Mt. Hirabai v. Mangalchand

1. This is an application against certain persons for contempt of Court. It is alleged by the applicant Mt. Hirabai that the non-applicants have applied for probate of a will executed by her deceased brother Maniksa bequeathing all his property to a temple at Muktagiri. The applicant has challenged the will in the probate proceedings, but during the pendency of the proceedings the non-applicants called a, meeting of the Jain community on 2nd November 1933, at which a resolution was passed that the will was genuine and valid. It is alleged that such action on the part of the non-applicants, was clearly a contempt of Court, and it was prayed that action be taken against them.

2. It is not seriously contended by the learned counsel for the non-applicants, that the action of his client did not amount to a contempt.

3. He however put forward an objection relating to proceedings in the subordinate Court, namely, the Court of the Additional District Judge, Amraoti, that there was no jurisdiction in the Judicial Commissioner's Court to punish for a contempt, committed with regard to a Court inferior to it. It was even contended that, the Judicial Commissioner's Court had no power to punish for a contempt committed out of Court, even with regard to its own proceedings. The matter is one of some difficulty. With regard to High Courts established by Letters Patent or Chief Courts it has been settled by Act 12 of 1926; but no mention in that Act is made of Courts, other than High Courts established by Letters Patent or Chief Courts, which yet exercise the function of High Courts both in Page: 47civil and criminal matters and which are High Courts within the definition of Section 3(24) of the General Clauses Act 10 of 1897, with reference to civil proceedings and are High Courts under Section 4(j) of the Cr PC.

4. Before the passing of the Act of 1926, two propositions were established by authority, one, that High Courts, at any rate, those established by Charter had power to punish for a contempt whether committed in the presence of the Court or outside the Court, and the other that inferior Courts were not the Courts of record and had no power to punish for contempt. The first proposition has been clearly laid down in the decision of their Lordships of the Privy Council in 10 Cal 109 (1884) 10 Cal 109 , 10 IA 171 (PC), where it has been held that the High Courts in the Indian Presidencies are superior Courts of Record. The second proposition has been laid down in 26 Mad. 494 (1903) 26 Mad 494, where it was held that a District Court is not a Court of Record, and, as such, has no inherent power to commit for contempt. With regard to the further proposition, namely, whether the High Courts in India had power to commit for contempt committed with reference to proceedings in inferior Courts, there was some difference of opinion as stated in the preamble to Act 12 of 1926. In 1926 All. 623 In re Abdul Hasan Jauhar, 1926 All 623 , 97 IC 108 , 48 All 711 (SB), it was held by a Full Bench following the decision in 12 I.C 293 In the matter of, K. Venkat Rao, (1911) 12 IC 293 , 12 Cr LJ 525 and 1920 Bom. 175 In re, Mohandas Karamchand Gandhi, 1920 Bom 175 , 58 IC 915 , 21 Cr LJ 835 (FB), that High Courts had such power. On the other hand in 1914 Cal. 69 1914 Cal 69 , 20 IC 81 , 14 Cr LJ 321 , 41 Cal 173 (PB), it was held by a Special Bench of the Calcutta High Court that the High Court had no power to commit for contempt of an inferior criminal Court. This case has been distinguished by Sulaiman, J., at p. 724 (of 48 All.) cited above on the ground that the decision related only to contempts of inferior criminal Courts and the observations of the other learned Judges affecting contempt of inferior civil Courts were mere obiter dicta, as the point did not properly arise for consideration. It was also pointed out at the same page that the remarks of Shah, J., in 1922 Bom. 52 1922 Bom 52 , 65 IC 753 , 23 Cr LJ 177 , 46 Bom 592, related only to contempts of inferior criminal Courts. In the same case Sir Norman Macleod, C.J, has held that the High Court had powers of punishing contempt of even inferior criminal Courts. It would be seen therefore that the Allahabad, Bombay and Madras High Courts-held that the High Courts had powers of punishing contempts of Courts subordinate to them and a contrary view was-taken only by the Calcutta High Court.

5. Apart from the Act of 1926, by which as stated above, the matter has been laid at rest with regard to the Chartered High Courts and Chief Courts, there would seem to be no real difficulty in the matter as regards such Courts, because as held in 10 Cal. 109 (1884) 10 Cal 109 , 10 IA 171 (PC), such Courts are superior Courts of Record and as such have full power to punish for a contempt. From this it would seem to follow logically's that they had also power to punish contempts of inferior Courts according to the decision in 1 K.B 32 (1906) 1 KB 32 , 75 LJ KB 104 , 22 TLR 97 , 54 WR 107 , 93 LT 772 and 2 K.B 432 (1903) 2 KB 432 , 72 LJ KB 839 , 52 WR 215 , 67 JP 421 , 89 LT 439, which is considered at length by Sir Norman Macleod, C.J, in 1922 Bom. 52 1922 Bom 52 , 65 IC 753 , 23 Cr LJ 177 , 46 Bom 592. The question then that remains to be determined not is whether the Judicial Commissioner's Court can be considered a superior Court of Record or not. The Judicial Commissioner's Court is not mentioned in the Act of 1926 and has been given no power under that Act, and it can have power to punish for contempt only under its inherent powers, if any, as a superior Court of Record.

6. The question is not free from difficulty but I am of opinion that the Judicial Commissioner's Court is not a Court of Record. In England Courts of Record may be either so constituted by statute or by implication of a statute or are Courts of Record at common law. I would refer to Halsbury's Laws of England, Vol. 8, p. 527, para. 1169. In India High Courts have been held to be Page: 48Courts of Record on the ground that part of the common law of England was introduced into the Presidency towns when the late Supreme Courts were respectively established by the Charters of Justice: 10 Cal. 109 (1884) 10 Cal 109 , 10 IA 171 (PC). The, Judicial Commissioner's Court however although it is the highest Court of Judicature in the provinces and has general superintendence over other subordinate: Courts in the Province, cannot be held, in my opinion to derive its authority from the Court of Kings Bench nor has it been established by Royal Charter. Further the history of the Court would go to show that it cannot be considered a Court of Record. Originally the Court consisted of one Judge, namely, the Judicial Commissioner. The jurisdiction of the Judicial Commissioner was refined by S. 14, Act 14 of 1865. The Court still remained a Court of one Judge under Act 16 of 1885. By Act 19 of 1896 the temporary appointment of an Additional Judicial Commissioner was sanctioned and by Act 2 of 1904, it was enacted that the Court of the Judicial Commissioner shall consist of three, or, with the sanction of the Governor-General in Council, more Judges. The constitution of the Judicial Commissioner's Court has not been altered I by the present Courts Act 1 of 1917 and there would seem to be no ground for holding that the Court has any power under the common law of punishing for contempt. As already stated above no such sower has been conferred by Act 12 of 1926.

7. I would hold therefore that the Judicial Commissioner's Court has no power to punish for contempt of inferior Courts either civil or criminal. The question of the power of the Judicial Commissioner's Court to punish for contempt of its own proceedings committed out of Court does not fall to be decided in this case and need not be considered. For the purpose of this case it is sufficient to hold, as above, that the Judicial; Commissioner's Court is not a Court of Record and has no power either by statute or otherwise to punish contempt of Courts subordinate to it. I therefore dismiss the application with costs. I fix pleader's fees at Rs. 25.

8. - Order accordingly.