' •

s.c.R.

SUPREME COURT REPORTS 1159

are applicable only to disqualifications to which a 1953 member beccrmes subject after he is elected as such, Election 0 01,.. and that neither the Governor nor the Commission mission, India has jurisdiction to enquire into the respondent's disv. qualification which arose long before his election.

8 ~",;, h~';!:ta As, however, we have held that the High Court was , . . . not competent under article 226 to issue any pre- 1 ata.nJali 808"' rogative writ to the appellant Commission, the appeal is allowed and thewrit of prohibition issued by the learned Judge is quashed. We make no order as to costs.

Appeal allowed.

Agent for the appellant and the Intervener : G. H. Rajadhyaksha.

Agent for the respondent: S. Siibramaniam.

ASRUMATI DEBI v.

KUMAit ItUPENDRA DEB RAIKOT

AND OTHERS.

[PATANJALI SASTRI C. J., MUKHERJEA,

VIVIAN BOSE and BHAGWATI JJ.]

Letters Patent (Calcntta High Court), els. 18, 15-0rder for tmnsfer of suit 1mde>· cl. 18-Whetlier "jiul, gment"-Appealability -Meaning of "judgment".

An order for transfer of a suit, made under clause 13 of the Letters Patent of the Calcutta High Court is not a "judgment" within the meaning of clause 15 of the Letters Patent and no appeal lies therefrom under the Letters Patent, as it neither affects the merits of the controversy between the parties in the suit itself, nor terminates or disposes of the suit on any ground.

[Meaning of the word "judgment" rliscussed].

Khatizan v. Sonairam (I.L.R. 4 7 Cal. 1104), Jttstices of the Peace for Calcutta v. Oriental Gas Co. (8 Beng. L.R. 433), Dayabhai v. Muiugappa Chettiar (I.L.R. 13 Rang. 457), 'l'uljarain

v. Alagappa (I.L.R. 35 l\fad. 1), Matlmra Sundari v. Haranchandra (I.L.R. 48 Cal. 857), Chandicharan v. Jnanendra (29 C.L.J. 225), £e,, Badin v. Upendra l'>fohan RmJ Chowdhry (39 C.W .N. 155), Kunwar Lal Singh v. Uina Devi (A.I.R. 1945 Nag. 156), Smikrw Deo v. Kalyani (A.LR. 1948 Nag. 85), Sha/lzadi Begum v. Alaknath (I.L.H. 57 All. 983), Shaw Bari "· Sonalwwl Beli R"m (I.hR. 23

a.J.

li'eb. 27

' •

SUPREME COUR'I' REPORTS [1953)

1953 Lab. 49l), Sonebai v. Ahmedbhai (9 Born. H.O.R. 398) and Vaghoji

v. Gmnaji (I.L.R. 29 Born. 249) referred to. kri.1hna Reddi v.

Asrnmati Debi 1'hanikachala (I.L.R. 47 Mad. 136) disapproved.

Kumar;;, pendra CIVIL APPELLA'rE JURISDIC'l'ION: Civil Appeal

Deb Roikot No. 92 of 1952.

Appeal by special leave from the Judgment and Order dated 16th May, 1951, of the High Court of Judicature at Calcutta (Harries C. J. and Das J.) in Appeal from Original Order No. 136 of 1949 arising out of Judgment and Order dated the 25th April, 1949, of the said High Court (Banerjee J.) in Extraordinary Suit No. 2of1948.

N. 0. Chatterjee (B. Sen, with him) for the appellant.

S. P. Sinha (A. K. Dutt, with him) for the respondent.

1953. February 27. The Judgment of the Court was delivered by

MuKHERJEA J.-This appeal, which has come before us on special leave, is directed against a judgment of an Appellate Bench of the Calcutta High Court, dated the 16th May, 1951, by which the learned Judges dismissed an appeal taken against an order, made by a single Judge on the Original Side of that Court, under clause 13 of the Letters Patent, on the preliminary ground that the appeal was not competent in law.

There is no dispute about the material facts of the case which lie within a short compass. On 7th August, 1947, a suit was filed by the respondent Kumar Rupendra Deb Raikot in the Court of the Subordinate Judge at Jalpaiguri in 'Vest Bengal,-being Title Suit No. 40 of 194 7 ,-for recovery of possession of a large estate known as Baikunthapur Raj situated in that di8triut, on the allegation that he, being the eldest son of late Prosanna Deb Raikot, the last holder of the estate, became entitled to the properties on the death of his father under a custom of the family which excludes all females from inheritance and follows the rnle of lineal

' •

primogeniture jn matters of succession.

Prosanna 1953 died in December, 1946, and Asrumati Debi, the appel- . .

I ant before us, is admittedly his widow. There was no , i,, rumati Debi son born to her and her only child is a daughter namedKnnuir; pendra Prativa. According to the plaintiff respondent, his Deb Raikot mother Renchi :Qebi, who is a Lepcha by birth was anan'l Other." other lawfully wedded wife of Prosanna and was married to the latter in what is known as the "Gandharba" Mukherjea J. form. Prosanna had three sons by this wife, the plaintiff being the eldest. Asrumati, it is alleged, took possession of the bulk of the properties comprised in the estate on the death of her husband, although she had no legal right to the same and it was to evict her from these properties that this suit was brought. Besides Asrumati, the plaintiff also impleaded three other agnatic relations of the deceased (who are defendants Nos. 2 to 4) and also his own two younger brothers as defendants to the suit.

Asrumati filed her written statement on January 19, 1948, and the main defence put forward by her was that there was no legal marriage between her husband and the plaintiff's mother, the latter being only one of the several mistresses of her husband. She denied that there was any custom in the family under which females were excluded from inheritance. The defendants 2 to 4 also filed written statements, challenging the legitimacy of the plaintiff and his claim to succession, and put forward their own rights as heirs under

the customary law obtaining in the family.

On 30th April, 1948, the plaintiff presented an application in the Original Side of the High Court of Calcutta under clause 13 of the Letters Patent, praying for transfer of the suit filed in the Jalpaiguri court to the High Court to be tried in its Extraordinary Original Civil Jurisdiction. This application was heard by Banerjee J. sitting singly and by his order dated the 25th of April, 1949, the learned Judge allowed the application, substantially on the ground that having regard to the atmosphere of prejudice that was created in the locality by supporters of the defendant, who wielded

1953 considerable influence in the district, the plaintiff might

Asrurnati Debi have a legitimate apprehension that' he would not v. get fair trial in the district court.

Kumar Rupendra Against this decision the defendant No. 1 took an Deb Raikat appeal to the Appellate Bench of the High Court of and Others.

Calcutta and the learned Judges (Trvor Harries C. J.

Mukherjea J. and Das J.) dismissed the appeal on the ground that the order appealed againt was not a 'judgment' within the meaning of clause 15 of the Letters Patent. It is the propriety of this decision that has been challenged before us in this appeal.

The High Court of Calcutta in holding the appeal before it to be incompetent based its decision entirely upon an earlier pronouncement of a Division Bench of the same court, where it was held by MookerjeeA.C.J. sitting with Fletcher J. that an order for transfer of a suit made under clause 13 of the Letters Patent was not a 'judgment' within the meaning of clause 15 (1 ).

Reliance was placed by the learned Judges for this view upon the pronouncement of Sir Richard Couch C. J. in the well-known and often cited case of The Justices of the Peace for Calcutta v. The Oriental Gas Company ('), where the learned Chief Justice said as follows:-

"We think that 'judgment' in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability.

It may be either final or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined."

The identical question, whether an order for transfer under clause 13 of the Letters Patent is a 'judgment' for purposes of appeal, was pointedly raised before the Madras and the Rangoon High Courts, and while the Madras High Court (3) answered the question in the affirmative, a definitely negative answer was given by

(1) See Khatizan v. Sona.irain, I.L.R. 47 Cal. r104.

(2) 8 Ben. L.R. 433.

(3) Vide Krishna Reddi v. '1.Thanikachala, I.L.R. 47 :i.\Iad. 1,36.

. .

I ' •

the Rangoon High Court('). The Madras decision pur- 1963 ports to be in accordance with the view enunciated by

A.s1 u1nafi Debi a Full Bench of that court in T, uljaram v. Alagappa(') v. where Sir Arnold \Vhite C, J. sitting with Krishna- Kumar Rupendra swami Aiyar and Ayling JJ. formulated a definition Deb Raikot of 'judgment' in a comprehensive manner differing from and Othera, the wide interpretation put upon the term in the earlier case of DeSouza v. Coles('). "The test seems to Mukherjea J, me," thus observerl the learned Chief Justice, "to be not what i8 the form of the adjudication, but what is its effect on the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause." This decision, it may be pointed out, has not only been adhered to in Madras since then without any comment, but the Calcutta High Court has in several instances manifested a marked leaning towards it (').

On the other hand, a Full Bench ( 1) of the Rangoon High Court presided over by Page C.J. took a view altogether different from that of the Calcutta and the Madras High Courts as regards the meaning of the word ' judgment' in clause 13 of the Rangoon Letters Patent, whioh corresponds to clause 15 of the Letters Patent of the Calcutta and Madras High Courts. It was held by the Full Bench of the Rangoon High Court that the term ' judgment ' in the Letters Patent means and is a decree in a snit by which the rights of the parties in the suit are determined.

In other words, a ' judgment ' is not what is defined in section 2 (9) of the Civil Procedure Code as being the statement given by the judge of the grounds of a decree

(1) Dayabha.'i v. J'\, Jurugappa (}hettiar, 13 Rang. 457 (F.B.).

(2) 35 Mad,' (F, R),

(3) 11, H, C, R, 384,

(4) \Tide 1l1.athura Sundari v. Haran Ohandra I.L.R. 43 Cal. 857; Chandi Charan v. Jnanendra 29 C.L.J. 225 at 229; Lta Badin v. Upendra llfohan Rov Ohaudhury, 39 C.\V. ~. 155.

I •

1953 or order, but is a judgment in its final and definitive

. n . sense embodying a decree. A final

0 judgment is an Asrumati ,, ebi d' d" t" h" h 1 . l d . h . h v. a JU ica .10n w 10 cone us1 ve y etermmes t e rig ts

Kumar Rupeudra of the parties with regard to all matters in issue in the

Deb Raikot suit, whereas a preliminary or interlocutory judgment and Others. is a decree by which the right to the relief claimed in the suit is decided but under which further proceedings Mukherjea J. are necessary before a suit in its entirety can be disposed of.

Save and except final and preliminary judgments thus defined, all other decisions are ' orders' and they do not come within the description of 'judgments' under the relevant clause of the Letters Patent.

No 'order ' is appealable unless an appeal is expressly provided against it by the Oivil Procedure Code or some other Act of the Legislature. In this view an 'order' for transferring a suit from a subordinate court to the High Court could not possibly be regarded as a ' jndgment ', and consequently no appeal would lie against such an order. This definition of' judgment' has been accepted in several cases by the Nagpur High Court (1 ), and substantially this seems to be the view of the Allahabad High Court also (2).

A Full Bench of the Lahore High Court("), however, has refused to accept this view and has preferred to follow the tests enumerated by the Calcutta and the Madras High Courts. The Bombay High Court accepted the Calcutta view from the very beginning (4).

In view of this wide divergence of judicial opinion, it may be necessary for this court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word ' judgment ' as it occurs in clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts. We are, however, relieved from embarking

(I) Vide Kunwa:r Lal Singh v. U1na De1li, A.LR. I945 Nag. 156; Shankar Deo v. f(alyani, A.LR. 1948 Nag. 85.

(2) Vide Shahzadi Begam. v. Alakhnath, 57 All. 983 (F.B.)

(3) Shaw Hari v. Sonah 1lfol Beli Rarn, I.L.R. 23 Lah, 491. {4) Vide•Soneba.i v. Ahtnedbhai, 9 Born, H.C.R. 398 .

I v

on such enqqiry in the present case as we are satisfied 1953 that in none of the views referred to above could f

A~~~ an order o the character which we have before us, be regarded as a 'judgment ' within the meaning of Kumar; pendra

clause 15 of the Letters Patent.

Deb Raikot Couch C.J., as said already, defined 'judgment' to be a decision which determines some right or liability affecting the merits of the controversy between the parties. It is true that according to the learned Chief J"ustice an adjudication, in order that it might rank as a ' judgment', need not decide the case on its merits, but it must be the final pronouncement of the court making it, the effect of which is to dispose of or terminate the suit or proceeding. This will be apparent from the following observations made by Couch C.J. in the course of his judgment in the case referred to above:

"It is, however, said that this eourt has already put a wider construction upon the word ' judgment' in clause 15 by entertaining appeals in cases where the plaint has been rejected as insufficient, or as showing that the claim is barred by limitation, and also in oases where orders have been made in execution. These however are both within the above definition of a judgment, and it by no means follows that, because we hold the order in the present case not to be appealable, we should be bound to hold the same in the oases referred to. For example, there is an obvious difference between an order for the admission of a plaint and an order for its rejection. The former determines nothing, but is merely the first step towards putting the case in a shape for determination. The latter determines finally so far as the court which makes the order is concerned that the suit, as brought, will not lie.

The decision, therefore, is a judgment in the proper sense of the term."

It cannot be said, therefore, that according to Sir Richard Couch every judicial pronouncement on a right or liability between the parties is to be regarded

lfjf

and Other:;,

M ukher jea J.

1963 as a 'judgment', for in that case there would be any . . number of judgments in the course of a suit or pro- Asntmati llel>t cceding, each one of which could be challenged by way

Kumar ; upe11dra of appeal. The judgment must be the final pronounce-

Deb Raikot mcnt which puts an end to the proceeding so far as a 11d Other.. the conrt dealing with it is concerned. It cnrtainly involves the determination of some right or liability, MttklterJea J. though it may not be necessary that there must be a decision on the merits. This view, which is implied in the observations of Sir Richard Couch C.J. quoted above, has been really made the basis of the definition of 'judgment ' by Sir Arnold White C.J. in the Full Bench denision of the Madras High Court to which reference has been made (1).

According to White C.J. to find out whether an order is a 'judgment' or not, we have to look to its effect upon the particular suit or proceeding in which it is made. If its effect is to terminate the suit or proceeding, the decision would be a 'judgment' but not otherwise. As this definition covers not only decisions in suits or actions but 'orders' in other proceedings as well which start with applications, it may be said that any final order passed on an application in the course of a suit, e.g., granting m refusing a party's prayer for adjournment of a suit or for examination of a witness, would also come within the definition.

This seems to be the reason why the learned Chief Justice qualifies the general proposition laid down above by stating that "an adjudication on an application, which is nothing more than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning of the Letters Patent."

As stated already, it is not our purpose in the present ease to frame an exhaustive definition of the word ' judgment' as used in clause 15 of the Letters Patent. vVe have indicated what the essential features of a ' judgment' are according to both the Calcutta and the Madras High Courts and all that we need say is that, in our opinion, an order under clnuse 18 of the Letters Patent does not satisfy the tests of a ' judgment' as fonnulateci by either of these High Courts,

(T) Vide T1tljara111 v . .'!l(lgoppa, 35 ",\Jad, r,

s.c.:R.

SUPREME COURT REPOR1'S 1167

The questipn that requires determination in an I9b3 application under clause 13 of the Letters Patent is, . . h th . l . l Id b d f" As,., nnati Debi w e er a partrcu ar smt s iou e remove rom any v court which is subject to the superintendence of the"""'"' R

0 nvendra High Court and tried and determined by the latter as Deb Raikot a court of extraordinary original jurisdiction. It is nnd Other.,. true that unless the parties to the suit are agreed on h. h b h .11uklwrjea , l. t 1s pomt, t ere must arise a controversy etween t em which has to be determined by the court. In the present case, a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a ' judgment'.

The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose .of t.he suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection.

On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive aucl that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originally filed.

Mr. Chatterjee in the course of his arguments pfo, eed considerable reliance upon t, Jrn pronouncement of the Calcutta High Court in Hadjee Ismail v. Hadjee 1lf ahomed ( 1 ), where it was held by C'ouch c .. J. and

(I) 13 Beng. L.R. 91.

1168 8UPREME COURT HEPOR'l'8 [i953]

1953 Pontifex J. that an order refus1ng to .rescind leave

Asrumati Debi to sue granted under clause 12 of the Letters Patent v. was a ' judgment ' under clause 15 and could be Kumar Rupendra challenged by way of appeal.

This decision was

Deb Raikot followed by the Bombay High Court in Vaghoji v.

an.d Othm.

Oamaji( 1); and it is argued by Mr. Chatterjee that there is no difference in principle between an order of Mukherjea J. that description and an order transferring a suit under clause 13 of the Letters Patent. The contention of Mr. Chatterjee undoubtedly receives support from the judgment of the Madras High Court in Krishna Reddy

v. 'l'hanikachala('), where precisely the same line of reasoning was adopted. In our opinion, this reasoning is not sound and there is an essential difference between an order rescinding or refusing to rescind leave to sue granted under clause 12 of the Letters Patent and one removing a suit from a subordinate court to the High Court under clause 13 of the Letters Patent, and this distinction would be apparent from the observations of Sir Arnold White C.J. in the Madras Full Bench case( 3) mentioned above, to which sufficient attention does not appear to have been paid by the learned Judges of the same court who decided the later case. Referring to the decision of the Bombay High Court in Vaghoji v. Oamaji( 1), White C.J. observed as follows:

"As regards the Bombay authorities I may refer to Vaghoji v. Oamaji( 1), where it was held that an appeal lay from an order dismissing a Judge's summons to show cause why leave granted under clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file.

Here the adfudication asked for, if made, u; ould have disposed of the suit. So also would an order made under an application to revoke a submission to arbitration. I think such an order is appealable."

Leave granted under clause 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded, the

( ') l.L.R. z9 Born. 2l9.

(2) I.L.R. 47 ;\lad. 136.

(3) Vide T11ljaram v, Alagappa, 35 Mad. I (F.B.) .

' I

s.c . .R.

SUPREME COURT REPOR'L'S li69

suit automatiqally comes to an end and there is no 1953 doubt that such an order would Le a judgment. If, 011

. D . h h I d d . d d' . . !l Asrumatt ebi t e ot er iau , an or er IS ma e 1sm1ssmg ·. ie v.

Judge's summons to show cause why the leave shouldKumarRupendm not be rescinded, the result is, as Sir Lawrence Deb Raikot Jenkins pointed out(1), that a decision on a vital point and Others. adverse to the defendant, which goes to the very root of the suit, becomes final and decisive against him so Mukherjea ' far as the court making the order is concerned. This brings the order within the category of a 'judgment' as laid down in the Calcutta cases. 'Ve need not express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state that there is a difference between an order refusing to rescind leave granted under clause 12 of the Letters Patent and one under clause 13 directing the removal of a suit from one court to another, 11nd there is no good reason to hold that the principle applicable to one applies to the other also.

The result, therefore, is that, in our opinion, the view taken by the High Court is right and this appeal should fail, and is dismissed with costs.

Appeal dismissed. Agent for the appellant : P. K. Bose.

Agent for the respondent No. 1: Sukimwr Ghose for P. 0. Dutt.

BRAHMA PRAKASH SHARMA AND O'L'HEHS 19o3

V. 1lfay 8

THE STATE OF UTTAR PRADESH.

[PATANJALI SASTRI c. J., MUKHERJEA, s. R. DAS,

GHULAJVI HASAN and BHAGWA'l'l .JJ.]

Oontenipt of Oonrts Act, 1926, s. 3 -Reflection on conduct or character of Judicial OJ)ir-ers - When wnonnts to contempt of court -Contempt proceedings-Guiding principles - Jlc!tters to be considerecl- Relevancy nf S1tj'rounrlin.q circnni.tanre.fj-J11risrl.iction to be spa.ringly exercised.

(1) 'Tide Vaghoji v. Ca1naji, I.L, H. 29 Born. 149 .

India

' •

are applicable only to disqualifications to which a 1953 member beccrmes subject after he is elected as such, Election 0 01,.. and that neither the Governor nor the Commission mission, India has jurisdiction to enquire into the respondent's disv.

article 226

G. H. Rajadhyaksha

S. Siibramaniam

ASRUMATI DEBI

PATANJALI SASTRI

MUKHERJEA

VIVIAN BOSE

BHAGWATI JJ.

cl. 18

clause 13

Calcutta High Court

clause 15

Shaw Bari

Kumar

Harries

Das

Banerjee

B. Sen

S. P. Sinha

A. K. Dutt

MuKHERJEA

16th May, 1951

clause 13

7th August, 1947

Kumar Rupendra Deb Raikot

Prosanna Deb Raikot

Prosanna 1953

Asrumati Debi

namedKnnuir

Renchi :Qebi

Gandharba" Mukherjea

Asrumati

Asrumati

January 19, 1948

30th April, 1948

clause 13

25th of April, 1949

Asrurnati Debi

Kumar Rupendra

High Court of and Others.

Calcutta

Trvor Harries

Mukherjea

clause 15

High Court of Calcutta

MookerjeeA.C.J.

Fletcher

clause 13

clause 15

Richard Couch

clause 15

clause 13

Madras and the Rangoon High Courts

Madras High Court

Arnold \Vhite C

Krishna- Kumar Rupendra swami Aiyar

Ayling

Madras

Rangoon High Court

Calcutta and the Madras High Courts

clause 13

clause 15

Calcutta and Madras High Courts

section 2

Kumar Rupeudra

Nagpur High Court

Allahabad High Court

Lahore High Court

Calcutta and the

Madras High Courts

Bombay High Court

Calcutta

clause 15

clause 15

Deb Raikot Couch

Couch

clause 15

Richard Couch

Deb Raikot

MttklterJea

Arnold White

White

clause 15

S 1167

clause 13

clause 13

Chatterjee

Pontifex

clause 12

clause 15

clause 13

clause 12

clause 13

clause 12

clause 12

Lawrence Deb Raikot Jenkins

Mukherjea

clause 12

clause 13

P. K. Bose

Sukimwr Ghose

BRAHMA PRAKASH SHARMA

STATE OF UTTAR PRADESH

s. R. DAS

GHULAJVI HASAN

Oontenipt of Oonrts Act, 1926

s. 3


' I

s.c . .R.

SUPREME COURT REPOR'L'S li69

suit automatiqally comes to an end and there is no 1953 doubt that such an order would Le a judgment. If, 011

. D . h h I d d . d d' . . !l Asrumatt ebi t e ot er iau , an or er IS ma e 1sm1ssmg ·. ie v.

Judge's summons to show cause why the leave shouldKumarRupendm not be rescinded, the result is, as Sir Lawrence Deb Raikot Jenkins pointed out(1), that a decision on a vital point and Others. adverse to the defendant, which goes to the very root of the suit, becomes final and decisive against him so Mukherjea ' far as the court making the order is concerned. This brings the order within the category of a 'judgment' as laid down in the Calcutta cases. 'Ve need not express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state that there is a difference between an order refusing to rescind leave granted under clause 12 of the Letters Patent and one under clause 13 directing the removal of a suit from one court to another, 11nd there is no good reason to hold that the principle applicable to one applies to the other also.

The result, therefore, is that, in our opinion, the view taken by the High Court is right and this appeal should fail, and is dismissed with costs.

Appeal dismissed. Agent for the appellant : P. K. Bose.

Agent for the respondent No. 1: Sukimwr Ghose for P. 0. Dutt.

BRAHMA PRAKASH SHARMA AND O'L'HEHS 19o3

V. 1lfay 8

THE STATE OF UTTAR PRADESH.

[PATANJALI SASTRI c. J., MUKHERJEA, s. R. DAS,

GHULAJVI HASAN and BHAGWA'l'l .JJ.]

Oontenipt of Oonrts Act, 1926, s. 3 -Reflection on conduct or character of Judicial OJ)ir-ers - When wnonnts to contempt of court -Contempt proceedings-Guiding principles - Jlc!tters to be considerecl- Relevancy nf S1tj'rounrlin.q circnni.tanre.fj-J11risrl.iction to be spa.ringly exercised.

(1) 'Tide Vaghoji v. Ca1naji, I.L, H. 29 Born. 149 .

1170 SUPREME COUR'L' REPOR'l'S [1953)

1953 The object of contempt proceedings is not to afford protection - to judges personally from imputations to which they may be

Braima Prakash exposed as individuals, but is intended to be a protection to the

Sharma and public whose interest would be very much affected if, by the act Others or conduct of any party, the authority of the court is lowered v. and the sense of confidence which the people have in the adminis- The State of tration of justice by it is weakened.

U Uar P-radesh When the court itself is attacked, tirn summary jurisdiction by way of contempt proceedings must be exercised 'vith scrupulous care and only< when the case is clear antl beyond reasonable doubt.

There are two primary considerations which should \Veigh 'vith the court in such cases, viz., fir:lt wLether the reflection on the conduct or character of tho judge is within the limits of fair and reasonable criticism, and secondly, whether it is a mere libel or defamation of the judge or amounts to a contempt of tho court.

If it is a mere defamatory attack on the judge and is not calculated to interfere with the due comse of justice or th.a proper administration of the law by such conrt, it is not proper to pro ceed by way of contempt.

Where the question arises whether a defamatory statement directed against a judge is calculated to undermine the confidence of the public in the competency or integrity of the judge or is likely to deflect the court itself from a strict and unhesitant performance of its duties, all the surrounding facts and circumstances under which the statement was made &nd the degree of publicity that was given to it would be relevant circumstances. The c1uestion is not to be cletermined solely with reference to the' language or contents of the statement made.

The Executive Committee of a District Bar Association received several complaints against the way in which the Judicial Magistrate and the Revenue Officer of the District dispos.ed of cases and behaved towards litigants and lawyers, and passed a resolution which stated that ''it was their considered opinion that the two officers are thoroughly incompetent in law, do not inspire confidence in their judicial work, aie given to stating wrong facts when passing orders and are overbearing and discourteous to the litigant public and lawyers alike" and gave a list of various complaints against the officers.

Thi:i resolution was passed in camera, typed out by the President himself and forwarded confidentially to the District Magistrn, te. Commissioner of the Division, and the Chief Secretary and Premier of the State. The District Magistrate moved the High Court of Allahabad to take action against the appellants, who had passed the resolution, for contempt of court.

The High Con.rt held that the appellants were guilty of contempt bul; accepted their apology. On appeal: Held, that in the light of all the circumstances of the case, the contempt, if any, was only of a technical character and that after the affidavitS" bad been filed on behall of the appellants before the High Court, the proceedings against them should have been dropped .

, I

S.C.R.

SUPREME COURT l{EPORTS' 1171

195.l CRIMISAL APfELLAT.E J URISDH"fIOC\': Orimin<tl Appeal No. 24 of 1951.

Brah1na Prakash

Sharm.a and

Others

Appeal by special leave granted by the Snpreme Conrt on the 2nd April, 1951, from the Jndgment and Order dated the 5th May, 1950, of the High Court of Judicature at Allahabad in Criminal Miscellaneous

Case No. 34 of 1949.

The State o.f U ttar Pradesh.

, vJ. G. Setalvad, Attorney-General for India, K. S.

Krishnaswarny A iya11gar and 8. P.Sinha ( V. N. Sethi, K. B. Asthana, N. G. Sen,!(. N. Aggarwala, Shaukat

Hussain, K. P. Gupta, M. D. Upadhyaya and G. 0.

Mathur, with them) for the appellants.

Gopalji 1Vl ehrotra and J agdish Chandra for the rEispondent.

1953.

May 8.

The J'udgment of the Court was delivered by

MuKHER.JEA J.-This appeal which has come before us, on special leave, is directed against a judgment of a Full Bench of the Allahabad High Court, dated 5th May, 1950, by which the learned judges held the appellants guilty of contempt of court; and although the apology tendered by the appellants was accepted, they were directed to pay the costs of the respondent

State.

The appellants, six in number, are members of the Executive Committee of the District Bar Association at l\fozaffarnagar within the State of Uttar Pradesh, and the contempt proceedings were started against them, because of certain resolutions passed by the Committee on 20th April, 1949, copies of which were forwarded to the District Magistrate and other officers by a covering letter signed by appellant No. l as

President of the Bar Association.

To appreciate t.he contentions that have been raised in this appeal, it would be necessary to state a few relevant facts.

The resolutions which form the basis of the contempt proceedings relate to the Qonduct of two judicial officers, both of whom functioned flt

I •

1953 Muzaffarnagar at the relevant time. One of them

B h P k I named Kanhaya Lal Mehra was a Judicial Magistrate ram.a ra asi .

Sharma and while the other named Lalta Prasad was a Revenue Otliers Officer. It is said that the first appellant as President v. of the Bar Association received numerous complaints The State af regarding the way in which these officers diposed of Uttar Pradesh h d b h d d h 1 cases in t eir courts an e ave to war s t e a wyers

Mukherjea J. and the litigant public. The Executive Committee of the Association took the matter in hand and, after satisfying themselves that the complaints were legitimate and well-founded, they held a meeting on 20th April, 1949, in which the following resolutions were passed:- Resolved that-

"Whereas the members of the Association have had ample opportunity of forming an opinion of the judicial work of Sri Kanhaya Lal, Judicial Magistrate, and Shri Lalta Prasad, Revenue Officer,

It is now their considered opinion that the two officers are thoroughly incompetent in law, do not inspire confidence in their judicial work, are given to stating wrong facts when passing orders and are overbearing and discourteous to the litigant public and the lawyers alike. Besides the above-mentioned defects common to both of them, other defects are separately catalogued as hereunder :- * * * * (The complaints against each of the officers separately were then set out under specific heads).

Resolved further that copies of the resolution be sent to the Honourable Premier, the Chief Secretary of the Uttar Pradesh Government, the Commissioner and the District Magistrate for suitable action; , Resolved that the District Magistrate and Collector be requested to meet a deputation of the following in this connection at an early date;"

(The names of 5 members who were to form the deputati<m were then mentioned.)

, ' •

It is not disputed that this meeting of the Execu- I9; a tive Committee of the Bar Association was held in - d b Brahma Prakash caera an no 1101~-mem er was allowed to be present Sharma at 1t. The resolut10ns were typed out by the President and Others himself and the proceedings were not recorded in the v.

Minute Book of the Association at all.

On the follow- The State of ing day, that is, on 21st April, HJ49, the President sent Uttar Pradesh.

a copy of the resolutions with a covering letter marked Mukherjea J. "confidential" to the District Magistrate, Muzaffarnagar. Copies of the resolutions were similarly despatched to the Commissioner of the Division, the Chief Secretary and the Premier ofUttar Pradesh. It is not disputed that the District Magistrate was the immediate superior of the officers concerned, and the other three were the higher executive authorities in the official hierarchy. One paragraph of this covering letter contained the following statement:-

"Complaints against these offirrrs had been mounting and a 'stage was reached when the matter had to be taken up formally.

The resolution is not only well-considered and unanimous but represents a consensus of opinion of all practitioners in the Criminal and Revenue side."

The post-script of the letter addressed to the District Magistrate contained a prayer that he might find it convenient to fix an early date to meet the deputation of 5 members as indicated in the third resolution.

The Divisional Commissioner, by his letter dated 27th April, 1949, addressed to a.ppellant No. 1, acknowledged receipt of the copy of the resolutions and requested the addressee to supply specific details of cases tried by these officers in support of the allegations contained in the resolution. Without waiting for this information, however, the Commissioner on the day following wrote a letter to the Chief Secretary of the U.P. Government suggesting that the matter should be brought to the notice of the High Court

inasmuch as instances were not rare where influential members of the Bar got resolutions like these passed by their associations with a view to put

15?

' •

1953 extra-judicial pressure upon the judicial officers so

B I - as to make them amenable to their wishes which ranna Prakash , • b 0 0 h u 94 d Sharma often were quest10na le. n l t may, l 9, a epuand Othen tation of 5 members waited upon the District Magisv. trate and discussed with the latter the entire situation.

The State af The Magistrate also told the deputation that the

Uttar Prade""· details of complaints as required by the Commissioner

Mukhr,.jca .1. should be furnished at an early date. These details were sent to the District Magistrate by the appellant No. 1 on 20th June, 1949, and specific instances were cited, the accuracy of which was vouched by a number of senior lawyers who actually conducted those cases.

On 20th July, 1949, the District Magistrate through the Divisional Commissioner wrote a. letter to the Registrar of the High Court of Allahabad requesting the latter to draw the attention of the High Court to the resolutions passed on 20th April, 1949, and other remarks made by the members of the Committee and suggesting that suitable action might .be taken against them under section 3 of the Contempt of Courts Act of 1926. On 16th November, 1949, the High Court directed the issue of notices on 8 members of the Committee to show cause why they should not be dealt with for contempt of court in respect of certain portions of the resolution which were set out in the notice.

In answer to these notices, the opposite parties appeared and filed affidavits. The case was heard by a Bench of three Judges who, by their judgrne11t elated 5th May, 1950, came to the conclusion that with the exception of two of the opposite parties who were not members of the Executive Committee at the relevant date, the remaining six were guilty of contempt of court. It was held that the opposite parties were not actuated by any personal or improper motive8; the statement made on their behalf that their object was not to interfere with but to improve the administration of justice was accepted by the court, but nevertheless it was observed that the terms used in the resolution were little removed from personal abuse and whatever might have been the motive, they clea.rly were likel; Y to bring the Magistrate into contempt and

1953 lower their authority. The concluding portion of the judgment stands as follows :- .

B1'ahnia Prakash "We thmk that the opposite parties acted under Sharma a misapprehension as to the position, but they have and Othm expressed their regrets and tendered an unqualified v. apology. In the circumstances, we accept their 2'1"" State 0! 1 b h Uttar Pradesh. apo ogy, ut we direct t at they pay the costs of the Government Advocate which we assess at Rs. 300."

It is the propriety of this judgment tlmt has been assailed before us in this appeal.

According to the learned judges of the High Court, the allegations made against the judicial officers in the present case come within the category of contempt which is committed by "scandalising the court". The learned judges observed on the authority of the pronouncement of Lord Russell in Reg. v. Gray('), that this class of contempt is subject to one important qualification. The judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could treat that as contempt of court. In the opinion of the learned judges, the complaint lodged by the appellants exceeded the bounds of fair and legitimate criticism and in this respect the members of the Bar Association could not claim any higher privilege than ordinary citizens. No distinction, the High Court held, could also be made by reason of the fact that the charges against the judicial officers in the present case were embodied in a representation made to authorities who were the official superiors of the officers concerned and under whose administrative control the latter acted.

The learned Attorney-General who appeared in support of the appeal, characterised this way of approach of the High Court as entirely wrong. His contention is that any act or publication which is calculated to lower the authority or dignity of a judge does not per

8e amount to contempt of court. The test is whether the allegations are of such character or are made m

(1) [1900] 'Q.B. 36 .

Mukherjea J.

I •

1176 SUPREME COURT Rl~PORTS [195:lj

1958 such circumstances as would tend ljo obstruct or

B h -P k interfere with the course of justice or the due adminisra ma ra ash • fl

R ]' 1 db h' th' Sharma trat10n o aw. e iance was pace y im m is conand Others nection upon certain pronouncements of the Judicial

Committee which held definitely that an imputation

7'/w State of affecting the character or conduct of a judge, even Uttar Pradesh. though it could be the subject-matter of a libel pro-

Mukherjea J. ceeding, would not necessarily amount to a contempt of court. The Attorney-General laid very great stress on the fact that the resolutions passed and the representations made by the appellants in the present case were not for the purpose of exposing before the public the alleged shortcomings of the officers concerned ; the whole object was to have the grievances of the lawyers and the litigating public which were genuinely felt, removed by an appeal to the authorities who alone were competent to remove them. Such conduct, it is argued, cannot in any way be calculated to interfere with the due administration of law and cannot be held to be contempt of court. The points raised are undoubtedly important and require to be examined carefully.

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 andfor maintaining the authority of law as is administered in the courts. It would be only repeating what has been said so often by various judges that the object of contempt proceedings is not to afford protection to judges personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sern; e of confidence which people have in the administration of justice by it is weakened.

There are indeed innumerable ways by which attempts can be made to hinder or obstruct the due

administrtion of justice in courts. One type of such

' ' •

S.O.R.

SUPREME COURT REl'ORTi:l 1177

interference is found in cases where there is an act or 1963 publication wliich "amounts to scandalising the court -- itself" - an expression which is familiar to English Brahma Prakash lawyers since the days of Lord Hardwick('). This scans; 1c;;:• dalising might manifest itself in various ways but, iu "" v'. ers. substance, it is an attack on individual judges or the 7'he State of court as a whole with or without reference to parti- Uttar Pradesh. cular cases, casting unwarranted and defamatory aspersions upon the character or ability of the judges.

Such conduct is punished as contempt for this reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties.

There arc decisions of English courts from early times where the courts assumed jurisdiction in taking committal proceedings against persons who were guilty of publishing any scandalous matter in respect of the court itself. In the year 1899, Lord Morris in delivering the judgment of the Judicial Committee in 211acLeod v. St. Aubin(') observed that "committals for contempt by scandalising the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogtitory or scandalous to them." His Lordship said further : "The power summarily to commit for contempt is considered necessary for the proper administration of justice. It is not to be used for the vindication of a judge as a person. He must resort to action for libel or criminal information."

The observation of Lord Morris that contempt proceedings for scandalising the courts have become obsolete in England is not, strictly speaking, correct; for, in the very next year, such proceedings were taken in Reg. v. Gray('). In that case, there was a scandalous attack of a rather atrociou8 type on Darling J. who was sitting at that time in Birmingham Assizes and was trying a man named Wells who was indicted

iufff alici for selling and publishing obscene literature.

(1) Vide In re Read and Hnggon.<?on (1742) 2 Atk. 469, 471.

(2) [1899) A. C. 549.

(3) [1900] 2 Q.B. 36 .

• •

1178 SUPREME COURT REPOR'l; S [1953]

195.J The judge, in the uourse of the trial, glwe a warning - to the neswspaper press that in reporting the proceed- Brahma Prakash ings of the court, it was not proper for them to give

Shanaa bl' 't d tt th 1 d d ' and Othm p~ IC! y tom cent ma ers at wer~ revea e ur.mg v. trial. Upon this, the defendant published an article

The State of in the Birmingham Daily Argus, under the heading Uttar Pradesh. "An advocate of Dece110y", whern Darling J. was

abused in scurrilous language. '!'he case of 'Velis was

Mu.herjea J. h b h A ']] · 'l'h t en over ut t e ss1zes were st1 . s1ttmg. ere can he no doubt that the publication amounted to contempt of court and such attack was calculated to interfere directly with proper administration of justice.

Lord Russell in the course of his judgment, however, took care to observe that the summary jurisdiction by way of contempt proceedings in such cases where the court itself was attacked has to be exercised with scrupulous care and only when the case 1s clear and beyond reasonable doubt. "Because", as his Lordship said, "if it is not a case beyond reasonable doubt, the court should and ought to leave the Attorney-General to proceed by crimin:; J information". In 1943, Lord Atkin, while delivering the judgment of the Privy Council in Devi Prashad \'. J( ing Emperor('), observed that cases of contempt, which consist of scandalising the court itself, are fortunately rare and require to be treated with much discretion. Proceedings for this species of contempt should be used sparingly and always with reference to the administration of justice. "If a judge is defamed in such a way as not to affect the administration of justice, he has the ordinary remedies J

for defamation if he should feel impelled to use them."

It seems, therefore, that there are two primary considerations which should weigh with the court when it is called upon to exercise the summary powers in case~ of contempt committed by "scandalising" the court itself. In the first place, the reflection on the conduct or character of a judge in reference to the discharge of his judicial duties would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in

(I) 70 I. A. 216.

• ' •

respect of public acts done in tho seat of juHtice. It is J9fJ3 not by stifling criticism that confidence in courts can -- be created. "The path ofcriticism'', said Lord Atkin('), Brahma Prakash "is a public way. The wrong-headed are permitted to ai~~;~;., err therein; provided that members of the public abstain v. from imputing motives to those taking part in the The State of administration of justice and are genuinely exercising Uttar Pradesh. a right of criticism and not acting in malice, or attempt Mukherjea J. to impair the administration of justice, they are immune."

In the second placr, when attacks or comments a.re made on a judge or judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the judge and what amounts really to contempt of court. The fact that a statement is defamatory so far as the judge is concerned does not necessarily make it a contempt.

The distinction between a libel and a contempt was pointed out by a Committee of the Privy Council, to which a reference was made by the Secretary of State in 1892 (2 ).

A man in the Bahama Islands, in a letter published in a colonial newspaper criticised the Chief Justice of the Colony in an extremely ill-chosen language which was sarcastic and pungent. There was a veiled insinuation that he was an incompetent judge and a shirker of work and the writer suggested in a way that it would be a providential thing if he were to die.

A strong Board constituting of 11 members reported that the letter complained of, though it might have been madP the subject of proceedings for libel, was not, in the circumstances, calculated to obstruct 01 interfere with the course of justice or the due adminiskation of the law and t.hereforc did not constitute a contempt of court. The same principle was reiterated by Lord Atkin in the case of Devi Prashad v. King Ernperor( 3 ) referred to above. It was followed and approved of by the High Court of Australia in King v.

Nicholls('), and has been accepted as sound by this

(1) Ariibard '' Attorneu-GeneralforT1inidad and '1 1oba(Jo, [1936] A.C. 322 at p. 335.

(2) In the 1natler of a special reference from the Bah,11na Islands [1893]

A. C. 138. '

(3) 70 I.A. 21(>.

14) 12 Com. L. R. 280,

1953 Court in Reddy v. The State of 1f adras (1). The position -- therefore is that a defamatory attack on a judge may Brahma Prakash be a libel so far as the judcre is concerned and it would

Sharma

- b t ] . o d . t tl l'b 11 . and Others e open o 11m to procee agams . ie 1 e or m a

v. proper action if he so chooses. If, however, the publi-

Tha State of cation of the disparaging statement is cfllculated to

Uttar Prade_,1,, interfere with the due course of justice or proper administration of law by such court, it can be punished M ukherjea J. summarily as contempt. One is a wrong done to the judge

µersonally while the other is a wrong done to the public.

It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter a.ctual and prospective litigants from placing complete reliance upon the court's administration of justice, or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.

It is well established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tends in any way, to interfere with the proper administration of law (2) • .../

It is in the light of these principles that we will proceed to examine the facts of the present case.

It cannot be disputed that in regard to matters of contempt, the members of a Bar Association do not occupy any privileged or higher position than ordinary citizens. The form in which the disparaging statement is made is also not material, but one very important thing has to be noticed in the case before us, viz., that even assuming that the statement was derogatory to the dignity of the judicial officers, very little publicity was given to this statement, and in fact, the appellants made their best endeavours to keep the thing out of the knowledge of the public.

The representation was made to 4 specified persons who were the official superiors of the officers concerned; and it has been found as a fact by the High Court that the appellants

(1) [1952) s. c. R. 452_ (:>.)Mr. Moo"kerjea J. in In re Motilal Ghosh and 'Jthe1's, I.L.R. 45 Cal. 269 at 283. \

• •

acted bona fiJ, e with no intention to interfere with the 191!8 administration of justice though they might have been B h --; k under a misapprehension regarding the precise legal posi. ra ~~ ... ,~: ash

tion. No copies of the resolution were even sent to the and Others officers concerned. Apart from the contents of the reprev. sentation by the appellants and the language used 2'he Stato f therein, this fact would have a bearing on the question Uttar Pradesh. as to whether the conduct of the appellants brought Ilfokherjea J. them within the purview of the law of contempt.

The first question that requires consideration is whether in making the allegations which they did against the two judicial officers, the appellants exceeded the limits of fair and legitimate criticism. There were three resolutions passed at the meeting; the second and third were of a mere formal character and do not require any consideration. The offending statement is to be found in the first resolution which again is in two parts. In the first part, there are allegtttions of a general nature against both the officers, but the second part enumerates under specific heads the complaints which the Committee had against each of them separately.

With regard to Kanhaya Lal, the allegations are that he does not record the evidence in cases tried by him properly, that in all criminal matters transferred to his court, where the accused are already on bail, he does not give them time to furnish fresh sureties with the result that they are sent to jail, and lastly, that he is not accommodating to lawyers at all. So far as the other officer is concerned, one serious allegation made is, that he follows the highly illegal procedure of hearing two cases at one and the same time, and while he records the evidence in one case himself, he allows the Court Reader to do the thing in the other. It is said also that he is short-tempered and frequently threatens lawyers with proceedings for contempt. Some of these complaints are not at all serious and no judge, unless he is hypersensitive, would at all feel aggrieved by them. It is undoubtedly a grave charge that the Revenue Officer hears two cases simultaneously and allows the Court Reader to do the work for b.im. If true,

Jqq

SUPREME COURT REPORTS [ Hlii3]

1963 it is a patent illegality and is predsely a: matter which - should be brought to the notice of the District l\fagis- Brahma PrakaRh h ti d · t t' h d f ti ffi Sharma tra.te w o is . ie a mm1s ra ive ea o iese o cers.

o nd Otlu:1's

The Stltte of U!tar Pradesh.

1itukherjr, a J.

As regards the first part of the resolution, the allegations are made in general terms that these officers do not state facts correctly when they pass orders and that they are discourteous to the litigant public. These do not by any means amount to scandalising the court.

Such complaints are frequently heard in respect of many subordinate courts and if the appellants had a genuine grievance, it cannot be said that in ventilating their grievances they exceeded the limits of fair criticism.

The only portion of the resolution to which prima facie objection can be taken is that which describes these officers as thoroughly incompetent in law and whose judicial work does not inspire confidence. These remarks are certainly of a sweeping nature and can scarcely be justified. Assuming, however, that this portion of the resolution is defamatory, the question arises whether it can be held to amount to contempt of court.

To answer this question, we have to 8ee whether it is in any way calculated to interfere with the due administration of justice in these courts, or, in other words, whether such statement is likely to give rise to an apprehension in the minds of litigants as to the ability of the two judicial officers to deal properly with cases coming before them, or even to embarrass the officers themselves in the <lischarge of their duties.

'Ve are unable to agree with the learned counsel for the respondent that whether or not the representation made by the appellants in the present case is calculated to produce these results is to be determined solely and exclusively with reference to the language or contents of the resolutions themselves; and that no other fact or circumstance can be looked into for this purpose, except perhaps as matters which would aggravate or mitigate the offence of contempt, if such offence is found to have been committed. It mav be that pleas. of justification or privilege are not strictly speaking available to the defondant in contempt

• •

S.C.R.

SUPREME COUR1' Rl!:PORTS 1183

proceedings. • The question of publication also in the m;; technical sense in which it is relevant in a libel action B 1 - b . . f' rci una Prulash may e mappropl'late to the law o contempt.

But, S'ha l , . rnui eavmg out cases of e; c Jacie contempt, where the quesand Others tion arises as to whether a defamatory statement v. directed against a judge is mtlrulated to undermine the 1'/w State of confidence of the public in the capacity or integrity of Uttac Pradesh. the ]

0 udge, or is likely to deflect the court itself from Mukherjeu J. a strict and unhesitant perfonnan('c of its duties, all the surrounding facts and circumstances under which the statement was made and the degree of publicity that was given to it would undoubtedly be relevm1t circumstances. It is true as the learned counsel for the respondent suggests that the matter was discussed in the present case among the members of the Btu, and it might have been the subject-matter of discussion amongst the officers also to whom copies of the resolutions were sent.

No doubt, there was publication as is required by the law of libel, but in contempt proceedings, that is not by any means conclusive. What is material is the nature and extent of the publication and whether or not it was likely to have an injurious effect on the minds of the pn blic or of the .iudiciary itself and thereby lead to interference with the administration of justice. On the materials before us, it is difficult to say that the uircumstances under which the representation was made by the ttppellants was calculated to have such effect. There might have been some remote possibility but that rannot be taken note of.

We are clearly of the opinion that the contempt, if any, was only of a technical character, and that after the affidavits were filed on belmlf of the appellants before the High Court, tl10 proceedings against them should have been dropped. The result, therefore, is that the appeal is allowed and the judgment of the High Court is set aside. 'rhere will be no order for costs either here or in the court below in favour of eitlwr party.

Appeal allowed.

Agent for the appellants: 8. 8. Shukla.

Agent for the respondents : O. P. Lal •

Lawrence Deb Raikot Jenkins

decisive against him so Mukherjea

Calcutta

clause 12

clause 13

P. K. Bose

Sukimwr Ghose

BRAHMA PRAKASH SHARMA AND O'L'HEHS

8

THE STATE OF UTTAR PRADESH

PATANJALI SASTRI

MUKHERJEA

GHULAJVI HASAN

Oontenipt of Oonrts Act, 1926

s. 3

Sharma

High Court of Allahabad

CRIMISAL APfELLAT.E J URISDH"fIOC\

Brah1na Prakash

Sharm.a

State

G. Setalvad

K. S.

Krishnaswarny A iya11gar

P.Sinha

V. N. Sethi

K. B. Asthana

N. G. Sen

N. Aggarwala

Shaukat

Hussain

K. P. Gupta

M. D. Upadhyaya

G. 0.

Mathur

Gopalji 1Vl ehrotra

J agdish Chandra

MuKHER.JEA

Allahabad High Court

Uttar Pradesh

20th April, 1949

Kanhaya Lal Mehra

Lalta Prasad

Mukherjea

Kanhaya Lal

Uttar Pradesh Government

Brahma Prakash

Muzaffarnagar

ofUttar Pradesh

27th April, 1949

U.P. Government

ranna Prakash

20th June, 1949

20th July, 1949

section 3

Contempt of Courts Act

16th November, 1949

5th May, 1950

B1'ahnia Prakash

Russell

Hardwick

Morris

England

Darling

Birmingham

Wells

whern Darling

Velis

Mu.herjea

Atkin

Devi Prashad

Atkin

Bahama Islands

High Court of Australia

Ariibard '' Attorneu-GeneralforT1inidad

Sharma

The position -- therefore is that a defamatory attack on a judge may Brahma Prakash be a libel so far as the judcre is concerned and it would

Sharma
b t ] .

Uttar Prade_,1

ukherjea

Moo"kerjea

Ilfokherjea

Kanhaya Lal

Mukherjeu

Shukla

O. P. Lal


• •

May 22

il84

SUPREME COURT REPORT8

NAIN SUKH DAS AND ANOTHER

THE STATE OF UTTAR PRADESH

AND OTHERS.

[i953]

[PATANJALI SASTRI C.J., MuKHERJEA, S. R. DAs, GHULAM HASAN and BHAGWATI JJ.]"

Constitution of India, 1950, Arts. 14, 15(1), 32-}, fonicipal election -Election on the basis of comin, ina1 electorates-Va1idity- Application tinder Art. 32 for writ to prevent elected candidates from sitting on the Board-Mciintaincib-ility-Remedy of ratepayers.

The petitioners, who were residents of a municipality, alleging that they had been deprived of their rights to exercise their votes and to seek their election as candidates in certain by. elections to the Municipal Board, as those by-elections were held on communal lines on the basis of separate electorates contrary to the provisions of the Constitution, applied for writs under art. 32 of the Constitution for preventing the elected candidates from acting as members of the Board, and the District Magistrate and Civil Judge from holding any meetings of the Board:

Held, that, though a law which provides for elections on the basis of separate electorates for members of different religions communities offends against art. 15(1) of the Constitution and an election held after the Constitution in pursuance of such a law subject to cl. 4 would be void, the right which the petitioners claimed as rate-payers in the municipality to insist that the Board should be legally constituted and that persons who have not been properly elected should not be allowed to take part in the proceedings of the Board was outside the purview of art. 32 of the Constitution inasmuch as such a right, even if it existed, was not a fundamental right conferred by Part III of the Constitution.

Held f1!rther, that the alleged infringement of the fundamental rights of the petitioners under art. 15(1) and art. 14, that is, the discrimination practised against them related to rights which they in fact never sought to exercise and took no ste1s to assert while there was occasion for doing so and the petitioners were therefore entitled to no relief under art 32 of the Constitution.

ORIGINAL JURISDICTION: Petition No. 69of1953.

Petitiop under article 32 of the Constitution for enforcement of fundamental rights.

8.C.R.

SUPREME COURT REPOR'l'S li85

S. 0. Isaac; s (Jai Prasad Agarwal, with him) for the appellant.

K. B. Asthana, for respondent No. 1.

S. P. Sinha (R. Patnaik, with him) for respondent No. 4.

1953. May 22.

The Judgment of the Court was delivered by

• •

-.Vain Sukh Das

and Another v. ':Phe State of UUar Pradesh

a.nd Others.

P S

,. J 'Th' . 1. .

Patanjali Sa.tri

ATANJALI

ASTRI V• .- JS IS an app 1cat10n una. J. der article 32 of the Constitution seeking protection of the petitioners' fundamental right under article 15 ( 1) against alleged violation thereof by the respondentB.

The petitioners are three residents of Etah in Uttar Pradesh. They complain that at the by-elections to the Municipal Board of Etah held on November 2, 1951, December 8, 1951, and March 17, 1952, at which respondents 4, II and 12 were respectively elected, the petitioners were deprived of their rights to exercise their votes and to seek their election as candidates, as thosr by-elections were held on communal lines on the basis of separate electorates rnntrary to the provisions of the Constitution. They also allege that the nomination of respondent 3 as a member of the Board by the Government was an illegal exercise ofits powers, as the interest which that respondent was nominated to represent in the Board was already sufficiently represented. The petitioners accordingly pray for the issue of writs of quo warranto, mandamus and other appropriate writs or directions to respondents 3, 4, II and 12 to show under what authority they are acting as members of the Board and to prevent them from acting as such mem hers. The petitioners also ask for writs on the District :Magistrate and the Civil Judge ofEtah, respondents 2 and 13 respectively, directing them not to hold or permit the holding of any meeting of the Board which is said to be illegally constituted.

Now, it cannot be seriously disputed that any law providing for elections on the basis of separate electorates for members of different religious communities offends againRt article 15 (1) of the Constitution which runs thus: ·

• •

1186 8UPREiVIE COURT REPORT8 tl95:JJ

IVJJ "15. (1) The State shall not discriminate against auy . - citizen on grounds only of religion, race, caste, sex, Nain Snkh Das l f b' h f h ,, and Another p ace o 1rt or any o t em.

This constitutional mandate to the State not to dis- Th• State of criminate against any citizen ou the ground, inter alia, Uttar Pradesh f l' . 1 ] t d t l't' ] 11 t t] . and Other•. o re 1g10n c ear y ex n H o po.' .1a as we as o .o 1r rights, and any elect1011 held atter the Const.itut10n rn

Paranjali SaMri pursuance of such a law subject to "1ause (4) must be held

c. J. void as being repugnant to the Constitution.

But the question is whether the petitioners are now entitled to the relief they seek in this application under artide :J2.

It is true, as pointed out in the Cross Roads casc(1 ), that article :J2 provides, in some respects, for a more effective remedy through this court than article 226 does through the High Courts.

But the scope of the remedy is clearly narrower in that it is restricted solely

to enforcement of fundamental rights conferred by Part III of the Constitution. Any right, for instance, which the petitioners may have as rate-payers in the ;}funicipality to insist that t.he Board should be legally const, ituted and that respondents 3, 4, 11 and 12, who are not properly elected or nominated members, should not be permitted to take part in the proceedings of the Board, is outside the purview of article :J2, as such right, even if it exists, is not a fundamental right conferred by Pa.rt III.

Petitioners' learned counsel, however, uontended that the fundamental right conferred by a.rticle 15 (1) on the petitiont'rs a.s citizens oi' India was violated by the elections in question having been held on a basis which discriminated against the petitioners on the ground of their religion in that it precluded them from exercising their franchise in relation to all the candidates and from contesting the elections without regard to the reservation of seats on communal basis. Learned counsel also submitted that the delimitation of the constituencies on communal lines was a denial of equality to the petitioners in the matter of their political rights and in that respect also infringed their

(1) [1950] S.C.H.· 594

• • •

fundamental riht under article 14. We are unable to 1958 accede to theRe contentions. " . 8 kh .-.\ain u. Da8 It is plain that the fundamental right conferred by and Another article 15( 1) is conferred on a citizen as an individual v. and is a guarantee against his being subjected to dis- The State f crimination in the matter of the rights, privileges and Uttor Prad'8h

...,. and Others, immunities pertaining to him as a citizen generally. It is not the petitioners' ease that any discrimination is i'ntnnjnli sa,1,.; now being practised or threatened against them. Their o. J. grievance iK that the mode of election by separate electorates formed on communal lines involved dist.rimination against them in relation to seats other than those reserved for their respective eommunities as to which they <:ould not exercise their right to vote or their right to stand as candidates. There is no suggestion that the petitioners actually sought to assert those rights by taking appropriate proceedings to have the bar removed and the election conducted in accordance with the Constitution. In fact, the petitioners acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimination having been practised against them until a no-confidence motion was tabled recently against the former Chairman who has since lost his seat as a result of that motion having bePn carried. Thus, the infringement of their fundamental rights under article 15( 1) and article 14, that is, the discrimination practised against them, of which they now complain, related to rights which they in fact never sought to exercise and took no steps to assert, while there 'ms still room for doing so, and for the exercise of which the opportunity is now lost.

But, argues Mr. Isaacs, the elention of the respondents 4, 11 and 12 being void, they are no better than usurpers, and tlw petitioners are entitled to prevent them from functioning as members of the Municipal Board.

It may be, as we have already remarked, that the petitioners could daim such relief as rate-payers of the Municipality in appropriately framed proceedings, but there is no question of enforcing petitioners' fundamental right under article 15(1) or article 14 in such chim, Tlwn' is still less ground for seeking rclief o~

• •

that basis against respondent 3 who is pnly a nominat ed member.

N ain Sukh Da/J

and Another The petitioners appear to have misconceived their

The State of U ttar Pradesh

and Others.

Patanjali Sastri

0.J.

.ilfay 22

remedy and their application under article 32 must fail.

The petition is dismissed with costs, one set.

Petition dismissed.

Agent for the petitioners: K. L. 11fehta.

Agent for respondent No. 1 : 0. P. Lal.

Agent for respondent No. 4: S. P. Varma.

RAO SHIV BAHADUR SINGH AND ANOTHER

v .

THE STATE OF VINDHYAPRADESH.

PATANJALI SASTm C. J., Mt:KHERJEA, VIVIAN BosE,

GHULAM HASAN and JAGANNADHA DAS JJ.

Constitution of India, 1950, Art.1. 14, 20-Acts committed in Rewa State in 1949 before Vindhya. Pradesh Ordinance No. XL VIII of 1949-Charge mider said Ordinance and tr-ial under Vindh:yr>

Pradesh Criininr<l Law Amendme1't (Special Courts) Ordinance (V of 1949) -Validity of trial and conviction-F\tncla.>nental rights to equality of laws and against conviction nnrler ex post facto law- Scope of Arts.14 and 20-Integration of States and Vindhwi Pradesh Ordinances, effect of.

The appellants, who were during the relevant period, the

~Iiuister for Industries and Secretary to the Government respectively of the State of Vindbya Pradesh, were tried by a Special Judge under the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance (No. V of 1949) for charges under ss. 120-B, 16l, 465 and 466 of the Indian Penal Code as adapted by the Vindhya Pradesh Ordinance No. XLV III of 1949, the facts alleged against them being that they entered into a conspiracy in February, 1949, at Rewa to obtain illegal gratification for revoking a previous Government Order and in pursuance of that conspiracy the second appellant domanded such gratification on 8th March, 1949, at Rewa and the first appellant received Rs. 25,000 towards it on the 11th April, 1949, at New Delhi and forged certain documents purporting to be official orders.

They were acquitted by the Special Judge but on appeal the first appellant was convicted by the Judicial Commissioner 011 all t.he charges and the second

•ppellanl; on the clrnrges under ss. 120-13 and 161 of the Indian

May 22

il84

NAIN SUKH DAS AND ANOTHER

THE STATE OF UTTAR PRADESH

AND OTHERS

PATANJALI SASTRI C.J.

MuKHERJEA

GHULAM HASAN

BHAGWATI JJ.

Constitution of India

Arts. 14, 15(1), 32

Art. 32

art. 32

art. 15(1)

cl. 4

art. 32

art. 15(1)

art. 14

art 32

article 32

S. 0

Jai Prasad Agarwal

K. B. Asthana

S. P. Sinha

R. Patnaik

.Vain Sukh Das

The Judgment of the Court was delivered by

• •
.Vain Sukh Das

and Another v. ':Phe State of UUar Pradesh

a.nd Others.

State of UUar Pradesh

Patanjali Sa.tri

article 32

article 15

Municipal Board of Etah

November 2, 1951

December 8, 1951

March 17, 1952

article 15

article 226

article 14

article 15( 1)

article 15( 1)

article 14

Isaacs

article 15(1)

article 14

N ain Sukh Da

State of U ttar Pradesh

Patanjali Sastri

article 32

K. L. 11fehta

. P. Lal

S. P. Varma

RAO SHIV BAHADUR SINGH

STATE OF VINDHYAPRADESH

PATANJALI SASTm

VIVIAN BosE

JAGANNADHA DAS

Constitution of India

Arts.14 and 20

ss. 120

Indian Penal Code

Rewa

8th March, 1949

11th April, 1949

New Delhi

ss. 120