9911796707
TMI Blog2015 (2) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... itude. 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above. In the contempt petition filed by Dr. Subramanian Swamy on 23-8-1990 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, 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 27-8-1990 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 calle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the counter affidavit. The Court, however, on 4-3-1991 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 25-8-1998, 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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 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 [Indirect Tax practitioners' Association v. R.K. Jain - (2010) 8 SCC 281 = 2010 (256) E.L.T. 641 (S.C.)]. Nothing further needs to be considered with regard to second question since the amendment in contempt law has effectively rendered this question redundant. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment" 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised 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 sub-section (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, 6th 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 appears to have been done, to ascertain, and by its officers to apply, the remedy. 27. In Bharat Bank Ltd. [Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi - AIR 950 SC 188], the Constitution Bench was seized with the question wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi - AIR 950 SC 188] was also referred and so also decisions of this Court in Maqbool Hussain [Maqbool Hussain v. State of Bombay - AIR 1953 SC 325 = 1983 (13) E.L.T. 1284 (S.C.)] and S.A. Venkataraman [S.A. Venkataraman v. Union of India - AIR 1954 SC 375] and it was noted that in S.A. Venkataraman [S.A. Venkataraman v. Union of India - AIR 1954 SC 375] following Maqbool Hussain [Maqbool Hussain v. State of Bombay - AIR 1953 SC 325 = 1983 (13) E.L.T. 1284 (S.C.)], 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 judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 [Brajnandan Sinha v. Jyoti Narain - (1955) 2 SCR 955] 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 [Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. - 1959 SCR 279], 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 [Dr. Baliram Waman Hiray v. Justice B. Lentin and Ors. - (1988) 4 SCC 419] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 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 [Dr. Baliram Waman Hiray v. Justice B. Lentin and Ors. - (1988) 4 SCC 419] and approve the decision of the Nagpur High Court in M.V. Rajwade [M.V. Rajwade, I.A.S., Dist. Magistrate v. Dr. S.M. Hassan and Ors. - AIR 1954 Nagpur 71]. We are also i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
