SC: Commissions are not 'Courts'


Court :
Supreme Court of India

Brief :
The Supreme Court Constitution bench headed by the Chief Justice of India, R.M. Lodha dismissed the contempt petitions against the then Editor of India Today, Mr. Arun Shourie. The case involved an editorial published in The Indian Express in 1990 against Justice Kuldip Singh, the then sitting Judge of the Supreme Court who was appointed Chairman, Commission of Inquiry, to probe alleged acts of omissions and commissions by Mr. Ramakrishna Hegde, the former Chief Minister of Karnataka. The Court stated that Commissions are fact finding bodies and despite being headed by a sitting Supreme Court Judge is not a Court.

Citation :
Dr. Subramanian Swamy Vs. Arun Shourie

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

CONTEMPT PETITION (CRL.) NO. 11 OF 1990

Dr. Subramanian Swamy                       ……  Petitioner 

    Vs.

Arun Shourie           ……  Respondent

R.M. LODHA, CJI. 

WITH

CONTEMPT   PETITION (CRL.) NO. 12 OF 1990  

JUDGMENT

In the issue of Indian Express of August 13, 1990, an editorial  

was published bearing the caption “If shame had survived”.  The editorial  

reads as under:

“If shame had survived”

The legal opinion that the former Chief Justice of India, Mr.

Y.  V.  Chandrachud,  has  given  on  the  Kuldip  Singh

Commission’s report  is a stunning indictment.    Succinct, 

understated to the point  of  being deferential,  scrupulously

adhering  to  facts  and  law,  eschewing  completely  the

slightest  attribution of  any motive to the Commission,  the

opinion  is  a  model  of  rectitude.   Nothing  in  the  report

survives  it   “evidence”  that  it  was  agreed  would  not  be

pressed relied on as a fulcrum; evidence of the one witness 

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who  was  the  hub  of  the  decisions  wholly  disregarded;

indictments  framed  on  “probable  possibility”,  theories

invented to read meanings into documents and the manifest,

straightforward  explanation ignored;  the Commission itself

as well  as the energetic prosecutor  himself  declaring one

day that neither had a shred of evidence which cast a doubt

on Hegde and the very  next  day declaring a conclusion;

refusing to common witnesses for cross-examination on the

pretext that the Commission did not have the power to call 

them – this in the face of  clear judgments to the contrary;

then invoking a section of  the Indian Evidence Act  which

applies to a person making a dying declaration; ignoring the

fact that the man who is said to have been benefited has lost

Rs.55 lakh which he deposited; insinuating – and building an

entire indictment  on the insinuation – that  the builder  had

fabricated a front, when the actual record shows that he was

doing everything openly and with all the formalities which the

law required; ignoring the fact that the land was to be given

to the builder at three times the cost of acquisition and that 

on top of it development charges were to be levied from 4 to

6 times the cost of acquisition; ignoring entirely the fact that

the  land  was  never  transferred  and  that  it  was  not

transferred  solely  because  of  the  then  Chief  Minister’s

insistence that rules be framed under which all  such cases

would  be  dealt  with.   It  is  the  longest  possible  list  of

suppresso veri suggesto falsi.

If  there had been any sense of honour or shame, a Judge

would  never  have  done  any  of  this.   If  there  were  any

residual sense of honour or shame, the Judge having done

any of it and having been found doing it, would have vacated

his  seat.   But  this  is  India.   Of  1990,  the Commissioner

Kuldip  Singh  having  perpetrated  such  perversities  will 

continue to sit in judgment on the fortunes and reputations of 

countless citizens.  He will  continue to do so from nothing

less than the Supreme Court of India itself.

Such is our condition.  And so helpless are we that there is

nothing we can do about such a “Judge”.  Save one thing.

The only way to mitigate the injuries that such persons inflict

on  citizens  is  for  all  of  us  to  thoroughly  examine  the

indictments or certificates they hand out.  Only that exercise

will  show  up  these  indictments  and  certificates  for  the

perversities which they are and only in that  way can their

effect  be diluted.   “Who has the time to read voluminous

reports,  to  sift  evidence?”   But  if  the  issue  is  important

enough for us to form an opinion on it, it is our duty to find 

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the time to examine such reports, to examine as well  the

conduct of the commissioners who perpetrate them.”      

2. It  so  happened  that  Justice  Kuldip  Singh,  the  then  sitting 

Judge of the Supreme Court, was appointed as Chairman, Commission of 

Inquiry under the Commissions of Inquiry  Act, 1952 (hereinafter referred 

to as ‘1952 Act’) to probe into alleged acts of omissions and commissions 

by Shri Ramakrishna Hegde, the former Chief Minister of Karnataka.  The 

one man Commission headed by Justice Kuldip Singh submitted its report 

on 22.06.1990.

3. These  two  contempt  matters,  one  by  Dr.  Subramanian 

Swamy

1

 and the other

2

 suo motu arise  from the editorial  published  in 

Indian Express as quoted above.     In the contempt  petition filed by Dr. 

Subramanian Swamy on 23.08.1990 under Section 15 of the Contempt of 

Courts Act, 1971 (hereinafter referred to as, “1971 Act”) against the then 

Editor of Indian Express, Mr. Arun Shourie, it is contended that the editorial 

is a scandalous statement  in respect of  a sitting Judge of  the Supreme 

Court of India and the judiciary.  It lowers the authority of this Court as well  

as shakes public confidence in it and amounts to criminal contempt of this 

Court.  It is submitted that unless this Court acts promptly and if necessary, 

1

2

 [Contempt Petition (Crl.) No.11 of 1990 Dr. Subramanian Swamy v. Arun Shourie] 

 [Contempt Petition (Crl.) No.12 of 1990 In the matter of Mr. Arun Shourie] 

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suo motu in the matter,  sitting Judges would be helpless and unable to 

defend themselves, and in the process, public  confidence in judges and 

the courts would be eroded.     

4. It is pertinent to notice here that the then Chief Justice of India 

obtained opinion of the Attorney General for India in the matter.  The then 

Attorney General Shri Soli Sorabjee in his opinion dated 27.08.1990 noted 

that  the editorial  had,  prima facie,  overstepped the limits  of  permissible 

criticism and the law of contempt, as was existing in the country, did not 

provide for truth as defence and, therefore, he opined that an explanation 

was called for and a notice could be issued for that purpose.  In his view, 

the question whether  the contempt  of  a Commission or  Commissioner 

appointed under the 1952 Act tantamounts to contempt of the High Court 

or  Supreme Court  of  which  the Commissioner  is  member  needs to  be 

authoritatively settled by the Supreme Court in view of the reoccurrence of 

the issue.       

5. On 03.09.1990, the suo motu contempt matter and so also the 

contempt  petition  filed  by  Dr.  Subramanian  Swamy  came  up  for 

consideration before the three Judge Bench of  this Court  headed by the 

Hon’ble the Chief Justice.  The proceeding of 03.09.1990 reads as under:

“In Re : Arun Shourie and Anr.

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We have seen the editorial in the “Indian Express” of

August  13,  1990.   We  have  obtained  the  opinion  of  the

Attorney General  of  India in the matter.   We consider that

paragraphs 2 and 3 of  the editorial  tend to fall  within the

definition  of  ‘criminal  contempt’  in  Section  2(c)  of  the

Contempt  of  Courts Act,  1971.   We,  therefore,  direct  that

notice  returnable  on  8

th

 October,  1990  be  issued  to  the

alleged contemners calling upon them to show cause why

proceedings for contempt of this Court under Article 129 of

the  Constitution  should  not  be  initiated  against  them in

respect of  the offending editorial  published by them.  The

contemners shall  be present  in the Court  in person on 8

October, 1990.  A copy of the opinion given by the Attorney

General  in the matter  should accompany the notice to be

issued to the contemners.  They may file their affidavits in

support of their defence on or before 8

th

 October, 1990.

Issue  notice  to  the  Attorney  General  of  India  to

appear and assist the Court in hearing the matter.

CONTEMPT PETITION NO.       OF 1990 :  

Learned Attorney General of India has also drawn our

attention to an issue of  the ‘Current’  (August 25-31,  1990)

which contains an Article by M.V. Kamath.  We will consider

that matter separately later on.

Dr. Subramanian Swamy vs. Mr. Arun Shourie:

Issue notice returnable on 8

th

 October,  1990 stating

therein why contempt proceedings should not be initiated.”  

6. Respondent  Arun  Shourie  submitted  his  reply  affidavit  on 

13.10.1990.  We shall refer to his defence and objections at an appropriate 

place little later.  Suffice, however, to note at this stage that in the counter 

affidavit, the respondent prayed that, in view of the sensitive nature of the 

facts, he would choose to refrain from setting out those facts in the affidavit 

but would prefer to put them in the form of a signed statement in a sealed 

cover for the perusal of the Court which may be treated as an integral part 

th 

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of the counter affidavit.   The Court, however, on 04.03.1991 rejected his 

prayer and observed that the procedure suggested by the respondent was 

not an acceptable procedure and was inconsistent with recognized form of 

the pleadings.  The respondent was granted liberty to withdraw the sealed 

cover  from the  Court.   He was  given  an  opportunity  to  file  additional 

affidavit.     

7. The  matters  remained  dormant  for  many  years.  On 

25.08.1998

3

, a three Judge Bench directed that  these matters be placed 

before a Constitution Bench.

8. This  is how these matters have come up for  consideration 

before the Constitution Bench.   We have heard Mr.  Mohan Parasaran, 

3

 These contempt matters relate to comments made by the alleged contemnors against Shri Justice Kuldip

Singh after he had submitted his report  as Chairman of the Enquiry Commission set  up by the Central 

Government.

In Contempt Petition No.9/90 an objection has been raised by Shri D.D. Thakur, the learned senior

counsel  appearing for the alleged contemnor that  the petition is not  maintainable since consent  of the

Attorney General for India or the Solicitor General for India was not obtained as required by Section 15 of 

the Contempt of Courts Act, 1971.  A question arises as to whether in the absence of the consent of the

Attorney  General  or  the Solicitor  General  suo  moto proceedings  can  be  initiated  against  the alleged

contemnor. Shri D.D. Thakur has, however, submitted that since the alleged contempt arose more than one

year back, Section 20 of the Contempt of Courts Act, 1971 would operate as a bar against the initiation of

suo moto proceedings for contempt against the alleged contemnor.

In  Contempt  Petition  No.11  and  12  of  1990  there  is  the  opinion  of  the  Attorney  General

expressing the view   that when a Supreme Court Judge is appointed as a Commissioner in a Commission

of Enquiry he does  not  carry with him all  the powers  and jurisdiction of the Supreme Court  and the

functions discharged by him are statutory functions independent of the jurisdiction vested in the Supreme 

Court  and, therefore,  the alleged contempt  of  a sitting Judge of  the Supreme Court  in relation to the

statutory functions discharged by him as a Commissioner  cannot in law be regarded as a contempt of

Supreme Court itself.

The learned counsel for the alleged contemnors have urged that truth can be pleaded as a defence

in contempt proceedings and that the decision of this Court in Perspective Publications (Pvt.) Ltd. & Anr.

vs. State of Maharashtra, (1969) 2 SCR 779 needs re-consideration.  In our opinion, the questions that arise

for consideration in these matters are of general public importance which are required to be considered by a

Constitution Bench. We, therefore, direct that the matters be placed before a Constitution Bench.    

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learned Solicitor General and Mr. Ashok H. Desai, learned senior counsel  

for the respondent.

9. It  may  be  observed  immediately  that  the  learned  Solicitor 

General  and learned senior  counsel  for  the respondent  in the course of 

arguments  agreed that  for  exercising the  suo motu power  for  contempt 

under  Article  129 of  the Constitution of  India,  the limitation provided in 

Section 20 of  the 1971 Act has no application.    There is no challenge 

before us about  the legal  position that  there are no implied or  express 

limitations  on the inherent  powers  of  the Supreme Court  of  India  and, 

therefore, no limitations can be read into Article 129 of the Constitution.

10. The two principal  questions that  arise for  consideration and 

need our answer are as follows:

(i) When  a  sitting  Supreme  Court  Judge  is  appointed  as  a 

Commissioner  by the Central  Government  under  the 1952 Act,  does he 

carry with him all  the powers and jurisdiction of  the Supreme Court? In 

other words, whether the functions which are discharged by the Supreme 

Court Judge as a Commissioner are purely statutory functions independent 

of the jurisdiction vested in the Supreme Court?     

(ii) Whether  truth  can  be  pleaded  as  defence  in  contempt 

proceedings?

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11. We  shall  take  up  the  second  question  first.  Some  of  the 

common  law  countries  provide  that  truth  could  be  a  defence  if  the 

comment  was also for the public benefit.  Long back the Privy Council in 

Ambard

4

 held that reasoned or legitimate criticism of judges or courts is not 

contempt of court. The Privy Council held:

“The path of criticism is a public way; the wrong headed are

permitted to err therein: provided that members of the public

abstain from imputing improper motives to those taking part

in the administration of justice, and are genuinely exercising

a right of criticism, and not acting in malice or attempting to

impair the administration of justice, they are immune. Justice

is not a cloistered virtue: she must be allowed to suffer the

scrutiny and respectful,  even though outspoken,  comments

of ordinary men.”

12. In Wills

5

 the High Court of Australia suggested that truth could 

be a defence if the comment was also for the public benefit. It said, “…The 

revelation of truth – at all events when its revelation is for the public benefit  

– and the making of  a fair  criticism  based on fact  do not  amount  to  a 

contempt of court though the truth revealed or the criticism made is such 

as to deprive the court or judge of public confidence…”.

13. The  legal  position  with  regard  to  truth  as  a  defence  in 

contempt proceedings is now statutorily settled by Section 13 of the 1971 

Act  (as  substituted  by  Act  6  of  2006).  The  Statement  of  Objects  and 

4

5

 Ambard v. Attorney-General for Trinidad and Tobago; [(1936) AC 322].

 Nationwide News Pty. Ltd. v. Wills; [(1992) 177 CLR 1].

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Reasons  for  the amendment  of  Section 13 by  Act  6 of  2006 read as 

follows:

“The existing provisions of the Contempt of Courts Act, 1971

have  been interpreted in various  judicial  decisions  to the

effect that truth cannot be pleaded as a defence to a charge

of contempt of court.

2.  The National  Commission to Review the Working of  the

Constitution  (NCRWC)  has  also  in  its  report,  inter  alia,

recommended that in matters of contempt, it shall be open to

the Court to permit a defence of justification by truth.

3. The Government has been advised that the amendments

to the Contempt of Courts Act, 1971 to provide for the above

provision would introduce fairness in procedure  and meet

the requirements of Article 21 of the Constitution.

4. Section 13 of the Contempt of Courts Act, 1971 provides

certain  circumstances  under  which  contempt  is  not

punishable.  It  is, therefore,  proposed to substitute the said

section, by an amendment.

5.  The  Contempt  of  Courts  (Amendment)  Bill,  2003  was

introduced in the Lok Sabha on the 8th May, 2003 and the

same was referred to the Department-related Parliamentary

Standing Committee on Home Affairs for examination.  The

Hon’ble Committee considered the said Bill  in its meeting

held  on  the  2nd  September,  2003.  However,  with  the

dissolution of  the 13th Lok Sabha, the Contempt  of Courts

(Amendment) Bill, 2003 lapsed. It is proposed to re-introduce

the said Bill with modifications of a drafting nature.”

14. Clause 13(b),  now expressly provides that truth can be valid 

defence in contempt proceedings. Section 13, which has two clauses (a) 

and (b), now reads as follows:

“13.  Contempts  not  punishable  in  certain  casesNotwithstanding

 

anything contained in any law for the time

being in force,—

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(a)  no court  shall  impose a sentence under  this Act for  a

contempt of court unless it is satisfied that the contempt is of 

such  a  nature  that  it  substantially  interferes,  or  tends

substantially  to  interfere  with  the  due  course  of  justice;

(b) the court may permit, in any proceeding for contempt of 

court, justification by truth as a valid defence if it is satisfied

that  it  is in public interest and the request for invoking the

said defence is bona fide.”

15. The Court may now permit truth as a defence if two things are 

satisfied, viz., (i) it is in public interest and (ii) the request for invoking said 

defence is bona fide.

16. A two Judge Bench of this Court in R.K. Jain

6

 had an occasion 

to consider Section 13 of the 1971 Act, as substituted by Act 6 of 2006. In 

para 39 (page 311 of the report), the Court said:

6

“……..The substituted Section 13 represents an important

legislative  recognition  of  one  of  the  fundamentals  of  our

value system i.e.  truth.  The amended section enables the

court to permit justification by truth as a valid defence in any

contempt proceeding if it is satisfied that such defence is in

public interest and the request for  invoking the defence is

bona fide.  In our view,  if  a speech or article,  editorial,  etc.

contains something which appears to be contemptuous and

this  Court  or  the  High  Court  is  called  upon  to  initiate

proceedings under the Act and Articles 129 and 215 of the

Constitution,  the  truth  should  ordinarily  be  allowed  as  a

defence unless the Court finds that it is only a camouflage to

escape the consequences of deliberate or malicious attempt

to  scandalise  the  court  or  is  an  interference  with  the

administration of justice.  Since,  the petitioner has not  even

suggested that  what has been mentioned in the editorial  is

incorrect or  that  the respondent  has presented a distorted

version of  the facts, there is no warrant  for discarding the

respondent’s assertion that whatever he has written is based 

 Indirect Tax practitioners’ Association v. R.K. Jain; [(2010) 8 SCC 281]

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on true facts and the sole object of writing the editorial was

to  enable  the  authorities  concerned  to  take

corrective/remedial measures.”

Thus, the two Judge Bench has held that the amended section enables the 

Court  to permit  justification by truth as a valid  defence in any contempt 

proceedings if it is satisfied that such defence is in public interest and the 

request for invoking the defence is bona fide. We approve the view of the 

two Judge Bench in  R.K.  Jain

6

.  Nothing further  needs to be considered 

with regard to second question since the amendment in contempt law has 

effectively rendered this question redundant. 

17. It  is  now appropriate  to  consider  the  first  question  as  to 

whether  a  sitting  Supreme  Court  Judge  who  is  appointed  as  a 

Commissioner by the Central Government under the 1952 Act  carries with 

him all  the powers and jurisdiction of  the Supreme Court.   In  order  to 

answer this question, it is appropriate to refer to relevant provisions of the 

two Acts, namely,  the 1971 Act and the 1952 Act.   1971 Act has been 

enacted by the Parliament to define and limit the powers of certain courts 

in punishing contempts of courts and to regulate their procedure in relation 

thereto. Section 2(a) defines “contempt of court” to mean ‘civil contempt’ or 

‘criminal contempt’.  Civil contempt is defined in Section 2(b) while Section 

2(c) defines criminal contempt.  Omitting the definition of civil contempt, we 

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may reproduce the definition of criminal  contempt in the 1971 Act, which 

reads:

“2(c) “criminal contempt” means the publication (whether by

words,  spoken  or  written,  or  by  signs,  or  by  visible

representation,  or otherwise) of  any matter or the doing of

any other act whatsoever which - 

(i) scandalises or tends to scandalise, or lowers or tends to

lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due

course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends

to  obstruct,  the  administration  of  justice  in  any  other

manner;”

18. The  three  expressions,  “court”  in  clause  (i),  “judicial 

proceeding”  in clause (ii)  and “administration of  justice”  in clause (iii)  of 

Section 2(c) are really important, to answer the first question. Sections 12 

and 15 of 1971 Act are the other two sections which have some bearing. 

Section 12 prescribes punishment for contempt of court.  Section 15 deals 

with cognizance of  criminal  contempt  by the Supreme Court  or the High 

Court on its own motion or on a motion made by the Advocate General or 

any other person with the consent in writing of the Advocate General.  The 

expression “Advocate General”  in clauses (a) and (b) of Section 15(1) in 

relation to  the Supreme Court  means  Attorney  General  or  the Solicitor 

General. 

19. 1952 Act provides for appointment of Commissions of Inquiry 

and for  vesting such Commissions with certain  powers.   Section 2(a)(i) 

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defines “appropriate Government” which  means the Central Government, 

in relation to a Commission appointed by it  to make an inquiry into any 

matter relatable to any of the entries enumerated in List I or List II or List III 

in the Seventh Schedule to the Constitution and the State Government, in 

relation to a Commission appointed by it to make an inquiry into any matter 

relatable to  any  of  the entries  enumerated in  List  II  or  List   III  in  the 

Seventh Schedule to the Constitution.  In relation to the State of Jammu 

and Kashmir, there is a different provision. Sections 4 and 5 deal with the 

powers  and  additional  powers  of  Commission.   Under  Section  4,  the 

Commission has powers of a civil court while trying a suit under the Code 

of  Civil   Procedure,  1908,  in  respect  of  the  matters,  namely,  (a) 

summoning and enforcing the attendance of any person from any part of 

India  and  examining  him  on  oath;  (b)  requiring  the  discovery  and 

production  of  any  document;  (c)  receiving  evidence  on  affidavits;  (d) 

requisitioning any public record or copy thereof from any court or office; (e) 

issuing commissions for the examination of witnesses or documents etc. 

Under  Section 5(4),  the Commission is  deemed to be a civil  court  and 

when any offence as is  described in Section 175,  Section 178,  Section 

179, Section 180 or Section 228 of the Indian Penal Code is committed in 

the presence of the Commission, the Commission may, after recording the 

facts constituting the offence and the statement of the accused as provided 

for in the Code of  Criminal  Procedure,  forward the case to a magistrate 

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having jurisdiction to try the same.   Under Section 5(5),  any proceeding 

before the Commission is deemed to be a judicial  proceeding within the 

meaning of Sections 193 and 228 of the Indian Penal Code.

20. Section 5A empowers the Commission to utilize the services 

of  certain officers and investigation agencies for conducting investigation 

pertaining to inquiry.  Section 10 makes provision for every member of the 

Commission and every officer appointed or authorized by the Commission 

in exercise of  functions under  the Act is deemed to be a public  servant 

within the meaning of Section 21 of the IPC.

21. Section 10A provides for penalty  for acts calculated to bring 

the Commission or  any  member  thereof  into  disrepute.   The provision 

clothes the High Court with power to take cognizance of an offence stated 

in  sub-Section (1)  upon a complaint  in  writing  made  by  a member  of  

Commission or an officer of the Commission authorized by it in this behalf. 

Under  sub-Section (5),  the High Court  taking cognizance of  an offence 

under sub-Section (1) is mandated to try the case in accordance with the 

procedure for  the trial  of  warrant  cases  instituted otherwise  than on a 

police report before a court of a Magistrate.  Section 10A reads as under:

“10A. Penalty for acts calculated to bring the Commission or

any member  thereof  into disrepute.  (1)  If  any person,  by

words  either  spoken  or  intended  to  be  read,  makes  or

publishes  any  statement  or  does  any  other  act,  which  is

calculated to bring the Commission or any member thereof 

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into  disrepute,  he  shall  be  punishable  with  simple

imprisonment for a term which may extend to six months, or

with fine,  or with both. 

(2)  Notwithstanding  anything  contained  in  the  Code  of

Criminal  Procedure,  1973,  (2  of  1974)  when  an  offence

under sub-section (1) is alleged to have been committed, the

High Court may take cognizance of such offence, without the

case  being  committed  to  it,  upon  a  complaint  in  writing,

made by a member  of  a Commission or  an officer  of  the

Commission authorised by it in this behalf.  

 (3) Every complaint referred to in sub-section (2) shall  set

forth  the  facts  which  constitute  the  offence  alleged,  the

nature  of  such offence and such other  particulars  as are

reasonably sufficient  to give notice to the accused of  the

offence alleged to have been committed by him.  

 (4) No High Court shall take cognizance of an offence under

sub-section  (1)  unless  the  complaint  is  made  within  six

months from the date on which the offence is alleged to have

been committed.  

 (5) A High Court taking cognizance of an offence under subsection

 (1)  shall  try  the  case  in  accordance  with  the

procedure for the trial  of warrant cases instituted otherwise

than on a police report before a court of a Magistrate: 

  Provided that  the personal  attendance of  a member of  a

Commission as a complainant or otherwise is not required in

such trial.  

 (6)  Notwithstanding  anything  contained  in  the  Code  of 

Criminal Procedure, 1973, (2 of 1974) an appeal shall lie as

a matter of right from any Judgment of the High Court to the

Supreme Court, both on facts and on law.  

 (7) Every appeal  to the Supreme Court under sub-section

(6) shall be preferred within a period of thirty days from the

date of judgment appealed from: 

  Provided that, the Supreme Court may entertain an appeal

after  the  expiry  of  the  said  period  of  thirty  days  if  it  is

satisfied  that  the  appellant  had  sufficient  cause  for  not

preferring the appeal  within the period of  thirty days.”     

15

Page 15

 22. As is  seen from above,  the Commission has the powers of 

civil  court  for  the limited purpose as set  out  in that  Section.   It  is  also 

treated as a civil court for the purposes of Section 5(4).  The proceedings 

before the Commission are deemed to be judicial  proceedings within the 

meaning of Sections 193 and 228 of the Indian Penal Code.  But the real 

issues are:   whether  the above provisions particularly  and the 1952 Act 

generally  would  bring the Commission comprising of  a sitting Supreme 

Court Judge within the meaning of “Court” under Section 2(c)(i)? Whether 

the proceedings before the Commission are judicial  proceedings for  the 

purposes of Section 2(c) (ii)?  Whether the functioning of such Commission 

is part of the administration of justice within the meaning of Section 2(c)

(iii)?

23. We do not have any doubt that functions of the Commission 

appointed  under  the 1952 Act  are not  like  a body  discharging judicial 

functions or judicial  power.   The Commission appointed under  the 1952 

Act in our view is not a Court and making the inquiry or determination of 

facts by the Commission is not of judicial character.  

24. Sections 19 and 20 of the Indian Penal Code define the words 

 “Court” and the “Court of Justice” as under:

“19. The word “Judge” denotes not only every person who is

officially designated as a Judge,  but  also every person,  —

who is empowered by law to give, in any legal  proceeding,

civil or criminal, a definitive judgment, or a judgment which, if  

16

Page 16

not  appealed against,  would  be definitive,  or  a judgment

which,  if  confirmed  by  some  other  authority,  would  be

definitive, or

who is one of a body of persons, which body of persons is

empowered by law to give such a judgment.

20. The words “Court  of  Justice”  denote a Judge who is

empowered  by  law to  act  judicially  alone,  or  a  body  of 

Judges which is empowered by law to act  judicially as a

body,  when  such  Judge  or  body  of  Judges  is  acting

judicially.”

 25. Though the 1971 Act does not define the term ‘Court’  but in 

our opinion, the ‘Court’ under that Act means the authority which has the 

legal power to give a judgment which, if confirmed by some other authority, 

would be definitive.  The Court is an institution which has power to regulate 

legal rights by the delivery of definitive judgments, and to enforce its orders 

by  legal  sanctions  and if  its  procedure  is  judicial  in  character  in  such 

matters as the taking of evidence and the administration of oath, then it is 

a court.  The Commission constituted under the 1952 Act does not meet  

these pre-eminent tests of a Court.  

26. According  to Stephen (Stephen’s Commentaries on the Laws 

of England, 6

th

 Edn., page 383) in every Court, there must be at least three 

constituent parts – the ‘actor’, ‘reus’ and ‘judex’: the ‘actor’, who complains 

of  an injury done;  the ‘reus’  or  defendant,  who is  called upon to  make 

satisfaction; and the ‘judex’ or judicial power, which is to examine the truth 

of the fact and to determine the law arising upon the fact and if any injury 

17

Page 17

appears to have been done, to ascertain, and by its officers to apply, the 

remedy.

27. In  Bharat Bank Ltd.

7

, the Constitution Bench was seized with 

the question whether Industrial  Tribunal  is a court  within the meaning of 

Article 136 of the Constitution of India.   Mehr Chand Mahajan,  J. (as he 

then was) referred to the statement  of  Griffith,  C.J. in  Huddart  Parker & 

Co.

8

 and observed,  “if  a body which  has power  to  give  a binding and 

authoritative decision is able to take action so as to enforce that decision, 

then, but only then, according to the definition quoted, all the attributes of 

judicial power are plainly present.”  Mukherjea, J. on consideration of Shell  

Co.

9

, Huddart Parker & Co.

8

 and Rola Co.

10

 stated, “the other fundamental 

test  which distinguishes a judicial  from a quasi-judicial  or  administrative 

body is that the former decides controversies according to law, while the 

latter  is  not  bound  strictly  to  follow  the  law  for  its  decision.  The 

investigation  of  facts  on  evidence  adduced  by  the  parties  may  be  a 

common  feature  in  both  judicial  and  quasi-judicial  tribunals,  but  the 

difference between the two lies in the fact that in a judicial proceeding the 

Judge has got to apply to the facts found, the law of the land which is fixed 

7

8

9

 Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi; [AIR 1950 SC 188]

 Huddart Parker & Co. Pty. Ltd. v. Moorehead [8 CLR 330]

 Shell Co. of Australia, Ltd. v. Federal Commissioner of Taxation [(1931) AC 275]

10

 Rola Co.(Australia) Pty. Limited v. Commonwealth [69 CLR 185]

18

Page 18

and  uniform.  The  quasi-judicial  tribunal,  on  the  other  hand,  gives  its 

decision on the differences between the parties not  in  accordance with 

fixed rules of law but on principles of administrative policy or convenience 

or what appears to be just and proper in the circumstances of a particular 

case. In other words, the process employed by an Administrative Tribunal  

in coming to its decision is not what is known as “judicial process”.

28. In Brajnandan Sinha

11

, a three Judge Bench of this Court had 

an occasion to consider the question whether the Commissioner appointed 

under Public Servants (Inquiries) Act, 1850 (Act 37 of 1850) is a Court. In 

that case, Coke on Littleton and Stroud was referred that says that “Court” 

is  the  place  where  justice  is  judicially  administered.   The  Court  also 

considered Section 3 of the Indian Evidence Act and Sections 19 and 20 of 

the  Indian  Penal  Code  and  then  observed,  “the  pronouncement  of  a 

definitive  judgment  is  thus considered the essential  sine qua non of  a 

Court  and  unless  and  until  a  binding  and  authoritative  judgment  is 

pronounced by a person or body of persons, it cannot be predicated that 

he or they constitute a Court.”  Bharat Bank Ltd.

also  decisions  of  this  Court  in  Maqbool  Hussain

Venkataraman

11

12

13

13

7

 was also referred and so 

 and it  was noted that  in  S.A.  Venkataraman

 Brajnandan Sinha v. Jyoti Narain; [(1955) 2 SCR 955]

 Maqbool Hussain v. State of Bombay; [AIR 1953 SC 325]

 S.A. Venkataraman v. Union of India [AIR 1954 SC 375]

12

  and  S.A.  

13

 following 

19

Page 19

Maqbool Hussain

12

, the Constitution Bench laid down that both finality and 

authoritativeness  were  the  essential  tests  of  a judicial  pronouncement. 

The Court said that in order to constitute a Court in the strict sense of the 

term,  an essential  condition  is  that  the Court  should  have,  apart  from 

having some of the trappings of a judicial tribunal, power to give a decision 

or a definitive judgment which has finality and authoritativeness which are 

the essential  tests  of  a judicial  pronouncement.   With  reference to  the 

provisions of Public Servants (Inquiries) Act vis-à-vis Contempt of Courts 

Act, 1952,  the three Judge Bench held that the Commissioner appointed 

under Public Servants (Inquiries) Act is not a Court within the meaning of 

Contempt of Courts Act, 1952.  

29. We are in full  agreement  with the legal  position exposited in 

Brajnandan Sinha

11

 and approve the same.

30. The judgment of the full Bench of Madras High Court  In Re :  

Mr.  Hayles, Editor  of  “The Mail”  and Anr.

14

 deserves consideration now. 

That  was a case where a sitting Judge of  the Madras High Court  was 

appointed as a member of the Industrial  Tribunal  under Section 7 of the 

Industrial Disputes Act.  The alleged contempt with which the contemnors 

were charged with contempt  were both in relation to the proceedings for 

the Industrial Tribunal, though the Industrial Tribunal was presided over by 

the sitting Judge of the Madras High Court.  The disputes between workers 

14

 In Re : Mr. Hayles, Editor of “The Mail” and Anr.; [AIR 1955 Madras 1]

20

Page 20

and managements of Amalgamations Limited which owned the newspaper 

“The Mail” fell for adjudication before the Industrial Tribunal.  The contempt 

notice  was issued by the Tribunal  to the counsel  for  the Editor  Govind 

Swaminathan and the Editor Hayles to show cause as to why action for 

contempt may not be initiated for criticism of the Tribunal. The respondent 

challenged the show cause notice on the ground that the Tribunal, though 

headed by a sitting Judge,  did not  have power  to punish for  contempt. 

While dealing with the above challenge, the full Bench of the Madras High 

Court held that a Judge of the High Court when appointed as sole member 

of the Industrial Tribunal, did not have the powers of a Judge of that High 

Court  to punish persons for contempt  of  the Tribunal  even under  Article 

215 of the Constitution of India.

31. The  Division  Bench  of  the  Madras  High  Court  in  P.  

Rajangam

15

 had an occasion to consider  the question whether  a writ  of 

certiorari  could  be issued to  quash the inquiry made by the Magistrate 

under  Section 176 of  the Code of  Criminal  Procedure read with  Police 

Standing Order issued by the Government of Madras.  While dealing with 

this question, the principal aspect that was under consideration before the 

Division Bench of the Madras High Court with regard to the nature of such 

inquiry was whether  it  was judicial  or  quasi  judicial  or  non judicial.  The 

Division Bench referred to the decision of this Court in Brajnandan Sinha

15

 P. Rajangam, Sub-Inspector of Police and Ors. v. State of Madras and ors. [AIR 1959 Madras 294]

21

11 

Page 21

and ultimately held that the object of such inquiry was nothing more than to 

furnish materials on which action could be taken or not and the report by 

itself  would  purely  be  recommendatory  and  not  one  effective  proprio  

vigore. 

32. In Shri Ram Krishna Dalmia

16

, this Court held that the inquiry 

by the Commission under the 1952 Act was neither a judicial nor a quasi 

judicial  proceeding attracting the issue of  appropriate writs  under  Article 

226 of the Constitution of India.

33. The two Judge Bench of  this  Court  in  Dr.  Baliram Waman 

Hiray

17

  was concerned with a question whether a Commission of Inquiry 

constituted under Section 3 of the 1952 Act is a Court for the purposes of 

Section 195 (1)(b)  of  the Code of  Criminal  Procedure,  1973.  The Court 

observed:    

16

17

“A Commission of Inquiry is not a court properly so called. A

Commission  is  obviously  appointed  by  the  appropriate

government ‘for the information of its mind’ in order for it to

decide  as  to  the  course  of  action  to  be  followed.  It  is

therefore a fact-finding body and is not required to adjudicate

upon  the  rights  of  the  parties  and  has  no  adjudicatory

functions.  The  government  is  not  bound  to  accept  its

recommendations or act upon its findings. The mere fact that

the procedure adopted by it is of a legal character and it has

the power to administer an oath will not impart to it the status

of a court.”

The Court further observed:

 Shri Ram Krishna  Dalmia v. Shri Justice S.R.Tendolkar and ors; [1959 SCR 279]

 Dr. Baliram Waman Hiray v. Justice B. Lentin and ors; [(1988) 4 SCC 419]

22

Page 22

“The least that is required of a court is the capacity to deliver

a ‘definitive judgment’,  and merely because the procedure

adopted by it  is of  a legal  character  and it  has power  to

administer an oath will not impart to it the status of a court.

That being so, it must be held that a Commission of Inquiry

appointed by the appropriate government under Section 3(1)

of  the Commissions  of  Inquiry  Act  is  not  a court  for  the

purposes of Section 195 of the Code.”

33.1. The  Court  agreed  with  the  following  observations  of  the 

Nagpur High Court in M.V.Rajwade

18

18

 :

“The Commission in question was obviously appointed by

the State Government “for the information of its own mind”,

in order  that  it  should not  act,  in exercise of  its executive

power,  “otherwise than in accordance with the dictates of

justice  and  equity”  in  ordering  a  departmental  enquiry

against  its  officers.  It  was,  therefore,  a  fact-finding  body

meant  only to instruct the mind of  the government  without

producing any document of a judicial nature. The two cases

are parallel, and the decision must be as in ‘In re Maharaja

Madhava  Singh (D)’  [LR  (1905)  31  IA  239]   that  the

Commission was not a court.

The term “court”  has not  been defined in the Contempt  of

Courts Act,  1952.  Its definition in the Indian Evidence Act,

1872, is not exhaustive and is intended only for purposes of 

the Act.  The Contempt  of  Courts Act,  1952 however, does

contemplate a “court of Justice” which as defined in Section

20, Penal Code, 1860 denotes “a Judge who is empowered

by  law to  act  judicially”.  The  word  “Judge”  is  defined  in

Section 19 as denoting every person—

‘Who is empowered by law to give, in any legal proceeding,

civil or criminal, a definitive judgment, or a judgment which, if 

not  appealed against,  would  be definitive,  or  a judgment

which,  if  confirmed  by  some  other  authority,  would  be

definitive....’

The  minimum test  of  a  “court  of  justice”,  in  the  above

definition,  is, therefore,  the legal  power to give a judgment

which,  if  confirmed  by  some  other  authority,  would  be

definitive. Such is the case with the Commission appointed 

 M.V.Rajwade, I.A.S., Dist. Magistrate v. Dr. S.M. Hassan and ors.; [AIR 1954 Nagpur 71]

23

Page 23

under  the  Public  Servants  (Inquiries)  Act,  1850,  whose

recommendations  constitute  a  definitive  judgment  when

confirmed by the government. This, however, is not the case

with  a  Commission  appointed  under  the  Commissions  of

Inquiry Act,  1952,  whose findings are not  contemplated by

law as liable at any stage to confirmation by any authority so

as to assume the character of a final decision.”

34. We agree with the view in  Dr.  Baliram Waman Hiray

approve the decision of the Nagpur High Court in M.V.Rajwade

also in agreement with the submission of Shri Mohan Parasaran, learned 

Solicitor General that a Commission appointed under the 1952 Act is in the 

nature of  a statutory Commission and merely  because a Commission of 

Inquiry is  headed by a sitting Judge of  the Supreme Court,  it  does not  

become  an  extended  arm of  this  Court.   The  Commission  constituted 

under  the  1952  Act  is  a  fact  finding  body  to  enable  the  appropriate 

Government  to decide as to the course of  action to be followed.   Such 

Commission is not required to adjudicate upon the rights of the parties and 

has no adjudicatory functions.  The Government is not bound to accept its 

recommendations  or  act  upon  its  findings.   The  mere  fact  that  the 

procedure adopted by the Commission is of a legal  character and it has 

the power to administer oath will not clothe it with the status of Court.  That  

being so, in our view, the Commission appointed under the 1952 Act is not 

a Court  for  the purposes  of  Contempt  of  Courts  Act  even though it  is 

headed by a sitting Supreme Court Judge. Moreover,  Section 10A of  the 

1952 Act leaves no matter of doubt that the High Court has been conferred 

18

17

 and 

.  We are 

24

Page 24

with the power to take cognizance of the complaint in respect of the acts 

calculated to bring the Commission or any member thereof into disrepute. 

Section  10A  provides  the  power  of  constructive  contempt  to  the 

Commission by making a reference to the High Court with a right of appeal 

to this Court. Our answer to the first question is, therefore, in the negative.

35. In  view of  the  above  reasons,  the  contempt  petitions  are 

dismissed and the contempt notices are discharged.

       ….………..……………………CJI.

(R.M. Lodha)

       …….………..……………………J.

(Anil R. Dave)

       …….………..……………………J.

       (Sudhansu Jyoti Mukhopadhaya)

       …….………..……………………J.

(Dipak Misra)

NEW DELHI;        …….………..……………………J.

JULY 23, 2014. (Shiva Kirti Singh)

25

Page 25

 

Vineet Kumar
on 30 July 2014
Published in Criminal Law
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