The Contempt of Courts Act, 19711 (hereinafter referred to as “the Act”) creates a distinction between “civil”2 and “criminal”3 contempt and provides for a different procedure for hearing of each of them.
Relevant provisions of the Act
In conformity with the power under Article 215 of the Constitution of India4, Section 10 of the Act5 empowers every High Court to punish contempt of subordinate courts. Section 14 of the Act6 provides for a procedure where contempt is in the face of the Supreme Court or of a High Court.
Section 157 provides for cognizance of criminal contempt, other than a contempt referred to in Section 14. Sub-section (1) states that cognizance under this section can be taken on its own motion or on a motion made by (a) the Advocate General; or (b) any other person, with the consent in writing of the Advocate General; or (c) in relation to High Court for the Union Territory of Delhi, such law officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such law officer. Sub-section (3) uses the term “motion or reference” to state that every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.
Section 17 of the Act8 provides for procedure after cognizance taken under Section 15.
Section 18 of the Act9 categorically provides that cases of criminal contempt under Section 15 shall be “heard and determined” by a Bench of not less than 2 (two) Judges.
Some of the High Courts including the Delhi High Court have not framed any rules under Section 23 of the Act10 laying down the procedure for taking notice, cognizance, hearing, and determination of the criminal contempt proceedings. In light of Section 18 of the Act, the High Courts in India have taken divergent views on whether a Single Judge of the High Court is barred from taking cognizance of criminal contempt under Section 15 of the Act or not.
A Single Judge of the High Court cannot take cognizance of criminal contempt under Section 15 of the Act –Precedents
A Division Bench of the Rajasthan High Court has held in State of Rajasthan v. M.R. Mithika11 that the words “heard and determined” employed in Section 18 of the Act are clearly indicative of the fact that the proceedings with regard to criminal contempt should be taken up, from the initial stage of taking cognizance up to the final determination, by a Bench consisting of not less than 2 (two) Judges of the High Court, except in the case of the Court of a Judicial Commissioner. It was also held that the exercise of jurisdiction to punish for criminal contempt commences with the initiation of proceedings for contempt on a motion either suo motu or made by the Advocate General or any other person with the consent of the Advocate General. Such initiation of proceedings can take place only when a Bench comprising of not less than 2 (two) Judges applies its judicial mind to the facts of the case and on consideration thereof, decides to take cognizance of the case and directs the issuance of notice under Section 17 of the Act.
Similarly, a Division Bench of the Orissa High Court has held in Pitabash Sahoo v. G.R. Mohanty12, that a combined reading of the provisions of Sections 18(1) and 19(1)13 would show that the case of criminal contempt is to be heard and determined by a Division Bench whose order or decision is appealable in the Supreme Court.
Interestingly, a Division Bench of the Kerala High Court in M.P. Varghese v. V.P. Devassia14, struck down the legality of Rule 6 of the Contempt of Courts (High Court of Kerala) Rules which provided that cognizance of every proceeding for contempt shall be dealt with by a Bench of not less than 2 Judges. It was held that in civil contempt, a Single Judge is vested with powers to proceed to its culmination in a contempt proceeding initiated under the Act. While holding so, the High Court observed that Section 18 has made a clear distinction in regard to the consideration of criminal contempt under Section 15 by categorically specifying that it shall be heard only by a Bench of not less than 2 (two) Judges.
A Single Judge of the Delhi High Court in A.B. Mauri India (P) Ltd. v. Vicky Aggarwal, observed that a prima facie case for criminal contempt was made out and thus, directed the matter to be placed before the Chief Justice for reference to the appropriate Division Bench in view of Section 18 of the Act.15 That is, the Single Judge refused to take cognizance of the criminal contempt.
There is no bar for a Single Judge of the High Court to take cognizance of criminal contempt under Section 15 of the Act–Precedents
A Full Bench of the Punjab & Haryana High Court in Court on its Own Motion v. Kasturi Lal16, has made some critical findings on this matter. It has held that a Single Judge has the powers to initiate, adjudicate and punish for civil contempt of all kinds and also for criminal contempt committed in facie curiam under Section 14 of the Act. It has also held that at the very first step under Section 15, mere cognizance has to be taken and there is hardly any question of hearing and determining any issue at this stage and that the Single Judge may even decline to issue notice under Section 15. The proceedings under Section 15 involve no determination as such nor do the proceedings under Section 17 decide anything till the contemnor appears and makes his defence. It was thus held that there is no hint of any bar or limitation of Single Judge’s jurisdiction under Section 15 or Section 17. Section 18 comes into play only after preliminaries of taking cognizance, initiation of proceedings and service of notice are done under Sections 15 and 17. Section 18 mandate is only with regard to the final hearing and determination by a Bench of not less than 2 (two) Judges. The words “heard and determine” in Section 18 has to be read conjointly, which has relevance only to the final trial and adjudication of criminal contempt. Therefore, a Single Judge of the High Court is in no way barred from initiating proceedings for criminal contempt and Section 18 of the Act presents no impediment to the exercise of this limited power. The High Court observed that no appeal lies under Section 19 against the denial of holding a contemnor guilty and held that it further supports the argument that no hearing or determination of nature referred to in Section 18 is involved in proceedings under Section 15. The Full Bench overruled an earlier unreported Full Bench judgment in Chander Kant v. Tek Chand17, wherein it had been held that a Single Judge of the High Court had no jurisdiction to go into the matter at any stage of the proceedings related to criminal contempt under Section 15 in view of mandatory provisions of Section 18 of the 1971 Act. The Bench further observed that Rule 6 of the Contempt of Court (P&H) Rules, 197418 provides that every petition, motion, or reference in relation to criminal contempt shall be laid for motion hearing before the Division Bench of at least 2 (two) Judges. The High Court drew a distinction between suo motu action and motion by the Advocate General or private person and held that Rule 6(1) is not at all attracted to suo motu action of the Single Judge. A Single Judge has the fullest jurisdiction to take cognizance and if necessary, initiate proceedings for criminal contempt on its own motion, even on the existing provision of Rule 6(1).
Although the decision of the Supreme Court in P.R. Adikesavan v. High Court of Madras19, is not directly on the point of law, however, the Supreme Court records that the Single Bench took cognizance and subsequently, notice was issued, and charge framed by the Division Bench of the High Court as a matter of fact. Meaning that, the Supreme Court did not find infirmity in the order of the Single Judge of the Madras High Court suo motu initiating criminal contempt proceeding under Section 15 of the Act.20
Section 17(5) of the Act uses the phrase “charged with contempt under Section 15”, which indicates that cognizance under Section 15 requires the application of judicial mind and is not merely an administrative function. One may draw parallels with the appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996.21 It is now conclusively decided that power under Section 11 is a judicial power. Comparably, it may also be argued that contempt proceedings under the Act being judicial/quasi–judicial in nature, cognizance under Section 15 cannot be viewed as a mere procedural formality requiring zero application of judicial mind. However, it remains to be seen how the Supreme Court settles this matter.
† Advocate-on-Record, Supreme Court of India. Author can be reached at email@example.com.
†† Advocate-on-Record, Supreme Court of India. Author can be reached at firstname.lastname@example.org.
17. Crl. Original No. 79 of 1972, decided on 5-8-1974.
18. Contempt of Court (P&H) Rules, 1974, R. 6. [pending uploading]
20. See Cannammale v. P.R. Adikesavan, 2021 SCC OnLine Mad 14034. Thereafter, the charge was framed by the Division Bench as seen in High Court of Madras v. P.R. Adikesavan, 2021 SCC OnLine Mad 14035.