Does Contempt Jurisdiction Apply to the Administrative Side of Court?

(By M.P.R. Nair, Bar-at-Law)

In his article "No Retirement for Law" published in 2001 (3) KLT (Journal) Page, 61, Mr. Ramakumar, while criticising Justice V.R. Krishna Iyer for the opinion published in "The Hindu" dated 3.11.2001 in relation to the direction issued by a Division Bench of the High Court to furnish the qualifications of the lawyers appointed as Government Counsel, argues that in view of the progress made in the law relating to the field of public contracts and to appointment to public offices after Justice Krishna Iyer left the Supreme Court, his comments constitute contempt of court. Mr. Ramakumar relies for this purpose on a decision reported in AIR 1974 SC 710 (not AIR 1976 SC 716 as erroneously mentioned in the article), Baradakanta v. Registrar, Orissa High Court, and states that Justice Krishna Iyer was one of the parties to a judgment which extended the contempt jurisdiction even to the administrative side of the court.

It is not my purpose to contradict Mr. Ramakumar on the points he had laboured to establish in this article. I wish, however, to point out that the decision in Baradakanta's case is not only not an authority for the proposition that "contempt jurisdiction extends even to the administrative side" but Krishna Iyer J's judgment is a clear authority to the contrary position that contempt jurisdiction does not and should not extend to the administrative acts.

The contemner in Baradakanta's case was a District Judge. The Orissa High Court convicted him and sentenced him under the Contempt of Courts Act for multiple contempt. The alleged multiple contempt related partly to (i) an administrative act of the High Court narrated in representation filed by him to the Governor against the suspension order of the High Court and (ii) averments in a Special Leave Petition filed by him to the Supreme Court.

As regards the applicability of contempt jurisdiction to the Administrative side of the High Court, Justice Krishna Iyer said:

"If we accept this slant on judicialisation as a functional limitation on the contempt jurisdiction we must exclude from its ambit interference with purely administrative acts and non-judicial functions of Judges."(Para: 68 at page 729)

Justice Krishna Iyer relied on several decisions to support the above proposition of law including a Division Bench of the Kerala High Court in Damodaran v. Induchoodan (AIR 1961 Ker. 321) to hold that administrative acts of the court was not a fit subject for Contempt action. In this case, the transfer of a Magistrate was criticised as promoted by extraneous pressure. At para 6 of the judgment, the Court observed as follows:

"But before making the final order in the case, we would deal with the other complaint, that any comment on the administrative side of the judiciary, does not amount to contempt, and reliance has been placed on Debi Prasad v. Emperor, AIR 1943 PC 202. This principle has also been upheld by the Supreme Court in Brahma Prakash v. State of U,P., AIR 1954 SC 10. It is clear that had the insinuations and suggestions in the publication been against the High Court alone, they would not have persuaded us to take any step against the respondents, for the question of transfer of Magistrates, is administrative in character and would have given the benefit of the doubt in this case to the printer and the publisher..."

In Baradakanta's case, however, Justice Krishna Iyer, confirmed the conviction and imposed a lesser punishment of fine for different reasons altogether, stated very succinctly at para 81 of the judgment.

"The first part of the present case directly raises the question whether statements made in an appeal to the Governor against an order of the High Court on the administrative side attracts the contempt law".......Obviously, the impugned conduct of the contemner was qua judge and the evil criticism was of a supervisory act of the High Court and the critic would - and should - necessarily court contempt action."

No, therefore, is the answer to the captioned questioned posed by me.

A Critical Note on the Article- “Concurrent and Consecutive Sentence” - Published in 2001(3) KLT Page 67

(By Pramod Krishnan, Advocate, Tellicherry)

In the above mentioned article the author has come to a conclusion that consecutive prison sentence is unknown to Criminal Law of our country and therefore it is illegal. The same is not correct according to me.

To support my contention I may quote the following relevant portions from the Criminal Procedure Code and the Indian Penal Code:-

S.31 of the Criminal Procedure Code 1973 deals with sentence in cases of conviction of several offences at one trial. It reads:-

(1) When a person is convicted at one trial of two or more offences, the court may, subject to the provisions of S.71 of the Indian Penal Code (45 of 1860), sentence him for such offences to the several punishments prescribed therefore which such court is competent to inflict such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher court:

Provided that-

(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;

(b) the aggregate punishment shall not exceed twice the amount of punishment which the court is competent to inflict for a single offence.

(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.

Similarly S.427 of the Criminal Procedure Code which deals with sentence on offender already sentenced for another offence. It reads:-

(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the court directs that the subsequent sentence shall run concurrently with such previous sentence.

Provided that where a person who has been sentenced to imprisonment by an order under S.122 in default of furnishing security is, whilst undergoing such sentence, is sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately:

(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.

So by the reading of Ss.31 and 427 of Cr. P.C. it is clear that the court is at liberty to impose consecutive sentence of imprisonment.

And further S.64 of the Indian Penal Code reads as follows:-

In every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine,

it shall be competent to the court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.

Similarly S.30 of Criminal Procedure Code deals with sentence of imprisonment in default of payment of fine. According to this section:-

(1) The court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law:

Provided that the term-

(a) is not in excess of the powers of the Magistrate under S.29;

(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.

(2) The imprisonment awarded under this Section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under S.29.

So according to S.64 IPC and S.30 Cr. P.C. the sentence in default of fine cannot run concurrently with the substantive sentence.

The basic rule so far has been the single transaction rule for concurrent sentences. But this rule has no application if (a) the transaction relating to the offences is not the same or (b) if the facts constituting the two offences are quite different. So in such cases consecutive sentence may be imposed (Mohd. Akhtar Hussain, 1989 Crl. L.J. 283 = AIR 1988 SC 2143).

In a case where a convict prisoner jumped jail and after his re-arrest he was tried and convicted under S.225 B IPC and sentenced to imprisonment of 6 months. It was held that he could not pray for the subsequent sentence to run concurrently with the sentence which he had already been undergoing at the time of escape. That would mean that he would not have to suffer the consequences of the second conviction and may feel justified in making similar attempts. (Grahart, 1988 Crl. LJ 1351 (Ker.))

Sentences should not be made to run concurrently where to do so would make the sentences ineffective or the crime inconsequential. If habitual offenders with several convictions are allowed concurrent sentences, crimes may escape punishment and even dangerous criminals who must be segregated would be let loose. Court should not make it a meaningless exercise, missing the nuisances of the case. (Sarkar on Criminal Procedure, sixth edition, 1992 reprint page 1136)

Therefore it can be concluded that the consecutive sentence of imprisonment is known to criminal law of our country and therefore it is not illegal.

2001 (1) KLT 517 (SC) or 2001 (3) KLT 950 (SC) - Which will Prevail?

(By Baby Kurian, Advocate, Kottayam)

In the decision reported in KLT 2001 (1) KLT 517 SC = AIR 2001 SC 567 after perusing the scope and amplitude of S.29(2) of Cr.P.C. vis-a-vis sections 138 and 142 of the Negotiable Instruments Act, 1881, it has been held by a Division Bench of the Hon'ble Supreme Court consisting of Hon'ble Mr. Justice K.T. Thomas & Hon'ble Mr. Justice R.P. Sethi that a judicial Magistrate of the First Class, convicting an accused for an offence under S.138 of the N.I. Act, cannot impose a fine exceeding Rs.5,000/-

The above decision was made in C.A. 66 of 2001 before the Apex Court arising out of a complaint before a judicial Magistrate of the first class, where the accused was convicted and sentenced to undergo imprisonment for six months and a fine of Rs.83,000/-. In appeal the conviction and sentence were confirmed by the Sessions Court and a subsequent revision filed by the accused was dismissed by the High Court.

The matter came up in an SLP before the Apex Court and affirming the decision in 1999 (3) KLT 440 SC = JT 1999 (7) SC 558 = (1999) 7 SCC 510, rendered by a Division Bench (consisting of Justice K.T. Thomas & Justice M.B. Shah), the Court held that a Magistrate of the First Class cannot impose a fine exceeding Rs.5000 for an offence under S.138 of the N.I. Act. Disposing of the appeal the Court held: "in the result, while retaining the sentence of imprisonment of six months, we delete the fine portion". (2001 (1) KLT 517 SC).

But in a later decision reported in 2001 (3) KLT 950 SC, also by a Division Bench consisting of Hon'ble Mr. Justice K.T. Thomas & Hon'ble Mr. Justice S.N. Variava, it has confirmed, while examining the scope and extent of Ss.118 & 139 of the N.I. Act though, the conviction and sentence made by the Judicial Magistrate-II, Kumbakonam where the accused was convicted and sentenced under S.138 of the N.I. Act, imposing a fine of Rs.65,000/- and in default of fine simple imprisonment for one year. The Court held: "The conviction and sentence as awarded by the Magistrate by his order dated 21st March, 1994 stand. The first respondent is granted one month's time to pay the fine. In default thereof, he shall suffer imprisonment for 3 months".

While the decision in 2001 (1) KLT 517 SC restricts in unequivocal terms the power of a Magistrate of the First Class to impose a fine exceeding Rs.5,000/- for an offence under S.138, N.I. Act, the decision reported in 2001 (3) KLT 950 SC runs counter to it.

It is respectfully submitted that the former decision might have gone unnoticed in the latter decision or is it that since the former decision was rendered in the context of S.29(2), Cr. P.C. and Ss.138 & 142 of the N.I. Act but the latter in the context of Ss.118 and 139 of the Act only the former decision would prevail as far as the power of a Judicial Magistrate of the first class for an offence under S.138 of the N.I. Act is concerned?

It seems that the legal fraternity and the litigant public are in utter confusion and dilemma over the above legal position in the light of the above conflicting decisions made by two Benches of equal status of the Apex Court and hence it is highly desirable in the interest of justice that a clarification is made at the earliest.

The poem read out during the farewell accorded to Mr. Justice K.T. Thomas on

29.1.2002 at the lawns of the Supreme Court of India. This was composed by

Sri. Kapil Sibal, the President of the Supreme Court Bar Association

DEAR JUSTICE K.T. THOMAS

(Kapil Sibal, President, Supreme Court Bar Association)

Dear Thomas, J. you have been known

To be a Judge with a straight backbone

Some say you lacked the gentle touch

That hardened criminals like so much

Yet set in motion, evolved a craft

To deal with those involved in graft

Occasionally some of us did feel

An over-abundance of judicial zeal

The loopholes of the law you plugged

Had many a politician bugged

Interpreted with judicial tact

The Prevention of Corruption Act

Many an accused you'd oft berate

Make them appear before the Magistrate

Surrender before you ask for bail

For sometime cool your heels in jail

The High and Mighty clearly saw

That they were not above the law

Counsel in the midst of discourse

Were told the law must take its course

Prosecutions commenced without much ado

Allegations made be taken as true

The charge be framed no appeal shall lie

None has the right to question why?

For the lure of graft is unique indeed

Driven by avarice and greed

Be dealt with harshly in the strongest terms

In response to societal concerns

Your conscience was your only guide

Your response, to the voice inside

Your pen's command guided by God

Without fear or favour, ill-will or reward

You adorned the Bench, full of grace

Can someone fill up this Judicial space?

You leave us in blaze of glory

Others are bound to tell your story.

Dated: 29.1.2002                                                                                 

A Dead Section in the Penal Code, Still Lives on

(By V.K. Babu Prakash, Judicial First Class Magistrate, Karunagappally)

In an interview held recently for the law officer's post in a public Sector Company, the Chairman of the interview board an eminent Juristic personality put a question to a candidate as follows:- "Which is the offence which confers upon the court which finds the accused guilty of such offence, no discretion to pass sentence except death sentence?" The candidate, a bright chap with a smile in the corner of his lips exalted the answer as follows : "Whoever being under sentence of imprisonment for life commits murder shall be punished with death. And the section is 303 of Indian Penal Code." The Chairman felt impressed of his answer and did not conceal his appreciation. But the candidate did not let him off. He said to the Chairman that the offence and its punishment no longer exist in the statue as it has been struck down by the Supreme Court long ago. The Chairman did not nourish this. He tried to contradict the candidate stating that he is wrong. He took out the latest Bare Act of Indian Penal Code and hurriedly fidgeted the pages. Alas, finds S.303 among the line of sections both in the Schedule as well as in the contents. The new black print of the pages was gazing at the candidate right on his face.

The candidate was true. S.303 IPC was struck down by the constitutional Bench of the Supreme Court headed by five eminent Judges of the time on the grounds that it violates Arts.14 and 21 of the Constitution respectively. The decision was reported in 1983 CRLJ 811 Supreme Court (AIR 1983 SC 473) in Mithu v. State. When a statute or its provision is struck down by the Supreme Court, the effect and implication are that it no longer exists. It becomes a dead letter by the rigor of the sweep. However, the irony is that the Book Publishers without considering the effect of such repeal print and publish the very same section or statute and sell out. It is a contempt of the Court decision as well as a misleading publication. S.303 prescribed punishment of death for offence of murder committed by a life convict. Section does not confer any alternate punishment other than death sentence. It was challenged before the Supreme Court on the ground that S.303 IPC violates the guarantee of equality contained in Art.14 of Constitution as also the right conferred by Art.21 that no person shall be deprived of his life or personal liberty except according to procedure established by law. The section was originally conceived to discharge assaults by life convicts on the prison staff, but the Legislature chose language which far exceeded its intention. The section also assumes that life convicts are a dangerous breed of humanity as a class. That assumption is not supported by any scientific data. S.300 IPC defines murder and S.302 prescribed punishment for murder. S.302 says whosoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. Though there are about 51 sections in the Code which prescribed punishment of life imprisonment the difference between those sections on one hand and S.302 on the other hand is that whereas under those sections life imprisonment is the maximum penalty that can be imposed, under S.302 life imprisonment is the minimum penalty. The only option to a court which convicts a person of murder is to impose either the sentence of life imprisonment or the sentence of death. The normal sentence for murder is life imprisonment. S.354(3) of the Code of Criminal Procedure provides that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life, or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, special reason for such sentence. While upholding the validity of death sentence as punishment for murder, a Constitution Bench of the Supreme Court ruled in Bachan Singh's case (AIR 1980 SC 898) that death sentence can be imposed in a very exceptional class of cases, "the rarest of rare cases".

The Indian Penal Code was passed in 1860. The framers of the Code achieved a measure of success in classifying offences according to their subject matter, defining them, with precision and in prescribing what in the context of those times was considered to be commensurate punishment for those offences. One of the problems which they had to deal with was as to the punishment which should be prescribed for the offence of murder committed by a person who is under a sentence of life imprisonment. They solved the problem by enacting S.303. The reason or at least one of the reasons why the discretion of the court to impose a lesser sentence was taken away and the sentence of death was made mandatory in cases covered by S.303 seems to have been that, if even the sentence of life imprisonment was not sufficient to act as a deterrent and the convict was hardened enough to commit a murder while serving the sentence, the only punishment which he deserved was death. The severity of this legislative judgment accorded with the deterrent and retributive theories of punishment which then held sway. The Constitutional Bench of Supreme Court considered all these aspects to arrive at a decision as to whether S.303 infringes constitutional provisions in Mithu v. State of Punjab (1983 CRLJ 811 SC, or AIR 1983 SC 473). The judgment was delivered by Chief Justice Y. V. Chandrachud on behalf of the Bench in his deep and penetrating language. The Bench formulated certain important questions regarding this aspect. They are, is a law which provides for the sentence of death for the offence of murder, without affording to the accused an opportunity to show cause why that sentence should not be imposed, just and fair? Is such a law just and proper if, in the very nature of things, it does not require the court to state the reasons why the supreme penalty of law called for? Is it not arbitrary to provide that whatever may be the circumstances in which the offence of murder was committed, the sentence of death shall be imposed upon the accused? After elaborately discussing the questions, the Supreme Court declared S.303 void and ultra vires to the Constitution as it infringes right of equality contained under Art.14 as well as the right to life guaranteed by Art.21. The reason detre of the Supreme Court can be gathered from the following observations. "Death sentence has been made mandatory by S.303 in regard to a particular class of persons that, as a necessary consequence they are deprived of the opportunity under S.235(2) Cr. P.C. to show cause why they should not be sentenced to death and the court is relieved of its obligation under S.354(3) Cr. P.C. to state the special reasons for imposing the sentence of death". Supreme Court further observes that "whether there is any valid basis for classifying persons who commit murders whilst they are under the sentence of life imprisonment as distinguished from those who commit murders whilst they are not under the sentence of life imprisonment, for the purpose of making the sentence of death mandatory in the case of the former class and optional in the case of the latter class. We are unable to see any rational justification for making a distinction in the matter of punishment between these two classes of offenders".

On December, 11, 1972 a Bill was introduced in the Rajya Sabha to amend the Penal Code, one of the amendments suggested being that S.303 of the Code should be deleted on a motion made, the bill was referred to a joint Committee of Rajya Sabha and Lok Sabha. The Committee recommended that punishment for murder which was prescribed separately by Ss. 302 and 303 of Penal Code should be brought under one section. The Committee further recommended that it should not be obligatory to impose the sentence of death on a person who commits a murder while under the sentence of life imprisonment and the question whether in such a case the sentence of death or sentence of life imprisonment should be imposed should be left to the discretion of court. Committee accordingly suggested to omit S.303 from the Code. The report was presented before the Rajya Sabha on 29.1.1976. But what was proposed by the Parliament was disposed of by the ballot box. A mid-term, poll was held while the Bill was pending and there was a change of Government. The Bill lapsed and that was that. Thus S.303 was destined to die at the hands of the Supreme Court.