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A Judge of Court of Record cannot be prosecuted for Contempt, says Uttarakhand HC

Team SoOLEGAL 6 Sep 2018 12:00pm

A Judge of Court of Record cannot be prosecuted for Contempt, says Uttarakhand HC

The Uttarakhand HC dismissed a contempt petition, filed by an advocate, against its sitting judge Lok Pal Singh for allegedly losing his temper and using intemperate language against the petitioner and his client in open court.

The petitioner advocate, Chhitij Kishore Sharma, further alleged that Justice Singh had also made adverse comments against a Senior Advocate and a former High Court judge, which loosely translates to,

Yes, I know what kind of a lawyer he is, and what kind of a Judge he was!”

The Division Bench of the Uttarakhand HC comprising Justices Rajiv Sharma and Sudhanshu Dhulia dismissed the petition as not maintainable, noting that a contempt petition cannot lie against a judge of Court of Record under the Contempt of Courts Act, 1971 (‘Act’).

This can be concluded from a combined reading of Sections 9 and 16 of the Act, the bench further said.

The bench also made references to cases where a similar view was taken when deciding the case, including the Apex Court case of State of Rajasthan v. Prakash Chand, High Court decisions in Shri Harish Chandra Mishra v. The Hon’ble Mr. Justice S. Ali Ahmed, Sikandar Khan v. Ashok Kumar Mathur.

To this point, the court reiterated,

“… contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court.”

The bench then said that given this legal position, it did not examine the facts of the case.

But, the case did instigate the bench to make certain significant observations relating to the initiation of contempt proceedings, particularly against a judge of a court of record.

Interestingly, the petition was placed before the Uttarakhand HC although Advocate General SN Babulkar did not give his consent to carry forward the contempt complaint.

As per the rule, the statutory sanction of the AG is necessary under Section 15 of the Contempt of Courts Act, 1971, before a complaint can be submitted before the Court.

However, in the said petition, AG Babulkar recused himself from giving his consent to avoid allegations of bias, the bench said. This was in view of the fact that Justice Singh had also passed an order against AG Babulkar during one of the hearings complained of.

Therefore, Babulkar had declined to interfere in the matter, stating,

“… although the facts as mentioned do make out a case of sanction, yet in order to avoid any allegations of bias, I am not in a position to accord formal sanction.”

The Bench observed that the AG was perfectly justified in recusing himself in the matter. However, the AG’s subsequent opinion that the “facts of the case do make out for a case” left the Bench confused.

The Court also noted that the petitioner’s representation could only be termed as “information”, and not a contempt petition, since it did not have the AG’s consent.

“… 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 an ‘information'.

To avoid such cases making its way to the HC unchecked, the bench also directed that the Registry of the Court shall follow the following procedure in such matters:

 “If a petition is not accompanied by AG’s sanction, 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 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”, the bench said.

While maintaining that contempt of court proceeding cannot be initiated against the HC judge, the bench also distinguished the infamous case of Justice CS Karnan, who was awarded a six month jail term after the Apex Court found him guilty of contempt.

When talking about Justice Karnan’s case, the bench opined that this case was one which fell under the rarest of the rare category of cases, as a sitting judge cannot be prosecuted for contempt.

Tagged: Contempt of Court   Justice Lok Pal Singh   Advocate Chhitij Kishore Sharma   Justice Rajiv Sharma   Justice Sudhanshu Dhulia   Uttarakhand High Court   Justice CS Karnan   Supreme Court of India  
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