Contempt of Court cannot be initiated against a Judge of Court of Record, Uttarakhand HC

In a peculiar turn of events, the Uttarakhand High Court was recently called upon to carry out the unpleasant exercise of deciding whether it should hold a sitting judge of its own for contempt of Court..A representation moved by an Advocate, Chhitiji Kishore Sharma contended that Justice Lok Pal Singh had acted to scandalise and lower the authority of the Court through the use of intemperate language, unsavoury innuendos and sarcastic remarks against advocates before his court..Inter alia, Sharma had alleged that Justice Singh had also made adverse remarks against a Senior Advocate and former judge of the High Court, which loosely translates to,.“Yes, I know what kind of a lawyer he is, and what kind of a Judge he was!“.This apart, Sharma also made reference to a case decided last January, which Justice Singh had dismissed, although it demanded that the judge recuse himself..The Division Bench of Justices Rajiv Sharma and Sudhanshu Dhuli ultimately dismissed the case as not maintainable, noting that a contempt petition cannot lie against a sitting judge of a Court of Record under the Contempt of Courts Act, 1971 (‘Act’). This can be inferred from a combined reading of Sections 9 and 16 of the Act..This position is also reflected in the Supreme Court case of State of Rajasthan v. Prakash Chand as well as the High Court decisions in Shri Harish Chandra Mishra v. The Hon’ble Mr. Justice S. Ali Ahmed, Sikandar Khan v. Ashok Kumar Mathur. Therefore, the Court reiterated,.“… contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court.“.Given this legal position, the Court did not examine the facts or the merits of the case..Nevertheless, the case did prompt the Bench to make certain pertinent observations concerning the initiation of contempt proceedings, particularly against judges of a court of record..Contempt complaint without AG’s sanction only “information”.Interestingly, the instant case was posted before the High Court even though Advocate General SN Babulkar did not give his sanction to carry forward the contempt complaint..Ordinarily, the statutory sanction of the AG is necessary under Section 15 of the Contempt of Courts Act, 1971, before a complaint can be brought before the Court. In this case, AG Babulkar recused himself from making the decision, to avoid allegations of bias..This was in light of the fact that Justice Lokpal Singh had also passed an order against AG Babulkar during one of the hearings complained of. Babulkar had therefore declined to interfere, stating,.“… although the facts as mentioned do make out a case of sanction, yet in order to avoid any allegations of bias, I am not in a position to accord formal sanction.“.The Bench observed that the AG was well within propriety to recuse himself in the matter. However, the AG’s subsequent opinion that the case appeared contemptuous left the Bench nonplussed..“Till this point [of recusal] he [AG] was right, but he does not stop here as he adds, that though he is not giving his consent, the facts of the case do make out a case for consent! What do we do with this!“.Importantly, the Court also noted that the complainant’s representation could not be termed a contempt petition, since it did not have the AG’s sanction. At best, it could be termed an “information.”.“… until such a requirement is dispensed with and a suo motu cognizance is taken by the Court, what is there before the Court is strictly speaking not even a contempt petition. We can call it merely an ‘information'”.To avoid future cases of such “information” making its way to the High Court Bench unchecked, the Court also directed that the following procedure be adhered to by the Court Registry..“Registry shall not list the case as a criminal contempt petition, as at this stage the petition is only in the nature of an ‘information’. .Such matters shall always be captioned as “in Re…….(the name of the alleged contemnor)”, and be placed before the Hon’ble Chief Justice in chamber. The Chief Justice may either himself or in consultation with other Judges of the Court may take further steps in the case as deem to be necessary.”.On the rare case of Justice CS Karnan .While maintaining that a Judge of the High Court cannot be prosecuted for contempt, the Bench also distinguished the infamous case of Justice CS Karnan, who was awarded a six month imprisonment term after the Supreme Court found him guilty of contempt..It was noted that in Justice CS Karnan’s case, contempt was awarded on finding that the judge committed contempt “on the face of the Court“. Moreover, the proceedings were initiated suo motu, unlike in the present case..The Bench opined that Justice Karnan’s case was one which fell under the rarest of the rare category of cases. Ordinarily, a sitting judge cannot be proceeded against for contempt..This stance is also supported by the cautionary words used by the Supreme Court when it pronounced orders in that case. The Bench referred to the following words of Chief Justice JS Khehar..“… The initiation of the present proceedings suo motu, is unfortunate. In case this Court has to take the next step, leading to this conviction and sentencing, the Court would have undoubtedly traveled into virgin territory. This has never happened. This should never happen. “.Why Judges are immune from being prosecuted for Contempt of Court.The Bench also emphasised that the judges of a Court-of-record are generally given immunity from contempt action in the interest of ensuring the independence of the judiciary. As explained in its judgment,.“Irresponsible accusations may be thrown against a Judge by a disgruntled lawyer or litigant. Therefore, for the sake of the independence of judiciary, a Judge has to be protected, from vexatious charges and malicious litigations.”.This is also the principle underlying the protection given to judges under the Judges (Protection) Act, 1985.However, before parting with the case, the Bench also opined that judges should endeavor to use restrained language, in the interest of maintaining the dignified image of the judiciary..“Intemperate comments and undignified banter … also undermines the public confidence in a judge… .Eugen Ehrlich, the noted sociologist had famously said ‘there is no guarantee of justice except the personality of the judge’. This personality we must remember, is always under a close watch of a litigant, who quietly sits in a corner of a courtroom, judging the justice!“.Read the Judgment: