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R E P O R T A B L E  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1234 OF 2007

VITUSAH OBEROI AND ORS.        ...APPELLANT(S)

VERSUS

COURT OF ITS OWN MOTION        ...RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.1299 OF 2007

J U D G M E N T

T.S. THAKUR, CJI.

1. In  these  appeals,  the  appellants  call  in  question  the

correctness of an order dated 11th September, 2007 passed

by a Division Bench of the High Court of Delhi whereby the

appellants have been found guilty of contempt and directed

to remain present in person before the High Court for being

heard on the quantum of sentence to be awarded to them.

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Facts necessary for appreciating the challenge mounted by

the appellants may be summarized as under:

2. Appellants No.1 and 2 are the Editor  and City Editor

respectively of Mid Day, an English Daily Newspaper, with a

large  circulation  in  the  National  Capital  Region.  Appellant

No.3 happens to be the Printer and Publisher of the papers

while  appellant  No.4  is  a  Cartoonist  working  for  the  said

paper. The genesis of the  suo motu  contempt proceedings

initiated  by  the  High  Court  of  Delhi  lies  in  a  story  that

appeared in ‘Mid Day’ in its issue dated 2nd May, 2007 under

the  title  “Injustice”.   The  substance  of  the  publication

brought to light the alleged misuse of the official residence

of Justice Sabharwal who demitted office as Chief Justice of

India on 13th January, 2007, by the same being shown as

the registered office of three companies promoted by Justice

Sabharwal’s sons.  A second story published on 18th May,

2007 in Mid Day pointed out that Justice Sabharwal’s son

had  entered  into  a  partnership  with  shopping  malls  and

commercial  complex  developers  just  before  Justice

Sabharwal  passed  orders  for  sealing  of  commercial

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establishments running in residential areas in different parts

of  Delhi.  This,  according  to  the  story,  benefitted  the

partnership business of Justice Sabharwal’s sons.  On 19th

May,  2007  came  a  third  story  that  quoted  some  senior

lawyer’s saying that if  the facts about Justice Sabharwal’s

sons’  partnership  business  benefitting  from the  orders  of

Justice Sabharwal’s Bench were true, then Justice Sabharwal

should not have heard the case. The paper also carried in

the same issue a cartoon by Mohd. Irfan Khan, appellant

No.4 showing as if Justice Sabharwal’s family had benefitted

from the orders passed by Justice Sabharwal’s Bench.   

3. It was in the above backdrop that Shri R.K. Anand, an

advocate  practicing  in  Delhi  High  Court  appears  to  have

placed a copy of the newspaper dated 18th May, 2007 before

a Division Bench of the High Court of Delhi on 21st May, 2007

to draw the attention of the Court about the article published

in the said paper maligning the former Chief Justice of India

and tending to lower the image of the judiciary in the eyes

of the common man.  Prima facie satisfied that the news

item was objectionable and tended to lower the image of

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judiciary in the eyes of the common man, the High Court

initiated  suo-motu contempt proceedings and issued show

cause notices to appellants No.1 to 3. On 25th May, 2007

Shri Anand appears to have filed another copy of Mid Day

newspaper  dated  19th May,  2007  before  the  High  Court

which carried the cartoon drawn by the appellant No.4, the

paper’s cartoonist.  The High Court found the same also to

be objectionable and issued notice even to appellant No.4 to

show cause why contempt proceedings may not be initiated

against him.  

4. In  response  to  the  notices  served  upon  them,  the

appellants filed their objections supported by affidavits.  In

the affidavit filed by appellant No.1-Editor of Mid-day it was,

inter  alia,  stated that all  the facts published in the paper

were  supported  by  unimpeachable  documents  and  were

true.  A  supplementary  affidavit  filed  on  behalf  of  the

appellant  No.1 gave some more details  about  a company

promoted by Justice Sabharwal’s sons and the documents

relevant thereto.  An affidavit sworn by appellant No.4, the

cartoonist was also filed explaining his position.  This was

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followed by additional  affidavits  filed by the appellants on

21st August,  2007 in  which  the  appellants  tried  to  justify

their publications on the ground that the said publications

were intended to bring to light  an impropriety  committed

only by Justice Y.K. Sabharwal and that the same was not

intended either to malign or undermine the judiciary in this

country or any other Judge in the Supreme Court of India or

any other Court for that matter. The affidavits in particular

stated:

“The Article which was published was intended to  bring  to  light  such impropriety  by  Mr.  Y.K. Sabharwal  and  was  not  intended  at  all  to undermine  or  malign  the  Judiciary  of  India  or any other Judge of the Hon’ble Supreme Court of India  or  of  may  other  court  in  India.   If  our articles created any impression on anyone that we  were  or  were  intending  to  malign  the judiciary  or  any  other  Judge,  we  sincerely apologise for the same.”     

I  most  respectfully  submit  that  I  have  the utmost  regard  and  respect  for  the  majesty  of law and the Court of law.  The Article in question published  by  Mid  Day  was  not  intended  to undermine  the  authority  of  law  or  lower  the image  of  judiciary  or  with  any  intention  of interfering with the administration of Justice.”

5. The  explanation  offered  by  the  appellants

notwithstanding the High Court has by the order impugned

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in these appeals found the appellants guilty of contempt and

directed them to remain present in person for being heard

on  the  question  of  quantum  of  sentence  that  may  be

awarded to them. The present appeal assails the correctness

of the said order.   

6. Appearing for the appellants M/s. Shanti Bhushan and

Prashant  Bhushan  raised  a  short  point  in  support  of  the

appeal.  They  contended  that  the  High  Court  could  under

Article  215  of  the  Constitution  of  India  no  doubt  initiate

proceedings and punish for its own contempt, but it could

not, according to the learned counsel, initiate proceedings or

punish for the contempt of the Supreme Court.  It was urged

that even under Section 10 of the Contempt of Courts Act,

1971, the High Court could punish only for its own contempt

or the contempt of a Court subordinate to it.  There was no

provision,  argued  the  learned  counsel,  either  in  the

Constitution of India or in the Contempt of Courts Act, 1971

that empowered the High Court to take cognizance of the

contempt  of  a  superior  Court  like  the  Supreme  Court  of

India. Inasmuch as the High Court had failed to appreciate

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the scope of the powers of contempt exercisable by it, it had

fallen in palpable error that required to be corrected. It was

contended that while the appellants had pleaded truth as a

defense to the charge of contempt yet regardless whether

the  publication  could  be  justified  on  the  ground  of  truth

under Section 30(b) of the Act, the impugned order passed

by the High Court was liable to be set aside.   

7. The genesis of the  suo motu  proceedings initiated by

the High Court, as noticed earlier, lay in the publication of

the articles, stories and write ups questioning the propriety

of certain orders passed by a two-Judge bench of this Court

of  which  Justice  Y.K.  Sabharwal  was  the Presiding  Judge.

The substance of the offending publication was that Justice

Sabharwal had by reason of the orders passed by the bench

benefitted the partnership business of his sons in real estate

development in and around Delhi.  The text and the context

of the said publications was focused entirely on the question

whether Justice Sabharwal should have heard the matters

and  passed  sealing  orders  of  commercial  properties  in

residential areas of Delhi which orders were perceived to be

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beneficial to the real estate business of his sons.  What is,

therefore, undeniable is that the publications were actually

seen as contemptuous vis-a-vis the Supreme Court.  No part

of the publications referred to the High Court of Delhi or any

other High Court for that matter. The publications did not

refer to any Judge or any order of any Court subordinate to

the High Court  of  Delhi.   Initiation of  proceedings by the

High Court in such circumstances was, it is evident, meant

to vindicate the Supreme Court more than the High Court

who initiated those proceedings. The question is whether the

High Court could do so. The appellants argued and, in our

opinion,  rightly  so  that  the  Supreme  Court  was  and  is

competent to punish for contempt of itself. This is evident

from Article 129 of the Constitution which reads as under :

“Article 129

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.”

8. So also Article 215 of the Constitution empowers the

High Court to punish for its contempt.  That provision reads:

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“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.”

9. The provisions of Section 10 of the Contempt of Courts

Act, 1971 also empower the High Court to punish for its own

contempt  or  the  contempt  of  Courts  subordinate  to  it.

Section 10 reads:

“ 10.   Power  of  High  Court  to  punish contempts  of  subordinate  courts.—Every High  Court  shall  have  and  exercise  the  same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempts of itself:

Provided  that  no  High  Court  shall  take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is  an offence punishable under the Indian Penal Code (45 of 1860).”

10. There is, from a plain reading of the above, nothing in

the Contempt of Courts Act, 1971 or in Article 215 of the

Constitution which can be said to empower the High Court to

initiate proceedings suo-motu or otherwise for the contempt

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of a superior Court like the Supreme Court of India. As a

matter  of  fact,  the Supreme Court  under  Article  129 and

High Court under Article  215 of the Constitution are both

declared  to  be  Courts  of  Record.   One of  the recognised

attributes of a court of record is the power to punish for its

contempt and the contempt of courts subordinate to it.  That

is precisely why Articles 129 and 215, while declaring the

Supreme Court and the High Courts as Courts of  Record,

recognise the power vested in them to punish for their own

contempt. The use of the expression “including” in the said

provisions is explanatory in character.  It signifies that the

Supreme  Court  and  the  High  Courts  shall,  as  Courts  of

Records, exercise all such powers as are otherwise available

to  them  including  the  power  to  punish  for  their  own

contempt.  Whether or not the power to punish for contempt

of a subordinate court was an attribute of a court of record

fell for consideration of this Court in Delhi Judicial Service

Association vs. State of Gujarat   (1991) 4 SCC 406.

The argument there was that the Supreme Court could not

initiate  contempt  proceedings  based  on  an  incident  that

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involved a subordinate court like a Chief Judicial Magistrate

working  in  the  State  of  Gujarat.   That  contention  was

examined and rejected by this Court. It was held that the

language  employed  in  Article  129  indicated  that  the

Supreme Court is  a Court of Record and was entitled not

only to punish for its own contempt but to do all that which

is within the powers of a Court of Record.  This Court held

that since the Constitution has designed the Supreme Court

as  a  Court  of  Record,  Article  129  thereof  recognises  the

existing  inherent  power  of  a  Court  of  Record  in  its  full

plenitude including the power to punish for its own contempt

and the contempt of its subordinate.  The Court said:

“29. Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a  court  including  the  power  to  punish  for contempt  of  itself  (emphasis  supplied).   The expression used in Article 129 is not restrictive instead it is extensive in nature.  If the Framers of  the Constitution intended that  the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression “including the power to punish for contempt of itself.”  The Article confers power on the  Supreme Court  to  punish  for  contempt  of itself and in addition, it confers some additional power  relating  to  contempt  as  would  appear from the expression “including.” The expression “including”  has  been  interpreted  by  courts,  to

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extend and widen the scope of power.  The plain language of the Article 129 clearly indicates that this  Court  as  a  court  of  record  has  power  to punish for contempt of itself and also something else  which  could  fall  within  the  inherent jurisdiction of a court of record.  In interpreting the Constitution, it is not permissible to adopt a construction which would render any expression superfluous or redundant.  The courts ought not accept any such construction.  While construing Article 129, it  is  not permissible to ignore the significance and  impact  of  the  inclusive  power conferred  on  the  Supreme  Court.   Since,  the Supreme Court is designed by the Constitution as a court of record and as the Founding Fathers were aware that a superior court of record had inherent  power  to  indict  a  person  for  the contempt of itself as well as of courts inferior to it,  the  expression  “including”  was  deliberately inserted in the Article.   Article 129 recognised the existing inherent power of a court of record in its full plenitude including the power to punish for the contempt of inferior courts. If Article 129 is susceptible to two interpretations,  we would prefer to accept the interpretation which would preserve the inherent  jurisdiction of this Court being the superior court of record, to safeguard and  protect  the  subordinate  judiciary,  which forms the very back bone of  administration of justice.   The  subordinate  courts  administer justice at the grass root level, their protection is necessary to preserve the confidence of people in the efficacy of Courts and to ensure unsullied flow of justice at its base level.”

11. The power to punish for contempt vested in a Court of

Record  under  Article  215  does  not,  however,  extend  to

punishing  for  the  contempt  of  a  superior  court.   Such  a

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power has never been recognised as an attribute of a court

of record nor has the same been specifically conferred upon

the High Courts under Article 215.  A priori if the power to

punish under Article 215 is limited to the contempt of the

High  Court  or  courts  subordinate  to  the  High  Court  as

appears to us to be the position, there was no way the High

Court  could  justify  invoking  that  power  to  punish  for  the

contempt of a superior court.  That is particularly so when

the superior  court’s power to punish for its  contempt has

been in no uncertain terms recognised by Article 129 of the

Constitution.  The availability of the power under Article 129

and its plenitude is yet another reason why Article 215 could

never have been intended to empower the High Courts to

punish for the contempt of the Supreme Court.  The logic is

simple.  If Supreme Court does not, despite the availability

of the power vested in it, invoke the same to punish for its

contempt, there is no question of a Court subordinate to the

Supreme Court doing so.  Viewed from any angle, the order

passed  by  the  High  Court  appears  to  us  to  be  without

jurisdiction, hence, liable to be set aside.   

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12. We,  accordingly,  allow  these  appeals,  set  aside  the

judgment of the High Court and discharge the rule issued by

the High Court.  The parties to bear their own cost.

..……………………..CJI.        (T.S. THAKUR)

.…….......................J.        (A.M. KHANWILKAR)

New Delhi; January 2, 2017.

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