Contempt of Subordinate Courts: Sections 10, 11 and Section 15(2)

Note the limit of the proviso. It applies only to contempt of a subordinate court. It does not restrict the High Court's power over contempt of itself, and section 10 does not touch the Supreme Court at all.

Section 11: territorial reach

"A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits."

A short section removing two objections that would otherwise be available.

The act may be outside the local limits. A publication printed in another State that prejudices a proceeding in this one is within the High Court's reach.

The person may be outside the local limits. He may be proceeded against though he lives and works elsewhere.

The reason is practical: an interference with a court's work is not less harmful because it was arranged from a distance.

Section 15(2): how the matter reaches the High Court

Chapter [Contempt Procedure: Sections 14, 15, 17, 18 and 20] deals with section 15 as a whole. What belongs here is sub-section (2), which is the route for a subordinate court's contempt.

Section 15(2): "In the case of any criminal contempt of a 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."

So there are two routes, and only two.

A reference by the subordinate court itself. This is the ordinary course. The Magistrate or Munsif who was obstructed makes a reference to the High Court, which then proceeds. That is why the answer to "what can a trial judge do when an advocate abuses him" is: refer the matter, not punish it.

A motion by the Advocate-General, or by the specified Law Officer for a Union territory.

Section 15(3) requires that every motion or reference under the section shall specify the contempt of which the person charged is alleged to be guilty. So a vague reference is bad; the contempt must be identified.

Contrast section 15(1), which governs criminal contempt of the Supreme Court or a High Court itself and allows the court to act of its own motion, or on a motion by the Advocate-General, or by any other person with the Advocate-General's consent in writing. The court's own motion is available for contempt of itself, and the reference route is what replaces it for a subordinate court.

Section 16: contempt by a judge

Section 16(1): "Subject to the provisions of any law for the time being in force, a judge, magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly."

So a judicial officer is not above the law of contempt, and may be in contempt of his own court as well as of another.

Section 16(2): "Nothing in this section shall apply to any observations or remarks made by a judge, magistrate or other person acting judicially, regarding a subordinate court in an appeal or revision pending before such judge, magistrate or other person against the order or judgment of the subordinate court."

That exception is necessary, and its reason is obvious once stated: an appellate judge must be free to say that the court below was wrong, and sometimes to say so sharply, without being at risk of a contempt proceeding.

Baradakanta Mishra v. Registrar of Orissa High Court, AIR 1974 SC 710, is the case in this area, a judicial officer having made allegations against the High Court, in which the Court examined the distinction between the judicial and the administrative acts of a High Court for contempt purposes.

The Supreme Court's own power over subordinate courts

Section 10 gives the jurisdiction to the High Court. It says nothing about the Supreme Court, and a student may reasonably ask whether the Supreme Court can act where a subordinate court has been obstructed.

It can, and the source is not the Act.

Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176, (1991) 4 SCC 406, decided 11 September 1991 by K.N. Singh, Kuldip Singh and N.M. Kasliwal JJ.

Facts. A Chief Judicial Magistrate at Nadiad was assaulted, handcuffed and tied with a rope by police officers, and photographed in that condition.

Held. The Supreme Court, as a court of record under Article 129, has power to punish for contempt not only of itself but of the whole judiciary including subordinate courts, and that power is not derived from, and cannot be limited by, the Contempt of Courts Act 1971.

That is why the case is cited in three different chapters of this book: for the source of the power, for limb (iii) of criminal contempt, and here, for the reach of the jurisdiction over subordinate courts.

A worked example

During a trial before a Judicial Magistrate at Kalyan, a man in the public gallery shouts that the Magistrate has been bought, and later threatens the complainant outside the court building.

Can the Magistrate punish him for contempt? No. His court is not a court of record and has no inherent contempt power, and the Act gives the jurisdiction over contempt of subordinate courts to the High Court by section 10.

What should the Magistrate do? Make a reference to the High Court under section 15(2), specifying, as section 15(3) requires, the contempt of which the man is alleged to be guilty. Alternatively the Advocate-General may move the High Court.

Which limb of section 2(c)? The shout is limb (i), scandalising and lowering the authority of the court, and, the trial being pending, limb (ii) as well. The threat to the complainant is limb (iii), obstructing the administration of justice.

Does the proviso to section 10 stop the High Court? It bars cognizance where the contempt is an offence punishable under the penal law. Intentionally insulting or interrupting a public servant sitting in a judicial proceeding, and criminal intimidation, are offences, so the proper course for those acts may be prosecution rather than contempt, and the reference should say what is alleged so the High Court can decide.

Suppose the man lives in Nagpur and shouted from there in a video that circulated in Kalyan. Section 11: the High Court has jurisdiction whether the contempt was committed within or outside the local limits, and whether the person is within or outside them.

Suppose instead the police assault the Magistrate in his own court room. Then, on Delhi Judicial Service Association, the Supreme Court may itself proceed under Article 129, its power extending to contempt of the whole judiciary including subordinate courts and not being limited by the Act.

And suppose the Magistrate himself, hearing an appeal, writes that the court below acted dishonestly. Section 16(1) makes a judicial officer liable for contempt like anyone else, but section 16(2) exempts observations or remarks made regarding a subordinate court in an appeal or revision pending before him against that court's order or judgment.

What beginners get wrong

A subordinate court cannot punish contempt of itself under this Act. It refers.

The proviso to section 10 is not about the High Court's own contempt. It applies only to contempt of a subordinate court.

Section 15(2) has two routes only: a reference by the subordinate court or a motion by the Advocate-General. There is no suo motu power in the High Court for a subordinate court's contempt under that sub-section.

Section 15(3) requires the contempt to be specified.

Section 11 removes territorial objections, both as to the act and as to the person.

Section 16(2) protects appellate criticism, not criticism generally.

The Supreme Court's power over subordinate courts is Article 129, not section 10.

Quick revision

• Section 10: every High Court has the same jurisdiction, powers and authority, by the same procedure and practice, over contempts of courts subordinate to it as over contempts of itself. Proviso: no cognizance where the contempt is an offence punishable under the penal law.
• Section 11: jurisdiction whether the contempt was committed within or outside the local limits, and whether the person is within or outside them.
• Section 15(2): for criminal contempt of a subordinate court the High Court may act on a reference by that court or on a motion by the Advocate-General, or the specified Law Officer for a Union territory. Section 15(3): the motion or reference shall specify the contempt.
• Section 16(1): a judge, magistrate or other person acting judicially is liable for contempt of his own or any other court like any other individual. Section 16(2): not for observations or remarks regarding a subordinate court in an appeal or revision pending before him.
• Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176: the Supreme Court under Article 129 may punish contempt of the whole judiciary including subordinate courts, a power not derived from and not limited by the Act.

Test yourself

1. Can a Magistrate punish a person for contempt of his own court under this Act? No. A subordinate court is not a court of record and has no inherent power to punish for contempt of itself. Section 10 gives that jurisdiction to the High Court, and the Magistrate's course is to make a reference under section 15(2).

2. What does the proviso to section 10 exclude, and why? It forbids a High Court from taking cognizance of a contempt alleged to have been committed in respect of a subordinate court where such contempt is an offence punishable under the penal law. The reason is that where the ordinary criminal law provides a remedy it should be used, and a person should not face two routes of punishment for one act.

3. By what routes may a contempt of a subordinate court reach the High Court? On a reference made by the subordinate court itself, or on a motion by the Advocate-General or, for a Union territory, by the Law Officer the Central Government specifies. Section 15(3) requires the reference or motion to specify the contempt alleged.

4. Does it matter that the contemnor lives outside the High Court's territory? No. Section 11 gives the High Court jurisdiction to inquire into or try a contempt of itself or of a subordinate court whether the contempt was committed within or outside the local limits of its jurisdiction, and whether the person is within or outside those limits.

5. Is a judge liable for contempt? Yes. Section 16(1) makes a judge, magistrate or other person acting judicially liable for contempt of his own court or of any other court in the same manner as any other individual. Section 16(2) excepts observations or remarks about a subordinate court made in an appeal or revision pending before him against that court's order or judgment.

6. How could the Supreme Court punish the assault on a Chief Judicial Magistrate, when section 10 gives the jurisdiction to the High Court? Because its power under Article 129, as a court of record, extends to contempt of the whole judiciary including subordinate courts and is not derived from or limited by the Act. That was decided in Delhi Judicial Service Association v. State of Gujarat.