iminal Appeal No 25 of 1954
Appeal under Article 1341 c of the Constitution from the judgment and order dated the 12th January 1954 of the Patna High Court in Criminal Miscellaneous Case No 10 of 1953
M C Setalvad Attorney General of India and Mahabir Prasad Advocate General of Bihar Balbhadra Prasad Sinha and P G Gokhale with them for the appellant
Purshottam Prikamdas R Patnaik with him for the respondent
November 8
The Judgment of the Court was delivered by BHAGWATI J
This appeal with certificate under article 1341c of the Constitution arises out of an application under section 2 of the Contempt of Courts 121 956 Act XXXII of 1952 and section 8 of the XXXVII of 1850 read with article 227 of the Constitution filed by the respondent against the appellant in the High Court of Judicature at Patna and raises an important question as to whether the Commissioner appointed under Act XXXVII of 1850 is a Court
The respondent is a Member of the Bihar Civil Service Executive Branch
The State Government received reports to the effect that the respondent bad been guilty of serious misconduct and corrupt practices in the discharge of his official duties while employed as Sub Divisional Officer at Aurangabad and they accordinly decided that an inquiry into the truth of
the various charges against him should be made under the provisions of the Act XXXVII of 1850 hereinafter referred to as the Act and Mr Anjani Kumar Saran who was the then Additional District and Sessions Judge Gaya and was thereafter the District and Sessions Judge of that place was appointed Commissioner under the Act for making the inquiry
Gaya was fixed as the venue of the inquiry and the State Government also ordered that during the pendency of the inquiry the respondent will remain under suspension
The Government made the appointment aforesaid after obtaining the concurrence of the High Court on its administrative side which was obtained on the condition that an extra temporary post of Additional District and Sessions Judge was created by the Government for the period Mr Saran was occupied with the inquiry
The appointment was made on the 2nd June 1952 and it was expected that Mr Saran would be able to complete the inquiry during a period of three months
The respondent however adopted dilatory tactics
He made various representations to the Government one on the 6th June 1952 demanding that a Judge of the High Court be appointed as Commissioner under the Act to make the inquiry against him and that inquiry be made at Patna and not at Gaya another on the 10th July 1952 protesting against the appointment of Mr Saran 957 as Commissioner to hold the inquiry against him and demanding that a  confirmed District and Sessions Judge be appointed as Commissioner in his place and  a third on the 17th November 1952 in which he requested the Government to appoint three Commissioners instead of one for holding the inquiry against him and also to pay the entire cost of his defence at the same rates at which the Special Public Prosecutor engaged by the Government was being paid and also to reimburse other incidental expenses to be incurred by him
All these representations were turned down by the Government
Being thus thwarted in his attempts to put off the inquiry on some pretext or the other the respondent tried to evade the same and failed and neglected to reply to the queries made from him by the Commissioner
The Commissioner also could not communicate to him the orders passed by him from time to time because the respondent did not stay at the headquarters and did not leave his proper address for communication either at Gaya or at Motihari
On the 24th November 1952 the Commissioner passed an order calling upon the parties to attend the hearing of the proceedings before him on the 8th December 1952 and forwarded a copy of this order to the appellant for communication to the respondent
The District Magistrates of Champaran and Gaya who were requested to serve a true copy of the order upon the respondent could not do so as he was available neither at Motihari nor at Gaya and it was with great difficulty that he could be traced at Patna and the order served upon him
On the 18th December 1952 the Commissioner passed another order recording that he was feeling great difficulty in contacting the respondent and in communicating his orders to him
He observed that this was a highly undesirable state of affairs and that it was necessary that his orders should be communicated to the res pondent as early as possible
A copy of this order was forwarded by the Commissioner to the appellant along with his letter dated the 20th December 1952 for information and doing the needful
The appellant thereafter wrote the letter complained against to 958 the Commissioner on the 26th December 1952 being DO No II3C 30652A 11614 which ran as under Dear Mr Saran I am desired to refer to your memo No 8266 dated the 26th November 1952 and to say that Government are anxious not to allow Mr Jyoti Narayan to adopt dilatory tactics and delay the progress of the inquiry against him
I am to request you to be vigilant against such tactics adopted by Mr Narayan
Yours sincerely Sd B N Sinha
The Commissioner acknowledged receipt of this letter by his DO letter No 244 dated the 5th January 1953 stating that he would not allow the respondent to adopt any dilatory tactics and delay the progress of the inquiry against him
On the 2nd February 1953 the respondent filed a petition before the Commissioner stating inter alia that he had not been able to engage any lawyer or counsel for want of necessary papers and copies and prayed for an adjournment of the inquiry
He also prayed for starting a contempt of Court proceeding against the appellant but the Commissioner rejected both his prayers
The order which was passed by the Commissioner on these applications may as well be set out in extenso inasmuch as it has a bearing on the question whether the appellant was guilty of contempt of Court for having addressed the letter complained against to him 3 2 53
Another point raised in the first petition of the accused was that Mr BN Sinha Deputy Secretary to Government in addressing his DO letter No 11614 dated the 26th of December 1952 was guilty of contempt because he had interfered in my judicial discretion
I do not find anything in this letter from which it can be inferred that the author of the letter intended to influence me in the exercise of my judicial function
This letter was sent to me in reply to my memo No 8266 dated 26 11 1952 whereby I had forwarded a copy of my order dated 24 11 1952 for communication to Mr Narayan
Mr 959 BN Sinha wrote in his letter dated the 26th of December 1952 that Government are anxious not to allow Mr Jyoti Narayan to adopt dilatory tactics and to delay the progress of the inquiry
Now it is to be noted that Mr Narayan in paragraph 11 of his petition has himself charged the State Government for delaying the inquiry and thereby causing harassment to him
Therefore it is obvious that both parties that is the State and the accused are anxious that the inquiry should be expedited so what Mr BN Sinha meant by writing the DO was that the inquiry should be expedited
This cannot by any stretch of imagination be construed to mean that the aforesaid officer in any way tried to influence me in the discharge of my judicial functions
For these reasons I rejected the two prayers contained in the first petition of Mr J Narayan
The respondent thereafter started proceedings in contempt against the appellant in the High Court of Judicature at Patna
A Rule was issued by the High Court against the appellant which was heard and finally disposed of on the 12th June 1954
The High Court was of the opinion that the Commissioner appointed under Act XXXVII of 1850 was a Court that the Court was subordinate to the High Court that the letter complained against amounted to a contempt of Court and that the appellant was guilty of such contempt
It accordingly sentenced the appellant to pay a fine of Rs 250 and in default to undergo simple imprisonment for a period of one month
The appellant obtained a Certificate under Article 1341 e of the Constitution from the High Court
The Certificate was however limited to the question as to whether the Commissioner appointed under the Act is a Court
At the hearing before us the appellant filed a petition for urging additional grounds which included inter alia the ground that the High Court erred in holding that the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the for the mere reason that its orders are open to be reviewed 960 judicially in exercise of the power vested in the High Court under article 227 of the Constitution and also the ground that the High Court erred in holding that the letter complained against tended to interfere with or obstruct the course of justice and constituted contempt of Court
The learned Attorney General for the appellant contended in the first instance that the Commissioner appointed under the Act is not a Court
He next contended that even if he is a Court he is not a Court subordinate to the High Court within the meaning of the 
He lastly contended that the letter complained against did not tend to interfere with or obstruct the course of justice and did not constitute contempt of Court
Prior to the enactment of the  there was in existence in India the Contempt of Courts Act 1926 XII of 1926
The various States also had their corresponding enactments
The Contempt of Courts Act 1926 XII of 1926 and the corresponding enactments in the States of Hyderabad Madhya Bharat Mysore Pepsu Rajasthan and Travancore Cochin and the Saurashtra Ordinance II of 1948 were repealed by the and a uniform Act to define and limit the powers of certain Courts in punishing contempts of Courts was enacted which extended to the whole of India except the State of Jammu and Kashmir
In section 2 of the Act High Court was defined as meaning the High Court for a Part A State or a Part B State and including the Court of the Judicial Commissioner in a Part C State
Section 3 of the Act enacted 3
1 Subject to the provisions of sub section 2 every High Court shall have and exercise the same jurisdiction powers and authority in accordance with the same procedure and practice in respect of contempts of Courts subordinate to it as it has and exercises in respect of contempts of itself
2 No High Court shall take cognisance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an 961 offence punishable under the Indian Penal Code Act XLV of 1860
The word Court was not defined in the Act and  the expression Courts subordinate to the High Courts would prima facie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union
It would be relevant however to notice the definitions of Court available elsewhere
Coke on Littleton and Stroud defined the word Court as the place where justice is judicially administered
According to Stephen In every Court there must be at least three constituent parts the actor reus and judex the actor or plaintiff who complains of an injury done the reus or defendant who is called upon to make satisfaction for it and the judex or judicial power which is to examine the truth of the fact and to determine the law arising upon that fact and if any injury appears to have been done to ascertain and by its officers to apply the remedy
Section 3 of the Indian Evidence Act I of 1872 defines Court as including all Judges and Magistrates and all persons except arbitrators
legally authorised to take evidence
This definition however has been held to be not exhaustive but framed only for the purpose of Indian Evidence Act and is not to be extended where such an extension is not warranted
Sections 19 and 20 of the Indian Penal Code Act XLV of 1860 define the words Court and the Court of Justice as under Section 19
The word Judge  denotes not only every person who is officially designated
as a Judge but also every person who is empowered by law to give in any legal proceeding civil or criminal a definitive judgment or a judgment which if not appealed against would be definitive or a judgment which if confirmed by some other authority would be definitive or who is one of a body of persons which body of persons is empowered by law to give such a judgment
962 Section 20
The words Court of Justice denote a Judge who is empowered by law to act judicially alone or a body of Judges which is empowered by law to act judicially as a body when such Judge or body of Judges is acting judicially
The pronouncement of a definitive judgment is thus considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court
The Privy Council in the case of Shell Co of Australia vs Fedral Commissioner of Taxation1 thus defined Judicial Power at page 295 Is this right What is judicial power Their Lordships are of opinion that one of the best definitions is that given by Griffith C J in Huddart Parker  Co vs Moorehead2 where he says I am of opinion that the words judicial power  as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects whether the rights relate to life liberty or property
The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision whether subject to appeal or not is called upon to take action
Their Lordships further enumerated at page 297 certain negative propositions in relation to this subject 1
A tribunal is not necessarily a Court in this strict sense because it gives a final decision 2
Nor because it hears witnesses on oath 3
Nor because two or more contending parties appear before it between whom it has to decide 4
Nor because it gives decisions which affect the rights of subjects 5
Nor because there is an appeal to a Court 6
Nor because it is a body to which a matter is referred by another body
See Rex vs Electricity Commissioners3 1 2   357
3 963 and observed at page 298 An administrative tribunal may act judicially but still remain an administrative tribunal as distinguished from a Court strictly so called
Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of Judicial power
The same principle was reiterated by this Court in Bharat Bank Limited vs Employees of Bharat Bank Ltd1 and Maqbool Hussain vs The State of Bombay1 where the test of a judicial tribunal as laid down in a passage from Cooper vs Wilson1 was adopted by this Court A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites I The presentation not necessarily orally of their case by the parties to the dispute 2 if the dispute between them is a question of fact the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence 3 if the dispute between them is a question of law the submission of legal arguments by the parties and 4 a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found including where required a ruling upon any disputed question of law
Maqbool Hussain s case above referred to was followed by this Court in section A Venkataraman vs The Union of India and Another4 where a Constitution Bench of this Court also laid down that both finality and authoritativeness were the essential tests of a judicial pronouncement
It is clear therefore that in order to constitute a Court in the strict sense of the term an essential condition is that the Court should have apart from having some of the trappings of a judicial tribunal power to give a decision or a definitive judgment which has finality and authoritativeness which are 1  2 1953 SCR 730
3  340
4  122 964 the essential tests of a judicial pronouncement
It was however urged by Shri Purshottam Tircamdas for the respondent that the word Court should not be limited to a Court of Justice or a Court of law but should be construed in a wide sense including within the connotation other Courts which though not Courts of Justice were nevertheless Courts according to law and be relied upon a decision of the Court of Appeal in England in Royal Aquarium and Summer and Winter Garden Society Ltd vs Parkinson1 and the observations of Fry LJ at page 446 therein I do not desire to attempt any definition of a court
It is obvious that according to our law a court may perform various functions
Parliament is a court
Its duties as a whole are deliberative and legislative the duties of a part of it only are judicial
It is nevertheless a court
There are many other courts which though not Courts of Justice are nevertheless courts according to our law
There are for instance courts of investigation like the coroner s court
In my judgment therefore the existence of the immunity claimed does not depend upon the question whether the subject matter of consideration is a Court of Justice but whether it is a Court in law
Wherever you find a Court in law to that the law attaches certain privileges among which is the immunity in question
The question involved in that case was whether the defendant was entitled to absolute immunity from action for anything done by him while performing his duty as a member of the County Council in dealing with the applications for licences for music and dancing
It was contended on behalf of the defendant that he was exercising a judicial function when he spoke the words complained of and therefore was entitled to absolute immunity in respect of anything he said
The argument that wherever you find a Court in law to that the law attaches certain privileges among which is the immunity in question was used on behalf of the defendant and Fry L J dealt with the same as under at page 447 965 It was said that the existence of this immunity is based on considerations of public policy and that as a matter of public policy wherever a body has to decide questions and in so doing has to act judicially it must be held that there is a judicial proceeding to which this immunity ought to attach
It seems to me that the sense in which the word judicial is used in that argument is this it is used as meaning that the proceedings are such as ought to be conducted with the fairness and impartiality which characterize proceedings in Courts of Justice and are proper to the functions of a judge not that the members of the supposed body are members of a Court
Consider to what lengths the doctrine would extend if this immunity were applied to every body which is bound to decide judicially in the sense of deciding fairly and impartially
It would apply to assessment committees boards of guardians to the Inns of Court when considering the conduct of one of their members to the General Medical Council when considering questions affecting the position of a medical man and to all arbitrators
Is it necessary on grounds of public policy that the doctrine of immunity should be carried as far as this I say not
I say that there is ample protection afforded in such cases by the ordinary law of privilege
I find no necessity or propriety in carrying the doctrine so far as this argument requires
Lord Esher M R expressed himself as follows while dealing with this argument at page 442 It is true that in respect of statements made in the course of proceedings before a Court of Justice whether by judge or counsel or witnesses there is an absolute immunity from liability to an action
The ground of that rule is public policy
It is applicable to all kinds of Courts of Justice but the doctrine has been carried further and it seems that this immunity applies wherever there is an authorized inquiry which though not before a Court of Justice is before a tribunal which has similar attributes
In the case of Dawkins vs Lord Rokeby1 the doctrine was extended 1 LR 8 QB 255  966 to a military court of inquiry
It was so extended on the ground that the case was one of an authorized inquiry before a tribunal acting judicially that is to say in a manner as nearly as possible similar to that in which a Court of Justice acts in respect of an inquiry before it
This doctrine has never been extended further than to Courts of Justice and tribunals acting in a manner similar to that in which such Courts act
Then can it be said that a meeting of the county council when engaged in considering applications for licences for music and dancing is such a tribunal It is difficult to say who are to be considered as judges acting judicially in such a case
The case of Dawkins vs Lord Rokeby1 was a case where immunity was claimed by a witness who had given evidence before a military Court of inquiry
The case went to the House of Lords and the Lord Chancellor in his speech at page 754 in observed Now my Lords adopting the expressions of the learned Judges with regard to what I take to be the settled law as to the protection of witnesses in judicial proceedings I certainly am of opinion that upon all principles and certainly upon all considerations of convenience and of public policy the same protection which is extended to a witness in a judicial proceeding who has been examined on oath ought to be extended and must be extended to a military man who is called before a Court of Inquiry of this kind for the purpose of testifying there upon a matter of military discipline connected with the army
Both these cases the one before the Court of Appeal and the other before the House of Lords were concerned with the extension of the principle of immunity of members of a tribunal or witnesses in judicial proceedings and the Courts logically extended the principle of immunity beyond the Courts of Justice to tribunals or bodies of persons functioning in a manner and according to procedure which was assimilated to a judicial inquiry
The extension of the 1 LR 8 QB 255 967 immunity to such tribunals or bodies would not however constitute them Courts of Justice or Courts of law
The position is thus summarised in the following passage in Halsbury s Laws of England Hailsham Edition Volume 8 page 526 Many bodies are not courts although they have to decide questions and in so doing have to act judicially in the sense that the proceedings must be conducted with fairness and impartiality such as assessment committees guardians committees the Court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds the benchers of the Inns of Court when con sidering the conduct of one of their members the General Medical Council when considering questions affecting the position of a medical man
We must therefore fall back upon the tests laid down above for determining what is a Court strictly so called within the connotation of the term as used in the 
It would be appropriate at this stage to note the relevant provisions of the XXXVII of 1850 which would fall to be considered for determining whether the Commissioner appointed under the Act is a Court or not
The Act was passed for regulating inquiries into the behaviour of public servants and the preamble runs Whereas it is expedient to amend the law for regulating inquiries into the behaviour of public servants not removable from their appointments without the sanction of Government and to make the same uniform throughout India It is enacted as follows  Section 2 requires the articles of charges to be drawn out and a formal and public inquiry to be ordered whenever the Government shall be of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any such person
The inquiry may be committed under section 3 either to the Court 968 Board or other authorities to which the person accused is subordinate or to any other person or persons specially appointed by the Government Commissioners for the purpose
Sections 4 to 7 contain provisions in regard to the conduct of the prosecution and section 8 prescribes the powers of the Commissioners
This section has been particularly relied upon as constituting the Commissioners a Court and runs as under Section 8
The commissioners shall have the same power of punishing contempts and obstructions to their proceedings as is given to Civil and Criminal Courts by the Code of Criminal Procedure 1898 and shall have the same powers for the summons of witnesses and for compelling the production of documents and for the discharge of their duty under the commission and shall be entitled to the same protection as the Zila and City Judges except that all process to cause the attendance of witnesses or other compulsory process shall be served through and executed by the Zila or City Judge in whose jurisdiction the witness or other person resides on whom the process is to be served and if he resides within Calcutta Madras or Bombay then through the Supreme Court of Judicature thereto
When the commission has been issued to a Court or other person or persons having power to issue such process in the exercise of their ordinary authority they may also use all such power for the purposes of the commission
Section 9 prescribes a penalty for disobedience to process issued as aforesaid for the purpose of the commission and sections 10 to 20 prescribe the procedure to be followed in the conduct of the inquiry
It may be noted that this procedure is assimilated as far as possible to the conduct of a prosecution in a Criminal Court of law and the person accused is given the fullest opportunity to enter upon his defence and lead evidence in order to clear himself of the charges levelled against him
Sections 21 and 22 lay down the functions of the Commissioners in regard to the report to be made by them to the Government of their proceedings under the commission and the powers of 969 the Government to pass final orders on such reports
These sections have an important bearing on the question before us and they enact Section 21
After the close of the inquiry the commissioners shall forthwith report to Government their proceedings under the commission and shall send with the record thereof their opinion upon each of the articles of charge separately with such observations as they think fit on the whole case
Section 22
The Government on consideration of the report of the commissioners may order them to take further evidence or give further explanation of their opinions
It many also order additional articles of charge to be framed in which case the inquiry into the truth of such additional articles shall be made in the same manner as is herein directed with respect to the original charges
When special commissioners have been appointed the Government may also if it thinks fit refer the report of the commissioners to the Court or other authority to which the person accused is subordinate for their opinion on the case and will finally pass such orders thereon as appear just and consistent with its powers in such cases
These provisions were considered by this Court in the case of SA Venkataraman vs The Union of India and Another1
The question that arose for consideration there was whether an inquiry made and concluded under the Act amounted to prosecution and punishment for an offence as contemplated under article 202 of the Constitution
Articles of charge bad been framed against the petitioner in that case and evidence had been led both by the prosecutor and by the defence and witnesses on both sides were examined on oath and cross examined and re examined in the usual manner
The Commissioner bad found on a consideration of the evidence that some of the charges had been proved against the petitioner and had submitted a report to that effect to the Government
The President had accepted the opinion of the Commissioner and in view of the findings on 1  970 the several charges arrived at by the latter was pro visionally of the opinion that the petitioner should be dismissed
Opportunity was given to the petitioner under Article 3112 of the Constitution to show cause against the action proposed to be taken in regard to him and after considering his representation and after consultation with the Union Public Service Commission the President finally decided to impose the penalty of dismissal upon him and he was accordingly dismissed
After his dismissal the police submitted a charge sheet against him before the Special Judge Sessions Court Delhi charging him with offences under sections 161 and 165 of the Indian Penal Code and section 52 of the Prevention of Corruption Act and upon that summons were issued by the learned Judge directing the petitioner to appear before his Court
The petitioner thereupon challenged the legality of this proceeding in a writ petition contending that the proceedings were without jurisdiction inasmuch as they amounted to a fresh prosecu tion for offences for which he had been prosecuted and punished already
While considering whether under the circumstances there had been a violation of the fundamental right of the petitioner under Article 202 of the Constitution this Court scrutinised the provisions of the Act and the position of the Commissioner appointed thereunder
Justice Mukherjea as he then was delivered the judgment of the Court and observed at page 1159 As the law stands at present the only purpose for which an enquiry under Act XXXVII  of 1850 could be made is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him prior to giving him a reasonable opportunity of showing cause as is required under article 3112 of the Constitution
An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses
It is a matter of convenience merely and 971 nothing else
It is against this background that we will have to examine the material provisions of the of 1850 and see whether from the nature and result of the enquiry which the Act contemplates it is at all possible to say that the proceedings taken or concluded under the Act amount to prosecution and punishment for a criminal offence and at page 1160 A Commissioner appointed under this Act has no duty to investigate any offence which is punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so
The subject matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated upon which disciplinary action might be taken by the Government if it so chooses
The mere fact that the word prosecution has been used would not make the proceeding before the Commissioner one for prosecution of an offence
As the Commissioner has to form his opinion upon legal evidence be has been given the power to summon witnesses administer oath to them and also to compel production of relevant documents
These may be some of the trappings of a judicial tribunal but they cannot make the proceeding anything more than a mere fact finding enquiry
This is conclusively established by the provisions of sections 21 and 22 of the Act
At the close of the enquiry the Commissioner has to submit a report to the Government regarding his finding on each one of the charges made
This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement
The opinion is not even binding on the Government
Under section 22 of the Act the Government can after receipt of the report call upon the Commissioner to take further evidence or give further explanation of his opinion
When Special Commissioners are appointed their report could be referred to the court or other authority 123 972 to which the officer concerned is subordinate for further advice and after taking the opinion of the different authorities and persons the Government has to decide finally what action it should take
The Court was no doubt concerned in that case with finding whether the inquiry before the Commissioner was tantamount to a prosecution of the petitioner
While considering the same however the position of the Commissioner was discussed and the conclusion to which the Court came was that he was a mere fact finding authority that the report made by the Commissioner to the Government was merely his expression of opinion and it lacked both finality and auth oritativeness which are the essential tests of a judicial pronouncement
This conclusion is sufficient to establish that the Commissioner appointed under the Act was not a Court and his report or findings were not a definitive judgment or a judicial pronouncement inasmuch as they were not binding and authoritative and lacked finality
We are also of the same opinion
Apart from the above considerations which weighed with the Court in that case we have also the provisions of section 8 of the Act itself which go to show that the Commissioners are given certain powers of the Civil and Military Courts in regard to punishing contempts and obstruction to their proceedings summoning of witnesses compelling the production of documents and for service of their process as also the same protection as Zila and City Judges
The very fact that this provision had got to be enacted shows that the position of the Commissioners was not assimilated to that of Judges and that they did not constitute Courts of Justice or Courts of law but were mere fact finding tribunals deriving whatever powers they could exercise under the very terms of the Act which created them
The power of punishing contempts and obstruction to their proceedings as is given to Civil and Criminal Courts by the Code of Criminal Procedure 1898 was also similar in its nature and the very nature and extent of the power indicated that they were not Courts in the ordinary sense of the term
No such provision would have been 973 uted Courts of Justice or Courts of law and it is no argument to say that these provisions were enacted even though they were not strictly necessary merely for the sake of abundant caution or clarification of the position
We are of the opinion that the Commissioner appointed under the Act having regard to the circumstances above set out does not constitute a Court within the meaning of the term as used in the 
Our attention was however drawn by Shri Purshottam Tricamdas to a decision of a Division Bench of the Punjab High Court in Kapur Singh vs Jagat Narain1
That was a case directly in point and on all fours with the case before us
The learned Chief Justice of the Punjab High Court bad been appointed a Commissioner under the Act in the matter of an inquiry against Sardar Kapur Singh ICS and Lala Jagat Narain the editor printer and publisher of ail Urdu Daily newspaper published at Jullundur called The Hindu Samachar was called upon to show cause why he should not be punished under section 3 of with regard to a leading article which appeared in his name in the issue of the paper dated the 12th March 1951
A preliminary objection was taken on his behalf that the Court had no jurisdiction to take proceedings against him for contempt and the argument was that the Court of the Commissioner appointed to hold an inquiry under the Act was not a Court and in any event was not a Court subordinate to the High Court
Mr Justice Falshaw who delivered the judgment of the Court observed at page 50 in connection with this argument The itself seems clearly to indicate that a Commissioner or Commissioners appointed under the Act constitute a Court as they are given all the powers of a Court regarding the summoning of witnesses and other matters and the only ground on which the learned counsel for the respondent could base his argument that the Commissioner does not constitute a Court was that he can 1 AIR 1951 Punjab 49 974 give no final decision but merely has to draw up a report giving his findings on the charge or charges against the respondent which is to be forwarded to the Government
In my opinion however this fact alone is not sufficient to make the Commissioner or Commissioners any thing other than a Court and it is to be noted that the definition of Court in section 3 Evidence Act is very wide indeed as it reads  Court  includes all Judges and Magistrate and all persons except arbitrators legally authorised to take evidence
The learned Judges there relied upon the definition of Court given in section 3 of the Indian Evidence Act which as has already been noted is framed only for the purposes of the Act and is not to be extended where such an extension is not warranted
This definition does not help in the determination of the question whether the Commissioners appointed under the Act constitute a Court and the attention of the learned Judges was not drawn to the position that finality and authoritativeness are the essential tests of a judicial pronouncement
We are of the opinion that the decision reached by the learned Judges of the Punjab High Court in that case was wrong and cannot help the respondent
Our attention was also drawn to another decision of the Nagpur High Court in M V Rajwade vs Dr section M Hassan1
The question which came to be considered by the Court in that case was whether a commission appointed under the was a Court within the meaning of section 3 of the  and while considering the provisions of that Act the learned Judges of the Nagpur High Court incidentally considered the provisions of the 
They rightly observed that the term Court  has not been defined in the 
The Act however does contemplate a Court of Justice  which as defined in section 20 Indian Penal Code 1860 denotes a judge who is empowered by law to act judicially 
The least that is required of a Court is the capacity to deliver a definitive judg 1 AIR 1954 Nag
975 ment and unless this power vests in a tribunal in any particular case the mere fact that the procedure adopted by it is of a legal character and it has the power to administer an oath will not impart to it the status of a Court and came to the conclusion that the commission appointed under the is not a Court within the meaning of the Contempt of Courts Act 1952
The learned Judges were merely considering the provisions of the and were not concerned with the construction of the provisions of the and whatever observations they made in regard to the provisions of the latter Act by way of comparing the same with the provisions of the former which they were there considering would not have the effect of putting on the provisions of the latter Act a construction which would be any avail to the respondent before us
The ratio which was adopted by the learned Judges was quite correct but it appears that they digressed into a consideration of the provisions of the in order to emphasize the character and position of the commission appointed under the even though it was not strictly necessary for the purpose of arriving at their decision though it must be mentioned that while discussing the nature and function of the commission they expressed themselves correctly as under The Commission governed by the is appointed by the State Government for the information of its own mind in order that it should not act in exercise of its executive power otherwise than in accordance with the dictates of justice  equity in ordering a departmental enquiry against its officers
It is therefore a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature
We are of the opinion that neither of these cases which have been relied upon by Shri Purshottam Tricamdas is of any help to the respondent or detracts 976 from the true position as we have laid down above
The only conclusion to which we can come on a consideration of all the relevant provisions of the Act is that the Commissioner appointed under the Act is not a Court within the meaning of the 
In view of the conclusion reached above we do not think it necessary to go into the question whether the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the 
Nor do we think it necessary to express any opinion as to whether the letter complained against constituted a contempt of Court
We may however note in passing that the circum stances under which the letter came to be addressed by the appellant to the Commissioner the terms thereof and the order which was passed by the Commissioner on the application made by the respondent to proceed against the appellant in contempt on date the 2nd February 1953 lend support to the argument which was advanced on behalf of the appellant that the letter complained against did not constitute contempt of Court
The result therefore is that the appeal will be allowed the order passed against the appellant by the Court below will be set aside and the original Criminal Miscellaneous Petition No 10 of 1953 filed by the respondent in the High Court of Judicature at Patna will stand dismissed
The fine if paid will be refunded


Summary:
Held that a Commissioner appointed under the XXVII of 1850 is not a court within the meaning of the XXXII of 1952
Shell Co of Australia vs Federal Commissioner of Taxation 1931 AC 275 HuddartParker  Co vs Moorehead 1909   Rex vs Electricity Commissioners 1924 1 KB 171 Bharat Bank Limited vs Employees of Bharat Bank Ltd 1950 SCR 459 Maqbool Hussain vs The State of Bombay 1953 SCR 730 Cooper vs Wilson 1937 2 KB 309 section A Venkataraman vs The Union of India and Another 1954 SCR 1150 Royal Aquarium and Summer and Winter Garden Society Ltd vs Parkinson 1892 1 QB 431 Dawkins vs Lord Rokeby 1873 LR 8 QB 265 Kapur Singh vs Jagat Narain AIR 1951 Punjab 49 and M V Bajwade vs Dr section M Hassan AIR  referred to