TaxTMI 
TaxTMI 
1953 (9) TMI 38
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.... concerned with the words "accused of an offence". I shall not like in this case to consider the larger question whether the words "accused of" are restrictive and mean a person against whom proceeding in a criminal court for any offence committed by him has in fact been started. To similar provision in the Constitution of the United States though slightly differently worded, the American Courts have given a much wider meaning. Confining myself, therefore , to the word 'offence', (sic) the word has not been defined in the Constitution but Article 367 provides that unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution. The word 'offence' has been defined in the General Clauses Act (No. 10 of 1897) as meaning "any act or omission made punishable by any law for the time being in force'. I think the words "made punishable by any law for the time being in force" are important. In Article 13(3) of the Constitution "law" is defined as "including any Ordinance, order, bye-law, rule, regulation, notificatio....
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....acted as follows." Section 2 is to the effect that: "Every person shall be liable to punishment under the Code and not otherwise for every act or omission contrary to the provisions thereof......" And Section 5 is to the effect that: "Nothing in this Act is intended to repeal, vary, suspend, or affect any of the provisions of the Statute 3 & 4, William IV, Chapter 85, or of any Act of Parliament passed after that Statute in anywise affecting the East India Company or the said territories, or the inhabitants thereof; or any of the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of Her Majesty ......or of any special or local law." A special or local law was thus saved by Section 5. (5) Coming to the definition of the word "offence", in the Penal Code, Section 40 of the Code provides that: "Except in the chapters and Sections mentioned in Clauses 2 and 3 of this Section, the word "offence" denotes a thing made punishable by this Code." Clause 2 mentions certain Sections of Chapter 4 and Chapter 5A and lays down that in this Section "the word "offence" denotes a thing pu....
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.... into, tried and otherwise dealt with according to provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." 11. Soon after the Penal Code became law the Letters Patent of various High Courts were drafted and the Letters Patent of this Court, Clause 23 is to the following effect: "And we do further ordain that all persons brought for trial before the said High Court of Judicature at Allahabad either in the exercise of its original jurisdiction or in the exercise of its jurisdiction as a Court of appeal reference or revision charged with any offence for which provision is made by Act No. 45 of 1860 called the "Indian Penal Code" or by any Act amending or excluding the said Act which may have been passed prior to the publication of these presents shall be liable to punishment under the said Act or Acts and not otherwise." 12. This provision was made to make it clear that the Pena....
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.... or others relating to crimes is no longer enforceable by the Indian Courts, nor is it permissible to create any new offences by any custom howsoever well established. Questions relating to succession inheritance, marriage or caste or any religious usage or institution, however, have to be decided according to personal law, if there are no legislative enactments to the contrary and, if on those points personal law is silent, the rule for guidance of the Courts is to be the rule of justice, equity and good conscience. 16. That being the legal position that nothing can be treated as a crime unless made so under some statutory provision, the word "law" in the definition of the word "offence" in the General Clauses Act must mean statute law. In other words, the definition in the General Clauses Act, Section 3(37) that " 'offence' shall mean any act or omission made punishable by any law for the time being in force", means made punishable by the Penal Code or by a Statute passed by a competent legislature. If I am right in my view that "offence" in Article 20(3) of the Constitution must mean what is made an offence by statute, then the answer to the third question must be ....
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....ishments by the High Courts under the Sections of the Penal Code. 19. The Contempt of Courts Act (Act ,12 of 1926), also to my mind, cannot be said to be the Jaw which makes contempt punishable. Some difference of opinion had arisen on the point whether the High Courts had power to punish for contempt of the lower courts, specially the subordinate criminal courts. The Calcutta High Court in 'Moti Lal Ghosh's case, (D)', had taken the view that the High Court had no such jurisdiction. The Madras High Court in the case Of 'K. Venkat Rao 12 Ind Cas 293 (Mad) (E), held that the High Court had jurisdiction. In the Bombay High Court in -- 'Emperor v. Balkrishna Govind Kulkarni AIR 1922 Bom 52(F) there was some difference of opinion between Sir Norman MacLeod, C. J. and Shah, J. In the Allahabad High Court in -- 'Hadi Husain v.Nasir Uddin Haider AIR1926All623 , it was held that the High Court had jurisdiction to take cognizance of cases of contempt of subordinate civil Courts but the question whether it had similar powers to take cognizance of contempt of inferior criminal courts was left undecided. It was on that account that the Contempt of Cour....
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.... Record in punishing contempt of their authority or processes have never been doubted, it was a controversial point prior to the passing of the Contempt of Courts Act, 1926, as to whether the High Court could, like the Court of King's Bench in England, punish contempt of courts subordinate to it in exercise of its inherent jurisdiction. The doubt has been removed by Act 12 of 1926 which expressly declares the right of the High Court to protect subordinate courts against contempt. ......" So far as I can see, therefore, there is no statute law which makes contempt an offence and punishable as such. 23. The question then arises that if nothing can be an offence unless the law, i.e., statute law, makes it so, how is it that contempt, specially the contempt that is classed as criminal contempt, is punishable by the High Court as Courts of Record. 24. My learned brothers have pointed out that contempt has been divided into two broad heads of criminal contempt and civil contempt. In --'Moti Lal Ghosh's case (D)', Mookerjee, J. thus distinguished the two: "The distinction between criminal and civil contempt is of a fundamental character,, though it has be....
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.... indignities to a court of justice' and an essential feature of the proceeding is the exercise of a summary power by the court itself in regard to the delinquent." To the same effect are the remarks of the Supreme Court in the case of -- 'Brahma Prakash v. State of Uttar Pradesh', : 1954CriLJ238: "It admits of no dispute that the summary jurisdiction exercised by superior Courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the Courts." In 'Ex parte Robinson (1873) 19 Wal 505 (J), Field J. said: "The power to punish for contempt is inherent in all Courts. Its existence is essential to the preservation of order in judicial proceedings and to the enforcement of the judgments, orders and writs of Courts, and consequently to the due administration of justice." In 'Cartwright's case (1873) 114 Mad 238 (K), Gray, C. J. observed: "the summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in Courts of Chancery and ot....
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....e Court, as far as possible, be such that it should not militate against the rules of natural justice. In such cases, to my mind, the burden must be put entirely on the prosecution to prove its case, as was done by Jenkins, C. J., in 'Moti Lal Ghosh's case, (D)' and if it has not been proved by the prosecution that contempt was committed by the contemner, he should get the benefit of such a finding. It is open to the contemner to leave it to the prosecution to prove its case, but where a contemner enters into a defence and files an affidavit, or a document on which he wants to rely, or goes into the witness-box, he cannot object to his being subjected to cross-examination. 27. On a careful consideration I am of the opinion, in agreement with my learned brothers, that a contemner being tried by the High Court under its inherent jurisdiction, as a Court of Record, is not a person accused of an offence within the meaning of Article 20(3) of the Constitution. 28. The only other question that remains to be answered is the first question which is as follows: "(1)(a) Whether contempt of court is an offence within the meaning of Section 5(2), Criminal P. C.? (b) ....
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....nformed the court that he desired to cross-examine opposite party No. 1 on the affidavit sworn by him and the case was adjourned to 16-5-50. On 16-5-50 the opposite party challenged the right of the Government Advocate to cross-examine him. He relied upon a decision of this court in -- 'Emperor v. Benjamin Guy Homiman AIR1945All1 . 'The learned Judges hearing the matter doubted the correctness of that decision and referred the questions to us. 31. Section 5(2), Criminal P. C. runs as follows: "All offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences". 32. "Offence" is defined in Section 4(o) of the Code to mean "any act or omission made punishable by any law for the time being in force". It was argued on behalf of the opposite party that contempt of court is an act made punishable by the Contempt of Courts Act, 12 of 1926, that consequently it is an offence within the meaning of the Code and that it must be investig....
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....e Contempt of Courts Act of 1926 became obsolete and in 1952 another Contempt of Courts Act, Act No. 32 of 1952, was enacted. That is the Act now in force. Section 3 of it provides that a High Court can punish contempts of subordinate courts "in accordance with the same procedure and practice...... as it has and exercises in respect of contempts of itself". Section 4 provides that contempt of a High Court or of a subordinate court can be punished with imprisonment extending up to six months and fine extending up to two thousand rupees. 33. In the well-known case, -- 'R. v. Almon (1765) Wilm 243 (M), Wilmot, J. said: "The power which the Courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for a contempt to the Court, acted in the face of it. And the issuing of attachments by the Supreme Courts of Justice in Westminster Hall, for contempts out of Court, stands upon the same immemorial usage, as supports the whole Fabric of the Common Law; it is as much the 'lex terrae', and within....
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.... India have powers of superintendence over subordinate courts and these powers include the power to punish for contempts of subordinate courts. Thus a High Court derives the power to punish for contempts of courts from its own existence or creation; it is not a power conferred upon it by any law. The Act of 1928 merely recognised the existence in every High Court of the power to punish for contempts of subordinate courts. The Clayton Act prescribed a special procedure and punishment for trial of contempts, consisting of wilful disobedience of a lawful writ, process, order, rule, decree or command of any district Court of the United states or of any court of the District of Columbia, if the acts of contempt were also liable to be punished as criminal offences. Mr. Justice McReynolds said as regards the Act in -- 'Myers v. u. S. (1923) 68 L Ed 577 (P): "To disobey a judicial order is not declared criminal by the Clayton Act, it recognizes that such disobedience may be contempt, and having prescribed limitations, leaves the court to deal with the offender". 34. Exactly the same is the position of our 1926 Act. 35. "The legislature cannot define what shall be cons....
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....xercising those powers, but others thought that they did not have them and Section 2 confirmed that they had them. Section 3 by itself did not make contempt punishable; it assumed that it was punishable and only fixed limits to the punishment that could be imposed. The word used, was "may" and not "shall". Had the legislature made contempt punishable for the first time by enacting that Section, it would have used the word "shall", as it has used in punitive Sections of the Penal Code. Its object behind its enactment was expressly to limit the powers exercisable by a High Court in punishing contempts of courts. If the real nature of the power to punish for contempts is understood, there should be no difficulty in understanding that the Acts did not by themselves make contempts punishable. As the power is inherent and incidental and as it is within the exclusive jurisdiction of courts of record to decide what amounts to contempt of court, there was nothing to be done by the legislature except to recognise it and regulate its exercise. The position in India is not different from that in America which is described in 'Corpus Juris Secundum, Vol. 17, p. 58' in the followin....
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....urt is not an offence which is dealt with by any law within the meaning of Section 5(2) of the Code. The learned Chief Justice, with the concurrence of Sen, J., discharged the bail bonds executed by B. G. Horniman. When the matter of the discharge of the bail bonds was put up before a Bench of this Court, it disagreed with the decision of the learned Chief Justice of Bombay, said that contempt of the High Court is an act punishable under a law for the time being in force and that since the passing of the Contempt of Courts Act, 1926, the decision in -- 'Surendra Nath Banerjee's case (B)', was no longer in force The learned Judges did not explain what happened to the inherent powers which this Court had at the time of the passing of the Act in 1926 and why in spite of their existence, statutory provision was made for the exercise of those powers, They remarked on page 4 that the offence of contempt of the High Court "can be enquired into according to the provisions of that Code as set out in Section 5(2)". The word used in Section 5(2) of the Code is "shall" and how that word was changed into "can" is not explained. If contempt of court were an offence within the mean....
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....icted to the procedure prescribed by the criminal law. The learned Judges themselves did not say that they were bound to follow the procedure laid down in the Code. If the proceedings for contempts of courts are not governed by the Code, it necessarily follows that Section 5(2) of the Code is not applicable and that contempt of court is not an offence within the meaning of the Code. Collister, J. remarked on page 4 that contempt was not defined in the Act just as insult is not defined in Section 228, Penal Code. But while Section 228 expressly makes the act of offering any insult punishable, when it was not punishable previously, there was nothing in the Contempt of Courts Act to make the act of contemning courts punishable for the first time. I have already said that contempt was not defined in the Act because the Act did not purport to make contempt punishable and it was conceded to be 'ultra vires' the legislature to define contempt in the case of 'P. L. Jaitley, (S),' the learned Judges held that contempt proceedings are of a criminal nature and that contempt is an "offence". They did not refer to the definition of "offence" in the Code and seem to have de....
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.... M. Property Co. (1874) 87 US 387 (W) it is stated that contempt of court is a specific offence and that imposition of fine for contempt of court is a judgment in a criminal case. Brewer, J. observed in the case 'Bessette' at p.1001 (O): "A contempt proceeding is sui generia. It is criminal in its nature, in that the party is charged with doing something forbidden, and, if found guilty is punished." 41. He quoted with approval the following from the opinion of sanborn J. in 're Nevitt 54 C. C. A.622 (X); "Proceedings for contempts are of two classes, -- those prosecuted to preserve the power, and vindicate the dignity, of the courts, and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts, and the people are interested in their prosecution. The latter are civil, remedial, and coercive in their nature, and the parties chiefly in interest in....
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....pts, but it does not follow that they are to be dealt with differently in every respect and that the proceedings in one are governed by Civil P. C. and those in the other, by Criminal P. C. The division of contempts into two classes is for particular purposes only. For example, there is a right of appeal or review from an order passed in a civil contempt while an order passed in a criminal contempt is held to be final. This was made clear in the case of 'Bessette, (O)'. The Crown has the power to grant pardon or not according as the contempt is criminal or civil; vide Oswald's Contempt, p. 4. The rule of benefit of doubt prevails in a criminal contempt, but not in a civil contempt. In some cases it is laid down that the sworn answer of the accused fully denying the alleged contempt is conclusive in a criminal contempt taut not in a civil contempt, vide 'Corpus Juris (11)', at p. 108. - While there exists a difference between civil and criminal contempts as regards these matters, no authority exists laying down that there is a difference as regards the procedure also. All contempts punishable under the inherent and the supervisory powers, civil or criminal,....
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....f, however, the answer is one which can have no bearing upon the case except to impair the credibility of the witness, he may refuse to answer. Therefore, if the opposite party were "accused of an offence", he could refuse to be sworn altogether (provided he had not waived the privilege). 44. The privilege against self-crimination can be waived. "It is well established that a witness having voluntarily taken the stand, may be compelled to disclose the whole facts regarding the matters concerning which he has testified;" (Willoughby on page 1166). "It has never been doubted that the privilege like all privileges, is in itself waivable". (Wigmore, Vol. 8, p. 435). An ordinary witness waives the privilege by exercising his option of answering. "The case of an accused in a criminal trial, who voluntarily takes the stand, is different. Here his privilege has protected him from being asked even a single question for the reason that no relevant fact could be inquired about that would not tend to criminate him. On this very hypothesis then, his voluntary offer of testimony upon any fact is a waiver as to all other relevant facts, because of the necess....
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.... "When a party gives notice that he intends to use at the hearing an affidavit made by him, he is both a party and witness. If he had filed a new affidavit, he could not say that he would not use it. He had propounded himself as a witness, and cannot be allowed, if not cross-examined, to use his affidavit, but if threatened with cross-examination to withdraw it; having tendered himself as a witness, he is bound to submit to cross-examination." Here the opposite party had clearly used the affidavit made by him. Therefore he could not say that he was withdrawing it and should not be examined. My answer to the third question is as follows: "No. He can be cross-examined on the affidavit voluntarily made by him." 48. Section 5, Oaths Act requires oath to be administered to all witnesses i.e., all persons who may lawfully be examined or give evidence before any court. There is an express provision saying that this does not mean that oath should be administered to an accused in a criminal proceeding. I think the word "accused" and "criminal proceeding" must be understood in the same sense in which those words are used in Criminal P. C. A contemner, even though the cont....
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....ter subjected to cross-examination. The question, therefore, that arose was whether the opposite parties were justified in law in taking the stand that they did in regard, to the right which was asserted, of cross-examination, by counsel on behalf of the State. The true answer to the question depends on the answers which are to be returned to the questions which were formulated by the Bench hearing the petition and which questions I have already quoted in full above. 51. The proceedings which have given rise to this reference to the Full Bench were proceedings in contempt. The contempt jurisdiction or the jurisdiction of the High Court to punish contemners has an ancient history. This court exercised this jurisdiction upto 1950 by virtue of its being a Court of record; there was no statute or any other written law which conferred this jurisdiction on this Court directly. In 1950, when we had our Constitution, this Court, along with all other High, Courts in the country, had this right recognised by Article 215 of the Constitution. The words of this Article are these: "Every High Court shall be a court of record and shall have all the powers of such a court includi....
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....o indicative of the fact that contempt was not treated as an offence within the meaning of the criminal law. 55. The first question which has been referred to us is concerned with an answer as to whether contempt of court is an offence within the meaning of Section 5(2), Criminal P. C. Section 5(2) of the Code provides for the trial of offences against other laws. If contempt can truly be said to fall within the definition of the word "offence" in the Code then it would be difficult to say that the trial of a contemner for contempt would not have to be carried out in accordance with the procedure laid down by Criminal P. C., but if "contempt" does not come within the definition of the word "offence" as provided for by Section 4(1)(o), Criminal P. C. then obviously Section 5(2) of the Code would not, in terms, apply. "Offence" has been defined by Section 4(1)(o) of the Code in these words: " 'offence' means any act or omission made punishable by any law for the time being in force: it also includes any act in respect of which a complaint may be made under Section 20 of the Cattletrespass Act, 1871:" 56. That contempt is an act is undoubted. Further that the ac....
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....followed for the trial of other offences covered by Penal Code, is clearly indicative of the fact that the framers of the Codes wished to make statute law in regard to only certain types of contempts and they did not consider it desirable to cover the entire field. 58. It may be appropriate also to notice at this stage that there is a type of contempt which is provided for by Civil P. C., namely, by Order 39, Rule 2(3), where provision has been made for punishing a person disobeying an injunction granted by a court. 59. In 1914 a bill was introduced in the Indian Legislative Council, as it then was, with the object of increasing the categories or classes of contempts of courts which could be punished as offences under the Penal Code, but this proposed legislation did not materialize. Instead, however, the Legislature passed an Act, Act 12 of 1926, called the Contempt of Courts Act. The reason for this enactment was that there was a conflict in India in regard to the power of the High Courts to punish for contempts of courts subordinate to them. The Madras and the Bombay High Courts held the view that they possessed the power to protect their subordinate courts against cont....
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....the Court. 63. The jurisdiction under which this Court acts when it punishes a contemner is a "special jurisdiction" which has been 'conferred on it or is inherent in it as a Court of record, and the procedure which the Court has followed and follows is a "special procedure" within the meaning of Section 1(2), Criminal P. C. In my view, therefore, contempt of court is neither an offence within the meaning of Section 5(2), Criminal P. C., nor is the procedure prescribed by the Code in regard to investigation, inquiry and trial of an offence applicable to proceedings initiated against a contemner by the High Court, I may here also refer to a decision of the Privy Council in 10 Cal 109 wherein their Lordships of the Judicial Committee of the Privy Council stated that the Penal Code did not provide against a contempt of court committed by the publication of a libel out of court, when the court is not sitting, and neither in Chapter 21 nor else- where it provided for the punishment of a contempt of court by the publication of a libel reflecting upon a Judge in his judicial capacity, or in reference to his conduct in the discharge of his public duties. They further said t....
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....at contempt is not an offence within the meaning of Criminal P, C. and the position where it is so held. The learned Judge felt the necessity for doing so because in his view the provisions contained in Criminal P. C. for the trial of offences did not in their entirety apply to proceedings taken by the High Courts for the trial and punishments of "contempts". Collister, J. however, took the view that contempt of the High Court was an act made punishable under a law for the time being in force within the meaning of Section 4(o), Criminal P. C. He expressed the opinion that the offence could be enquired into according to the provisions of that Code as set out in Section 5(2). With great respect to the learned Judge I am unable to agree with the view taken by him. The view expressed by Allsop, J., in my opinion, and I express it with, respect, is not strictly logical for I can see no reason why if contempt be an "offence" within the meaning of Criminal P. C. then the procedure prescribed by the Code for the trial of "offences" should not be strictly followed and the procedure which High Court followed for the trial of such "offences" should be adhered to. The Bench was dealing w....
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.... as defined in the General Clauses Act. It has also been noticed earlier that an offence which a contemner commits does not fall within that definition. The words of Section 5 do not create a prohibition against administering an oath either to an accused person or to a contemner. All it says is that the Oaths Act was not to be treated as an authority for administering to an accused person an oath. We know that under the Prevention of Corruption Act, (Act 2 of 1947), an accused person can take the oath and be a witness in his own favour so that there is no inherent prohibition or disability in an accused person taking the oath. The prohibition to administer oath to the accused is provided for by Section 342(4), Criminal P. C. Section 342 provides for the examination of an accused person and Sub-section (4) of that Section says that while an accused is being examined by the court he shall not be put on his oath. It is, therefore, clear that in those cases to which Section 342, Criminal P. C. applies oath cannot be administered to an accused, but where that Section does not apply, there is, in law, no prohibition to administer an oath to an accused person. I have already express....
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....at it is so is indicated by the use of these very words in Article 20(1) of the Constitution. The expression "law in force" has not been defined in the Constitution for all purposes of the Constitution though it has been so defined for the purpose of Article 13 of the Constitution in Article 13(3)(b). If it were permissible to take the meaning of the words "laws in force" as given in Article 13(3)(b) into account in order to find out the meaning of similar words used in Article 20 then it would appear that these words have quite a wide connotation and may include the law of contempt as well, but that does not appear to have been the intention of the framers of the Constitution, as will appear from what follows later. The word "offence" in Article 20 has to hear the same meaning with the framers of the Constitution intended for it. We have seen that the General Clauses Act has been made applicable for the interpretation of words used in the Constitution by Article 367. "Offence" has been defined in the General Clauses Act, and that word in the Constitution must, therefore, bear the same meaning as has been given to it in the definition contained in the General Clauses Act. I have....