Supreme Court of India
TRANSPARENCY INTERNATIONAL INDIA & ANR.versusSTATE OF JAMMU & KASHMIR
- Citation
- 2017 INSC 167
- Decided
- 21 February 2017
- Disposal
- Disposed off
- Bench
- S KHEHAR
Holding
The Judicial Magistrate had no jurisdiction to pass the arrest warrant, and any subordinate court may make a reference under Section 15 for general contempt, rendering the impugned order void.
Summary
Transparency International India and Centre for Media Studies filed a writ petition under Article 32 challenging contempt proceedings initiated by a Judicial Magistrate, Class I, Kangan, Jammu & Kashmir, against them for a study that alleged 92% of the lower judiciary in the State was corrupt. The magistrate issued a show‑cause notice under the Jammu & Kashmir Contempt of Courts Act, 1997 and the Ranbir Penal Code, and later ordered their arrest by bailable warrant. The petitioners contended that the magistrate lacked jurisdiction to initiate contempt and that only the High Court could take cognizance, while also arguing that any subordinate court could make a reference under Section 15 for general allegations. The Supreme Court held that the magistrate had no authority to pass the arrest order and that, under Section 15, any subordinate court may refer a general contempt matter to the High Court. Consequently, the order dated 24‑August‑2006 was quashed, the magistrate was directed to proceed with the original show‑cause notice, and the writ petition was dismissed. Proceedings against a deceased respondent were deemed abated.
Issues considered
- Whether a Judicial Magistrate under the Jammu & Kashmir Contempt of Courts Act, 1997 has jurisdiction to initiate contempt proceedings and issue arrest warrants.
- Whether Section 15 of the Act permits any subordinate court to make a reference to the High Court for general contempt allegations, or only the court against which contempt is alleged.
- Whether the High Court alone has jurisdiction to punish contempt of subordinate courts under Section 10 of the Act.
- Whether the magistrate could proceed under the Ranbir Penal Code sections 499, 500, 501.
- Effect of non‑appearance of the petitioners on the magistrate’s powers.
Legislation cited
- Code of Criminal Procedure, 1973s. 199-B
- Constitution of Indias. Article 32
- Jammu and Kashmir Contempt of Courts Act, 1997s. 10, s. 15, s. 2(d)
- Ranbir Penal Code, Samvat 1989s. 216, s. 2/6, s. 499, s. 500, s. 501
Subjects
contempt of courtjurisdictionjudicial magistrateSection 15Section 10Ranbir Penal CodeArticle 32freedom of speechdefamationJammu & Kashmir
Judgment
[2017] 2 S.C.R. 662
A TRANSPARENCY INTERNATIONAL fNDIA & ANR.
v.
STATE OF JAMMU & KASHMIR
(Writ Petition (Crl.) No. 180 of 2006)
.B FEBRUARY 21, 2017
[JAGDISH SINGH KHEHAR CJI, DR. D.Y.
CHANDRACHUD AND SANJAY KISHAN KAUL, JJ.]
Jammu and Kashmir Contempt of Courts Act, 1997:
c Contempt proceedings under - A general study conducted
by petitioner No. 2 and published by petitioner No. 1 - References
therein regarding functioning of judiciary - Allegation that 92% of
the lower judiciary in the State ofJammu and Kashmir was perceived
to be corrupt - Court of Judicial Magistrate, 1" Class, Kangan,
Jammu and Kashmir initiated action against 5 persons including
D
the petitioners, and issued notices calling for their explanation and
their appearance before the Court - Petitioners filed their respective
responses to the notices stating therein inter alia that since the
proceedings were initiated under Contempt of Courts Act and uls
2(d) rlw ss. 499, 5001501 of Ranbir Penal Code, the Magistrate
E had neither the right to initiate proceedings for the contempt nor
had the right to make reference for the same to the High Court -
Thereafter, the order passed by Magistrate seeking the presence of
petitioners through bailable warrants - Writ petition before Supreme
Court - Held: The .Judicial Magistrate had no jurisdiction or
authority to pass the impugned order, whereby it contemplated to
F
enforce the attendance of the petitioners, by way of arrest - The
Magistrate was required to proceed with the matter in consonance
with law - If it was Courts understanding that the matter needed to
be taken further, either under Contempt of Courts Act or uls.
216 r/w. ss. 499, 5001501 of Ranhir Penal Code, the Court ought to
G have done so in consonance with law - Ranbir Penal Code, Samvat
1989 - SS. 216 rlw. SS. 499, 5001501.
s. 15 - Reference under - Whether can be made for general
allegations levelled against lower judiciary - Held: When general
allegations are made against many courts, not aimed at any specific
H · ;udge or Court any one of the courts or judges can make a reference.
662
TRANSPARENCY INTERNATIONAL INDIA & ANR. v. STATE 663
OF JAMMU & KASHMIR
Disposing of the writ petition, the Court A
HELD: 1. It is not correct to say that a reference under
Section 15 of Jammu and Kashmir Contempt of Courts Act, 1997
could be made only by the particular court, of which contempt
was allegedly committed, and not by just auy court. As per this
plea, it would not be open to any Member of the lower judiciary, B
to make a reference to a High Court, wherein general allegations
have been levelled. It cannot be accepted that only because the
allegations in the present case were not aimed at any particular
Court, the provisions of the 1997 Act could not be invoked. The
term "of a subordinate court", used in Sectiou 15(2) of the 1997
Act - could well contemplate a situation, where the alleged c
contemptuous action is aimed at more than one court, or a large
number of courts, all at once. In that eventuality, any one of such
courts, can make a reference to the High Court, under the
provisions of the Jammu & Kashmir Contempt of Courts Act,
1997. Where the contemptuous action is of a general nature, and D
is not aimed at specific Judges or Courts, any one of such Judges
or Courts, which perceives that the same is aimed at him (or it),
would be well within its right, to make a reference of the same to
the jurisdictional High court. And thereupon, whether coguizance
and initiation of contempt proceedings need to be taken, would
fall within the realm of the High Court itself. [Para 18] [675-B, E
C, E-H]
2.1 In the present case, the Judicial Magistrate, Kangan,
had absolutely no jurisdiction or authority to pass the impugned
order dated 24.8.2006, whereby, it contemplated to enforce the
attendance of the petitioners (amongst others), by way of arrest. F
In a case as the one in hand, the petitioners had perceived, that
the proceedings initiated by the Judicial Magistrate on 4.5.2006,
were misconceived. Having received the response in their written
submissions from the petitioners, and the petitioners having not
entered appearance before the Judicial Magistrate, the Judicial
Magistrate ought to have proceeded. further with the matter, in
0
G
consonance with law. And if it was the Court's understanding,
that the matter 'needed to be taken further, either under the
Contempt of Courts Act, 1997 and/or under Section 2/6 read with
Sections 499, 500/501 of the Ranbir Penal Code, the Court ought
to have done so. [Para 19] [676-A-D] H
664 SUPREME COURT REPORTS [2017] 2 S.C.R.
A 2.2 The judicial officer holding the charge of the Court of
the Judicial Magistrate, 1" Class, Kangan is directed to proceed
with the matter in furtherance of the original show cause notice
dated 4.5.2006. It shall be open to the petitioners to enter their
appearance before the Judicial Magistrate, 1" Class (either in
person or through their counsel). In case the petitioners do not
B
enter appearance before the Judicial Magistrate, he may pass
such an order, as he considers appropriate, in consonance with
law. [Para 20] [676-E-F]
3. In case the concerned Judicial Magistrate desires to
proceed under the aforesaid provisions of the Ranbir Penal Code,
c the Court shall take due notice of the plea advanced by the
petitioners under Section 199-B of the Code of Criminal
Procedure, 1973 that it would not be open to the Magistrate
concerned to initiate proceedings nnder Section 2/6 read with
Sections 499, 500/501 of the Ranbir Penal Code. [Para 21] [676-
D H; 677-AJ
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 180 of2006.
Under Article 32 of the Constitution oflndia.
Jayant Bhushan, Sr. Adv., Rohit Kr. Singh (For Prashant
E Bhushan), Advs. for the Petitioners.
M. ShoebAlam, Ms. Fauzia Shakil, Uijwal Singh, Mojahid Karim
Khan, Advs. for the Respondents.
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, CJI I. The instant writ petition
F
has been filed by two petitioners, Transparency International India and
Centre for Media Studies. The cause for the petitioners, to approach
this Court, seems to emerge from a study, described as "India Corruption
Study to improve Governance", conducted by Centre for Media Study,
and published by Transparency International India. It was sought to be
G repeatedly highlighted, that the above research program taken on hand
by Centre for Media Studies, was a general study on governance,
predominantly with reference to the bureaucracy, and the functioning of
the administrative machinery. Yet it was acknowledged, that there were
references to the functioning of the judiciary, as well.
H 2. Even though, the above study was conducted independently,
TRANSPARENCY INTERNATIONAL INDIA & ANR. v. STATE 665
OF JAMMU & KASHMIR [JAGDISH SINGH KHEHAR, CJJ]
with reference to each State, yet the relevant study, which has brought A
the petitioners of the instant writ petition to this Court, pertains to the
State of Jiunmu and Kashmir, and is limited to the findings recorded
therein, with reference only to the lower judiciary. For the aforesaid
purpose, learned counsel forthe petitioners invited our attention to Table
No.2.1: Jammu and Kashmir-Ranking of Public Services, the extract
B
whereof, which is relevant to the subject of the present controversy, is
extracted herecn;der : .
'Table No.2.1: Jamrnu & Kashmir-Ranking of Public Services
Depart- Direct Quality Using Percep- Lack of Percep- Con1posite
tnent "'xperi- k>f influence/ 1tion that Commit- ion
ience service middle- depart- ment to
Index
increased Value
c
pf is poor men 1nent is ·educe
bribing orrupt "orruption
NEED BASED
D
judiciary ·I % 81 09 92 88 86 87
I(Lower) .
A perusal of the table extracted above reveals, that the
compilation of the views of those who were asked (to express their
views) led,to the inference, that 92% of the lower judiciary in the State E
of Jammu.and Kashmir, was perceived to be corrupt.
3. It is also relevant to refer to Table 2.2: (Estimated No. of
Households Paid Bribes), wherein, with reference to the lower judiciary
in the State of Jammu and Kashmir, the study incorporated, the following
data/information : · F
"Table No.2.2 : Estimated
.. No. of Households Paid Bribes
Department No., ofHouseholds Paid Bribes
Jl!diciary (Lower) 223267
A perusal of the table extracted ab0ve reveals, that 2,23,267 G
cases of actual bribe giving were disclosed, with reference to the lower
judiciary, in the State of Jammu and Kashmir.
4. Based on the findings recorded, with reference to the lower
judiciary in the State of Jammu and Kashmir, the Court of Judicial
Magistrate; l" Class, Kangan, Jammu & Kashmir, on 4.5.2006 initiated H
666 SUPREME COURT REPORTS (2017] 2 S.C.R.
A action against five individuals/parties, details whereof are extracted
hereunder:
"l. P. N. Razdan, author of Op.Ed.
Page - Corruption in J&K - here, there and
Everywhere - 1 & II, Clo Greater Kashmir
B
2. Fayaz Ahmed Kaloo, editor Printer &
Publisher, GK
14/B Sana! Nagar, Srinagar/6 Pratap Park,
Residency Road
c 3. Zahir-ud-ln - Executive Editor
Greater Kashmir
4. Centre for Media Studies
New Delhi through its Director/Secretary Clo GK
D
5. Transparency International
through Chief Executive Officer Clo GK
(non-applicant/respondents)"
It is therefore apparent, that the Centre for Media Studies
(Petitioner No.2, before this Court), was issued notice at serial No.4,
E and Transparency International (Petitioner No.1, herein) was issued notice
at serial No.5.
5. The text of the order dated 4'" May, 2006, is also reproduced
hereinbelow :
F "Order
4m May 06
Whereas Greater Kashmir, Newspapers daily, printed and
published by non-applicant No.2 as edited by non-applicant No.3
has published an article in Op.-Ed at page 7 filled 'Corruption in
G J&K - here, there and everywhere - I & II authorized by non-
applicant No.1, based on certain references to non-applicants 4
& 5 in the paper dated 3"' and 4"' May, 2006.
Whereas the subtitle of the article in bold front depicts,
'Lower Judiciary' and further in Column 2. line 45 and col.3 line
H 8 - wherein the author refers, "Kashmir viewed as the most
TRANSPARENCY INTERNATIONAL INDIA & ANR. v. STATE 667
OF JAMMU & KASHMIR (JAGDISH SINGH KHEHAR, CJ!]
corrupt. Lower Judiciruy (86%) and referred to as' govt. - sucking' A
-Also in article Part II - published on 4" May 06 col. I and 2
last line (Col. I) and first seven lines in col.2 which are reproduced
herein below. "A strong and honest head of the unit or
department, who is easily amenable to the public, has powers to
take drastic action against the delinquent officials, and has a
' B
political interference, is sure to deliver results".
Whereas such publication is libelous in nature. where such
sweeping reference towards the judiciary is general and
subordinate judiciary (lower) as mentioned in the article in
particular. thereby not only scandalizing the whole system of
administration of justice, but also defaming the public servants c
(member of subordinate judicial servi~es) who are employed in
connection with administration of justice and thereby lowering
down the image of judiciary as a whole and tends to scandalize
and lower down the image of judiciary as a whole undermining
the authority of courts (esp. lower courts) and shaking the D
confidence of general public and prejudicing the due course of
justice.
Whereas such generic remarks cast reflections on the very
conduct of subordinate judiciary and even sight upto their
administrative 'heads as given in part II, creating doubts about E
the integrity of functioning of the Department as a whole.
Whereas in the ~pinion of this court. this flagrant statement
has not only lowered down.the image of judiciary and is direct
interference into the administration of justice and callous and
irresponsible behaviour on the part of respondents. F
Therefore by virtue of this show cause notice you are
hereby called upon to explain your position. within a period of 15
days from the issuance of this notice as to why action as
warranted under law be not initiated against you.
Issued under my hand and seal of this court, today this 4'" G
May, 06."
(emphasis is ours)
6. A perusal of the order dated 4.5 .2006, according to the learned
counsel for the respondent, makes it abundantly clear, that the same is in
the nature of a 'show cause notice', calling for the explanation of the H
668 SUPREME COURT REPORTS [2017] 2 S.C.R.
A noticees. This position, in our view, merits acceptance. It is also relevant
to mentfon, that the order dated 4.5.2006 also brought out, that the same
was being passed under the provisions of the Contempt of Courts Act,
1997, and/or Section 2/6 read with Sections 499, 500/501 of the Ranbir
Penal Code. It is in the above perspective, that we will examine the
submissions of the rival counsel, while adjudicating upon the controversy
B
in hand.
7. Thereafter (after the issuance of the notice extracted above,
dated 4'h May, 2006), it was pointed out on behalf of the petitioners, that
further notices dated 16.2.2006 and I. 7 .2006, were also issued, for the
same purpose. The notice dated 1.07.06, categorically expressed, " ...Now
c again you are being issued notice to cause your appearance or through
your authorized representative to answer all material questions as to
why cogni.zance as taken above be not proceeded against you on or
before next date of hearing ... " It is therefore apparent, that the personal
presence of the petitioners (or others, to whom the above notices were
D issued) was not sought.
8. The pleadings in the instant writ petition, more particularly
paragraph 6 thereof, acknowledge that, Transparency International India
(-Petitioner No. I herein), received the show cause notice on 7.7.2006,
and Centre for Media Studies (-Petitioner No.2 herein), received the
E same on 16.6.2006. Having received the aforesaid notices, the following
response was addressed by the Centre for Media Studies (-Petitioner
. No.2), to the Judicial Magistrate, Class-I, Kangan, Jammu & Kashmir,
on 23.6.2006. The same is extracted below:
"RESEARCH HOUSE
Saket Community Centre
F
New Delhi-I I 0017
23 June 2006
To
G Judicial Magistrate I" Class
Kangan, J & K
Ref: You notice of 16/06/2006, No.101/MK
Contempt of Cou11s Act - 1997, Sec.216 read
with Section 499, 500150 I RPC.
H
TRANSPARENCY INTERNATIONAL INDIA & ANR. v. STATE 669
OF JAMMU & KASHMIR [JAGDISH SINGH KHEHAR, CJI]
Sir, A
Although the Order dated 16 June 2006 mentioned tl1at "a
copy of the complaint it enclosed", a copy of the complaint has
not been enclosed. Instead, a copy of the Order dated 4'h May,
2006 directing show cause notice to be issued and posting the
case to 19 May 2006 was enclosed. The Order dated 4'h May B
2006 was not served on us till today. A copy of the letter is
received along with Order dated 16 June 2006. Therefore, we
had no opportunity to respond to the notice dated 4 May 2006.
This letter may be treated as response to the show cause notice
directed to be issued on 4'h May, 2006.
c
Without a copy of the complaint and a copy of the article
entitled Corruption in Jammu & Kashmir here, there and
everywhere- I & II by Mr. F.N. Razdan as published in Greater
Kashmir being made available to us, it is not possible for us to
reply to the show cause notice or to assist the Hon 'ble Court of
Judicial Magistrate Class-1 ", Kangan in this case. We, therefore D
request that these crucial documents which are absolutely
essential to be supplied tu us. Only after seeing the said article
which is the basis of the complaint we will be able to explain the
reference allegedly made there in to the Centre for Media Studies.
At this point of time we can only say that we are not a E
partv to the said article and we have no role in the writing or
. publication of the said article. We have no connection either
with the authorofthe article or the publication of the said article.
We have no connection either with the author of the article or
the publisher or the editor of the newspaper concerned. F
Nevertheless, we would like to state that CMS has been
undertaking for more than a couple of years national surveys on
corruption involving ordinary citizen in various public services/
utilities. In this exercise eminent experts on the subjects covered
in the study are being consulted. More specifically, Chief Central G
Vigilance Commissioner, Vigilance Commissioners, Justice
Rajinder Sachhar (former Chief Justice of Delhi High Court),
Shri Prashant Bhushan, for example, and such other outstanding
national personalities have been consulted at one point or other
in the process of designing and conducting these surveys on
H
670 SUPREME COURT REPORTS (2017] 2 S.C.R.
A corruption and common citizen. They are all familiar with the
survey findings and the reports published by Transparency
International India some months ago. J & K was included in the
India Corruption Survey of 2005 conducted by CMS in
collaboration with Transparency International India and its
President Admiral R.H. Tahiliani. The then Vigilance
B
Commissioner of J & K (Shri Radhavinod Raju, IPS) visited
CMS in New Delhi for discussions and was aware of the survey
both before conducting, during the time of the survey in J & K,
and after the publication of the report in this context.
The said study covers 19 other States ofindia. CMS has
c been appreciated for its pioneering work in this regard and many,
including senior officials of the States, have thanked us for the
study. The study findings were published by internationally
reputed Transparency International India and its Chairman
Admiral R.H. Tahiliani took personal interest with a hope that
D seriousness is imparted into public debate on critical issues before
the Nation with more reliable field data. Further as concerned
citizens to India, we are as much sincerely concerned and
interested in upholding the status and role of Judiciary in the
country. In fact, the. Chairman of CMS had closely worked in
the last decade with two former Chief Justices oflndia -Justice
E P.N. Bhagawati and Justice R.S. Pathak. Our Chairman was
the national Conven'erwhile they were the Chairpersons of Social
Audit Panels constituted by Ministry of Communication and
Ministry of Environment and Forests, respectively.
There was never any intention at all on our part to scandalize
F or lower the authority of the judiciary much less interface with
the due course of justice or obstruct the administration of justice
in any manner.
We pray that in view of the facts stated above, the Order
directing appearance on July l", 2016 may be recalled and the
G case closed as against us.
Thanking you,
Sincerely
For Centre for Media Studies"
(emphasis is ours)
H
TRANSPARENCY INTERNATIONAL INDIA & ANR. v. STATE 671
OF JAMMU & KASHMIR [JAGDISH SINGH KHEHAR, CJ!]
9. A separate response dated 7.7.2016, was also addressed on A
behalf of Transparency International India (-Petitioner No. I, herein) to
the Judicial Magistrate, I" Class, Kangan. Since the response runs into
several pages, for reasons of brevity, we shall extract hereunder, only a
relevant portion thereof:
"However, without any prejudice, we would like to make the B
following submissions :
I. We are aware that subordinate courts do not have the power
of contempt under the Contempt of Courts Act. They can
at most make a reference to the High Court and the High
Court can then, take a decision on the matter. c
2. We presume that your notice is only to enable you to decide
whether to make a reference to the High Court to commence
contempt proceedings.
3. We presume that our response is to enable the above and not
to directly commence contempt proceedings at this stage. D
4. We now enclose a reply to this notice as to why action may
not be initiated against us on the charges of contempt, libel
and defamation."
(emphasis is ours)
I 0. A perusal of the extracts from the responses, reproduced E
above, would reveal, that the petitioners did not object to the initiation of
the show cause proceedings. It is necessary to notice, that the petitioners
informed the Judicial Magistrate, I" Class, Kangan, that while it was
open to the Magistrate to make a reference to the High Court, under the
Contempt of Courts Act, the Magistrate had no right to suo moto initiate F
proceedings, under the Contempt of Courts Act. Besides recording the
above submissions in its reply, Transparency International India also
highlighted the fact, that it had not seen the newspaper article, which
constituted the basis, for the show cause. It also expressly asserted,
that Petitioner No. I had no connection with the author/publisher/editor
of the newspaper-Greater Kashmir. The reply, also gave out, the G
functions/activities and the credentials of the Transparency International
India. Be that as it may, it needs to be noticed, that in its response
Transparency International India, in the reference to the said letter, as
also, in the contents thereof acknowledged, that the proceedings had
been initiated under the Jammu & Kashmir Contempt of Courts Act, H
672 SUPREME COURT REPORTS [20 I 7] 2 S.C.R.
A 1997 and/or Section 2(d) read with Sections 499, 500/501 of the Ranbir
Penal Code.
11. It seems, that having responded to the notices received from
the Court of Judicial Magistrate, l" Class, Kangan (through their
communications, referred to above), the petitioners felt satisfied, that no
B further response was called for on their behalf. And therefore, despite
having been required to enter appearance before the Judic.ial Magistrate,
I" Class, Kangan, vide orders dated 16.6.2006 and 1.7.2006, the
petitioners chose not to appear before the concerned Court. Consequent
upon the non- appearance of the petitioners before the Judicial Magistrate,
the impugned order dated 24.8.2006 came to be passed. The text of the
c above order is reproduced below :
"Whereas a Robkar titled above is pending before this.
Court and the attendance of the said non-applicant is required.·
As such you are asked to arrest the said person and
D produce him before this court on 27.9.06. In case the said person
furnish the bail bond ofRs.15,000/- and the surety oflike amount,
he shall be released."
(emphasis is ours)
A perusal of the above order reveals, that even though the
E respondents had been summoned to the Court, they had not entered
appearance, and therefore, their attendance was being procured through
bailable warrants.
12. Learned counsel for the petitioners, in his effort to assail the
above order dated 24.8.2006, vehemently contended, that the Judicial
F Magistrate, i" Class, Kangan, seems to have taken upon himself, the
jurisdiction vested in a High Court under the Contempt of Courts Act. It
was submitted, that the Judicial Magistrate, I" Class, Kangan, had no
authority to direct the attendance or the presence of the petitioners,
under contempt proceedings. It was submitted, that the impugned order
extracted above, was clearly beyond the jurisdiction of the Judicial
G
Magistrate. It was pointed out, that when the matter was listed before
this Court for hearing, on the first occasion itself, on 20.9.2006, this
Court stayed the operation ofthe order dated 24.8.2006, till furtherorders.
It was pointedly asserted, that this Court must have been clearly
conscious, of the abuse of jurisdiction of contempt proceedings, at the
H hands of the Judicial Magistrate, and accordingly, in its motion Bench
TRANSPARENCY INTERNATIONAL INDIA & ANR. v. STATE 673
OF JAMMU & KASHMIR [JAGDISH SINGH KHEHAR, CJ!]
order dated 20.9.2006, this Court, not only stayed the execution of the A
warrants of arrest (issued against the Chairman, Transparency
International India, and the Director, Centre for Media Studies), but also
. stayed further proceedings in the matter (pending, before the concerned
Magistrate).
13. In continuation of the· position expressed above, it was the B
contention of the learned counsel ti;, I he petitioners, that under the Jam mu
& Kashmir Contempt of Courts Act, 1997, the jurisdiction to initiate
contempt proceedings is only vested with the High Court. For this,
reference has been made to Section 10 thereof, which is reproduced
below:
c
"l 0. Power of the. High Court to punish contempts of
subordinate courts:- The High Court shall have and exercise
the same jurisdiction, powers and authority in accordance with
the same procedure and practice, in respect of contempts of
courts subordinate to it as it has and exercises in respect of
contempts itself: D
Provided that the High Court shall.noUake cognizance of a
contempt alleged to have been committed in respect of a court
subordinate to it where such contempt is an offence punishable
under the Ranbir Penal Code, Samvat 1989 ."
E
(emphasis is ours)
Based on the mandate of Section 10 extracted above, it was
submitted, that even when contempt was alleged to have been committed
against a subordinate court, only the jurisdictional High Court and not
the subordinate court (against which the contempt is alleged to have
F
been committed) had jurisdiction to initiate contempt proceedings.
14. Furthermore, even though it was acknowledged, that
cognizance of criminal contempt could have been taken, at the instance
ofa subordinate court, it was submitted, that only the High Court had the
authority to initiate action in the matter. Forth is, reference was made to
G
Section 15 of the 1997 Act, which is reproduced below:
"15. Cognizance of criminal contempt in other cases :- (l) In
the case of criminal contempt, other than a contempt referred in
section 14, the High Court may take action on its own motion or
of a motion made by -
H
674 SUPREME COURT REPORTS [2017) 2 S.C .R.
A (a) the Advocate General; or
(b) any other person, with the consent in writing of the Advocate
General.
(2) In the case of any criminal contempt of a subordinate court,
the High Court may take action on a reference made to it by the
B subordinate court or on a motion made by the Advocate General.
(3) Every motion or reference made under this section shall
specify the contempt of which the person charged is allegedly to
be guilty.
c Explanation.- In this section, the expression "Advocate General"
means the Advocate General of the State."
(emphasis is ours)
Based on Section 15 extracted above, it was submitted, that only
that subordinate court, against which criminal contempt is alleged to
have been committed, can make a reference, about the same to the
D
jurisdictional High Court. Relying on sub-section (2) of Section 15, it
was sought to be explained, that it was only the court, of which contempt
has been committed, and which was having intrinsic knowledge thereof,
was authorized to make such reference, and not just any court.
15. It was submitted, that the extract from the report of the
E
Centre for Media Studies, which was sought to be published by
Transparency International India, was a general report, based on a study.
And that, the report was not aimed at a particular court, and as such, it
was not open to the Judicial Magistrate, 1" Class, Kangan, in any case,
even to make such a reference to the High Court, with in the meaning of
F Section 15 of the 1997 Act.
16. It was also the contention of the learned counsel for the
petitioners, that in the absence of the petitioners, the Judicial Magistrate,
Kangan, ought to have proceeded in accordance with law, after taking
into consideration the response submitted by the petitioners. In this behalf
G it was asserted, that the response of the petitioners, to the notice issued
to them, ought to have been considered, and further proceedings ought
to have been dropped, as the petitioners could not be held to be
blameworthy, of the newspaper reporting.
17. We have given our thoughtful consideration to the submissions
H advanced at the hands of learned counsel for the petitioners~ We have
TRANSPARENCY INTERNATIONAL INDIA & ANR. v. STATE 675
OF JAMMU & KASHMIR [JAGDISH SINGH KHEHAR, CJI]
also heard learned counsel for the State of Jam mu & Kashmir, who has A
generally supported the cause, and the different orders, passed by the
Judicial Magistrate, I" Class, Kangan.
18. We would first like to deal with one of the submissions of
learned counsel for the petitioners, based on Section 15 of the 1997 Act.
It was contended, that a reference could be made only by the particular B
·court, of which contempt was allegedly committed, and not by just any
court. And that, only the said particular court, could make a reference
to the High Court, to initiate contempt proceedings. It is not possible for
us to accept the submission of the learned counsel for the petitioners, at
least, in the facts and circumstances of the case in hand. In our considered
view, in the sense that the above contention has been advanced, it would c
not be open to any Member of the lower judiciary, to make a reference
to a High Court, wherein general allegations have been levelled. The
publication of the article in the newspaper- Greater Kashmir, wherein,
only general allegations have been levelled, according to learned counsel
for the petitioners, cannot be the basis of any action. It was highlighted, D
on the basis of the compilation of Centre for Media Studies (Petitioner
No.2), and publication of the compilation effectuated by Transparency
International India (Petitioner No. I), that 92% of the lower judiciary in
the State of Jammu and Kashmir, was perceived to be corrupt, and
there were actual figures of 2,23,267 cases, where bribe was actually
given. But there were no allegations aimed at any individual Judge or E
Court. Only because the above allegations were not aimed at any
particular Court, the provisions of the 1997 Act could not be invoked. It
is not possible for us to accept the above contention. We may clarify,
that the term "of a subordinate court", used in Section 15(2) of the 1997
Act- could well contemplate a situation, where the alleged contemptuous F
action is aimed at more than one court, or a large number of courts, all
at once. In that eventuality, in our considered view, any one of such
courts, can make a reference to the High Court, under the provisions of
the Jammu & Kashmir Contempt of Courts Act, 1997. In view ofthe
above, we may be deemed to have concluded, that where the
contemptuous action is of a general nature, and is not aimed at specific G
Judges or Courts, any one of such Judges or Courts, which perceives
that the same is aimed at him (or it), would be well within its right, to
make a reference of the same to the jurisdictional High court. And
thereupon, whether cognizance and initiation of contempt proceedings
need to be taken, would fall with.in the realm of the High Court itself. H
676 SUPREME COURT REPORTS [2017] 2 S.C.R.
A 19. We are, however, satisfied in accepting, that the Judicial
Magistrate, Kangan, had absolutely no jurisdiction or authority to pass
the impugned order dated 24.8.2006, whereby, it contemplated to enforce
the attendance of the petitioners (amongst others), by way of arrest.
We are also of the view, that in a case as the one in hand, the petitioners
had perceived, that the proceedings initiated by the Judicial Magistrate
B
on 4.5.2006, were misconceived. And accordingly, in their written
submissions, it was acknowledged " ... We presume that your notice is
only to enable you to decide whether to make a reference to the High
Court to commence contempt proceedings ... We presume that our
response is to enable the above and not to directly commence contemp,t
c proceedings at this stage ..." Having received the aforesaid response
from the petitioners, and the petitioners having not entered appearance
before the Judicial Magistrate, the Judicial Magistrate ought to have
proceeded further with the matter, in consonance with law. And if it
was the Court's understanding, that the matter needed to be taken further,
either under the Contempt of Courts Act, 1997 and/or under Section 2/6
D
read with Sections 499, 500150 l of the Ranbir Penal Code, the Court
ought to have done so.
20. Jn view of the above, while disposing of the instant petition,
we direct the present Judicial Magistrate, l" Class, Kangan (the judicial
officer holding the charge of the Court of the Judicial Magistrate, l"
E Class, Kangan) to proceed i.vith the matter ihfurtherance of the original
show cause notice dated 4.5.2006. It shall be open to the petitioners to
enter their appearance before the Judicial Magistrate, l" Class (either
in person or through their counsel). In case the petitioners do not enter
appearance before the Judicial Magistrate, he may pass such an order,
F as he considers appropriate, in consonance with law. Needless to
mention, that it would be open to the petitioners to assail the same, in
case they are aggrieved thereof. The order dated 24.8.2006 is quashed
and set aside.
21. During the course of hearing, learned counsel for the
G petitioners also placed reliance on Section 199-B of the Code of Criminal
Procedure, 1989, as is applicable to the State of Jammu & Kashmir, to
contend that, it would not be open to the Magistrate concerned to initiate
proceedings under Section 2/6 read with Sections 499, 500/501 of the
Ranbir Penal Code. We record the contention of the learned counsel for
- the petitioners, and in case the concerned Judicial Magistrate desires to
H
TRANSPARENCY INTERNATIONAL INDIA & ANR. v. STATE 677
OF JAMMU & KASHMIR (JAGDISH SINGH KHEHAR, CJJ]
proceed under the aforesaid provisions of the Ranbir Penal Code, the A
Court shall take due notice of the submissions advanced by the petitioners
under Section 199-B of the Code of Criminal Procedure, 1973.
22. After the order was dictated, learned counsel for the petitioners
informed us, that Admiral R.H. Tahiliani, to whom the notices dated
16.6.2006 and 1.7 .2006 were issued, has since passed away, and as B
such, proceedings initiated against him; would stand abated. We find
force in the contention advanced at the hands of learned counsel for the
petitioners. The proceedings initiated against Admiral R.H. Tahiliani,
shall be deemed to have abated.
23. The writ. petition. is disposed of in the above terms. c
Consequent upon the disposal of the main petition, all the pending
applications, shall also stand disposed of.
Kalpana K. Tripathy V.irit Petition disposed of.
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