U’khand HC Dismisses “Contempt Petition” Against Sitting Judge As Not Maintainable, Unhappy With AG’s Opinion [Read Judgment]

Holding that contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court, the Uttarakhand High Court has dismissed as not maintainable the criminal contempt petition moved by an advocate against Justice Lok Pal Singh for allegedly losing his temper and using intemperate language against the petitioner in open court.

The petition also came to be dismissed as it was not accompanied by the statutory consent of the Advocate General.

Justice Rajiv Sharma and Justice Sudhanshu Dhulia dismissed the petition filed by advocate Chhitij Kishore Sharma from Nainital without going into the facts of the case.

In doing so, the court answered two questions—first, whether a contempt petition is at all maintainable against a judge of a high court, where the allegations are that he has committed a contempt “of his own Court”.

The second question was whether a contempt petition can be entertained by this Court under Section 15 of the Contempt of Courts Act, where the Advocate General of the State has not granted his “consent”, on a motion made by a person under sub-section (1)(b) of Section 15 of the Act.

The bench answered both the questions in negative as it held that “contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court” and “this petition which is before us cannot be treated as a contempt petition, as in the absence of a consent of the learned Advocate General, it is only in the nature of an “information”.

 From now, such petitions to be placed before Chief Justice

The bench also directed the Registry that “[i]f any other person (i.e., any other person except the Advocate General of the State), moves a petition under Section 15 of the Act or under Article 215 of the Constitution of India, alleging a case of criminal contempt against any person, and if such a petition is not accompanied by the consent of the Advocate General then the Registry shall not list the case as a criminal contempt petition, as at this stage the petition is only in the nature of an “information””.

“Such matters shall always be captioned as “in Re.......(the name of the alleged contemnor)”, and be placed before the Hon’ble Chief Justice in the chamber. The Chief Justice may either himself or in consultation with other Judges of the Court may take further steps in the case as deem to be necessary,” it said.

While dismissing the petition, the bench went on to consider a hypothetical situation.

“Hypothetically speaking therefore it is always open for a Court to proceed with the matter, even where the Advocate General has refused to grant his consent, since powers are given to the Court to take a suo motu cognizance, but this can be done only after the due procedure is first followed – procedure as referred above. Although in the absence of a consent of the Advocate General, this Court can take action on its own motion, but presently this channel is not open to us here, as proceeding of contempt cannot be initiated against a Judge of a Court of Record, on a charge of “committing a contempt of his own court”.”

“We, therefore, dismiss the present petition being not maintainable,” it said.

In the instant case, the complainant advocate had alleged that on May 9 and May 11, the judge used improper language against him, his client, threatened him that he would be sent to jail and even made sarcastic comments against brother judges.

The petitioner, in his petition under Section 15 of the Contempt of Courts Act, 1971, has alleged that he stated that “unlike other Judges he is not in a habit of changing orders in his chamber” and also passed similar remarks against a senior advocate, who was also a former judge of a high court.

The petitioner alleged that the judge also heard a matter from which he would have otherwise recused.

The court relied on a full bench of Patna High Court decision in a case titled Shri Harish Chandra Mishra and others v. The Hon’ble Mr. Justice S. Ali Ahmed wherein it was held that a criminal contempt would not lie against a judge of a Court of Record.

“The duty of a Judge, after all, is to dispense justice – without fear or favour, affection or ill will, without passion or prejudice. It is not a part of his duty to please litigants or keep lawyers in good humor. The principal requirement for all Judges, and particularly for a Judge of Court of Record, is to maintain his independence. Often times, he has to deal with cases having high stakes, which are fiercely contested by both sides. Lawyers and litigants sometimes can be cantankerous, even unruly. Unpleasant situations and angry exchange of words at the Bar are not uncommon. A Judge can also be very helpless in situations like this. Irresponsible accusations may be thrown against a Judge by a disgruntled lawyer or litigant. Therefore, for the sake of the independence of the judiciary, a Judge has to be protected, from vexatious charges and malicious litigations.

“It is for this reason that common law also does not permit prosecution of a Judge of Court of Record for committing a contempt of his own Court.

“The underlying principle behind this “immunisation" of Judges, is the ‘independence of judiciary’. This independence, we must add, is absolutely essential in a constitutional democracy,” it said.

Relying on the decision of a three-judge bench of Supreme Court in State of Rajasthan v. Prakash Chand & others, the bench said, “Immunity from any civil or criminal action or a charge of contempt of court is essential for maintaining independence of the judiciary and for the strength of the administration of justice.”

Reading from Salmond and Heuston on Law of Torts, the bench said, “A Judge of one of the superior courts is absolutely exempt from all civil liability for acts done by him in the execution of his judicial functions… For it is better that occasional injustice should be done and remain unaddressed under the cover of this immunity than that the independence of the judicature and the strength of the administration of justice should be weakened by the liability of judges to unfounded and vexatious charges of errors, malice, or incompetence brought against them by disappointed litigants- ‘otherwise no man but a beggar, or a fool, would be a judge’.”

“In view of the above position of law, we hold that contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing contempt of his own Court,” said the division bench of Uttarakhand High Court.

Court questions AG’s conduct

In deciding the maintainability of the petition, the court took note of the fact that in a case where allegations are in the nature of obstruction to the administration of justice, or of scandalizing the court, then an approval of the Advocate General of the State is a statutory requirement under sub-section (1) of Section 15 of the Act.

The bench, however, added that in exceptional cases, the court may dispense with it, but till it is done i.e., until such a requirement is dispensed with and a suo motu cognizance is taken by the Court, what is there before the Court is strictly speaking not even a contempt petition. “We can call it merely “information”,” it said.

AG’s opinion neither here, nor there

The bench noted that on June 26, when the matter was first taken up by it, a pointed question was put to the Advocate General who was present in the court, about his consent. The AG had replied that under peculiar facts and circumstances of the case he has not granted his consent.

The AG said he was a witness to the incident which occurred in the courtroom on May 11 and later he was not allowed to appear in the matter and the behaviour of the court towards him was rude, even offensive and that under these circumstances, he is not giving his consent in the matter in order to avoid any allegation of bias against him.

“Be that as it may, the nature of the opinion given by the learned Advocate General, in any case, does not make this task any easier for us. The opinion is neither here nor there. The Advocate General has chosen to vacillate in the matter, rather than give a clear opinion. We are of the view, that if under the facts and circumstances of the present case, the learned Advocate General had reached a conclusion that he should not give his consent, then he should have simply said so. He would have been perfectly justified in not giving his consent on the facts and circumstances of the case, as his apprehensions for any allegation of bias are not unreasonable. All the same, he has not done that, instead he has recused himself by saying that he is not giving his consent as the remarks of the learned Judge were addressed against him as well.

“Till this point he was right, but he does not stop here as he adds, that though he is not giving his consent, the facts of the case do make out a case for consent! What do we do with this,” the bench remarked.

Court unhappy with AG

“We do understand the compulsions of the learned Advocate General in the present matter, who is a senior and respected member of the Bar. Yet we are not very happy in the manner in which the opinion has been given to us. It would have been better if a clear opinion had come, one way or the other. An Advocate General may be justified in simply recusing himself, as there is no rule of necessity here, since the petitioner can always persuaded the court to take the matter suo motu in absence of a consent of the learned Advocate General. But this has not happened.

“The fact of the matter, however, is that the petition before us is not accompanied with the “consent” of the Advocate General, as is the requirement of law…Therefore, though a petition moved by any other person, without the consent of the Advocate General, can still be treated as a contempt petition, depending upon the nature of the “information”, and discretion of the Court, but till a suo motu cognizance is taken by the Court, the petition is merely in the nature of an “information”,” held the bench.

Referring to a Delhi  High Court’s 1973 decision in case titled Anil Kumar Gupta v. K. Suba Rao and Ors. where the court had directed that such matters should not be listed as a criminal contempt straightway but should be placed first before the Chief Justice on the administrative side, the Uttarakhand High Court said, “In view of the above position, this petition which is before us cannot be treated as a contempt petition, as in the absence of a consent of the learned Advocate General, it is only in the nature of an “information”. It is not a contempt petition, at least not yet.”

While deciding the petition, the bench said, “We must record that this whole exercise has not been pleasant for us. It is a very unusual case, to say the least. Still, we must give a decision and we do that “with malice towards none, with charity for all, we must strive to do the right, in the light given to us to determine that right”.”

The court also said Justice Karnan’s case is not applicable in the instant petition as the charge against Justice Karnan was not of committing a contempt “of his own Court”.

Court’s word of caution

While dismissing the petition, the bench added a word of caution made by the apex court in a case arising out of a decision of Madhya Pradesh High Court which came to be known as the “M.P. Liquor Case”.

“The intemperate comments and undignified banter also undermine the public confidence in a judge. Public confidence… is an absolutely essential condition for realizing the judicial role. Public confidence does not mean being popular in the eyes of the public or being pleasant.

“On the contrary, public confidence means ruling according to the law and according to the judge’s conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria.

“Public confidence is also the ultimate strength of a judge. Eugen Ehrlich, the noted sociologist had famously said “there is no guarantee of justice except the personality of the judge”. This personality, we must remember, is always under a close watch of a litigant, who quietly sits in a corner of a courtroom, judging the justice!” it said.