Introduction
Article 129 [1] of the Indian Constitution provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 [2] contains similar provision in respect of High Court. Both 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. The Constitution does not define “Court of Record”. This expression is well recognised in jurisdical world.
Meaning of ‘Court of Record’
- “A court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority.” [Jowitt’s Dictionary of English Law]
- In Wharton’s Law Lexicon, Court of Record is defined as:
Courts are either of record where their acts and judicial proceedings are enrolled for a perpetual memorial and testimony and they have power to fine and imprison; or not of record being courts of inferior dignity, and in a less proper sense the King’s Courts–and these are not entrusted by law with any power to fine or imprison the subject of the realm, unless by the express provision of some Act of Parliament. These proceedings are not enrolled or recorded.
- In Words and Phrases [3] “Court of Record” is defined as under:
“Court of Record is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the “record” of the court, and are of such high and supereminent authori- ty that their truth is not to be questioned.”
- Halsbury’s Laws of England [4]
Courts are expressly declared by statute to be courts of record. In the case of courts not expressly declared to be courts of record, the answer to the question whether a court is a court of record seems to depend in general upon whether it has power to fine or imprison, by statute or otherwise, for contempt of itself or other substantive offences; if it has such power, it seems that it is a court of record…….. proceedings of a Court of record preserved in its archives are called records, and are conclusive evidence of that which is recorded therein.
History:
In England, a superior court of record has been exercised power to indict a person for the contempt of its authority and also for the contempt of its subordinate and inferior courts in a summary manner without the aid and assistance of Jury. This power was conceded as a necessary attribute of a superior court of record under Anglo Saxon System of Jurisprudence. The concept of inherent power of the superior court of record to indict a person by summary procedure was considered in detail in Rex v. Almon, 97 ER 94 commonly known as Aimon’s case.
In India, the courts have followed the English practice in holding that a court of record has power of summarily punishing contempt of itself as well as of subordinate courts.
In Sukhdev Singh Sodhi‘s case, the Supreme Court considered the origin, history and development of the concept of the inherent jurisdiction of a court of record in India. The Court after considering Privy Council and High Courts decisions held that the High Court being a court of record has inherent power to punish for contempt of subordinate courts. The Court further held that even after the codification of the law of contempt in India the High Court’s jurisdiction as a court of record to initiate proceedings and take seisin of the matter remained unaffected by the Contempt of Courts Act, 1926.
The question whether in the absence of any express provision a Court of Record has inherent power in respect of contempt of subordinate or inferior courts has been considered by English and Indian Courts–
Rex v. Parke[5]. Wills, J. observed:
“This Court (King’s Bench) exercises a vigilant watch over the proceedings of inferior courts and successfully prevents them from usurping powers which they do not possess, or otherwise acting contrary to law. It would seem almost a natural corollary that it should possess correlative powers of guarding them against unlawful attacks and interferences with their independence on the part of others
Abdul Hassan Jauhar Case[6]
The High Court as a court of record and as the protector of public justice through out its jurisdiction has power to deal with con- tempts’ directed against the administration of justice, whether those contempts are committed in face of the court or outside it, and inde- pendently or whether the particular court is sitting or not sitting, and whether those contempts relate to proceedings directly concerning itself or whether they relate to proceedings concerning an inferior court, and in the latter case whether those proceedings might or might not at some stage come before the High Court.
Sec 15[7] (of The Contempt of Courts Act 197) Cognizance of criminal contempt in other cases-
Under sub-section (1) the Supreme Court and High Court both have power to take cognizance of criminal contempt and it provides three modes for taking cognizance. The Supreme Court and the High Court both may take cognizance on its own motion or on the motion made by the Advocate-General or any other person with the consent in writing of the Advocate- General. Sub-section (2) provides that in case of any criminal contempt of subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General, and in, relation to a Union Territory, on a motion made by any officer as may be specified by the Government. Thus Section 15[7] prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court, it is not a substantive provision conferring power or jurisdiction on the High Court or on the Supreme Court for taking action for the contempt of its subordinate courts. The whole object of prescribing procedural modes of taking cognizance in Section 15[7] is to safeguard the valuable time of the’ High Court and the Supreme Court being wasted by frivolous complaints of contempt of court. Section 15(2)[7] does not restrict the power of the High Court to take cognizance of the contempt of itself or of a subordinate court on its own motion although apparently, the Section does not say so.
For more information on Contempt of Subordinate Court, follow the link given below
Contempt of Subordinate Courts (Click Here)
[1] Article 129- Supreme Court to be a court of record The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
[2] Article 215- High Courts to be courts of record Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
[3] Words and Phrases (Permanent Edition) Vol. 10 page 429.
[4] Halsbury’s Laws of England Vol. 10 page 319.
[5] [1903] 2 K.B. 432 at 442.
[6] AIR 1926 Allahabad 623.
[7] (1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or a motion made by–
(a) the Advocate-General, or
(b) any other person, with the consent in writing of the Advocate-General (or)
(c) in relation to the High Court for the Union Territory of Delhi, such Law Officer as the Central Government may by notification in the official Gazette, specify in this behalf or any other person, with the consent in writing of such Law Officer.
(2) In the case of any criminal contempt of subordinate court, the High Court may take action on a reference made to it by the subordinate Court or on a motion made by the Advocate-General or, in, relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf.
(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. Explanation–In this section, the expression “Advocate General” means-
(a) in relation to the Supreme Court, the Attorney General or the Solicitor General;
(b) in relation to the High Court, the Advocate General of the State or any of the States for which the High Court has been established; (c) in relation to the Court of Judicial Commissioner, such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf.
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