w w w . L a w y e r S e r v i c e s . i n



G. Bhagavat Singh v/s Manoj Joseph & Others


    RP. No. 930 of 2017 in Con.Case(C). 832 of 2017 In COC. No. 832 of 2017

    Decided On, 29 October 2018

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. HRISHIKESH ROY
    By, THE HONOURABLE MR. JUSTICE A.M. SHAFFIQUE & THE HONOURABLE MR. JUSTICE A.K. JAYASANKARAN NAMBIAR

    For the Petitioner: G. Bhagavat Singh, Advocate. For the Respondents: ----



Judgment Text

Shaffique, J.

1. The review petition has been referred to the Full Bench, as per order dated 12/2/2018 by a Division Bench, which in turn is based on a reference order dated 30/1/2018 by one among us.

2. The issue referred is regarding the correctness of judgment of the Division Bench of this Court in Antony v. P.S.Rana {2005 (2) K.L.T 120}.

3. In Antony's case (supra), this Court held that a review petition is not maintainable against an order in a Contempt case.

4. The learned single Judge by the reference order dated 30/1/2018 observed that the said judgment is in conflict with the judgment of the Apex Court in M. M. Thomas v. State of Kerala [(2000) 1 SCC 666]. Reference was also made to the judgments of the High Court of Madras and the High Court of Telangana and Andhra Pradesh. On the matter being placed before the Division Bench, while concurring with the opinion expressed by the learned single Judge, the matter has been placed before us.

5. We heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.

6. To state the facts in brief, petitioner filed the Contempt Case No. 832 of 2017, alleging non-compliance of an interim order dated 10/4/2017 in W.P.(C).No.10631/2017. While considering the case, the learned single Judge, by placing reliance on an affidavit filed by the 2nd respondent closed the Contempt case. The review petition was then filed by the petitioner alleging that the 2nd Respondent had filed a false affidavit and therefore the order dated 12/7/2017 in the Contempt Case should be recalled and the matter should be heard and decided a fresh.

7. The question that had arisen was whether the review petition filed against the judgment in the Contempt Case was maintainable or not. A view had been expressed by the Registry of the High Court, that several review petitions against Contempt cases were not numbered, based on the judgment in Antony's case (supra).

8. In Antony's case (supra), the Division Bench of this Court held that the power of review cannot be exercised by the High Court in contempt jurisdiction, as no such power is conferred under the Contempt of Courts Act, 1971 (hereinafter referred as the ‘CC Act’). It was held that though Article 215 of the Constitution of India confers plenary powers on the High Court, to exercise contempt jurisdiction, the procedure is regulated by the CC Act. It was also held that the CC Act is in addition to the plenary powers under Article 215 and not in derogation of any other law relating to Contempt of Courts. It was further observed that if the contempt jurisdiction is invoked in exercise of plenary powers under Article 215 of the Constitution and an order was passed, by using the same plenary powers, such an order cannot be withdrawn or reviewed. It is held that the contemnor, once discharged cannot again be tried, by exercising power of review as no such power exists.

9. In M.M.Thomas (supra), the Apex Court was considering a question as to whether the review petition filed in an appeal under the Kerala Private Forests (Vesting and Assignment) Act,1971 (hereinafter referred as the ‘PF Act’) was maintainable. No doubt under the PF Act, a provision was incorporated to review the judgments passed by the Forest Tribunal and appellate orders passed by the High Court. But the review powers could be exercised only on specific grounds. In that particular case, the State filed a review petition before the High Court to review an appellate judgment, alleging that the judgment suffers from an error apparent on the face of record. High Court reviewed the judgment and allowed the appeal filed by the State. The respondent took up the matter to the Supreme Court. One of the contentions urged was that conditions specified in the PF Act for exercising the power of review was not established. The question considered was whether the High Court has a power of review de hors Section 8C of the PF Act. The question posed by the Apex Court was 'does it mean that the High Court has no power to correct its own orders, even if the High Court is satisfied that there is error apparent on the face of the record?' The Supreme Court held that the High Court being a Court of Record, as envisaged in Article 215 of the Constitution of India, must have inherent powers to correct the record. Therefore, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only the power but the duty to correct the judgment. Paragraphs 14 to 17 of the judgment are relevant which reads as under:-

'14. The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court’s power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record.

15. In Halsbury’s Laws of England (4th Edn., Vol. 10, para 713) it is stated thus:

'The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of actions, and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action.'

(Though the above reference is to English courts the principle would squarely apply to the superior courts in India also.)

16. Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar a two-Judge Bench of this Court in M.V. Elisabeth v. Harwan Investment & Trading (P) Ltd.has observed thus: (AIR Headnote)

'The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction….'

17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record.'

10. There are a few judgments which have taken a view similar to the one expressed in Antony (supra), but on different reasoning. In Senior Sub Judge, Dharamshala v. Ram Avtar Kansal & another (1991 KHC 1629), the Division Bench of Himachal Pradesh High Court considered a case to review an order in a contempt case in which the contemnor was sentenced to undergo simple imprisonment for a period of one month. It was held that contempt proceedings are quasi-criminal proceedings and therefore the procedure adopted by the courts is akin to the one provided in the Code of Criminal Procedure. Taking into consideration the fact that an appellate provision had been provided u/s 19 of the Act, and the settled legal position that no review or revision can be filed against the judgment of the High Court in a Criminal appeal, it was held that when an order is passed holding a person guilty of having filed contempt of Court, the said order cannot be reviewed as it is amenable to correction only in an appeal u/s 19 of the Act. The Court can exercise power only to remit the sentence awarded by it on being satisfied with an apology made by the offendor in terms of the proviso to S.12(1) of the Act.

11. A Division Bench of Allahabad High Court had occasion to consider a similar issue in State v. Baldev Raj, Advocate [1991 (15) ACR 657]. That was also a case where the contemnor was convicted and sentenced to undergo simple imprisonment for two months and to pay a fine of 1,000/-. ₹The next day hefiled an application to recall the said order. It was held that though the powers of the High Court under Article 226 are much wider to secure natural justice, the powers of the High Court in matters of contempt of courts have been limited by the preamble of the Act. In so far as the Act provides elaborate procedure and then appeal against an order or decision of the High Court, the Act impliedly excludes power of recall or review. It was however observed that, after a final order or decision in the matter of contempt of Court is ordered, the High Court has inherent power to correct clerical or typing mistake. It was also held that the allegations raised in the petition cannot even be called a mistake apparent on the face of record or a clerical mistake and therefore, the judgment does not call for review.

12. The view now expressed by the learned single Judge in the reference, had been approved by a few other High Courts in the following judgments:-

(i) The High Court of Andhra Pradesh in District Collector/Chairman Dist.Scheduled Caste Service Co-op Society Ltd. v. U.Shankar (MANU/AP/0148/1999) had occasion to consider almost a similar issue and after referring to Art.215 of the Constitution of India and the judgment of the Apex Court in Supreme Court Bar Association v. Union of India (MANU/SC/0291/1998) (AIR 1998 SC 1895) and Constitution Bench judgment in Shivdeo Singh v. State of Punjab (MANU/UP/0347/1991) (AIR 1963 SC 1909), it was held at paragraph 14 as under:-

'14. It can be seen that while the Courts of limited jurisdiction, created by Statute are to be conferred with the power to review, the Constitutional Courts are empowered to exercise such a power of review by necessary implication. Therefore, the High Court has the necessary power to review its own orders whether in a contempt case or in other cases........'

(ii) The Gauhati High Court also had occasion to consider a similar issue in Sashi Prakash v. Government Pensioner's Association, Agartala & Another (2001 KHC 2690). It was held at paragraph 11 as under:-

'11. This takes us to the next question involved in appeal namely, whether in the absence of any specific provision enabling the exercise of the power of review, it was competent for the learned single Judge to recall the earlier order dated 14-12- 99 and direct a denovo hearing of the case in question. There is no dispute that the power of review has not been expressly conferred by the statute i.e. by the Contempt of Courts Act, 1971. The learned single Judge while passing the impugned order dated 11-8-2000 was aware of the said limitation. Nevertheless, he proceeded to exercise jurisdiction and recalled the earlier order dated 14-12-99 by invoking powers conferred under Art.215 of the Constitution. We have carefully perused the relevant part of the judgment of the learned single Judge dated 11-8-2000 dealing with this aspect of the matter. We have also perused the judgment of the Apex Court in the case of M. M. Thomas v. State of Kerala also reported in AIR 2000 SC 540 relied upon by the learned single Judge. The ratio of judgment in the case of M. M. Thomas (supra), as we have understood, is that dehors the power of review conferred by the statute, the High Court as a Court of record exercising plenary jurisdiction would always have an inherent power to review its earlier orders under the provisions of Art.215 of the Constitution. We are, therefore, in respectful agreement with the view of the learned single Judge and we also draw assistance in coming to our aforesaid conclusion on the ratio of law laid down by the Apex Court in the case of Shivdeo Singh v. State of Punjab reported in AIR 1963 SC 1909. To confer on the High Court the power of review in a proceeding under Art.226 of the Constitution on the ground that such a power of review is inherent in the High Court being a Court of plenary jurisdiction and to deny and / or refuse a similar power in a case of a contempt proceeding under Art.215 of the Constitution would in our view, be wholly inconsistent. In the backdrop of the above discussion, we are of the view that acceptance of the argument advanced by the learned Advocate - General to the effect that the order dated 14-12-99 having dropped the contempt proceeding the power under Art.215 could not have been exercised to review the said order as the power vested by Art.215 is a power only to punish for contempt, would lead to in wholly incongruous and undesired effects. The argument, therefore, is rejected.'

(iii) The High Court of Madras in Kumaran Silk Trade Ltd. v. Devendra (MANU/TN/2185/2002) has also considered a similar issue and relying on the judgment in M.M.Thomas (supra) and other judgments, it was held as under:-

"17. In M.M.Thomas v. State of Kerala, the Supreme Court has held that the High Court, as a Court of Record, has a duty to itself to keep its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only the power, but a duty to correct it. The High Court's power in that regard is plenary. In M.V.Elisabeth v. Harwan Investment & Trading Pvt. Ltd., Goa, the Supreme Court has held that the High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers. In High Court of Judicature at Allahabad v. Raj Kishore, the Supreme Court held that the High Court can decide as to how original jurisdiction can be exercised and governed by the relevant rules or as per the general rule-making power flowing from the relevant provisions of the constitutional scheme. In the light of these three decisions, we are of the view that the review is maintainable, the High Court being a Court of Record having original jurisdiction and has inherent and plenary powers.

18. In State v. Baldev Raj, 1992 CRI.L.J. 1251, a Division Bench of the Allahabad High Court has taken the view that the Contempt of Courts Act, 1971 does not expressly give any inherent power to the High Court in the matter of Contempt of Curt. It provides appeals from the order or decision of the High Court in the exercise of its jurisdiction to punish for contempt. Therefore, when the Act does not confer any inherent power or power of recall or review and provides remedy against the order or decision in the matters of contempt, the power of the High Court of recall or review in matters of contempt cannot be invoked. It was held therein that the High Court has inherent powers to correct only the clerical or typing mistakes. In Chet Ram v. Khub Ram, 1994 (3) Crimes 141, a Division Bench of the Himachal Pradesh High Court has taken a similar view that an application for review of an order in a contempt application is not maintainable under the provisions of the Contempt of Courts Act, 1971. These two judgments, in our view, cannot be said to have laid down the correct position of law, in the light of the law laid down by the Supreme Court referred to in the earlier paragraph, that the High Court has got inherent power, as a Court of Record, to review its order if there is any apparent error in the order passed by it. '

(iv) In Shyamsundar v. Lokesh Chandra & Others (MANU/MH/1906/2010), a Division Bench of Bombay High Court had also occasion to consider the question, whether the High Court while exercising power under the Contempt of Courts Act by virtue of Art.215 of the Constitution of India has jurisdiction to review its own order. After referring to various judgments of the Apex Court, including M.M.Thomas (supra), it was held that while exercising the power to punish the contemnor, by virtue of S.215 of the Constitution of India, notwithstanding the provisions in the CC Act, the High Court had jurisdiction to review its own order. While deciding the said case, the Bombay High Court had placed reliance upon the judgments of the Apex Court in Delhi Judicial Service Association, Tis Hazari Court Delhi v. State of Gujarat (AIR 1991 SC 2176) and Supreme Court Bar Assn. (supra), and it was held at para 11 as under:-

'11. The incidences of the powers of the Court have been discussed and restated as seen in paragraph Nos. 21 to 25 of the judgment in case of Delhi Judicial Association (supra) and Supreme Court Bar Association, what emerges can be summarized as follows:

(a) The Supreme Court and the High Courts are Courts of Record.

(b) These Superior Courts have been exercising the powers to indict a person for contempt of its authority also of the contempt of its subordinate and inferior Courts, in a summary manner.

(c) The contempt jurisdiction is 'sui generis' and is summary in nature and possess power to decide the procedure.

(d) The contempt jurisdiction is not ordinary criminal jurisdiction or original jurisdiction in criminal law.

(e) Code of Criminal Procedure has no application to the summary trial of the contemnor.

(f) The codification law relating to contempt is in addition to Article 129 and 215 of the Constitution of India. Codified law and application of Law of Limitation is subject to jurisdiction saved under Section 20 of Contempt of Courts Act, which provision weighs and accredits the weightage of jurisdiction constitutionally available and it is in no manner extent thereby undermined.

(g) The Courts of Record have powers to correct their records. The ultimate object of contempt jurisdiction is to enforce, ensure and maintain majesty of the law Courts and Justice.

(h) This jurisdiction does not exclude the jurisdiction to review its own order to maintain Majesty of Court, law and justice.'

(v) The High Court of Telangana and State of Andhra Pradesh in T.Madan Mohan Reddy and Others v. The Principal Secretary to Revenue Department (MANU/AP/0815/2016) had also considered a similar issue. In that case, after referring to a long line of judgments including Antony's case (supra) and M.M.Thomas (supra), it was held at paragraphs 22 and 23 as under:-

'22. In the light of the case law cited and referred to supra, the inherent and plenary power of the High Court to correct errors even on the judicial side cannot be doubted. That being so, there is no reason as to why such power cannot be exercised even in relation to orders passed in contempt cases. A learned Judge of this Court held to this effect as long back as in the year 1999 in DISTRICT COLLECTOR/CHAIRMAN DIST. SCHEDULED CASTE SERVICE COOP. SOCIETY LTD., ADILABAD Vs. U. SHANKAR

MANU/AP/0148/1999MANU/AP/0148/1999 : 1999 (2) ALD 74. Significantly, the learned Judge was specifically dealing with the issue as to whether a review petition would lie in a contempt case. In coming to that conclusion, the learned Judge relied upon SUPREME COURT BAR ASSOCIATION Vs. UNION OF INDIA MANU/ SC/ 0291/ 1998MANU/ SC/ 0291/1998 : (1998) 4 SCC 409, wherein the Supreme Court held that the power to punish for contempt, being inherent in a Court of Record, it follows that no Act of Parliament can take away that inherent jurisdiction of the Court of Record to punish for contempt and the power of legislation cannot be exercised so as to stultify the status and dignity of the Supreme Court and the High Courts.

23. We therefore hold that the High Court, being a superior Court of Record with inherent and plenary powers vesting in it, would have the power to review and correct any errors apparent on its record, including errors in orders passed on the judicial side. Such plenary power is not denuded or abridged even in contempt cases merely because the Act of 1971 does not confer the power of review. The inherent plenary power of the High Court in this regard cannot be circumscribed by enacted law.'

13. A three Judge bench of the Apex Court in Delhi Judicial Service Assn. (supra) held that in terms of Article 129 and Article 215 of the Constitution of India, the Supreme Court as well as High Courts are courts of record having powers to punish for contempt including the power to punish for contempt of itself.

14. In M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd., [1993 Supp (2) SCC 433] following Naresh Shridhar Mirajkar v. State of Maharashtra (AIR 1967 SC 1) the Apex Court held that the High Courts in India are superior courts of record, having original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Apex Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers.

15. The Constitution Bench of the Apex Court in Supreme Court Bar Assn. (supra) held that, though the expression 'court of record' has not been defined in the Constitution of India, 'Article 129 however, declares the Supreme Court to be a court of record, while Article 215 declares a High Court also to be a court of record.' It is further held that 'The power that courts of record enjoy to punish for contempt is a part of their inherent jurisdiction and is essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice.'

16. M.M. Thomas (supra), though decided in a matter arising under the PF Act, the principle laid down squarely applies in a contempt case as well. In the said judgment, the Apex Court had emphasized the extent of plenary powers that a High Court as a court of record, could exercise. In Antony's case (supra), the Di

Please Login To View The Full Judgment!

vision Bench having observed that there is no power of review conferred under the CC Act, after referring to the plenary powers of High Court, held that, since in exercise of the plenary powers the contempt order had been passed, the same plenary powers cannot be invoked to review the order in a contempt case. That apart, it was held that though contempt can be taken under Article 215, it does not provide uncontrolled/unfettered or unbridled power on the High Court to initiate contempt against a person at any length of time and impose punishment. Apparently, in Antony (supra), the Court had, in effect, restricted the scope of the plenary power the High Court could exercise as a court of record. No such restriction can be imposed on the plenary power of High Court. The CC Act and the Contempt of Court Rules framed by the High Court, only prescribes the procedure to be followed in contempt matters, but the said statute does not restrict the power of High Court in exercising its plenary powers, as contemplated in Article 215. If there is any error apparent on the face of record, as held in M.M.Thomas (supra), as a court of record, the High Court, in exercise of its plenary powers as envisaged in Article 215, is bound to correct such errors. 17. However, the extent of interference in the review petition filed against the contempt case depends upon the facts of each case. Only in instances where the petitioner is able to point out that there is error apparent on the face of record, that the Court should exercise the power of review. 18. In the light of the above discussion, we are in respectful agreement with the view expressed by the High Court of Andhra Pradesh in U. Shankar (supra), the Gauhati High Court in Sashi Prakash (supra), the High Court of Madras in Kumaran Silk Trade Ltd. (supra), the Bombay High Court In Shyamsundar (supra), and the High Court of Telangana and State of Andhra Pradesh in T.Madan Mohan Reddy (supra). The different view expressed by the Himachal Pradesh High Court in Dharamshala (supra) and High Court of Allahabad in Baldev Raj (supra) is therefore not approved. Accordingly it is declared that Antony (supra) does not lay down the correct law and is to be overruled. The reference is accordingly answered as under:- (i) Antony (supra) does not lay down the correct law and is hereby overruled. (ii) Review petition is maintainable against an order in a contempt case. (iii) The Registry shall place the file before the appropriate court for further orders.
O R