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  • K.Usha
  • Santhalingam
  • P.V.Narayanan Nambiar
  • T.V.Prabhakaran
  • M.Gopalan
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  • S.Padmanabhan
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Attorney(S)
  • K.Usha
  • Santhalingam
  • P.V.Narayanan Nambiar
  • T.V.Prabhakaran
  • M.Gopalan
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  • S.Padmanabhan
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Smart Summary

Judgment Summary — S. Padmanabhan, J.

Factual and Procedural Background

The petitioner is the accused in Crime No. 303 of 1985 before the Judicial Second Class Magistrate, Kottayam. The petitioner surrendered and was released on bail on 1-10-1985. On 3-10-1985 he filed CR1 M.P. 2951 of 1985 before the magistrate alleging that, on the morning of 2-10-1985, certain constables and the sub-inspector of Kottayam East Police Station (acting at the instance of the de facto complainant in the crime case) committed several offences against him, including illegal arrest in violation of the bail order, wrongful confinement, hurt, criminal trespass and criminal intimidation. The petition sought that the magistrate receive the complaint and take appropriate action.

Although filed on 3-10-1985, the magistrate on 7-10-1985 characterized the filing as "only a petition" and forwarded a copy to the Superintendent of Police, Kottayam, for inquiry, requesting the result be intimated. The Superintendent of Police's enquiry report (sent in March 1986) stated that the accused had surrendered on 1-10-1985 and "jumped bail," that a telephone complaint alleging abuse and intimidation was received on 2-10-1985 and that police personnel brought the petitioner to the station and then let him off with a warning to avert a clash.

The successor magistrate, after receiving the Superintendent's report (but not relying on it), dismissed CR1 M.P. 2951/85 stating that he was not satisfied that a prima facie case was disclosed for referring the matter to the High Court under section 15(2) of the Contempt of Courts Act. A revision against that dismissal was filed and refused. The present criminal revision petition (under sections 397 and 482 CrPC) challenged the magistrate's dismissal; the court (S. Padmanabhan, J.) reviewed the matter and allowed the revision, set aside the impugned order dated 10-6-1986, and directed the magistrate to take the complaint back on file and proceed according to law within six months.

Legal Issues Presented

  1. Whether CR1 M.P. 2951/85 constituted a "complaint" within the meaning of section 3(d) (and s. 2(d) as referred) of the Code of Criminal Procedure, 1973, and thereby required the magistrate to take cognizance under section 190 and proceed under the provisions of Chapter XV (ss. 200, 202, 203 or 204) as appropriate.
  2. Whether the magistrate was entitled to treat the filing as merely a petition lacking the "magnitude of a complaint" and to forward it for an inquiry by the Superintendent of Police without specifying the statutory provision under which such enquiry was ordered.
  3. Whether an order of a subordinate court refusing to make a reference to the High Court under section 15(2) of the Contempt of Courts Act is justiciable or revisable under sections 397/401 of the Code of Criminal Procedure.
  4. Whether the inherent powers under section 482 CrPC can be invoked to challenge a subordinate court's refusal to refer matters under section 15(2) of the Contempt of Courts Act, given the special jurisdiction of courts of record in contempt matters.

Arguments of the Parties

Petitioner's Arguments

  • The filing CR1 M.P. 2951/85 satisfied the statutory definition of a complaint and disclosed offences (including arrest in violation of bail and other offences) requiring cognizance and further proceedings under Chapter XV of the Code.
  • The actions of respondents (notably respondents 3 to 9) and the Superintendent of Police's report were subject to serious criticism: mala fides, preferential treatment towards the second respondent, and the contention that the oral telephone complaint reported by the Superintendent was an afterthought to escape a charge of violating bail.
  • The Superintendent's report was belated (nearly six months later) and did not inspire confidence; the description that the petitioner was taken to the police station "to avert a clash" was asserted to be false given the report's silence about any clash.
  • The magistrate erred by dismissing the complaint without considering the allegations and without resort to the procedures in Chapter XV and section 190 CrPC.

Respondents' Arguments (as presented by learned counsel for respondents 2 to 9)

  • The criminal revision petition was not maintainable because the impugned order was an order passed under section 15(2) of the Contempt of Courts Act refusing to make a reference to the High Court and therefore not an order passed under any provision of the Code of Criminal Procedure.
  • If CR1 M.P. 2951/85 was to be read only as a petition to convey information regarding contempt and to request a reference to the High Court under section 15(2), then revision under the Code would not lie against the magistrate's refusal to refer.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Berel v. Xavier and another (opinion of U. L. Bhat, J.) Considered in detail the circumstances under which the High Court may act suo motu, on motion by the Advocate General, or on a motion by another person with the Advocate General's consent, and related aspects of references and motions in contempt matters. Used as authority for the proposition that the High Court can take action on its own motion or on motions/references in varying ways; supported the discussion of how information may reach a subordinate court or the High Court for contempt proceedings.
Sukhdev Singh v. Teja Singh Authority for the proposition that the High Court's power to institute proceedings for contempt and punish is a special jurisdiction not governed by the Code of Criminal Procedure; therefore, the Supreme Court has no power under the Code to transfer such proceedings from one High Court to another. Relied upon to support the view that contempt jurisdiction is "special jurisdiction" excluded from the scope of the Code (section 5 of the Code corresponding to s.1(2) of old Code) and that the Code's provisions do not apply to contempt proceedings triable by the High Court.
Mange Nanak v. Addl. Director Cited as an authority regarding the nature of contempt jurisdiction and related principles. Placed alongside Sukhdev Singh as supporting authority for the Court's statements on contempt being a special subject/jurisdiction separate from the Code.

Court's Reasoning and Analysis

The court undertook a textual and procedural analysis, rooted primarily in the definitions and procedures of the Code of Criminal Procedure and the Contempt of Courts Act as discussed in the opinion.

  1. Definition and characterisation of the filing: The judge examined the statutory definition of "complaint" (section 3(d) as cited) and concluded that CR1 M.P. 2951/85 satisfied that definition because it was an allegation in writing to a magistrate, with a view to his taking action under the Code, that some person had committed an offence. The court rejected the magistrate's unexplained notion that the petition lacked the "magnitude of a complaint."
  2. Proper procedural path under the Code: The court explained that upon receiving a complaint which discloses facts constituting an offence, section 190 requires a magistrate to take cognizance and proceed under sections 200, 202, 203 or 204 as applicable; the magistrate may, before taking cognizance, order an investigation under section 156(3). The magistrate could order investigation under section 156(3) if desired (particularly since accusations were against police officers) but could not simply dismiss the complaint without taking cognizance or following the statutory steps of Chapter XV.
  3. Critique of the Superintendent's enquiry and its use: The court noted that the magistrate forwarded the complaint to the Superintendent of Police for enquiry but did not specify the statutory basis for doing so. The Superintendent's report arrived almost six months later, contained statements (e.g., that the accused "jumped bail" and that an oral telephone complaint had been received) whose authenticity and correctness were open to challenge, and did not inspire confidence or constitute admissible evidence. The magistrate's mind appeared to be influenced by this belated report despite not relying upon it explicitly.
  4. On justiciability and interplay between Contempt Act and Code: The court carefully analysed the Contempt of Courts Act and section 15 in particular. It acknowledged that the Contempt Act provides a self-contained scheme and that the High Court has an inherent, special jurisdiction to punish for contempt (per Article 215). The court observed that the subordinate court's decision whether to refer a matter under section 15(2) (i.e., to the High Court in relation to criminal contempt of a subordinate court) is a discretionary act that is not ordinarily justiciable. It also noted that the Code (section 5 corresponding to s.1(2) of the old Code) excludes "special jurisdiction" from its scope and that, therefore, orders under section 15(2) are not orders under the Code and may not be amenable to revision under sections 397 or 401 CrPC.
  5. Reconciling these positions and the decisive conclusion: Despite the above, the court concluded that the present filing was a complaint under the Code, and not merely a petition seeking a reference for contempt under section 15(2). Crucially, the complaint did not pray for a reference to the High Court under section 15(2). Because the magistrate did not take cognizance, did not proceed under Chapter XV, and instead dismissed the complaint (essentially treating it as a request to refer), the magistrate had failed to exercise the jurisdiction vested in him under the Code. The court held that such a dismissal (a final order disposing of the complaint) without following section 190/Chapter XV procedures was incorrect and revisable.
  6. Exercise of revisional jurisdiction: Although the judge acknowledged doubts about the applicability of revision under the Code to orders under the Contempt Act and the uncertain scope of inherent powers under section 482 CrPC, he nevertheless held that the supervisory revisional jurisdiction should be exercised in the facts of this case because the magistrate had neglected to treat the filing as a complaint and follow statutory procedure. The court therefore allowed the criminal revision petition and set aside the impugned order.

Holding and Implications

Core Ruling: The criminal revision petition was allowed; the order dated 10-6-1986 dismissing CR1 M.P. 2951/85 was set aside and the magistrate was directed to take the complaint back on file and proceed according to law.

Specific directions and immediate consequences:

  • The magistrate must take CR1 M.P. 2951/85 back into the file and deal with it in the light of the opinion, applying section 190 and the relevant provisions of Chapter XV (sections 200, 202, 203 or 204) or ordering investigation under section 156(3) if considered appropriate.
  • The case is to be disposed of positively within a period of six months from the date the magistrate receives the records; the office was directed to remit records forthwith.

Broader legal implications articulated by the court (as discussed in the opinion):

  • The court reiterated that the Contempt of Courts Act is a self-contained statute and that the High Court's power to punish for contempt of subordinate courts is a special jurisdiction, not governed by the Code; nevertheless, a subordinate magistrate faced with a written allegation of offences must determine whether the matter constitutes a complaint under the Code and proceed under section 190 and Chapter XV if appropriate.
  • While a subordinate court's decision whether to make a reference under section 15(2) of the Contempt Act is discretionary and generally not justiciable, that principle does not absolve the subordinate court from performing the statutorily mandated functions under the Code when a filing qualifies as a complaint under the Code.

This judgment thus directs subordinate magistrates to distinguish between filings that are complaints under the Code (triggering section 190/Chapter XV procedures) and filings that are solely motions to refer for contempt under section 15(2) of the Contempt Act; failure to do so may render their dismissal revisable.

Show full summary ...

    Jomon v. State Of Kerala

    S.Padmanabhan, J.:-

    (1) the petition was filed both under ss. 397 and 482 of the code of criminal procedure (for short the code).

    (2) petitioner is the accused in crime no. 303 of 1985 of the kottayam east police station pending before the judicial second class magistrate, Kottayam. In that case he surrendered before court and was released on bail on 1 - 10 - 1985 with intimation to the police. On 3 - 10 - 1985 he filed cr1. M. P. 2951 of 1985 before the magistrate alleging commission of certain offences against him on the morning of 2 - 10 - 1985 by some constables and the sub inspector of the same station at the instance of the de facto complainant in the crime ease. The offences include illegal arrest in violation of the order granting bail, Wrongful confinement, Hurt, Criminal trespass, Criminal intimidation etc. The magistrate was requested in the petition to receive the same and take appropriate action.

    (3) though the petition was filed on 3 - 10 - 1985 the magistrate only on 7 - 10 - 1985 passed the following order; this is only a petition and it does not have the magnitude of a complaint. Further it does not show whether the police had registered any other case against the petitioner after he has been released on bail from the court. So the copy of the petition is forwarded to the superintendent of police, Kottayam for enquiry. The result of the enquiry may be intimated to this court at an early date.

    (4) complaint as defined in s. 3 (d) of the code reads: complaint means any allegation made orally or in writing to a magistrate, With a view to his taking action under this code, That some person, Whether known or unknown, Has committed an offence, But does not include a police report.

    (5) cr1. M. P. 2951 of 1985 satisfies all the above requirements. I do not understand what the magistrate meant by the magnitude of a complaint so as to treat cr1. Mp. 2951/85 only as a petition as distinguished from a complaint. Apart from satisfying the definition in s. 2 (d) whether any other magnitude is also necessary for a complaint is best known to the magistrate alone. Under s. 190 of the code upon receiving a complaint of facts, Which constitute an offence, A magistrate has to take cognizance and proceed under ss. 200. 202, 203 or 204 as the case may be. Before taking cognizance he can order investigation under s. 156 (3) also. In an enquiry under s. 202 also he can direct investigation, But that is after cognizance and compliance of s. 2oo. How he can order an enquiry by the superintendent of police without specifying the provision that was not pointed out during arguments.

    (6) the superintendent or police took nearly six months and in march, 1986 he sent a report, The relevant portion of which reads: the accused surrendered before court on 1 - 10 - 1985 and jumped bail. Again on 2 - 10 - 1985 at 6 a. M. The s. I. Of police, Kottayam east received a complaint through telephone that the petitioner, His brother - simon and father kuriakose abused shri. Thomas and intimidated him. The s. I. Sent pcs to the place to enquire into the matter. They found the petitioner on the road in front of the nursery of sri thomas. They brought the petitioner to the police station in order to avert a clash. As soon as he was brought to the police station he was let off with a warningtt.

    (7) arrest in violation of the bail was denied and it is stated that the complaint over phone was followed by a written complaint, But its date is not genuineness or authenticity of the facts stated in the report. I do not know what the superintendent of police meant by jumped bail. By the time the magistrate was transferred and his successor assumed charge. Though mentioning the report, Without relying on it, The successor dismissed cr1. M. P. 2951/85 stating: from the petition i am not satisfied that a prima facie case is disclosed for referring the matter to the honble high court as provided under s. 15 (2) of the contempt of courts act.

    (8) revision was filed against that order by the accused who filed the petition and got defeated.

    (9) the actions of respondents 3 to 9 and the report of the superintendent of police were subjected to serious criticism including mala - fides and preferential treatment in favour of the second respondent. The oral complaint over phone mentioned in the report of the superintendent of police was stated to be an after thought in order to escape from the charge of violation of the order granting tail. I was told that the action mentioned in the report is not a normal procedure even if there was such an oral complaint. The statement in the report that the petitioner was taken to the police station to avert a clash was also contended to be false particularly on the basis of the report itself which is silent about any clash but only mentioned the presence of the petitioner on the road. It was also argued that the superintendent of police was only attempting to shield his subordinates on the basis of false information received from them. I am not expressing any opinion on these aspects since i am inclined to remand the matter, Fearing that any expression of opinion is likely to prejudice the mind of the magistrate. Further the report of the superintendent of police is not a record that could be relied on as evidence in the case.

    (10) the magistrate ought to have considered the allegations in the complaint to decide whether cognizance has to be taken or not. If he has decided to take cognizance he ought to have proceeded under chapter xv of the code. Without doing any of these things the petition was dismissed. The action does not appear to be correct.

    (11) the learned counsel for respondents 2 to 9 seriously argued that the criminal revision petition is not maintainable as the order is one passed under s. 15 (2) of the contempt of courts act, 1971 refusing to make a reference to the high court and not an order passed under any of the provisions of the code. The argument will have much weight if cr1. M. P. 2951/85 is only a petition conveying information regarding contempt of court and requesting the matter to be referred to the high court under s. 15 (2) of the act.

    (12) contempt of courts act is a self contained statute which is complete in itself. Every high court is a court of record and shall have all the powers of such a court including the power to punish for contempt as provided in article 215 of the constitution. High court has the power to punish for contempt of itself or of a subordinate court. Section 15 of the contempt of courts act does not confer any new power, But only deals with the existing power. High court has power to punish for contempt of a subordinate court, Suo motu, Even without a motion from the advocate general or any other person with the consent of the advocate general or a reference by a subordinate court. It can take action on its own, Or on motion made by the advocate general, Or on the motion of any other person with the consent in writing of the advocate general or in the case of any criminal contempt of a subordinate court, On a reference made to it by the subordinate court. In this case we are concerned only with a reference by the subordinate court.

    (13) the word reference has not been defined in the contempt of courts act. It call only mean conveying information to the hip court in order to decide whether action is necessary or not. The subordinate court making the reference could only convey information regarding facts alleged to constitute criminal contempt and not to find whether it amounts to contempt or not. That is for the high court to decide. For the purpose of making the reference the subordinate court may rely on facts which come to its knowledge on its own or on facts made known to it by some other person. Bringing facts to the notice of the subordinate court by some other person could be by way of an application or otherwise. Whatever be the method of conveying the facts to the subordinate court he is only assisting the court by supplying the information in order to enable the court to consider and decide whether there are grounds to make a reference to the high court in an attempt to bring a contemnor to justice. It is for the subordinate court to examine the facts and see whether a reference is required. No specific procedure is prescribed for that purpose. But the court making the reference must satisfy itself whether a reference is required or not. For that purpose it may be desirable to observe the principles of natural justice and follow some reasonable procedure.

    (14) nobody has a right to compel the subordinate court to make a reference to the high court. The person supplying the information cannot have any interest in the subject matter because the act of contempt is not an act against any individual, But only an act against the administration of justice in deciding which the concerned parties are only the high court and the contemner. The person supplying the information cannot claim to be a party aggrieved. It is solely within the discretion of the subordinate court to decide whether a reference has to be made or not even in cases where information is supplied by some other person, Though the discretion has to be exercised judicially and not arbitrarily. The action of the subordinate court in making a reference or refusing to make a reference is not justiciable. Section 15 of the contempt of courts. Act also does not invest anybody with a right to move the subordinate court for a reference or approach the advocate. General for a motion, What he could do is only to convey the information and stand back as a silent spectator because in doing so he is not exercising any right but only discharging a duty as a member of the public and nothing more. Even the action of the advocate general in making a motion or refusing to make a motion to the high court is not justiciable. Some times under certain circumstances, Even without a motion from the advocate general or his consent or without a reference from the subordinate court, A party to a proceeding could bring the matter to the notice of the high court, If it is only a question of safeguarding public interest, In order to take action on its own motion. But he will have to leave it then to the high court to decide whether action should be initiated or not. An adverse reaction by the subordinate court or the advocate general will not affect the matter because high court could resort to suo motu action which could also be on the basis of information supplied to it. These aspects were considered in detail by u. L. Bhat, J. In berel, V. Xavier and another1.

    (15) there is another reason also why an order by the subordinate court refusing to make a reference under s. 15 (2) is not justiciable. The power of the high court to institute proceedings for contempt and punish where necessary is a special jurisdiction, Which is inherent in all courts of record. Section 5 of the code corresponding to s. 1 (2) of the old code expressly excludes special jurisdiction from its scope. Hence the code does not apply in matters of contempt triable by the high court. High court can deal with it summarily and adopt its own procedure. Jurisdiction for contempt is not under the code. It is a special subject and jurisdiction is conferred by a special set of self contained laws particular to court of records. The power does not depend upon the personal desire of a party whether or not to pursue the proceedings for contempt. Punishment for contempt is awarded not with the object of providing protection to individuals, But in the interest of administration of justice so that public confidence in courts are not shaken. I am deriving authority on these respects from the decisions in sukhdev singh v. Teja singh c. J. 2 and mange nanak v. Addi. Director3. In the former case the supreme court also said that the power of the high court to institute proceedings for contempt and punish is a special jurisdiction not governed by the code and therefore the supreme court has no power under the code to transfer such proceedings from one high court to another.

    (16) an order passed by the magistrate under s. 15 (2) of the contempt of courts act deciding to refer or not to refer the matter to the high court is, Therefore, Not under the code and the provisions of the code are not applicable. That is a right given to the subordinate court not under the code but under the contempt of courts act. If the impugned order is construed as one passed under s. 15 (2) the provisions of s. 397 or 401 or any other provision of the code cannot be made applicable to it and the revision will have to be held not maintainable. Whether in such a situation the petitioner is entitled to invoke the inherent powers of this court saved under s. 482 of the code is also doubtful. Inherent powers could be invoked only for the purpose of preventing abuse of the process of court or otherwise securing the ends of justice when no other remedy is available. At the time of arguments both sides agreed that the advocate general was moved in the matter of contempt and it is being considered by him.

    (17) but none of these considerations should deter these courts from exercising the supervisory revisional jurisdiction. Cr1 m. P. 2951/85 is a complaint within the definition of s. 2 (d) of the code. It discloses commission of certain offences and it is a complaint of facts which constitutes offences according to s. 190 (i) (a) of the code. The prayer in the complaint, Which is supported by an affidavit is to receive the same and take appropriate action. There is no prayer in the petition to make a reference to the high court for contempt under s. 15 (2). The magistrate could have ordered investigation under s. 156 (3) if he wanted to do so before taking cognizance, Subject to his opinion on the propriety of such an action because the accusations are against police - officers themselves. Otherwise he was bound to take cognizance of offences disclosed and proceeded to act under sa. 200, 202, 203 or 204 as the case may be. None of these things was done.

    (18) the assumption of the magistrate that the petition is not having the magnitude of a complaint does not appear to be correct. It was not necessary for the magistrate to ascertain whether police registered any other case against the petitioner and arrested him in connection with case subsequent to his release on bail. That may be a defence available to the persons mentioned as accused and the complainant had no such case. Arrest in violation of the order granting bail is not the only allegation in the petition. Various other offences are alleged. An order for enquiry by the superintendent of police does not appear to be correct.

    (19) evidently the impugned order passed by the successor magistrate has not at all taken into account any of the accusations in the complaint. By the time that order was passed the magistrate was in possession of the report of the superintendent of police and it was mentioned in the order. Though the order was not based on the report it is evident that in passing the order the mind of the magistrate was influenced by the report. Taking the allegations in the petition alone into account nobody could say that there is no prima facie case unless the allegations are treated as false or exaggerated. On going through the petition alone such an inference cannot be had. The highly belated report of the superintendent of police did not inspire confidence of impartially on me. The magistrate assumed that the petition is only a request to make a reference to the high court under s. 15 (2) of the contempt of courts act and on that assumption, Without adverting to the allegations in the petition and without assigning any reason whatsoever simply stated that he is not satisfied that a prima facie case is disclosed for referring the matter to the high court. Thus he refused to exercise the jurisdiction vested in him and dismissed the petition. That is a final order disposing of the complaint illegally without resort to the provisions of chapter xv of the code and s. 190. The order is revisable and it has to be revised. The criminal revision petition is allowed and the order dated 10/6/1986 dismissing the complaint is set aside. To magistrate will take back the complaint to file and proceed to deal with it according to law in the light of what is stated above. The case will be disposed of positively within a period of six months from the date of receipt of records. Office will remit the records forthwith

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    Jomon v. State Of Kerala
    (Mar 27, 1987)