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Tuesday, January 10, 2017

question the correctness of an order dated 11th September, 2007 passed by a Division Bench of the High Court of Delhi whereby the appellants have been found guilty of contempt and directed to remain present in person before the High Court for being heard on the quantum of sentence to be awarded to them

                                                         R E P O R T A B L E

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1234 OF 2007


Vitusah Oberoi and Ors.                 ...Appellant(s)

                                   Versus
court of its own motion                 ...Respondent(S)

                                    WITH

                       CRIMINAL APPEAL NO.1299 OF 2007



                               J U D G M E N T
T.S. THAKUR, CJI.

1.    In these appeals, the appellants call in question the  correctness  of
an order dated 11th September, 2007 passed by a Division Bench of  the  High
Court of Delhi whereby the appellants have been  found  guilty  of  contempt
and directed to remain present in person before the  High  Court  for  being
heard on the quantum of sentence to be awarded  to  them.   Facts  necessary
for appreciating the challenge mounted by the appellants may  be  summarized
as under:
2.    Appellants No.1 and 2 are the Editor and City Editor  respectively  of
Mid Day, an English  Daily  Newspaper,  with  a  large  circulation  in  the
National Capital Region. Appellant  No.3  happens  to  be  the  Printer  and
Publisher of the papers while appellant No.4 is  a  Cartoonist  working  for
the said paper. The genesis of the suo motu contempt  proceedings  initiated
by the High Court of Delhi lies in a story that appeared  in  ‘Mid  Day’  in
its issue dated 2nd May, 2007 under the title  “Injustice”.   The  substance
of the publication brought to light  the  alleged  misuse  of  the  official
residence of Justice Sabharwal who  demitted  office  as  Chief  Justice  of
India on 13th January, 2007, by the  same  being  shown  as  the  registered
office of three companies promoted by Justice Sabharwal’s  sons.   A  second
story published on 18th May, 2007  in  Mid  Day  pointed  out  that  Justice
Sabharwal’s son had entered into  a  partnership  with  shopping  malls  and
commercial complex developers just before Justice  Sabharwal  passed  orders
for sealing of commercial establishments running  in  residential  areas  in
different parts of Delhi. This,  according  to  the  story,  benefitted  the
partnership business of Justice Sabharwal’s sons.  On 19th May, 2007 came  a
third story that quoted some senior lawyer’s saying that if the facts  about
Justice Sabharwal’s sons’ partnership business benefitting from  the  orders
of Justice Sabharwal’s Bench were true, then Justice  Sabharwal  should  not
have heard the case. The paper also carried in the same issue a  cartoon  by
Mohd. Irfan Khan, appellant No.4 showing as if  Justice  Sabharwal’s  family
had benefitted from the orders passed by Justice Sabharwal’s Bench.
3.    It was in the  above  backdrop  that  Shri  R.K.  Anand,  an  advocate
practicing in Delhi High  Court  appears  to  have  placed  a  copy  of  the
newspaper dated 18th May, 2007 before a Division Bench of the High Court  of
Delhi on 21st May, 2007 to  draw  the  attention  of  the  Court  about  the
article published in the said paper maligning the former  Chief  Justice  of
India and tending to lower the image of the judiciary in  the  eyes  of  the
common man.  Prima facie satisfied that the news item was objectionable  and
tended to lower the image of judiciary in the eyes of the  common  man,  the
High Court initiated suo-motu contempt proceedings  and  issued  show  cause
notices to appellants No.1 to 3. On 25th May, 2007  Shri  Anand  appears  to
have filed another copy of Mid Day newspaper dated  19th  May,  2007  before
the High Court which carried the cartoon drawn by the  appellant  No.4,  the
paper’s cartoonist.  The High Court found the same also to be  objectionable
and issued notice  even  to  appellant  No.4  to  show  cause  why  contempt
proceedings may not be initiated against him.
4.    In response to the notices served  upon  them,  the  appellants  filed
their objections  supported  by  affidavits.   In  the  affidavit  filed  by
appellant No.1-Editor of Mid-day it was, inter alia,  stated  that  all  the
facts published in the paper were supported by unimpeachable  documents  and
were true. A supplementary affidavit filed on behalf of the  appellant  No.1
gave some more details about a company promoted by Justice Sabharwal’s  sons
and the documents relevant thereto.  An affidavit sworn by  appellant  No.4,
the cartoonist was also filed explaining his position.   This  was  followed
by additional affidavits filed by the appellants on  21st  August,  2007  in
which the appellants tried to justify their publications on the ground  that
the said publications  were  intended  to  bring  to  light  an  impropriety
committed only by Justice Y.K. Sabharwal and that the same was not  intended
either to malign or undermine the judiciary in this  country  or  any  other
Judge in the Supreme Court of India or any other Court for that matter.  The
affidavits in particular stated:
“The Article which was  published  was  intended  to  bring  to  light  such
impropriety by Mr. Y.K. Sabharwal and was not intended at all  to  undermine
or malign the Judiciary of India or any other Judge of the  Hon’ble  Supreme
Court of India or of may other court in India.  If our articles created  any
impression on anyone that we were or were intending to malign the  judiciary
or any other Judge, we sincerely apologise for the same.”

I most respectfully submit that I have the utmost  regard  and  respect  for
the majesty of law and the Court of law.  The Article in question  published
by Mid Day was not intended to undermine the authority of law or  lower  the
image  of  judiciary  or  with  any  intention  of  interfering   with   the
administration of Justice.”


5.    The explanation offered by the  appellants  notwithstanding  the  High
Court has by the order  impugned  in  these  appeals  found  the  appellants
guilty of contempt and directed them to remain present in person  for  being
heard on the question of quantum of sentence that may be  awarded  to  them.
The present appeal assails the correctness of the said order.
6.    Appearing for the appellants M/s. Shanti Bhushan and Prashant  Bhushan
raised a short point in support of the appeal. They contended that the  High
Court could under  Article  215  of  the  Constitution  of  India  no  doubt
initiate proceedings and punish for its own  contempt,  but  it  could  not,
according to the learned counsel, initiate proceedings  or  punish  for  the
contempt of the Supreme Court.  It was urged that even under Section  10  of
the Contempt of Courts Act, 1971, the High Court could punish only  for  its
own contempt or the contempt of a Court subordinate to  it.   There  was  no
provision, argued the learned counsel, either in the Constitution  of  India
or in the Contempt of Courts Act, 1971 that  empowered  the  High  Court  to
take cognizance of the contempt of a superior Court like the  Supreme  Court
of India. Inasmuch as the High Court had failed to appreciate the  scope  of
the powers of contempt exercisable by it, it had fallen  in  palpable  error
that required to be corrected. It was contended that  while  the  appellants
had pleaded truth as a defense to the  charge  of  contempt  yet  regardless
whether the publication could be justified on  the  ground  of  truth  under
Section 30(b) of the Act, the impugned order passed by the  High  Court  was
liable to be set aside.
7.    The genesis of the suo motu proceedings initiated by  the High  Court,
as noticed earlier, lay in the publication  of  the  articles,  stories  and
write ups questioning the propriety of certain orders passed by a  two-Judge
bench of this Court of  which  Justice  Y.K.  Sabharwal  was  the  Presiding
Judge.   The  substance  of  the  offending  publication  was  that  Justice
Sabharwal had by reason of the orders passed by  the  bench  benefitted  the
partnership business of his sons in real estate development  in  and  around
Delhi.  The text and the  context  of  the  said  publications  was  focused
entirely on the question whether Justice Sabharwal  should  have  heard  the
matters and passed sealing orders of commercial  properties  in  residential
areas of Delhi which orders were perceived to  be  beneficial  to  the  real
estate business of his sons.  What is, therefore,  undeniable  is  that  the
publications were  actually  seen  as  contemptuous  vis-a-vis  the  Supreme
Court.  No part of the publications referred to the High Court of  Delhi  or
any other High Court for that matter. The publications did not refer to  any
Judge or any order of any Court subordinate to  the  High  Court  of  Delhi.
Initiation of proceedings by the High Court in such  circumstances  was,  it
is evident, meant to vindicate the Supreme Court more than  the  High  Court
who initiated those proceedings. The question  is  whether  the  High  Court
could do so. The appellants argued and, in our opinion, rightly so that  the
Supreme Court was and is competent to punish for contempt  of  itself.  This
is evident from Article 129 of the Constitution which reads as under :
“Article 129

129. Supreme Court to be a court of record: The Supreme  Court  shall  be  a
court of record and shall have all the powers of such a court including  the
power to punish for contempt of itself.”


8.    So also Article 215 of the Constitution empowers  the  High  Court  to
punish for its contempt.  That provision reads:

“Article 215
High Courts to be courts of record: Every High Court shall  be  a  court  of
record and shall have all the powers of such a court including the power  to
punish for contempt of itself.”

9.    The provisions of Section 10 of the Contempt of Courts Act, 1971  also
empower the High Court to punish for its own contempt  or  the  contempt  of
Courts subordinate to it. Section 10 reads:

“ 10.    Power  of  High  Court   to   punish   contempts   of   subordinate
courts.—Every High Court shall have  and  exercise  the  same  jurisdiction,
powers and authority, in accordance with the same  procedure  and  practice,
in respect of contempt of courts subordinate to it as it has  and  exercises
in respect of contempts of itself:

      Provided that no High  Court  shall  take  cognizance  of  a  contempt
alleged to have been committed in respect  of  a  court  subordinate  to  it
where such contempt is an offence punishable under  the  Indian  Penal  Code
(45 of 1860).”

10.   There is, from a plain reading of the above, nothing in  the  Contempt
of Courts Act, 1971 or in Article 215 of the Constitution which can be  said
to empower the High Court to initiate proceedings suo-motu or otherwise  for
the contempt of a superior Court like the  Supreme  Court  of  India.  As  a
matter of fact, the Supreme Court under Article 129  and  High  Court  under
Article 215 of the Constitution are both declared to be  Courts  of  Record.
One of the recognised attributes of a  court  of  record  is  the  power  to
punish for its contempt and the contempt of courts subordinate to it.   That
is precisely why Articles 129 and 215, while  declaring  the  Supreme  Court
and the High Courts as Courts of Record, recognise the power vested in  them
to punish for their own contempt. The use of the expression  “including”  in
the said provisions is explanatory in  character.   It  signifies  that  the
Supreme Court and the High Courts shall, as Courts of Records, exercise  all
such powers as are otherwise  available  to  them  including  the  power  to
punish for their own contempt.  Whether or  not  the  power  to  punish  for
contempt of a subordinate court was an attribute of a court of  record  fell
for consideration of this Court in Delhi Judicial  Service  Association  vs.
State of Gujarat  (1991) 4  SCC  406.   The  argument  there  was  that  the
Supreme Court could not initiate contempt proceedings based on  an  incident
that involved a subordinate court like a Chief Judicial  Magistrate  working
in the State of Gujarat.  That contention was examined and rejected by  this
Court. It was held that the language employed in Article 129 indicated  that
the Supreme Court is a Court of Record and was entitled not only  to  punish
for its own contempt but to do all that which is  within  the  powers  of  a
Court of Record.  This Court held that since the Constitution  has  designed
the Supreme Court as a Court of Record, Article 129 thereof  recognises  the
existing inherent  power  of  a  Court  of  Record  in  its  full  plenitude
including the power to punish for its own contempt and the contempt  of  its
subordinate.  The Court said:
“29. Article 129 declares the  Supreme  Court  a  court  of  record  and  it
further provides that the Supreme Court shall have all the powers of such  a
court including the  power  to  punish  for  contempt  of  itself  (emphasis
supplied).  The expression used in Article 129 is  not  restrictive  instead
it is extensive in nature.  If the  Framers  of  the  Constitution  intended
that the Supreme Court shall have power to punish  for  contempt  of  itself
only, there was no necessity for inserting  the  expression  “including  the
power to punish for contempt of itself.”  The Article confers power  on  the
Supreme Court to punish for contempt of itself and in addition,  it  confers
some additional  power  relating  to  contempt  as  would  appear  from  the
expression “including.” The expression “including” has been  interpreted  by
courts, to extend and widen the scope of power.  The plain language  of  the
Article 129 clearly indicates that this Court  as  a  court  of  record  has
power to punish for contempt of itself and also something else  which  could
fall  within  the  inherent  jurisdiction  of  a  court   of   record.    In
interpreting  the  Constitution,  it  is  not   permissible   to   adopt   a
construction which would render any  expression  superfluous  or  redundant.
The courts  ought  not  accept  any  such  construction.   While  construing
Article 129, it is not permissible to ignore the significance and impact  of
the inclusive power conferred on the  Supreme  Court.   Since,  the  Supreme
Court is designed by the Constitution as  a  court  of  record  and  as  the
Founding Fathers were aware that a superior court  of  record  had  inherent
power to indict a person for the contempt of itself as  well  as  of  courts
inferior to it, the expression “including” was deliberately inserted in  the
Article.  Article 129 recognised the existing inherent power of a  court  of
record in its full plenitude including the power to punish for the  contempt
of inferior courts. If Article 129 is susceptible  to  two  interpretations,
we would prefer to  accept  the  interpretation  which  would  preserve  the
inherent jurisdiction of this Court being the superior court of  record,  to
safeguard and protect the subordinate judiciary, which forms the  very  back
bone of  administration  of  justice.   The  subordinate  courts  administer
justice at the grass root level, their protection is necessary  to  preserve
the confidence of people in the efficacy of Courts and to  ensure  unsullied
flow of justice at its base level.”

11.   The power to punish for contempt vested in a  Court  of  Record  under
Article 215 does not, however, extend to punishing for  the  contempt  of  a
superior court.  Such a power has never been recognised as an  attribute  of
a court of record nor has the same  been  specifically  conferred  upon  the
High Courts under Article 215.  A  priori  if  the  power  to  punish  under
Article 215 is  limited  to  the  contempt  of  the  High  Court  or  courts
subordinate to the High Court as appears to us to  be  the  position,  there
was no way the High Court could justify invoking that power  to  punish  for
the contempt of  a  superior  court.   That  is  particularly  so  when  the
superior court’s power to punish for its contempt has been in  no  uncertain
terms recognised by Article 129 of the Constitution.   The  availability  of
the power under Article 129 and its plenitude  is  yet  another  reason  why
Article 215 could never have been intended to empower  the  High  Courts  to
punish for the contempt of the Supreme Court.   The  logic  is  simple.   If
Supreme Court does not, despite the availability of the power vested in  it,
invoke the same to punish for its contempt, there is no question of a  Court
subordinate to the Supreme Court doing  so.   Viewed  from  any  angle,  the
order passed by the High Court appears to us  to  be  without  jurisdiction,
hence, liable to be set aside.
12.   We, accordingly, allow these appeals, set aside the  judgment  of  the
High Court and discharge the rule issued by the High Court.  The parties  to
bear their own cost.


                                                            ..……………………..CJI.
                                                               (T.S. THAKUR)



                                                .…….......................J.
                                                           (A.M. KHANWILKAR)

New Delhi;
January 2, 2017.

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