N Criminal Appeal No 2 of 1951
This Was an appeal under article 134 1 c of the Constitution from the Judgment and Order of the High Court of Rajasthan Nawal Kishore CJ and Mehta J dated 16th October 1950 in Criminal Appeal No 63 of Samvat 2005 revising an order of acquittal of the Sessions Judge Jai pur in Criminal Appeal Case No 200 of Sam vat 2004 and convicting the accused of an offence under sec
376 of the Indian Penal Code
The material facts are stated in the judgment
KN Aggarwala for the accused
GS Mathur for the State of Rajasthan
December 20
BOSE J delivered judgment as fol lows
FAZL ALI J agreed
BOSE J
The appellant Rameshwar was charged with com mitting rape on a young girl Mst
Purni eight years of age
He was committed to Sessions and was convicted by the As sistant Sessions Judge Sawai Jaipur and sentenced to one year s rigorous imprisonment and a fine of Rs 250
An appeal was made to the Sessions Judge at Jaipur that being the appropriate appellate tribunal in that area
The learned Sessions Judge held that the evidence was sufficient for moral conviction but fell short of legal proof because in his opinion the law requires corroboration of the story of the prosecution in such cases as a matter of precaution and the corroborative evidence in so far as it sought to connect the appellant with the crime was legally insuffi cient though morally enough
He was satisfied however that the girl had been raped by somebody
Accordingly he acquit ted the accused giving him the benefit of the doubt
The State of Sawal Jaipur and Gangapur appealed against the acquittal to the High Court at Jaipur
380 The learned High Court Judges held that the law requires corroboration in such cases but held that the girl s state ment made to her mother was legally admissible as corrobora tion and considering that sufficient they set aside the acquittal and restored the conviction and sentence
The High Court later granted leave to appeal under article 134 1c of the Constitution as the case involved questions of law of general importance
The first point taken before us related to the admissi bility of the evidence of the girl herself
Her age was stated to be seven or eight years at the time of the exami nation by the learned Assistant Sessions Judge who recorded her testimony
He certified that she did not understand the sanctity of an oath and accordingly did not administer one to her
He did not certify that the child understood the duty of speaking the truth
The proviso to section 5 of the  prescribes that Provided that where the witness is a child under twelve years of age and the Court or person having authority to examine such witness is of opinion that though he understands the duty of speaking the truth he does not understand the nature of an oath or affirmation the forego ing provisions of this section and the provisions of section 6 shall not apply to such witness but in any such case the absence of an oath or affirmation shall not render inadmis sible any evidence given by such witness nor affect the obligation of the witness to state the truth
 The question is whether the opinion referred to must be formally recorded or whether it can be inferred from the circumstances in which the deposition was taken
The proviso quoted above must be read along with section 118 of the Evidence Act and section 13 of the Oaths Act
In my opinion an omission to administer an oath even to an adult goes only to the credibility of the witness and not his competency
The question of competency is dealt with in section 118
Every 381 witness is competent unless the Court considers he is pre vented from understanding the questions put to him or from giving rational answers by reason of tender years extreme old age disease whether of body or mind or any other cause of the same kind
It will be observed that there is always competency in fact unless the court considers otherwise
No other ground of incompetency is given therefore unless the Oaths Act adds additional grounds of incompetency it is evident that section 118 must prevail
Now the Oaths Act does not deal with competency
Its main object is to render persons who give false evidence liable to prosecution
It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth but in view of section 118 these matters only touch credibility and not admissibility
In my opinion section 13 of the Oaths Act places this beyond doubt
It states No omission to take any oath or make any affirmation  and no irregularity whatever in the form in which any one of them is administered shall invali date any proceeding or render inadmissible any evidence whatever   Section 5 is the main provision regarding the adminis tration of oaths
The proviso only sets out the cases in which the oath is not to be administered
If therefore an omission to take the oath does not affect the admissibility of the evidence it follows that irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either
Section 118 remains and unless the judge considers otherwise the witness is compe tent
I do not think it will be useful to consider English authorities on the point because we are governed here by the terms of the various sections I have referred to
But a decision of the Judicial Committee of the Privyi Council is in point
Their Lordships stated in Mohamed Sugal Esa vs The King1  1 AIR 1946 PC 3 at 5 382 Section 13 Oaths Act is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam
If that had been the intention of the Legislature it would have been simple to insert words in the section to that effect 
It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths Amendment Act Act XXXIX of 1939 which settles the law in accordance with the Bengal and Oudh decisions referred to above
 The decisions to which their Lordships refer are and Ram Samujh vs Emperor2
The decisions there were that the section being unqualified in terms did apply to a case where the Court accepted the evidence of a child to whom the oath was not administered on the ground that the witness did not understand its nature
The principle of the decisions ap plies here because as their Lordships observe the section is unqualified in its terms
I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that otherwise the credibility of the wit ness may be seriously affected so much so that in some cases it may be necessary to reject the evidence altogether
But whether the magistrate or judge really was of that opinion can I think be gathered from the circumstances when there is no formal certificate
In the present case it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence
It is also an important fact that the accused who was represented by counsel did not object
Had he raised the point the Judge would doubtless have made good the omission
I am of opinion that Mst
Purni was a competent witness and that her evi dence is admissible
In 1 FN 2 1907 10 OC 337 383 the Privy Council case which I have just cited their Lord ships said It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessi ty of speaking the truth when examined as a witness
 That is the very point here
One can presume that the learned Judge had that in mind from the fact that he exam ined the child after referring to a fact which arises out of the proviso
As regards her credibility the learned trial Judge who recorded her evidence and saw her in the box has believed her so has the High Court and it is important to note that the learned Sessions Judge who acquitted the accused has not disbelieved her
On the contrary he says he is morally convinced
All he says is that in the absence of corrobora tion it will be unsafe to convict because the Privy Council and other cases advise corroboration as a matter of pru dence
We were taken carefully through the evidence as elabo rately as in a court of first appeal
I am of opinion that the learned High Court Judges were fully justified in ac cepting the evidence of Purni and in believing her mother Mst
Ghisi
I consider it unnecessary to recapitulate their reasons
After the careful analysis given by three Courts it is sufficient to say that I agree with the learned High Court Judges
We are left therefore with the questions of law
The first question is whether the law requires corrobo ration in these cases
Now the Evidence Act now here says so
On the other hand when dealing with the testimony of an accomplice though it says in section 114 b that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars it makes it clear in section 133 that An accomplice shall be a competent witness against an accused person and a conviction is not 50 384 illegal merely because it proceeds upon the uncorroborated testimony of an accomplice
 Now a woman who has been raped is not an accomplice
If she was ravished she is the victim of an outrage
If she consented there is no offence unless she is a married woman in which case questions of adultery may arise
But adultery presupposes consent and so is not on the same footing as rape
In the case of a girl who is below the age of consent her consent will not matter so far as the offence of rape is concerned but if she consented her testimony will natural ly be as suspect as that of an accomplice
So also in the case of unnatural offences
But in all these cases a large volume of case law has grown up which treats the evidence of the complainant somewhat along the same lines as accomplice evidence though often for widely differing reasons and the position now reached is that the rule about corroboration has hardened into one of law
But it is important to under stand exactly what the rule is and what the expression hardened into a rule of law means
In my judgment this branch of the law is the same as in England and I am of opinion that the lucid exposition of it given by Lord Reading the Lord Chief Justice of England in The King vs Baskerville1 cannot be bettered
In that case Baskerville had been convicted of having committed acts of gross indecency with the two boys
There the boys were accomplices because they were freely consent ing parties and there was no use of force
The learned Chief Justice says at page 663  There is no doubt that the uncorroborated evidence of an accomplice is admissible in law
But it has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices and in the discretion of the judge to advise them not to convict upon such evidence but the judge should point out to the jury that it is 1 385 within their legal province to convict upon such unconfirmed evidence
This rule of practice has become virtually equivalent to a rule of law and since the Court of Criminal Appeal came into operation this Court has held that in the absence of such a warning by the judge the conviction must be quashed
If after the proper caution by the judge the jury nevertheless convict the prisoner this Court will not quash the conviction merely upon the ground that the accom plice s testimony was uncorroborated
 That in my opinion is exactly the law in India so far as accomplices are concerned and it is certainly not any higher in the case of sexual offences
The only clarifica tion necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of a jury
In these cases it is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corrob oration in that particular case
I am of opinion that the learned High Court Judges were wrong in thinking that they could not as a matter of law convict without corrobora tion
There is a class of cases which considers that though corroboration should ordinarily be required in the case of a grown up woman it is unnecessary in the case of a child of tender years
Bishram
vs Emperor1 is typical of that point of view
On the other hand the Privy Council has said in Mohamed Sugal Esa vs The King2 that as a matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence of a child witness
In my opinion the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge
In a jury case he must tell the 1 AIR 1944 Nag 363
2 AIR 1946 PC 3 at 5
386 jury of it and in a non jury case he must show that it is present to his mind by indicating that in his judgment
But he should also point out that corroboration can be dispensed with if in the particular circumstances of the case before him either the jury or when there is no jury he himself is satisfied that it is safe to do so
The rule which according to the cases has hardened into one of law is not that corroboration is essential before there can be a con viction but that the necessity of corroboration as a matter of prudence except where the circumstances make it safe to dispense with it must be present to the mind of the judge and in jury cases must find place in the charge before a conviction without corroboration can be sustained
The tender years of the child coupled with other circumstances appearing in the case such for example as its demeanour unlikelihood of tutoring and so forth may render corrobora tion unnecessary but that is a question of fact in every case
The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them
There is no rule of practice that there must in every case be corroboration before a conviction can be allowed to stand
I turn next to the nature and extent of the corrobora tion required when it is not considered safe to dispense with it
Here again the rules are lucidly expounded by Lord Reading in Baskerville s case1 at pages 664 to 669
It would be impossible
indeed it would be dangerous to formulate the kind of evidence which should or would be regarded as corroboration
Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged
But to this extent the rules are clear
First it is not necessary that there should be inde pendent confirmation of every material circumstance in the sense that the independent evidence in the case apart from the testimony of the complainant or the 1  387 accomplice should in itself be sufficient to sustain con viction
As Lord Reading says Indeed if it were required that the accomplice should be confirmed in every detail of the crime his evidence would not be essential to the case it would be merely confirmatory of other and independent testimony
 All that is required is that there must be some addi tional evidence rendering it probable that the story of the accomplice or complainant is true and that it is reasona bly safe to act upon it
 Secondly the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testi mony of the accomplice or complainant that the accused committed the crime
This does not mean that the corrobora tion as to identity must extend to all the circumstances necessary to identify the accused with the offence
Again all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness s story that the accused was the one or among those who committed the offence
The reason for this part of the rule is that a man who has been guilty of a crime himself will always be able to relate the facts of the case and if the confirmation be only on the truth of that history without identifying the persons that is really no corroboration at all
It would not at all tend to show that the party ac cused participated in it
 Thirdly the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another
But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal
I say this because it was contended that the mother in this case was not an independent source
388 Fourthly the corroboration need not be direct evidence that the accused committed the crime
It is sufficient if it is merely circumstantial evidence of his connection with the crime
Were it otherwise many crimes which are usually committed between accomplices in secret such as incest offences with females or unnatural offences could never be brought to justice Next I turn to another aspect of the case
The learned High Court Judges have used Mst
Purni s statement to her mother as corroboration of her statement
The ques tion arises can the previous statement of an accomplice or a complainant be accepted as corroboration  That the evidence is legally admissible as evidence of conduct is indisputable because of Illustration j to section 8 of the Evidence Act which is in these terms The question is whether A was ravished
The facts that shortly after the alleged rape she made a complaint relating to the crime the circumstances under which and the terms in which the complaint was made are relevant
 But that is not the whole problem
for we are concerned here not only with its legal admissibility and relevancy as to conduct but as to its admissibility for a particular purpose namely corroboration
The answer to that is to be found in section 157 of the Evidence Act which lays down the law for India
Section 157 states that In order to corroborate the testimony of a witness any former statement made by such witness relating to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact may be proved
 The section makes no exceptions therefore provided the condition prescribed that is to say at or about the time etc  are fulfilled there can be no doubt that such a statement is legally admissible in India as corroboration
The weight to be attached to it is of course another matter and it may be that in some 389 cases the evidentiary value of two statements emanating from the same tainted source may not be high but in view of section 118 its legal admissibility as corroboration cannot be questioned
To state this is however no more than to emphasise that there is no rule of thumb in these cases
When corroborative evidence is produced it also has to be weighed and in a given case as with other evidence even though it is legally admissible for the purpose on hand its weight may be nil
On the other hand seeing that corrobo ration is not essential to a conviction conduct of this kind may be more than enough in itself to justify acceptance of the complainant s story
It all depends on the facts of the case
In the present case Mst
Purni told her mother about the incident about four hours after it occurred
The reason for the delay was that her mother was not at home when she went there
She says that when she went home she lay down and went to sleep and that when her mother returned she asked her why she was sleeping and then she told her mother what had happened
Her mother tells much the same story
She says she had gone out to her field in the morning and did not return till about 4 pm
When she reach home she found her daughter lying there weeping
She has been be lieved by the learned trial Judge as also by the High Court and has not been disbelieved by the learned Sessions Judge
All he says is that she is not an independent witness and is therefore not sufficient for corroboration
The first question is whether this delay fulfills the at or about condition
In my opinion here also there can be no hard and fast rule
The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportu nity for tutoring or concoction
It was suggested that the child could have complained to some women who were working in the neighbourhood but that would not be natural in a child
She would be frightened and her first instinct would be to run home to her mother
The High Court 390 was satisfied on these points and so am I
Consequently the matter does fall within the ambit of section 157 read with section 8 Illustration j
The next question is whether the mother can be regard ed as an independent witness
So far as this case is con cerned I have no doubt on that score
It may be that all mothers may not be sufficiently independent to fulfill the requirements of the corroboration rule but there is no legal bar to exclude them from its operation merely on the ground of their relationship
Independent merely means independent of sources which are likely to be tainted
In the absence of enmity against the accused there is no reason why she should implicate him falsely
It is true the ac cused suggested that they were on bad terms but that has not been believed by anyone
The third question is whether there is independent corroboration connecting the accused with the crime
The only corroboration relied on for that is the previous state ment of the child to her mother
That might not always be enough but this rule can be waived in a given case just as much as the necessity for any corroboration at all
In the present case the learned High Court Judges would have acted on the uncorroborrated testimony of the girl had they not felt pressed by the corroboration rule
Viewing all the circumstances I am satisfied that the High Court was right
I am satisfied that in this case considering the conduct of the girl and her mother from start to finish no corrobora tion beyond the statement of the child to her mother was necessary
I am satisfied that the High Court was right in holding that that was enough to make it safe to act on her testimony
I would dismiss the appeal and direct the appellant to surrender to his bail in accordance with the terms of his bond serve out his sentence and pay the fine
FAZL ALI J
I agree
Appeal dismissed


Summary:
The respondent No 1 Shri P Shiv Shankar Minister of Law Justice and Company Affairs at the relevant time delivered a speech at a meeting of the Bar Council of Hyderabad
The petitioner alleged that in that speech the respondent No 1 had made statements derogatory to the dignity of the Supreme Court attributing to the Court partiality towards affluent people and using extremely intemperate and undignified language and that the speech contained slander cast on this Court both in respect of the Judges and the working of the Court
He stated that he had approached the Attorney General for India and the Solicitor General of India to give their consent for initiating Contempt proceedings
The Attorney General and the Solicitor General having declined to deal with this prayer of the petitioner an application for initiation of Contempt under section 151a and b of the Act read with Explanation 1 and Rule 3a b and c of the contempt of Supreme Court Rules 1975 was made wherein Shri P Shiv Shankar the Attorney General the Solicitor General were made parties
The Court issued notice
In response Shri P Shiv Shankar filed an affidavit stating that he had delivered the speech on the subject of accountability of the Legislature Executive and the Judiciary and had made comments on the accountability of the three organs and the theoretical implications thereof and that he had intended no disrespect to any of the institutions or its functionaries much less the Supreme Court
It was further stated that the Contempt petition was not maintainable without the consent of the Attorney General or the Solicitor General
In the meantime Shri RN Trivedi Advocate filed an application claiming right to be impleaded as a party stating that the Attorney General and the Solicitor General should not have been made parties to the comtempt petition and that the alleged non exercise of the jurisdiction by the Attorney General and the Solicitor General had 548 not constituted contempt within the meaning of section 2c of the Act
Declining to initiate the contempt proceeding and dismissing the petition and disposing of the application filed by Shri RN Trivedi the Court  HELD Per Sabyasachi Mukharji J Before deciding the question whether this application was maintainable without the consent of the Attorney General or the Solicitor General as contended by Dr Chitale on behalf of Shri Shiv Shankar and the question whether the Attorney General and the Solicitor General could be made parties to the Contempt application and whether their action or inaction was justiciable at all in any proceeding and if so in what proceedings it was necessary to decide the basic question whether the speech made by Shri P Shiv Shankar had amounted to contempt of this Court or in other words whether the speech had the effect of bringing this Court into disrepute
562H 563A B Administration of justice and Judges are open to public criticism and public scrutiny
Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office that is to defend and uphold the Constitution and the laws without fear and favour
This the Judges must do in the light given to them to determine what is right
Any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be prevented
The contempt of Court proceedings arise out of that attempt
Judgments can be criticised motives of the Judges need not be attributed
It brings the administration of Justice into deep disrepute
Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains
In the free market place of ideas criticism about the judicial system or Judges should be welcomed so long as such criticisms do not impair or hamper the administration of justice
This is how the courts should approach the powers vested in them as judges to punish a person for an alleged contempt be it by taking notice of the matter suo motu or at the behest of the litigant or lawyer
563C F In this case the Court had examined the entire speech
Shri P Shiv Shankar had examined the class composition of the Supreme Court
His view was that the class composition of any instrument indi 549 cated its predisposition prejudices
This is inevitable
The intuition more subtle than major premise on which the decision will depend is the pride and the prejudice of a human instrument of a Judge through which objectively the Judge seeks to administer justice according to law
So in a study of accountability if class composition of the people manning the institution is analysed there has to be forewarning about certain inclination and it cannot be said that an expression or view or propagation of that view hampers the dignity of the Courts or impairs the administration of Justice
565F H 566A It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the Court and in the majesty of law and that has been caused not so much by scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy
It is a criticism which judges and lawyers must make about themselves
We must turn the search light inwards
At the same time the Court cannot be oblivious of the attempts made to decry or denigrate the judicial process if it is seriously done
This question was examined in Rama Dayal Markarha vs State of Madhya Pradesh   where it was held that fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt
In fact such a fair and reasonable criticism must be encouraged because after all no one much less Judges can claim infallibility
Such a criticism may fairly assert that the judgment is incorrect or an error has been committed with regard to law or established facts
But when it is said that the Judge had a predisposition to convict or deliberately took a turn in discussion of evidence because he had already made up his mind to convict the accused or has a wayward bend of mind is attributing motives lack of dispassionate and objective approach and analysis and prejudging of issues that would bring administration of justice into ridicule
Such criticism sometime interferes with the administration of justice and that must be judged by the yardstick whether it brings the administration of justice into ridicule or hampers administration of justice
After all it cannot be denied that pre disposition or subtle prejudice or unconscious prejudice or what in Indian language is called Sanskar are inarticulate major premises in decision making process
That element in decision making process cannot be denied it should be taken note of
569B G It has to be borne in mind as has been said by Banjamin N Cardozo in The Nature of the Judicial Process that the judge as the 550 interpreter for the community of its sense of law and order must supply omissions correct uncertainties and harmonize results with justice through a method of free decision
Courts are to search for light among the social elements of every kind that are the living force behind the facts they deal with
569G H 570A Though at places intemperate the statement of the Minister in this case cannot be said to amount to interference with the administration of justice and to amount to contempt of court
The Administration of justice in this country stands on surer foundation
In the speech it appears that Shri P Shiv Shankar was making a study of the attitude of this Court
It was stated that the Supreme Court was composed of the element from the elite class
Whether it is factually correct or not is another matter
In public life where the champions of the down trodden and the politicians are mostly from the so called elite class if the class composition is analysed it may reveal interesting factor as to whether elite class is dominant as the champions  of the oppressed or of the social legislations and the same is the position in the judiciary
But the Minister went on to say that because the Judges had their unconcealed sympathy for the haves  they interpreted the expression compensation  in the manner they did
The expression unconcealed  was unfortunate
But this was also an expression of opinion about an institutional pattern
Then the Minister went on to say that because of this the word compensation  in Article 31 was interpreted contrary to the spirit and intendment of the Constitution
The Constitution had to be amended to remove this oligarchic  approach of the Supreme Court with little or no help
The inter action of the decisions of this Court and the constitutional amendments had been viewed by the Minister in his speech but that was nothing new
This by itself does not affect the administration of justice
On the other hand such a study is perhaps important for the understanding of the evolution of the constitutional development
Criticisms of judgments is permissible in a free society
573C D 575E H 576A BF There was one paragraph which appeared to be rather intemperate it read thus Anti social elements ie FERA violators bride burners and whole hordes of reactionaries have found their heaven in the Supreme Court
576F G That if true is a criticism of the laws
The Supreme Court as it is bound to do has implemented the laws and in implementing the laws it 551 is a tribute to the Supreme Court that it has not discriminated between persons and persons
Criminals are entitled to be judged in accordance with law
If anti social elements and criminals have benefited by decisions of the Supreme Court the fault rests with the laws and the loopholes in the legislation
The Courts are not deterred by such criticisms
576G H Bearing in mind the trend in the law of contempt as noticed before as well as in some of the decisions noticed by Krishna Iyer J in the case of Re section Mulgaokar   the speech of the Minister read in its proper perspective did not bring the administration of justice into disrepute or impair administration of justice
In some portions of the speech the language used could have been avoided by the Minister
The Minister perhaps could have achieved his purpose by making his language mild but his facts deadly
With these observations it must be held that there was no imminent danger of interference with the administration of justice nor of bringing administration of justice into disrepute
In that view it must be held that the Minister was not guilty of contempt of Court
577A C Another question of law of some importance had arisen in this matter
Under the Act in case of criminal contempt other than a contempt referred to in section 14 which was not this case namely a contempt of this Court or a High Court this Court or the High Court may take action either on its own motion or on a motion made by the Advocate General which in relation to this Court means the Attorney General or the Solicitor General or any other person with the consent of the Attorney General in terms of section 15 of the Act
Cognizance for criminal contempt could be taken by the Court by three methods namely on its own motion or on the motion of the Attorney General or the Solicitor General or on the motion of any other person with the consent of the Attorney General
The only course open to a citizen for initiating proceedings for contempt is to move for consent of the Attorney General or the Solicitor General
The question is does it cast a duty upon the Attorney General or the Solicitor General to consent to application for grant of such consent and whether the granting or non granting of such consent is justiciable by the Court and if so whether the question of non granting can be brought up in a rolled application moved by a person to bring it to the notice of the Court to take action suo motu and at the same time to consider whether in the same proceedings the action of the Attorney General or the Solicitor General in granting or not granting consent can be challenged or it must be always by an independent proceeding
The consent certainly is linked up with 552 contempt proceedings
In this case the Minister had taken the plea that consideration of this case could not be taken up because there was no consent of the law officers
Did it or did it not tend to interfere with the due course of judicial proceedings in terms of clause ii of section 3c of the Act The Attorney General and the Solicitor General in respect of this Court occupy positions of great importance and relevance
The Attorney General is a friend philosopher and guide of the Court Article 76 of the Constitution
Yet the Act vests him with certain discretions
All statutory discretions are justiciable in a society governed by the rule of law
This Court is the finder and interpreter of law in cases of this nature with the assistance of Attorney General and in his absence or inability the Solicitor General
577C H 578A C The petitioner in this case had approached the Attorney General and the Solicitor General to look into the matter and accord sanction
The conduct of the respondents Nos 2 and 3 according to the petitioner amounted to refusal to exercise jurisdiction vested in them by law and therefore they were impleaded as parties in the present proceedings as necessary andor proper parties in order that they might get an opportunity to justify the stand they had taken in the matter flowing fr m their refusal to exercise jurisdiction
580E G The question is whether there is a duty cast upon the Attorney General or the Solicitor General to consider the question of granting consent in terms of clause b of section 151 of the Act and if in fact such consent is not granted that question can be considered by the Court
It was not a question of making the Attorney General or the Solicitor General a party to a contempt proceeding in the sense that they were liable for contempt but if the hearing of the contempt proceedings is better proceeded with by obtaining the consent of the Attorney General or the Solicitor General and the question of justiciability of giving the consent is inter linked on the analogy of order II Rule I of the Code of Civil Procedure which has application to a civil proceeding and not to a criminal proceeding it is permissible to go into this question
In the case of Conscientious Group vs Mohammed Yunus and others  this Court went into the reasons given by the Solicitor General declining consent and held on examination that such consent was properly refused
This is a complete answer to the contention that in a contempt petition the grounds for either giving consent or not giving consent or for not considering the application for consent are justiciable and that question cannot be gone into in that proceeding though it must be emphasised in that proceeding that 11 the Solicitor General was not made a party to the proceeding
In his 553 Lordship s opinion it will be more appropriate for an officer of the Court whose action is being investigated to be made a party in the proceedings otherwise it would be violative of the rule of audi alteram partem
Discretion vested in the law officers of this Court to be used for a public purpose in a society governed by rule of law is justiciable
It would be more appropriate that it should be gone into upon notice to the law officer concerned
It is a case where appropriate ground for refusal to act can be looked into by the Court
It cannot be said that the refusal to grant consent decides no right and it is not reviewable
Refusal to give consent closes one channel of initiation of contempt out of the three different channels namely 1 the Court taking cognizance on its own motion 2 on the motion by the Attorney General or the Solicitor General and 3 by any other person with the consent in writing of the Attorney General or the Solicitor General
In this case apparently the Attorney General and the Solicitor General had not moved on their own
The petitioner could not move in accordance with law without the consent of the Attorney General and the Solicitor General though he has a right to move and the third is the Court taking notice suo motu
But irrespective of that there was the right granted to the citizen of the country to move a motion with the consent
Indubitably cognizance could be taken suo motu by the Court but the members of the public have also the right to move the Court
That right of bringing to the notice of the Court is dependent upon consent being given either by the Attorney General or the Solicitor General and if that consent is withheld without reasons or without consideration of that right granted to any other person under section 15 of the Act that could be investigated in an application made to the Court
581B H 582A C 584C D Where an appeal comes to this Court which is a judicial decision the judges who rendered the decision are not necessary parties
There is no lis between a suitor and a judge in a judicial adjudication
But the position is entirely different where there is a suitor claiming the exercise of a statutory right in his favour which he alleges is hampered by an official act of a named official in the Act
In respect of justiciability of that act of the official there is a lis and if that lis is inter linked with the proceeding for contempt there is warrant for making him party in that proceeding though the prayers and the notice must be issued differently
The statute gives a right to a suitor to move the Court in one of the contingencies for contempt or bring to the notice of the Court the contempt with the advice and assistance of the Attorney General or the Solicitor General
If such right is not considered on relevant materials then that action is justiciable in the appropriate proceeding for contempt
585C G 554 Having considered the peculiar facts and circumstances of this A case and the allegations of bias made against the Attorney general and the Solicitor General it appeared that the Attorney General and the Solicitor General acted properly in declining to deal with the matter and the Court could deal with the matter on attention being drawn to this Court
In that view of the matter the petition failed and the application of Shri Trivedi was accordingly disposed of
588D E Per section Ranganathan J Concurring The impugned comments were made by the respondent No 1 in the course of his key note address at a seminar on Accountability of the Legislature Executive and Judiciary under the Constitution of India 
The speech and in particular some sevoury  passages therefrom were highlighted in the Press
The speech had been made before an audience comprising essentially lawyers Jurists and Judges
It represented primarily an exercise by the speaker to evaluate the roles of the executive legislature and judiciary in the country since its independence and to put forward the theory that like the executive and the legislature the judiciary must also be accountable to the people
588F H 589A The petitioner contended that certain passages in the speech seemed to attribute a sub conscious partiality bias or predeliction in the Judges in disposing of various matters before them and that those comments fell within the scope of the decision of this Court in the case of EM Sankaran Namboodripad vs T Narayanan Nambiar  589A B It was true as pointed out by Sabyasachi Mukharji J that there were passages in the speech which torn out of context might be liable to be misunderstood but reading the speech as a whole and bearing in mind the select audience to which it was addressed his Lordship agreed with Sabyasachi Mukharji J that no contempt had been committed
The affidavit of the respondent No 1 should be accepted at its face value that the speech was only a theoretical dissertation and that he intended no disrespect to this Court or its functioning
589D E The second aspect of the case on which arguments were addressed before the Court related to the procedure to be followed in such matters
This aspect raised some important issues
589E F The criminal miscellaneous petition filed by the petitioner purported to be only information us 15 1a and b of the 555  the Act 
The petitioner stated that he came to know from a report in the newspaper that the respondent No 1 in the course of his speech had made certain statements which randered him liable to be proceeded against for contempt of court and appending what was stated to be a full text of the said speech published in the Newstime prayed for initiation of contempt of court proceedings suo motu under section 151 of the  read with rule 3a of the Supreme Court Contempt of Court Rules 1975
Though the respondent No 1 only according to the petitioner was to be charged with contempt the petitioner had added three more respondents to the criminal miscellaneous petition namely the Attorney General for India by name the Solicitor General of India by name and Sri Ramji Rao Editor of Newstime
The petition raised certain questions of general importance for consideration to evolve a proper procedure for future guidance in these matters
589F H 590A B The petitioner sought to charge respondent No 1 with Criminal Contempt under Section 15 of the 
A conjoint perusal of the Act and the rules of the Supreme Court to regulate proceedings for Contempt of Supreme Court makes it clear that so far as this Court is concerned action for contempt may be taken by the Court on its own motion or on the motion of the Attorney General or the Solicitor General or of any other person with his consent in writing
There is no difficulty where the Court or the Attorney General chooses to move in the matter
When a private person desires that such action should be taken he may place the information in his possession before the Court requesting the Court to take action or he may place the information before the Attorney General requesting him to take action or he may place the information before the Attorney General requesting him to permit him to move the Court
In this case the petitioner alleged that he had failed in the letter two courses and he had moved this petition  praying that this Court should take suo motu action
On this petition  no proceedings could commence until and unless the Court considered the information before it and decided to initiate proceedings
592F H593A B The form of a criminal miscellaneous petition styling the informant as the petitioner and certain persons as respondents is inappropriate for merely lodging the relevant information before the Court under rule 3a of the Supreme Court Contempt of Court Rules
The proper title of such a proceeding should be In re  the alleged contempt
The direction given by the Delhi High Court in 556 Anil Kumar Gupta vs K Subba Rao ILR 1974 Delhi 1 that    if any information is lodged even in the form of a petition inviting this Court to take action us 15 of the or Article 212 of the Constitution where the informant is not one of the persons named in section 15 of the said Act it should not be styled as a petition and should not be placed before the judicial side
Such a petition should be placed before the Chief Justice for orders m chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the Court whether to take any cognizance of the information    sets out the proper procedure in such cases and may be adopted in future as a practice direction or as a rule by this Court and the High Court
However this petition having been filed and similar petitions having been perhaps entertained earlier in several courts his Lordship did not suggest that this petition should be dismissed on this ground
593C H 594A B In this case apart from filing his information in the form of a petition the petitioner had added as respondents to the petition not only the alleged contemner but three more persons ie the Attorney General the Solicitor General and Shri Ramoji Rao Editor of Newstime
The Attorney General and Solicitor General were stated to be impleaded in order that they might get an opportunity to justify their stand in refusing to exercise their jurisdiction to grant consent to him to enable him to file a petition under section 151 read with rule 3c and the fourth respondent was only a possible witness stated to be impleaded only to prove the authenticity of the speech reported in the Newstime in the event of a disclaimer of the respondent No 1
This could not be done
This petition as filed was for initiating proceeding for contempt only against respondent No 1
If the petitioner had any cause of action against the other persons such persons were neither necessary nor even proper parties to this petition because such cause of action was of a purely civil nature
At best the petitioner could say that he was entitled to a writ of mandamus directing the Attorney General and Solicitor General to discharge their statutory obligation or a writ of certiorari to quash their decision in case they had unreasonably withheld their consent to the petitioner s filing a petition
This remedy was to be sought independently against these persons by a separate writ petition
He could not seek relief against the Attorney General and the Solicitor General by a petition mixing up his criminal charge against respondent No 1 and his civil grievance against the Attorney General and the Solicitor General
He could not get over the objection to the maintainability of a petition ie want of cousent of the Attorney General or the Solicitor General merely by the device of adding them as respondents 557 to the petition no relief was sought against the Attorney or the Solicitor A General
This petition if treated as one under rule 3c was not maintainable for want of consent by the Attorney General and the Solicitor General and had to be dismissed as such
The inclusion of respondents 2 to 4 as respondents to the petition was totally unjustified and if the petition was to be taken as merely laying of information under rule 3a the names of respondents 2 to 4 must be struck off from the array of parties
His Lordship directed accordingly
Notice of the petition should not have been issued in the form it was issued to the Attorney General and the Solicitor General since there was no allegation of contempt and no relief had been sought against them
594B H 595A D The petitioner had submitted that the Attorney General and the Solicitor General had acted unreasonably in declining to act in this case
In addition to merely placing the information with him before the Attorney GeneralSolicitor General and seeking their consent to his filing a petition before the Court he had written a letter containing a lot of irrelevant matter whereby while purporting to seek the consent of the Attorney General Solicitor General he had simultaneously expressed his lack of confidence in their judgment and ability to discharge their duties objectively and impartially
In this situation the Attorney GeneralSolicitor General decided not to exercise their statutory powers at all one way or the other
the Attorney GeneralSolicitor General acted rightly and in the best traditions of their office by declining to deal with the petitioner s request
The petitioner had cast aspersions against both the law officers doubting their ability to act objectively and this stultified by his conduct this course indicated by the Statute
598G H 599A CF As to the question whether in a case where neither the Attorney General nor the Solicitor General was in a position to consider a request under section 151c the petitioner could seek the consent of some other law officers as the Additional Solicitor General it was not open to him to seek such consent as under section 15 the written consent of only those officers as have been specifically authorised by the section would be taken note of for entertaining a petition under the section
599G H 600A B Summing up the conclusion a This petition if treated as and filed under section 151 read with rule 3a was not in proper form and if treated as one filed under rules 3b and 3c was not maintainable as it was not filed by the 558 Attorney GeneralSolicitor General or any other person with his consent 600C b In either event the petitioner should not have added to the petition respondents other than the person alleged to be guilty of Contempt of Court and their names should be deleted from the array of the Parties 600D c In case the Attorney GeneralSolicitor General refuse consent or decline to act their decision is not judicially reviewable and a petitioner s remedy is to approach the Court for action under rule 3a 600E d In this case the Attorney GeneralSolicitor General acted properly in declining to deal with the petitioner s application either way and 600F e This petition was nothing more than information under rule 3a on which this Court might or might not take suo motu action and there was no need to initiate proceeding against the respondent No I for Contempt of Court
600F G Ambard vs Attorney General for Trinidad and Tobago  325 EM Sankaran Namboodiripad vs T Narayanan Nambiar  2 SCC 325 Joseph Loohner vs People of the State of New York 49 Lawyers  Edition  Re Shri section Mulgaokar  New York Times Company vs LB Sullivan   Regina vs Commissioner of Police of the Metropolis Ex Parte Blackburn  Special Reference No I of 1964   Shri Baradakanta Mishra vs The Registrar of Orissa High Court and another   Ram Dayal Markarha vs State of Madhya Pradesh   Conscientious Group vs Mohammed Yunus and others JT 1987 2 377 National Anthem case   Vassiliades vs Vassiliades and others AIR 1945 PC 38 SK Sarkar vs VC Misra   CK Daphtary and others vs OP Gupta and another  GN Verma vs Hargovind Dayal and others AIR 1975 Allahabad 52 B K Kar vs The Chief Justice and his Companion Judges of the Orissa High Court and others   Attorney General vs Iyimes Newspapers Ltd  Indian Express Newspapers Bombay Pvt Ltd and others etc
vs Union of India  others   Gouriet and others vs HM Attorney General 1978 Appeal Cases 435 Gouriet vs Union of Post office Workers 1978 Appeal cases 435 559 Gouriet vs Union of Post offices Workers  Ors to 752 Rajagopal vs Murtza Mutjahdi 1974 1 Andhra Law Times 170 N Venkataramanappa vs DK Naikar AIR 1978 Karnataka 57 Anil Kumar Gupta vs K Subba Rao ILR 1974 Delhi 1 and AG vs Times Newspapers  referred to