Misc. Civil Application No.1048 of 2009,Contempt Petition No.114 of 2006,Writ Petition No.1173 of 2005

22nd December, 2010

Petitioner Counsel: Shri. R. L. KHAPRE,Mrs. M. D. BHAMBHAWANI
Respondent Counsel: Mrs. S. S. JACHAK,Shri. R. A. HAQ,Mr. Z. A. HAQ

Cases Cited:
Metal Box India Vs. State of Maharashtra, 2004(3) Mh.L.J. 528 [Para 5]
State Vs. Baldev Raj, 1992 CRI.L.J. 1251 [Para 5,6]
Pallav Sheth Vs. Custodian, AIR 2001 Supreme Court 2763 [Para 5]
Sukhdev Singh Sodhi Vs. Chief Justice and Judges of the Pepsu High Court, AIR 1954 SC 186 [Para 7]
Delhi Judicial Service Association, Tis Hazari Court Delhi Vs. State of Gujarat, AIR 1991 S.C. 2176 [Para 10,11]
Supreme Court Bar Association Vs. Union of India, AIR 1998 SC 1895 [Para 10]
M. M. Thomas Vs. State of Kerala, AIR 2000 SC 540 [Para 10,12]

JUDGMENT

A. H. JOSHI, J.:- This Miscellaneous Civil Application is listed before the Court in view of the order passed by the learned Single Judge of this Court (Coram : Smt. R. P. Sondur Baldota, J.) by order dated 12th March, 2010 and is allotted to us by the Hon'ble The Chief Justice.

2. The question for determination is as follows :-

Whether the High Court while exercising power under the Contempt of Courts Act, by virtue of Article 215 of the Constitution of India has jurisdiction to review its own order ?

3. It would not be necessary to deal with the facts of the case as the question to be decided in this reference is a pure question of law.

4. Heard both sides.

5. Learned Advocate Mr. R. L. Khapre has placed reliance on various citations which are 20 in number. We have perused all those citations. It would be totally unnecessary even to refer to each citation and we shall refer to those which are discussed in the judgment, which has led to this reference, and the judgment in case of Metal Box India Vs. State of Maharashtra reported in 2004(3) Mh.L.J. 528 and few Judgments of the Hon'ble Supreme Court which re-state the law.

In case of Metal Box (supra), the notice of motion was made to seek review in Contempt Petition No.20 of 2003. The Court (Hon'ble Mr. Justice A. M Khanwilkar) observed in the relevant part as follows :

"The moot question, however, that arises for my consideration is, whether this Court, while exercising powers under the Contempt of Courts Act, for that matter, by virtue of Article 215 of the Constitution of India, has jurisdiction review its own order. To my mind, the answer is plainly in the negative."

The reading of judgment in case of Metal Box (supra) further reveals that the learned Single Judge was persuaded to place reliance on following two reported Judgments :

[1] State Vs. Baldev Raj reported in 1992 CRI.L.J. 1251 (1).

[2] Pallav Sheth Vs. Custodian and others reported in AIR 2001 Supreme Court 2763.

6. Having considered the position that law as laid down by Hon'ble Supreme Court being clear enough, it is not necessary to deal with the case of State Vs. Baldev Raj (supra).

7. In case of Pallav Seth, the case of Sukhdev Singh Sodhi Vs. Chief Justice and Judges of the Pepsu High Court, reported in AIR 1954 SC 186 was also considered and there was no occasion available before Hon'ble Supreme Court to record any dissent there from.

8. In case of Pallav Sheth, the Hon'ble Supreme Court proceeded on the basis that Limitation Act applies to the proceedings of Contempt of Court, and held in para 30 thereof as follows :

"30. There can be no doubt both this Court and High Courts are Courts of Record and the Constitution has given them the powers to punish for contempt. The decisions of this Court clearly show that this power cannot be abrogated or stultified. But if the power under Art.129 and Art.215 is absolute can there be any legislation indicating the manner and to the extent that the power can be exercised ? If there is any provision of the law which stultifies or abrogates that power under Art.129 and/or Art.215 there can be little doubt that such law would not be regarded as having been validly enacted. It, however, appears to us that providing for the quantum of punishment or what may or may not be regarded as acts of contempt or even providing for a period of limitation for initiating proceedings for contempt cannot be taken to be a provision which abrogates or stultifies the contempt jurisdiction under Art.129 or Art.215 of the Constitution."

Ultimately, the Hon'ble Supreme Court held in para 41 of the Judgment as follows :

"41. An interpretation of Section 20, like the one canvassed by the Appellant, which would render the constitutional power of the Courts nugatory in taking action for contempt even in cases of gross contempt, successfully hidden for a period of one year by practicing fraud by the contemner would render Section 20 as liable to be regarded as being in conflict with Art.129 and/or Art.215. Such a rigid interpretation must, therefore, be avoided."

9. The Hon'ble Supreme Court ultimately held in Pallav Seth's case that exercise of power to punish the contemnor beyond period of limitation provided by the Limitation Act was available by virtue of source of Jurisdiction i.e. Constitution of India. It is thus vivid that the Judgment in case of Pallav Sheth regulates the procedure, but does not adversely affect inherent jurisdiction of Courts of Record rather these powers are re-affirmed as is seen in paras 31 & 41 quoted herein before.

10. In case of Delhi Judicial Service Association, Tis Hazari Court Delhi Vs. State of Gujarat and others, reported in AIR 1991 S.C. 2176(1); Supreme Court Bar Association Vs. Union of India & Another reported in AIR 1998 SC 1895 and in case of AIR 2000 SC 540, M. M. Thomas Vs. State of Kerala, the Hon'ble Supreme Court re-discussed the law as to contempt of Court and powers of "Courts of Record as emanating from the jurisdiction of like Courts in England", and took review of cases from 1954.

11. The incidences of the powers of the Court have been discussed and re-stated as seen in paragraph nos.21 to 25 of the Judgment in case of Delhi Judicial Association (supra) and Supreme Court Bar Association, what emerges can be summarized as follows :-

[a] The Supreme Court and the High Courts are Courts of Record.

[b] These Superior Courts have been exercising the powers to indict a person for contempt of its authority and also for the contempt of its subordinate and inferior Courts, in a summary manner.

[c] The contempt jurisdiction is 'sui generis' and is summary in nature and possess power to decide the procedure.

[d] The contempt jurisdiction is not ordinary criminal jurisdiction or original jurisdiction in criminal law.

(e) Criminal Procedure Code has no application to the summary trial of the contemnor.

[f] The codification law relating to contempt is in addition to Article 129 & 215 of the Constitution of India. Codified law & application of Law of Limitation is subject to jurisdiction saved under Section 20 of Contempt of Court Act, which provision weighs and accredits the weightage of jurisdiction constitutionally available and it is in no manner extent thereby undermined.

[g] The Courts of Record have powers to correct their records. The ultimate object of contempt jurisdiction is to enforce, ensure and maintain majesty of the law Courts and Justice.

[h] This jurisdiction does not exclude the jurisdiction to review its own order to maintain Majesty of Court, law & justice.

12. To support what we have discussed in foregoing paras, it would suffice if paragraph nos.14 to 17 of the Judgment in case of M. M. Thomas Vs. State of Kerala (supra), are quoted below for ready reference.

"14. High Court as a Court of Record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of Record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A Court of Record is undoubtedly a superior Court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of Record, has a duty to itself keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regards is plenary. In Naresh Sridhar Vs. State of Maharashtra, (1966)3 SCR 744 : AIR 1967 SC 1, a nine Judge Bench of this Court has recognized the aforesaid superior status of the High Court as a Court of plenary jurisdiction being a Court of Record.

15. In Halsbury's Laws of England (4th Edn. Vol.10, para 713) it is stated thus :

"The chief distinctions between superior and inferior Courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court. An objection to the jurisdiction of one of the superior Courts of general jurisdiction must show what other Court has jurisdiction, so as to make it clear that the exercise by the superior Court of its general jurisdiction is unnecessary. The High Court, for example, is a Court of universal jurisdiction and superintendency in certain classes of actions, and cannot be deprived of its ascendency by showing that some other Court could save entertained the particular action." (Though the above reference is to English Courts the principle would squarely apply to the superior Courts in India also).

16. Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar (AIR 1967 SC 1) (supra) a two Judge Bench of this Court in M.V. Elisabeth Vs. Karwan Investment and Trading Pvt. Ltd., 1993 Supple. (2) SCC 433 : AIR 1993 SC 1014 : (1993 AIR SCW 177), has observed thus (Para 67 of AIR) :

"The High Courts in India are superior Courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction......."

17. If suo power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record."

[Quoted from the Judgment reported in AIR 2000 Supreme Court 540, M. M. Thomas Vs. state of Kerala].

13. Apart from what the Hon'ble Supreme Court has observed herein before, which has already been explicitly discussed by Their Lordships of the Supreme Court that the contempt jurisdiction does not envelop in it the restriction including as to limitation as engraved by statutory provisions or other procedural restrictions such as under Section 362 of Criminal Procedure Code and analogous provision of Section 152 of Civil Procedure Code.

14. The Courts of Record would inherently possess the powers to correct its record, and this term "Records" would imply the power of Courts to correct the errors on judicial side, in order to maintain majesty of the law, Court, and justice. The restrictions in ordinary law of own order on review which apply to authorities constituted by statute namely that the jurisdiction to review must be conferred by the statute has no application to power to deal with Contempt of Court, exercised by High Court under Article 215 of Constitution of India.

Thus power to review is available even beyond Section 114 of Civil Procedure Code read with Order 47 thereof and would be available to advance the cause for which such Court is constituted.

15. We, therefore, answer issue under reference as follows :-

[a] In exercise of powers to punish the contemnor by virtue of Section 215 of the Constitution of India, notwithstanding the provision of Contempt of Court Act, 1971, the High Court has jurisdiction to review its own order. Ordered accordingly.

[b] Place the matter before the learned Single Judge for disposal according to law.

Ordered accordingly.