Criminal Appeal No 572 of 1981
From the Judgment and Order dated 2681980 of the Patna High Court in Criminal Appeal No 15 of 1976
Ranjit Kumar for the Appellants
D Goburdhan for the Respondent
The Judgment of the Court was delivered by PUNCHHI J
This appeal by special leave is against the judgment 609 and order of the High Court at Patna dated August 26 1980 passed in Criminal Appeal No 15 of 1976
The facts giving rise to this appeal are that a dacoity took place at about midnight on the night intervening 5th 6th April 1970 in the house of Dhaniram Singh PW11 in village Awadhiya
According to the prosecution 25 to 30 persons armed with guns lathis bhalas and gharasa etc
committed the dacoity and apart from looting away belongings of Dhaniram Singh his uncle Khobari Singh was shot dead and as many as 8 persons including Dhaniram Singh PW11 re ceived injuries
The First Information Report was lodged by Dhaniram Singh PW11 at 630 am on April 6 1970 at police station Bhabhua at a distance of about 7 miles from the place of the occurrence
In it he could name 7 persons specifically as being members of the gang of dacoits
The remaining dacoits were left unnamed
The investigating agency when set into motion took steps as necessary
But at this stage it would be sufficient to mention that neither could the investigation recover the looted property valued by the concerned PWs
at about Rs 8000 nor could it get the particulars of a large number of other participants in the dacoity
When the matter went to triaL before the First Additional Sessions Judge Arrah against the 6 named per sons and one other the old Criminal Procedure of 1898 governed the trial and before hand there were commitment proceedings before a Magistrate in which evidence was recorded
At the commitment stage 10 persons were put to face the enquiry
One accused named Kanhaiya Singh in the meantime died
Two other accused Sukhari Singh and Gulab Gosain also died
There remained 6 of the original accused named in the FIR and one more Ram Naresh Singh not so named to face trial and bear the conviction
The Learned Additional Sessions Judge convicted all the 7 accused under Section 396 IPC and imposed on them a sentence of life imprisonment
On appeal to the High Court two of them namely Ram Naresh Singh the one unnamed in the FIR and Charittar Ahir one of the so named were acquitted but the convic tions of Munni Singh Fekoo Singh Behari Singh Dadan Singh and Guput Singh the appellants herein were maintained
The appellants are residents of village Awadhiya where the occurrence took place
The victims of the crime and other prosecution witnesses are also from Awadhiya
The village appears to be a small one consisting only of 26 27 houses comprising of various castes like Brahmins Rajputs 610 Kahars Ahirs and Kurmis
This is what Hira Singh PW2 has deposed at the trial
The first informant suggested that there was a simmering discontent between his family and the family of Sukhari Singh accused
Munni Singh appellant is the son of Sukhari Singh Fekoo Singh and Behari Singh appellants are the nephews of Sukhari Singh and Guput Singh appellants is the brother of Sukhari Singh
Thus they are closely related
There was a pond measuring about 3 acres in the village which Sukhari Singh claimed had been bestowed on him by the erstwhile Zamindar before the coming into force of the Zamindari Abolition Act
He had taken control of the Tank but some time before the occurrence had sown singhara in it and had prevented people to let their cattle come there to drink water from it
The Panchayat of the village when approached had taken note of it and had 34 days prior to the occurrence suggested to Sukhari Singh that he should rather surrender the Tank in the name of the Shiva Temple
But he had correspondingly suggested to the Pan chayat that the place constructed and occupied by the com plainant party Khobari Singh and others for tying their cattle at the bank of the pond which was part of unsettled lands should also be likewise given to the shiva Temple
The Panchayat was not agreeable to the counter suggestion because the possession and usage of that land by Khobari Singh was very old
With such grudge in mind it is the case of the prosecution that the assault was masterminded and made at the house of the complainant with the sole purpose to avenge and to commit dacoity
The details of the occurrence are provided by Dhaniram Singh PW11 the first informant
He stated that on the day of the occurrence he was in his village having come on a month s leave from his posting as a Weapon Senior Engineer in District Kanpur
On the night of the incident three cots lay spread in the outer courtyard of their house
He was sleeping on one of them and on the remaining two individu ally were his cousin Baliram Singh PW3 and his uncle Khobari Singh deceased
He was awaken by some noise as if some persons were coming
He stood up and switched on his five cell torch and saw 20 25 dacoits armed with lathis bhallas Garasas and guns coming towards his house
On his focussing the torch they stopped
Then the dacoits also switched on their torches
Dhaniram Singh then claims that he recognised in the torch light the accused inclusive of 5 appellants
Munni Singh and Fekoo appellants had guns and the remaining 5 had some other arms
Sukhari Singh shouted kill kill
Munni Singh then fired with his gun towards Dhaniram Singh but 611 he rolled down and by the fall hurt himself on the thigh and the gun fire did not hit him
Then he got up and started running
One of the dacoits hit him with a stick with an iron ring
There was some oozing of blood but it was not profuse
He ran for about 30 steps to get to his wheat field which was about 2 to 3 feet below the level of his courtyard
From there he claims to have seen the remaining part of the occurrence
He saw that when his uncle Khobari Singh had been awakened Munni Singh appellant fired at him and he fell down
Other dacoits who were near him started hitting him with spears
One of the dacoits held a ladder in his hand through which he climbed up to the roof of the inner house from where he jumped into the female apartment and opened the outer door
Then the dacoits entered the house and started looting and plundering
Two dacoits scold ed his brother Baliram PW3 to keep lying down on his cot
In the occurrence however Baliram Singh PW3 received no injury
The dacoits were active for about 15 to 20 minutes
On hearing the noise and commotion other villag ers then started collecting
The dacoits then decamped with the looted goods
Some of the villagers followed them to some distance but the dacoits kept firing on them
With the result that some of them were injured
Khobari Singh and other injured persons were removed to be taken to the hospi tal but Khobari Singh died on the way and then Dhaniram Singh proceeded to the Police Station Bhabua taking the dead body of his uncle with him where the Office in charge PW12 Ram Nagad Tiwari recorded his statement at 630 am on 641970
Shri Tiwari went to the spot and saw the evi dence of dacoity in the form of things lying scattered and some of the articles left behind by the dacoits
He had the injured persons examined medically
He arrested the accused persons
Finally investigation was completed by another officer and the accused persons were put up for trial as mentioned earlier
Before the High Court as also here it is admitted that there was commission of dacoity in the house of the first informant on the day as alleged in which Khobari Singh was killed and others were injured
It is also not disputed that the dacoity being a conjoint act all persons participating in the crime would be equally liable for the killing of Khobari Singh
Thus the only exercise before the High Court as also here is to determine who were the persons who took part in the commission of the dacoity
It is note worthy that prosecution had four sets of witnesses 612 which could establish identity of the dacoity
Three sets became redundant and only on the basis of one set was iden tity of the appellants established
The first set consisted of three injured persons Ramadar Singh Dinanath Singh and Dhirja Singh who were not examined at the trial by the prosecution
This set did not help the prosecution at all
The second set consisted of the evidence of Baliram Singh PW3 Rambali Singh PW4 and Jhuri Singh P W 9 The names of PWs 4 and 9 were not mentioned in the FIR and their evidence was left out of consideration by the Trial Judge as well as the High Court
Even the statement of PW3 was left aside by the High Court
So this set too did not further the prosecution case
In the third set was the evidence of PW1 Bishwanath Chaubey PW 5 Jokhan Bind and PW 8 Chirkut Singh who did not identify any of the da coits
None of these witnesses was declared hostile
Thus their evidence rather goes adverse to the prosecution
The fourth set consisted of evidence of PW2 Hira Singh and PW11 Dhaniram Singh whose evidence has been relied upon by the High Court to identify the 5 appellants and on the basis of the very same evidence two co accused that is Ram Naresh Singh and Charittar Ahir were acquitted because PW 2 named one and excluded the other and PW11 named the other one and excluded the former giving rise to a doubt about the complicity of those two
Thus we are left to see whether the conviction of the appellants can be based on the evidence of these eye witnesses PWs 2 and 11
We have already given a condensed version of Dhaniram Singh PW11
Now according to the Hira Singh PW2 his house is 4 5 houses away from the house of the complainant and when he became awake on hearing the noise he went to see the occur rence taking a torch which kept lighting
According to him he hid himself behind a Bahaya tree and from where he could keep watching the activities of the dacoits whose faces he saw
As he says he could identify 8 dacoits
These were Munni Singh Fekoo Singh Dadan Singh Guput Singh and Behari Singh appellants as respectively armed
In addition there were Sukhari Singh since deceased Ram Naresh Singh and Kanhiya Singh who are no longer in the picture
After the departure of the dacoits he went close to the scene and found Khobari Singh to have been hit by gun shots and that his condition at that time was serious
Then he went in the company of PW 11 firstly towards the hospital and then to the police Station
According to this witness though he focussed the torch for 3 or 4 minutes before he went in hiding the focus did not fall on the faces of the dacoits and after having gone in hiding he 613 had not lit his torch
Yet he claims that he had identified the dacoits in the torch light
He is also certain that no dacoit had muffled his face
The appellants according to him had painted their faces but were not in a position to conceal their identity
He admitted that 3 or 4 day prior to the incident a Panchayat had been convened in which Sukhari Singh was asked to surrender the Tank but he said he would if Khobari Singh demolishes and surrenders the house built on the bank of the Tank first
And further that when the Panchayat told Sukhari Singh that the house having been there for a long time could not be demolished and even Khobari Singh was not agreeable to do so all were angry with the accused persons on account of the Tank
So far as Dhaniram Singh PW11 is concerned he too admits about the convening of the Panchayat 3 or 4 days earlier on which acount Sukhari Singh had nursed an angry feeling due to the happenings in the Panchayat
With regard to the actual ocurrence PW 11 says that when the first shot aimed at him had not hit him and the second shot had been fired at his uncle he then ran 25 30 steps and hid himself in the field of the wheat crop and while running he heard the firing of the third shot
At that juncture he claimed to have kept lighting his torch now and then from the place of his hiding to see what was happening
The point which rises for consideration is whether PWs2 and 11 could individually with the aid of their respective torches identify the dacoits which were 25 30 in number and would the dacoits let them be identified by letting them switch on their torches off and on as claimed  Would these two wit nesses not have attracted attention of the dacoits to be taken care of in priority in their place of hiding  It seems to us that seeing the formidable force of the dacoits and their number these two PWs would have been so non pulsed that they would not have dared to betray their presence by switching on and off their torches especially when they were unarmed and were no match to the might of the dacoits
These two witnesses do not claim that they could identify the dacoits by means other than their torches
This part of the story of the prosecution obviously does not inspire confidence
It is also worthy of notice that PW11 was injured on the head before he ran for safety
That was enough to shake and frighten him
But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others
But his flash of the torch was met instantaneously with numerous torch flashes by the dacoits and it was like day light as said by PW1 Bishwanath Chaubey
It is 614 difficult in this situation to believe PW 11 that he could in a split second have such a perception so as to identify all the five appellants and some others It is obvious and natural that behind a lit torch darkness prevails hiding the identify of the torch bearer and persons situated close
So identity of the dacoits was not possible by PW11 Moreover it is ununder standable that when the dacoits had chosen dark hours for committing the dacoity obviously to take advantage of the darkness and when they were 25 30 in number most of them unknown persons where was the need for the appellants to be in the forefront to risk themselves for identification
This view we are entertaining apart from what the High Court has opined that muffling of faces and concealment of identify by dacoits is not universally parac tised
Thus in the facts and circumstances of the case we entertain a grave doubt about the participation of the appellants in the crime because of the failure of the prose cution to lead convincing evidence about the identity of the appellants as dacoits
There is even no corroboration worth the name in the form of recovery of fire arms and other weapons or of the looted articles from the appellants so as to lend some assurance to the particpation of the appel lants in the cirme
It may well be that the motive asserted by the prosecution relating to the dispute about the pond may have given cause to Dhaniram Singh PW11 to assume that the appellants were responsible for the dacoity commit ted in his house and for Hira Singh PW 2 to entertain that belief in a sweep
For the foregoing reasons we find it difficult to sustain the conviction of the appellants
Accordingly they are acquited of the charge
The appeal is accepted


Summary:
The appellant an Advocate practising in the High Court was earlier working in the Defence Accounts Department on re employment after retiring from the Army
He had filed a Writ Petition before the High Court claiming certain benefits like pension gratuity pay and allowances etc pertaining to the service rendered by him in the Defence Accounts Department and the Army
The High Court dismissed the Writ Petition
It also dismissed the appellant s review application
This Court also dismissed his Special Leave Petition against the High Court s order
Thereafter the appellant moved a Contempt Petition under Section 16 of the making some serious allegations against the two Judges of the High Court who dismissed his Writ Petition and also the Review Petition
A Division Bench of the High Court summarily dismissed the contempt petition
865 Meanwhile the Registry of the High Court examined the allegations made in the affidavit filed by the appellant under Rule 5 of the Rules regarding contempts framed by the High Court
A Division Bench of the High Court before which the matter was placed on the order of the Chief Justice took cognizance of the criminal contempt and directed issue of notice to the appellant directing him to show cause as to why he should not be punished for contempt of Court
The appellant filed his reply raising certain preliminary objections contending that the notice was bad for the reasons that 1 the Section of the Act under which cognizance had been taken was not specifically mentioned 2 the notice did not show sufficient cause as to why the words and expressions used in the offending portions marked had been construed as contemptuous 3 the procedure followed by the High Court was contrary to the rules framed by it and 4 no consent of the Advocate General had been obtained and prayed for discharge of the rule of contempt
Meanwhile on the basis of the High Court s Order the appellant inspected the Court records relating to this matter and thereafter he was also informed that the proceedings were under the provisions of Article 215 of the Constitution of India
After examining the remarks made by the appellant in his contempt petition the High Court rejected the objections of the appellantcontemner and held that the contemner was guilty of criminal contempt of not only scandalising the Court and lowering its authority but also substantially interfering with the due course of justice
Taking note of the defiant attitude of the contemner who even did not think it necessary to apologise but tried to justify the aspersions the High Court sentenced the contemner to suffer simple imprisonment for two months
In the appeal before this Court the contemner who appeared before the Court in person contended that the order of the High Court should be set aside on the ground of procedural irregularities in that 1 that the offending remarks had not been communicated to him as per Rules 5 and 9 framed by the High Court 2 that the cognizance of the criminal contempt had not been taken in conformity with Section 15 of the Act 3 that the procedure after cognizance as prescribed under Section 17 of the Act had not been followed and 4 that Article 215 of the Constitution of India did not prescribe any procedure to be followed
He 866 also contended that he had not been given a fair and full hearing and that the Judges had browbeaten and unjustly convicted him ignoring the well settled principle that every person had an inalienable right of making fair criticism and that the order in question was pre conceived and pre judged one
In his written statement also he made certain remarks about the Judges of the High Court in attempting to justify his action which had led to the initiation of proceedings for contempt of Court before the High Court
Dismissing the appeal this Court HELD 11 The power conferred upon the Supreme Court and the High Court being Courts of Record under Articles 129 and 215 of the Constitution respectively is an inherent power and the jurisdiction vested is a special one not derived from any other statute but derived only from Articles 129 and 215 of the Constitution of India
Therefore the constitutionally vested right cannot be either abridged by any legislation including or abrogated or cut down
Nor can they be controlled or limited by any statute or by any provision of the Code of Criminal Procedure or any Rules
The special feature of the procedure to be followed in a contempt proceeding being summary procedure which is recognised not only in India but also abroad the caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly that the procedure to be followed should be fair and that the contemner should be made aware of the charge against him and given a reasonable opportunity to defend himself
883B D Sukhdev Singh Sodhi vs The Chief Justice and Judges of the PEPSU High Court   RL Kapur vs State of Madras   Delhi Judicial Service Association vs State of Gujarat   section Mulgaokar   Brahma Prakash Sharma and Others vs The State of Uttar Pradesh  and DN Taneja vs Bhajan Lal  relied on
Hira Lal Dixit vs State of UP   Advocate General Bihar vs MP Khair Industries   Ashram M Jain vs AT Gupta and MB Sanghi vs High Court of Punjab and 867 Haryana   referred to
State of Bombay vs P 1958 Bom
Law Reporter 60 Page 873 referred to
Clements and the Republic Costa Rica vs Erlanger page 383 Ex parte Terry   307  80 1888 Matsusow vs United Sates   339 5th Cir 1956 Sukhdev Singh Sodhi CK Daphtary Re Abdool vs Mahtab 1867 8 WR Cr 32 page 33 at 40 Andre Paul vs Attorney General AIR 1936 PC 141 Attorney General vs Butterworth 1963 1 QB 696 Reg
vs Odham s Press Ltd Ex parte AG 1957 1 QB 73 Morris vs The Crown Office  1081 Offutt vs US  Jennison vs Baker 1006 referred to
Belchamber s Practice of the Civil Court 1884 Ed
P 241 Contempt of Court
By Oswald and Halbury s Law of England 4th Edition by Lord Hailsham page 3 referred to 12
In the instant case the offending criticism and the scandalising allegations made by the appellantcontemner are most fatal and dangerous obstruction of justice shaking the confidence of the public in the administration of justice and calling for a more rapid and immediate punitive action
These calculated contemptuous remarks and the sweeping allegations are derogatory in character not only to the dignity of the Judges and casting aspersions on their conduct in the discharge of their judicial functions but also wounds the dignity of the Court
It is highly painful to note that the appellantcontemner who is none other than an Advocate practising in the same highest Court of the State after having failed to wrench a decision in his favour in his own cause which he prosecuted as party in person has escalatingly scandalised the Court by making libellous allegations which are scurrilous highly offensive vicious intimidatory malacious and beyond condonable limit
Even a cursory reading of the remarks made against the Judge of the High Court unambiguously show that the potentially prejudicial utterances and the outrageous allegations rumbustiously and invectively made by the contemner with malicious design of attempting to impair the administration of justice have struck a blow on the judiciary and also seriously sullied the image dignity and high esteem which the office of the Judge of the High Court carried with it and thus impeded the course of justice by fouling its source 868 and stream
The incident in question is a flagrant onslaught on the independence of the judiciary destructive of the orderly administration of justice and a challenge to the supremacy of the Rule of Law
The maxim Salus populi suprema lex that is the welfare of the people is the supreme law adequately enunciates the idea of law
This can be achieved only when justice is administered lawfully judicially without fear or favour and without being hampered and thwarted and this cannot be effective unless respect for it is fostered and maintained
888E H889A C 13To punish an Advocate for Contempt of Court no doubt must be regarded as an extreme measure but to preserve the proceedings of the Courts from the being deflected or interfered with and to keep the streams of justice pure serene and undefiled it becomes the duty of the Court though painful to punish the contemner in order to preserve its dignity
No one can claim immunity from the operation of the law of contempt if his act or conduct in relation to Court or Court proceedings interferes with or is calculated to obstruct the due course of justice
In view of the heinous type of scandalising the Court the finding of the High Court that the appellantcontemner has made himself guilty of criminal contempt is confirmed
889D E 14 As regards the sentence it is clear from the order of the High Court that the appellant had adopted a defiant attitude and tried to justify the aspersions made by him even without thinking it necessary to apologise
Before this Court also the appellant has neither expressed any contrition nor has he any repentance for the vicious allegations made against the Judges of the High Court
But on the other hand he has exhibited a dogged determination to pursue the matter come what may
A reading of his memorandum of grounds and the written and signed arguments show that he was ventured into another bout of allegations against the High Court Judges and persisted in his campaign of vilification
His conduct in this Court has aggravated rather than mitigating his offence
889F H 15
Therefore having regard to the sentencing policy that punishment should be commensurate with the gravity of the offence the sentence of 2 months  imprisonment in no way calls for interference and is accordingly confirmed
890A