dee....
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.... no to take any chances. on the courts failing to do their duty. Then may come mob violence with all its detestable features. To say that respondent meant no disrespect for this Court is contrary to the plain meaning of the language used, and the order directing that it be spread ,upon the minutes of the district court." The question whether the existing law of contempt is un- reasonable within Art. 19(2) of the Constitution has been the subject of decisions in some of the High Courts. They have all come to the conclusion that the restrictions imposed by this law are reasonable. S. K. Das, J., then a Judge of the Patna High Court, in Legal Remembrancer v. B. B. Das Gujta,( [1953] I.L.R. 32 Pat. 1069; 1091). after referring to the arguments of Mr. Ghosh, observed as follows: "I think that the answer to the arguments of Mr. Ghosh is to be found in the words of Lord Atkin "Justice is not a cloistered virtue." Any and every criticism is not contempt. One of the tests is, to use the words of Mukherjea, J. in Brahama Prakash Sharma v. The State of Uttar Pradesh ([1953] S. C. R. 1169) whether the criticism is calculated to interfere with the due course of justice or proper admini....
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....nable restrictions because it serves no useful purpose, and even a scurrilous attack on a Judge does not affect the administration of justice. He further says that after a case has been decided, if a judgment is severely and even unfairly criticised, and assuming that this has an adverse effect on the administration of justice, it must be balanced against the harm which would ensue if such criticism is stopped. We are unable to agree with him that a scurrilous attack on a Judge in respect of a judgment or past conduct has no adverse effect on the due administration of justice. This sort of attack in a country like ours has the inevitable effect of undermining the confidence of the public in the Judiciary. If confidence in the Judiciary goes, the due administration of justice definitely suffers. The first respondent referred to Art. 73, Art. 246, list I entry 77, and Art. 142(2). These do not throw any light on the question whether the existing law of contempt imposes Unreasonable restrictions. Article 73 deals with the extent of the executive power of the Union. Article 246 inter alia deals with legislative power of Parliament. Entry 77 List I reads "Constitution, Organisation, jur....
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....ords used in the pamphlet or the booklet. Giving the ordinary and plain meaning it appears to us that "dishonesty" means dishonesty, i.e. that he has ascribed to the Judge a conduct which would be most reprehensible. In other words he says that although Mr. Justice Shah was convinced that the appeal of the State of U. P. should be dismissed he cleverly asked Mr. Justice Hegde to deliver the judgment and allow the appeal, and that Mr. Justice Hegde wrote down what Mr. Justice Shah dictated or told him to write. We have already set out paras 10.5 and 10.8 of the affidavit filed by the first respondent. We are unable to give any other meaning to the words "dishonest judgment", "open- dishonesty", "deliberately and dishonestly", "utter dishonestly", i.e. the meaning which he now seeks to ascribe to these words. It seems to us that whoever drafted the Impeachment Motion drafted it with a view to bring the facts within the meaning of the expression "misbehaviour" in Art. 124(4) for he must have realised that to say that a Judge has committed errors, even gross errors, cannot amount to "misbehaviour". It seems to us that in view of the decisions of the various High Courts in India and ....
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....nstitutes such an interference with the administration of justice as should be punished. I am wiling to act upon the view that the confidence of the public in Courts tests mainly upon the purity and correctness of their pronouncements and that such confidence is not lightly shaken by a mistake or unfair criticism of this kind. At the same time it is clear that the tendency of such criticism is to undermine the dignity of the Court and in the end to embarrass the administration of justice. The faith of the public in the fairness and incorruptibility of Judges is a matter of great importance." In Murli Manohar Prasad in re(1), a Full Bench decision of five Judges, it was observed: "It is for this Court as a matter of law to construe words and phrases which have no technical significance and to decide what is their meaning and what is the effect which they are calculated to produce, and I have no hesitation in deciding that the words used by the author mean, and are calculated to mean, and intended to mean that the conduct of cases before the Chief Justice is such that arguments and authorities are ignored and that for that reason the life and liberty of, the subject brought before th....
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....nable to hold that he did not commit contempt of court. Further, he did so deliberately. He admits that he took part in the drafting of the Impeachment Motion, and it seems to us that whoever is responsible for the final draft deliberately used words in order to bring the allegations within the word "misbehaviour" in art. 124(4). He said that by assisting in the drafting he did not commit any contempt of Court. That may or may not be so. But so far as the present case is concerned we need not go into that wider question as he has admitted that he gave the booklet or the pamphlet to Mr. Mahindroo though according to him it was not given to him by way of sale and was not being offered for sale in general. He further said that it was admitted that the booklet was widely circulated but that this must have been done by some members of Parliament. He complained that those members had not been arraigned as co- respondents. If some members of Parliament circulated the booklet or the pamphlet, as alleged by Respondent No. 1, to persons who were not members of Parliament they equally committed contempt of this Court. But as no body has chosen to file a petition against them, nor are we aware....
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....oceedings of either House of Parliament, unless the publication is proved to have been made with malice. (2) Nothing in sub-section (1) shall be construed as protecting the publication of any matter, the publication of which is not for the public good. 4. This Act shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station situate within the territories to which this Act extends as it applies in relation to reports or matters published in a newspaper." Various questions of interpretation would have arisen if the pamphlet or the booklet had been published in a newspaper, as defined in s. 2. One of them would be whether a contempt proceeding is a criminal or a civil proceeding or not; a question would also arise whether a notice of impeachment under art. 124(4), if not admitted by the Speaker under s. 3(1) of the Judges (Inquiry) Act, 1968 (Act LI of 1968), is a proceeding of Parliament within the meaning of s. 3 of the Parliamentary Proceedings (Protection of Publication) Act, 1956. But as here we are not concerned with the publication of the pamphlet or the booklet i....
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....to his own views, followed what was imposed upon him by Mr. Justice Shah. There can be no more flagrant contempt of a Judge than to say that he surrendered his own judgment in deference to or on dictation by another Judge sitting with him. In para 3.2 of his affidavit Respondent No. 1 submitted "But I am not at this stage making any attempt to contradict evidence given or to give any evidence on my side. This will be done if and when the occasion arises or the Hon'ble Court so orders. I will have to summon some documents also for that purpose." We indicated to him during the course of the hearing that he should file his affidavit or affidavits dealing with the merits of the case but that he would not be permitted to lead any other evidence to justify contempt. We have already referred to cases which show that he cannot justify contempt. If a judgment is criticized as containing errors, and coupled with such criticism, dishonesty is alleged, the Court hearing the contempt petition would first have to act as an Appellate Court and decide whether there are errors or not. This is not and cannot be the function of a Court trying a petition for contempt. If evidence was to be a....
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....e petition refers to proceedings in this Court and it was not necessary to have disclosed any further source of information. As far as paras 3 and 4 are concerned, the first respondent admits that he approached members of Parliament to file a motion of Impeachment against Mr. Justice Shah. Calling this a "campaign" is only to describe in a word his activities. Whether it should be strictly called a campaign is beside the point. The essential facts mentioned in para 5 are admitted by the first respondent. Therefore the fact that the source of information was not disclosed does not debar us from taking the facts into consideration. The last sentence of para 5, viz., "The said pamphlet, was as the petitioners belive, sold or offered for sale to the public by Respondent No. 3." is a matter of belief. Para 6 contains inferences and submissions in respect of which there was no question of disclosing the source of information. Para 7 contains extracts from the booklet or the pamphlet which was attached as an annexure. In view of the document having been attached it was not necessary that the source of information regarding pars 7 should have been disclosed. The allegations, in para 9 of t....
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....y the case seems to have been put before the High Court was that this was a subterfuge adopted by the Municipality to get round the order of the High Court, the object of which was to stop new rickshaws plying for hire, by permitting rickshaws to ply without a licence on payment of the tax. This contention was accepted by the High Court. It seems to us somewhat unfortunate that the matter proceeded in this way. An allegation of contempt of court is a serious one and is considered by courts with a certain amount of strictness. A person against whom such an allegation is made is entitled to be told the precise nature of it. In this case the respondent did not state that any subterfuge had been adopted by the Municipality or that the Municipality had sought to defeat the orders of the courts; that was only insinuated. This is not a fair or permissible way of charging a person with contempt of court. The contempt alleged cannot be left to be spelt out from the allegations made nor can the person charged be left to guess what contempt is alleged against him. Further, paragraph 8 of the petition for committal for contempt stated that there was a direct contravention of the order which of....
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.... Supreme Court Bar and the other petitioners chose to bring this contempt to our notice. It is no doubt desirable, as stated by Oswald(1) that "an application for attachment should be made promptly, or the Court may refuse to attach." But whether there has been delay or not depends on the facts of a particular case. In this connection Respondent No. 1 referred to page 231 of Ramchandran's book on 'Contempt of Court under the Indian Constitution' where the author gives the American Law on this point as follows : "While delay in contempt proceedings is to be deprecated the power of court to take such action is not however lost by delay. The summary power is not (1) Oswald-Contempt of Court-Third edition p. 196 in any way jeopardized on that account except where delay extends substantially beyond the end of trial, in which event it has been held fatal to the power of summary punishment." But even the American law is quite clear that delay is not fatal. Similarly, in State Government, Madhya Pradesh v. Vinaya Kumar(1) it was observed as follows: "We do not say that delay will always be fatal. There may be cases in which it is not. Examples of both kinds of cases will ....
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....see how it affords a defence to the commission of contempt of this Court by circulating the booklet or the pamphlet. In para 21 of his affidavit his defence seems to be that he had told Mr. Justice Shah during the course of the hearing that he was only telling the truth and if in telling the truth it was necessary for him to go to jail for contempt he was ready for the same. He seems to suggest that if Mr. Justice Shah did not choose to take any action for contempt it is improper and not open to the petitioners to initiate these proceedings. We are unable to see any force in this submission. In para 23 of his affidavit his defence is that the filing of the petition is itself contempt because "the real object of the petitioners, which is very obvious and writ large on their faces, is to take revenge upon me for having dared to approach the Parliament against their friend, junior and erstwhile boss Shri J. C. Shah. The cloak of "publication and distribution outside Parliament is too thin to hide their real motive." We are unable to see how the petition is itself contempt. This para shows the real attitude of the respondent. He seems to think that people act only to take revenge as....