Panduranga Rao, J.:-
(1) A notice issued by the respondent herein namely, rachapudi subbarao to smt. K. Swarna kumari, special mobile judicial first class magistrate for municipal corporation, vijayawada (hereinafter referred to as "the learned magistrate") has given rise to the contempt proceedings.
(2) The facts leading to the present contempt proceedings are briefly as follows: - the respondent filed a complaint on 18 - 5 - 1987 against the municipal corporation of vijayawada before the learned magistrate for a direction to the corporation to supply necessary fittings and cause work to be done for providing underground drainage for the discharge of drain water. That complaint was stayed by the high court. Later on the respondent filed another complaint under sec. 667 read with secs. 2 (35) and 295 of the hyderabad municipal corporation act on 12 - 8 - 1987 alleging that the drain was not cleaned since 15 years prior thereto and that the municipal corporation was not discharging its duty under section 295 of the said act. The complaint was called on 13 - 8 - 1987 and on behalf of the corporation an objection was taken with regard to the maintainability of the petition in view of the stay granted by the high court. The respondent represented that the complaint was different from the one stayed by the high court. The respondent was asked to clarify on the questions of maintainability and limitation. As the learned magistrate was not satisfied with the clarification offered by the respondent the latter was directed to appear on 14 - 8 - 1987 for being heard on the question of limitation. On the ground that the complainant was absent and that there was no representation, the learned magistrate dismissed the complaint on 14 - 8 - 1987 under sec. 256 (1) cr p c. Subsequently on 7 - 9 - 1987 the respondent issued a notice to the learned magistrate who dismissed the complaint calling upon her to inform him (a) why he should not prosecute her for punishment under the provisions of section 219 of indian penal code; (b) why he should not set the law into motion to punish her under the provisions of section 16 of the contempt of courts act 1971 (c) why he should not institute a suit for damages against her for her corrupt and malpractices, disobeying the statutory mandatory law. And (d) why he should not request the concerned authority to remove her from the "judicial service" or why he should not file a writ petition against her to dismiss her from the judicial service. In the said notice the respondent complained that the magistrate does not know anything in the magistracy; that she does not know anything about the judiciary: that she has no capacity to read and understand the language of sections of the act, which are clear and not ambiguous and she has wantonly and illegally disobeyed the practice and procedure besides the law of a court of first class magistrate.
(3) After the receipt of the said notice, the learned magistrate addressed a letter dt. 9 - 9 - 1987 to the learned district judge, krishna requssting the district judge that the matter might be referred to the high court for taking action against the respondent for contempt of court. The learned district judge returned that letter to the learned magistrate with an endorsement dated 14 - 9 - 1987 inviting the attention of the magistrate to rules 5 to 9 of the contempt of court rules, 1980 and instructing her to follow the procedure mentioned under those rules by issuing a notice to the contemnor and hearing him. There upon the learned magistrate issued the proceedings dated 24 - 9 - 1987 directing the respondent to appear in person on 9 - 10 - 1987 before her and to show cause why action should not be laid against him under the contempt of courts act (hereinafter referred to as ''the act") for the contempt committed by him.
(4) On receipt of the said notice the respondent sent a reply dated. 6 - 10 - 1987 alleging that the language of the notice is not clear and the matter is confusing and requesting the magistrate to send the proceedings in telugu language. The respondent submitted a complaint under section 23 of the a p civil courts act and section 15 of the code of criminal procedure against the magistrate to the learned district judge, krishna district, machilipatnam complaining that the magistrate did not know anything in the magistracy, that she does not know anything about the judiciary, that she has no capacity to read and understand the language of the sections of the code and that she is wantonly and illegally disobeying the practice and procedure besides the law of a court of first class magistrate and requesting the district judge to take action against her to save the judiciary from the verge of collapse. The learned district judge while enclosing a copy of ths complaint dated. 8 - 10 - 1987 of the respondent herein requested the learned magistrate to submit detailed remarks with regard to the allegations made in complaint. In obedience to the direction of the learned district judge, the learned magistrate has submitted her detailed remarks to the learned district judge and finally submitting that the respondent cannot malign a judicial officer by degrading her and using such contemptuous words that the respondent herein has no right to make complaint against her educational qualifications and that , the complaint made to the district judge is misconceived. She further requested the learned district judge to launch procee - dings under the contempt of courts act against the respondent.
(5) The learned magistrate made a reference under rule 9 (1) of the contempt of courts rules, 1980 against the respon - dent herein stating that the contemnor used unparliamentary language in his notice dated: 7 - 9 - 1987 to a judicial officer causing embarrassment in discharging her judicial functions: that the contents of the complaint dated: 8 - 10 - 1987 and the notice dated: 7 - 9 - 1987 are unfair, scandalising, belittling and deriding the court and that the contempt is therefore evident by the said notice and complaint. In the said reference the learned magistrate further alleged that the contemnor is a chronic and vexatious litigant and that he has filed on previous occasions a suit against the judicial officers for damages and complaints against other judicial officers. She finally requested for taking action against the respondent herein for having committed contempt of court. On receipt of the reference, the registrar forwarded the papers to the learned advocate general under rule 10 of contempt of court rules for taking appropriate action in the matter. The learned advocate general thereupon filed this contempt case against the respondent alleging that the conduct of the respondent in sending the notice dated: 7 - 9 - 1987 to the magistrate attributing ''corrupt and malpractices" to the magistrals and also alleged that she has "want only and illegally disobeyed the practice and procedure besides the law of the court of a first class magistrate" and filing the complaint dated: 8 - 10 - 1987 before the district and sessions judgs, krishna district and the contents therein clearly amount to contempt of court. The learned advocate general therefore prayed that the respondent might be punished under section 12 of the contempt of courts act, 1971.
(6) When the case came up for hearing on 2nd february, 1988 the then learned acting chief justice and another learned judge directed issuance of notice of the contempt petition to the respondent and posted the case for 1st march, 1988. The case came up again before the then learned acting chief justice and another learned judge on 2 - 3 - 1988. Evidently because the respondent did not appear on that day the bench directed that a non - bailable warrant should be issued returnable by 1 - 4 - 1988. The non - bailable warrant having been executed the contemnor was produced in the court on 21 - 3 - 1988. The high court released the respondent on his personal bond. Subsequently the respondent has taken time and filed the counter.
(7) In the counter the respondent did not dispute the truth or correctness of any of the allegations made in the contempt petition. On the other hand, he submitted in the counter that the case has been instituted as a result of conspiracy made by the learned magistrate with the assistance of the registrar (admn.) of the high court and the then learned advocate general of a. P. , that the institution of the case infringed not only the provisions of the contempt of courts act but also the constitution of india and the entire norms of the judiciary and that the machinery of the court cannot be set into motion lor the purpose of taking proceedings of contempt with a view to satisfy one's feelings of private grudge or malice. He further submitted that knowing that it is a false case filed to harass the respondent, the hon'ble judges of the high court did not admit the case but only ordered notice before admitting the case ; that the respondent having received the show cause notice on 13 - 2 - 1988, submitted his reply for the show cause notice on 26 - 2 - 1988 which was received by the high court on 29 - 2 - 1988 ; that the advocate general did not file the affidavit in support of the contempt petition ; that the deponent of the affidavit and the advocate general misused and abused the process of the court to harass him unnecessarily : that the procedure followed by the registrar (admn.) in furnishing the record to the advocate general is contrary to law ; that the petitions filed in the magistrate's court are legal and lawful ; that the action of the magistrate on the petition filed on 12 - 8 - 1987 is illegal; that the contents of the notice dated 7 - 9 - 1987 are quite true : that basing on that notice the high court would take action against the magistrate concerned that the magistrate has infringed the provisions of rule 9 cl. (4) of the high court rules ; that if the high court peruses his reply dated 6 - 10 - 1987 to the notice issued by the magistrate on 24 - 9 - 1987, the high court would warn the magistrate for not complying with the just request of the respondent and that the complaint made by him on 8 - 10 - 1987 to the district judge is legal and lawful. The respondent has reiterated that the magistrate has wantonly and illegally disobeyed the practice and procedure besides the law of court of a first class magistrate. He further submitted that the learned advocate general has not applied his mind to the facts of the case and the statutory provisions and that he acted mechanically and thereby failed in his duty to submit the true position of law to the high court. Basing on the above allegations he requested the high court to dismiss the contempt case. The other allegations in the counter relate to the issuance of a non - bailable warrant and the complaint made by the respondent that even without the order of the court, the staff of the high court were responsible for issuing a non - bailable warrant without the authority of law which has resulted in arresting the respondent. After referring to some passages in decided cases some extracts from the news papers and quotations of swami vivekananda. Justice p. N. Bhagwati, the ex - chief justice of india, the respondent while requesting the court to dismiss the contempt case with compensatory costs, he further requested that he should be awarded rs. 50,000/ - to compensate for the illegal imprisonment by issuing a non - bailable warrant without court order and even before admitting the contempt case.
(8) On the above facts the short point for consideration is. Whether the conduct of the respondent in issuing a notice dt. 7 - 9 - 1987 to the learned magistrate alleging inter alia that she has indulged in corrupt and malpractices ; that she has no capacity to read and understand the language of the sections of the act and that she does not know anything about magistracy and about judiciary, amounts to contempt of court ?
(9) For better appreciation of the facts of the case, we extract hereunder the relevant portion of the notice dated 7 - 9 - 1987 issued by the respondent herein to the learned magistrate : from rachapudi subbarao 29 - 25 - 40, vemurivari street, suryaraopet, vijayawada - 2 7th september, 1987. To k. Swarnakumari municipal corporation magistrate, vijayawada - 2. Ref: - c f 127 of 1987 d/12 - 8 - 87 complaint no 127/1987. Take notice and inform me,
(a) why i should not prosecute you for punishment under the provisions of section 219 of indian penal code. (b) why i should not set the law into motion to punish you under the provisions of sec 16 of the contempt of courts act, 1971. (c) why i should not institute a suit for damages against you for your corrupt and malpractice, disobeying the statutory mandatory law, and (d) why i should not request the concerned authority to remove you from the 'judicial service'.
Or why i should not file a writ petition against you to dismiss you from the judicial service. For the reasons mentioned below. If i do not receive reply within 3 (three) days and your reply does not state the statutory relevant provisions under which you have a right or power to act contrary to law by disobeying the mandatory provisions of the statutes. I have no alternative except to proceed further in the matter as stated above. Xx xx xx xx as we observed already while narrating the facts, the respondent in his counter did not dispute the correctness of the above allegations made in the notice issued by him' even during the arguments, the respondent, who has appeared in person, did not deny the issuance of the registered notice dated 7 - 9 - 1987 to the magistrate. While admitting the notice he tried to argue that his conduct does not amount to contempt of court.
(10) The learned counsel appearing for the learned advocate general placed reliance upon the decision in r. Subbarao, vs advocate general, ap (1) air 1981 sc 755 in which the respondent himself was a party. It is held in that decision that a notice imputing malice, partiality and dishonesty to the court in the judicial adjudication of the suits against the party amounted to criminal contempt of court. Their lordships of the supreme court held that the tone, temper and contents of the notice issued by the contemnor, particularly the passages of which imputed malice, partiality and dishonesty to the subordinate judge in the judicial adjudication of the suits against the appellant constituted a deliberate attempt to scandalise the judge, to terribly embarrass him and to lower the authority of his office and the court. After an elaborate discussion. Their lordships concluded that the act and conduct of the appellant in issuing such a notice felt squarely within sub - clauses (i) and (ii) of the definition of "criminal contempt" given in sec. 2 (c) of the contempt of courts act.
(11) In asharam, m. Jain vs. A. T. Gupta, (2) air 1983 sc 1151 serious allegations were made by the contemnor against chief justice of the high court stating that the learned chief justice tried to harm the petitioner as much as he could and made totally false and wrong observations quite unworthy of the head of the judiciary of the state of maharashtra and that his lordship mr. Justice pendse supported the learned chief justice; that the said order has been aimed with the sole and dishonest object of causing prejudice in the minds of the judges of the new bench against the petitioner and depriving the judges of the new bench of their right to independently judicially decide the notice of motion on merits and which is proved by subsequent events. Chinnappa reddy, j. Speaking for the supreme court held that a contumacious disregard of all decencies, such as, that exhibited by the contemnor in, this case can only lead to a serious disturbance of the system of administration of justice, unless duly repaired a t once by inflicting an appropriate punishment on the contemnor which must be to send him to jail to alone for his misconduct and - thereafter to come out of prison a chastened but a better citizen. In that case, their lordships refused to accept the apology tendered by the contemnor.
(12) In baradakanta vs. Registrar, orissa h c. , (3) air 1974 sc 710, certain scandalous allegations were made against the high court in the memorandum of appeal filed to the supreme court the allegations were that the contemnor a judicial officer, fears bias of the high court; that in one case a charge was dropped for fear of the supreme court and that he entertained apprehension that the high court might impose substantive punishment and might refuse bail or time for getting redress from the supreme court if the present proceedings were also to go on before the same high court. The supreme court held that the aspersions amounted to gross scandalization of the high court. However, taking into consideration the fact that the contemnor has almost come to an end of his judicial career and during the last few years has been gripped by a sort of mania against the high court which clouded his reason, modified the sentence of imprisonment imposed by the high court to a fine of rs. 1000/ -. Their lordships observed that where in a memo of appeal to the supreme court against certain contempt proceedings the contemor fears bias of the high court; that in one case a charge was dropped for fear of the supreme court; that he entertained apprehension that the high court might impose substantive punishment and might refuse bail or time for getting redress from the supreme court if the present proceeds were also to go on before the same high court and that the aspersions amounted to gross scandalization of the high court thus even though the contemptuous imputations were made with reference to the administrative functions of high court. Their lordships of the supreme court held that it amounted to contempt.
(13) State of m p vs. Revashankar, (4) air 1959 sc 102 deals with a case where aspersions made against the magistrate in an application filed under section 528, cr p c. (old) amounted to something more than mere personal insult to the magistrate. Their lordships held that in its true nature and effect, the act complained of is really "scandalising the court" rather than a mere insult and that such conduct amounts to contempt for the reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties.
(14) In the light of the view taken by the supreme court in the above cases, it is evident that the act and conduct of the respondent herein in issuing a notice making imputations against the learned magistrate complaining of her ignorance about the magistracy and judiciary and making a further allegation that she has indulged in corrupt and malparactices disobeying the statutory mandatory law and threatening to launch criminal prosecution against her and to institute a suit for damages against her; clearly amount to contempt of court.
(15) The respondent, who argued the case in person, relying upon r,s. Singh vs shiv kumar. (5) air 1971 allahabad 170, argued that if a particular judge or magistrate is corrupt and sells justice, then a bonafide complaint to higher authorities to take necessary action against the delinquent judicial officer is to maintain the purity of administration of justice and that if anybody makes a grievance of the matter to the higher authorities he should not be hauled up for contempt of court. As held in the above decision, the conduct of the contemnor in complaining to the district judge against the learned magistrate may not amount to contempt. But the same decision lays down that it cannot be doubted that the purpose of proceedings in contempt is to keep the stream of justice unsullied, and to maintain the confidence of the public at large in the fair and impartial administration of justice by the courts of law and that if anybody wrongly casts aspersions on the impartiality and fair dispensation of justice by a court, he pollutes the purity of that stream and has to be punished for contempt of court, inasmuch as it shakes the confidence of the public in general, the preservation whereof is essential for the proper and fair administration of justice.
(16) In this case before making the complaint to the district judge, the respondent herein has, as mentioned already, issued a notice dated 7 - 9 - 1987 to the learned magistrate. Such an attack made by the rsspondent and the aspersions made by him on the magistrate would certainly undermine the confidence of the public at large in the impartial administration of justice.
(17) The respondent on a reading of section 10 of the contempt of courts act, 1971, argued that the high court cannot take 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 indian penal code. He submitted that in the notice issued by the learned magistrate to him on 9 - 9 - 1987, the magistrate was of the opinion that the allegations made against her in the notice embrace the provisions of section 500, i p c and hence under the proviso to section 10 of the act the high court cannot take cognizance of the contempt alleged against him. Section 10 of the act is a mere replica of section 3 of the 1952 act except for the difference that sub - section (2) of section 3 is inserted as a proviso in this section. The supreme court while dealing with section 3 of the 1952 act held in ramakrishna reddy vs state of madras (6) air 1987 sc 1469 that sub - section (3) of section 2 of contempt of courts act of 1952 excludes the jurisdiction of the high court only in cases where the acts alleged constitute contempt of a subordinate court or are punishable as contempt under specific provisions of the penal code but not when these acts merely amount to offences of other descriptions which attract the provisions of indian penal code. Their lordships held that when the act of defaming a judge is calculated to abstruct or interfere with the due course of justice or proper administration of law that can be said to be contempt and that the high court can take action for contempt of the subordinate court under section 2 for defamation of the judge though the aggrieved officer may have other remedies such as section 499 i p c. It therefore. , follows that it is only when the act is punishable as contempt under the indian penal code, the high court is prohibited from interfering under the provisions of the contempt of courts act. Inasmuch the offence of defamation is not punishable as contempt under the indian penal code, the high court can take cognizance under the act when the defamatory act is contempt. In other words, only the act which amounts to contempt as such under the penal code is not punishable by the high court. Relying upon the decision of the supreme court in ramakrishna reddy vs state of madras (6 supra) we hold that the proviso to sec. 10 of the act is not a bar for the high court from taking cognizance of the contempt alleged to have been committed by the respondent in respect of a court subordinate to it.
(18) Another submission made by the respondent is that in as much as no judicial proceeding is pending before the magistrate to whom he made the complaint, the act complained of against him does not amount to contempt of court. section 2 (c) of the act which defines "criminal contempt" lays down that scandalising or tending to scandalise, or lowering or tending to lower the authority of any court or interferring or tending to interfere with or obstructing, or tending to obstruct the administration of justice in any other manner also amounts to contempt sub - clauses (i) and (iii) of section 2 (c) of the act do not lay down that the act complained of should be in respect of a judicial proceeding, though sub - clause (ii) states that the act of prejudicing or interfering or tending to interfere with the due course of any judicial proceeding also amounts to contempt of court. We cannot, therefore, accept the contention of the respondent that his act will amount to contempt only when it is in respect of a proceeding which is pending before the magistrate. Sub - clauses (i) and (iii) of section 2 (c) bring within their fold even acts of the respondent which are not in respect of a pending judicial proceeding.
(19) The respondent relying upon a full bench decision of allahabad high court in rameshur singh vs. Sheodin singh, (7) ilr 12 allahabad 510, argued that where a court does something which is prohibited by the statute; the doing of the prohibited thing by the court is ultra vires and illegal and that it must follow that it was done without jurisdiction. We are not concerned here with the jurisdiction of the learned magistrate in dealing with the complaint filed before her. It is not necessary at this stage to consider the legality or otherwise of the order passed by the learned magistrate dismissing the complaint under section 256 (1) , cr. P. C if the learned magistrate had committed any illegality or irregularity, it was open to the respondent to have, challenged that order before the concerned appellate or revisional authority and get that order set aside. But it is not open to the respondent to issue notice to the concerned magistrate imputing allegations of corrupt and malpractices against her and threatening to take civil and criminal action against her.
(20) The decision in shankarlal vs. M s bisht (8) air 1956 all. 160 relied upon by the respondent has no relevance to the facts of this case. In that case the lucknow bench of allahabad high court that if any kind of threat or any action which may amount to a threat is held out to a person, who has approached the civil courts for a redress of his grievances' with a view to induce him to forego the assistance of the civil courts, the action amounts to a contempt of court. In this case no threat was held out to the respondent with a view to induce him to forego the assistance of the civil courts.
(21) The decision of a division bench of madras high court in re. G. Vasantha pai, (9) air 1960 madras 73, relied upon by the respondent has also no application to the facts of this case because it lays down the duties and privileges of an advocate in putting scandalous questions in cross - examination. Their lordships of madras high court held that an advocate in the discharge of his duties to his client must not be hampered by any fear of offending the opposite party or any witness.
(22) We cannot, therefore, accept the contention of the respondent that since the magistrate committed an error in dismissing the complaint under section 256, cr. P. C, he is entitled to send the notice dated 7 - 9 - 1987 to the magistrate. Similarly his contention that the magistrate can file a criminal complaint against him under sections 499 and 500, i p c and hence the proceedings initiated under contempt act against him are not maintainable, cannot be accepted. Whatever right the magistrate might have for proceeding against the respondent under the provisions of the indian penal code, it is not a bar for this court to punish the contemnor for contempt of court. The imputation of "corrupt and malpractices" made against the learned magistrate clearly amount to contempt of court. The submission made by the respondent that by using the word "corruption" he did not mean that the magistrate has taken bribes and that he only meant that she had acted illegally and without jurisdiction, cannot be accepted. The respondent cannot try to escape by stating that he meant differently by using the words "corrupt and malpractices". The natural meaning of the words "corrupt and malpractices" should be considered to determine whether imputation made by the respondent against the learned magistrate amounts to contempt or not.
(23) One of the objections raised by the respondent is that the affidavit filed in support of the contempt case was sworn to by the private secretary to the advocate general but not by the advocate general personally. An affidavit is only a statement of facts. None of the facts sworn to in the affidavit are based upon the personal knowledge of the private secretary to the advocate general. What all he had narrated in the affidavit are only facts borne out by the records. It is, therefore, quite immaterial whosoever swears to the affidavit filed in support of the contempt case. It is only in cases where the facts within the personal knowledge of the declarant are to be narrated, the necessity arises for such a person to declare the facts and swear to the affidavit. But when the affidavit contains the statement of facts contained in public documents, namely, court records, it is not necessary that the advocate general should personally swear to the affidavit. The objection raised by the respondent is therefore without substance, especially when he has not controverted any of the material facts contained in the affidavit filed in support of the contempt case.
(24) For all the above reasons, we hold that the respondent has committed the contempt of court.
(25) Another argument submitted by the respondent is that the learned advocate general as an amicus curiae in another contempt case pending against him expressed the view before a full bench of the court that his act did not amount to contempt of court. Whether an act amounts to contempt of court or not should be determined from the facts and circumstances of each particular case. Hence what opinion was expressed by learned advocate general in another case cannot be taken into consideration in determining whether the act complained of against the respondent in this particular case amounts to contempt of court or not.
(26) A larger part of the arguments were directed by the respondent against issuance of non - bailable warrant against him. That is an event which happened subsequent to the act complained of against the respondent and it has no relevance in deciding the contempt case. At any rate, we have to straightaway state that the allegation made by the respondent that a non - bailable warrant was issued by the staff of the high court without an order from the court is utterly baseless. We have verified the record and there is a clear order by a division bench dt. 2 - 3 - 1988 that a non - bailable warrant should be issued. Evidently to get over the contempt proceedings and to sidetrack the issue and the attention of the court, the respondent made an unfounded allegation against the office of the high court that a non - bailable warrant was issued against him without authority and without the order of the high court and that it has resulted in his illegal arrest.
(27) Having held that the respondent is guilty of contempt of court, we have to consider the question of sentence. This is not the first time that the respondent has committed the contempt of court. R. Subba rao vs. Advocate general (1 supra) shows that the respondent has indulged in a similar activity on an earlier occasion by making imputations of malice, partiality and dishonesty to the subordinate judge when an adverse order was passed against him in some civil litigation. While observing that the contempt of court committed by the respondent is serious and grave as he has recklessly imputed mala fides and lack of good faith to the judicial officer who had decided the cases against him, and that the imputations levelled were per se scandalous and actuated by bad faith. Their lordships of the supreme court have confirmed the sentence of imprisonment for one month. Inspite of the earlier decision of the supreme court, there is no change in the attitude of the respondent and he has still persisted in making unfounded allegations which amount to contempt against another judicial officer. Under these circumstances we feel that the ends of the justice require that a severe punishment should be awarded. Hence while convicting the respondent for contempt of court under section 12 read with section 10 of the act, we sentence him to undergo imprisonment for two months. The contempt case is accordingly allowed.
(28) The contemnor makes an oral request that the sentence may be suspended so that he can file an appeal to the supreme court. Accordingly, the sentence imposed by this court is suspended for sixty days, so that the contemnor may prefer an appeal to the supreme court.