Bar & Bench Relation
Bar & Bench Relation
Bar & Bench Relation
COURSE : BA LLB
BATCH : 2019-2024
SECTION : A
ENROLMENT NO : 11751103819
Types: Following are the types of contempt (i) Civil contempt and
(ii) Criminal contempt.
Civil contempt
S.2(b)Defines the term `civil contempt’ It means (i)Willful
disobedience to any judgemaent,decree,direction,order,writ or other
process of a court; or (ii)Willful breach of an undertaking given to a
court.
For taking action for civil contempt on the ground of willful disobedience
of court order, it should be established that the court which has passed
the order has jurisdiction to pass such order. Disobedience of an order
passed without jurisdiction is not a Contempt must prove that the court
has no jurisdiction. A willful breach of an unconditional undertaking given
orally or in writing either in person or through his Advocate will be
treated as civil contempt. When undertakings are given orally, the court
shall record it in the proceedings.
Breach of a compromise entered in the court cannot be treated as civil
contempt. The remedy in such cases is only a civil suit for specific
performance of the promise.
Punishment: S.12 prescribes the punishment for contempt. Court may
award any one of the following punishments.
(i) Simple imprisonment for a term which may extend to 6 months.
(ii) Fine which may extend to Rs.2000/-.
(iii)Both the punishment Imprisonment and fine together.
Criminal contempt
S.2C defines the term `criminal contempt’ It means
(i) Publication of any matter (by words, spoken or written, or by signs or by
visible representation or otherwise.)
(ii) Doing of any other act which
(a) Scandalises or tender to scandalized, or lowers or tends to lower the
authority of any court.
(b) Prejudices or interferes or tends to interfere with the due course of
judicial proceeding; or
(c) Interferes or tends to interfere with, or obstructs or tends to obstruct
the Administration of justice.
Publication means publishing something orally or in writing through news
paper, pamplets, radio, television or cinema. conversation between two
persons cannot be treated as publication.
To decide criminal contempt, the absence of criminal intention on the part
of the person who has published the matter containing criminal contempt
or done the act of contempt will not be taken into account.
In E.M.S.Namboodiripad vs T.N.Nambiar (AIR 1970 SC 2015) the then Chief
Minister of Kerala, Mr.Namboodiripad in a press meet expressed the
following about judiciary. judiciary is responsible for the suppression of
people. Judges are favouring some class of people and working against the
other classes. Judiciary is acting against the interest of working class and
the agriculturist. judiciary is helping the oppressor group. The Supreme
Court held that the act of Mr. Namboodiripad amounts to criminal
contempt.
Making complaint against a Judge about his misconduct with sufficient
evidence to the higher authorities is not a contempt. But, the same
complaint is published in any manner then it amounts to contempt.
Preventing the court Amin from executing the court order, Threatening an
Advocate not to appear in a particular case, Threatening the witness,
Preventing the witnesses from attending the courts, Preventing the
Commissioner from performing his duties are treated as criminal
contempt.( D.C. Saxena v. Chief Justice of India at P 67).
Punishment:Punishment for the criminal contempt is same like civil
contempt.
Punishment for contempt
S.12 Prescribes the punishment for contempt of court. Punishment is same
for the civil as well as the criminal contempt. If the charge of contempt of
court is proved, the Court shall award any one of the following
punishment.
1.Simple imprisonment for a term which may extend to 6 months.
2.Fine which may extend to Rs.2000/-.
3.Both the punishments imprisonment and fine together.
According to S.12(2),For contempt of court any one of the above
mentioned punishment alone can be given and not any other punishment
alone can be given and not any other punishment. But, in Delhi Judicial
Services Association v. State of Gujarat (AIR 1991 SC 2176)the Supreme
Court held punishment not mentioned in S.12 can also be given for
contempt of court.
In Re Vinay Chandra Mishra (AIR 1995 SC2348) the Supreme Court held
that for contempt of court committed by an Advocate, he shall be
suspended from practice for a fixed period or he shall be permanently
restrained from practice.
The Supreme Court Bar Association has filed a review petition against this
order. In which the Supreme Court held that for contempt of court the
court cannot cancel the Advocates right to practice. But, he shall be
suspended from practice for a fixed period.
For the civil contempt, normally fine alone will be imposed. If the court
thinks that fine alone is not a sufficient punishment then he shall be put in
the civil prison instead of ordinary imprisonment.
If the contempt of court is committed by a company in collusion of the
Directors, Secretary and other Managerical staff then shall be detained in
the civil prison.
If the contempt is committed by a firm then the punishment shall be
enforced against the partners of the firm. Defences in Criminal Contempt
Or
Criminal Contempt not Punishable
S.3 to 7 deals with the defences avilable in Criminal Contempt. They are as
follows:
1.Judicial Respect: Just like the Advocates are giving respect to the Judges
the Judges should also give to the Advocates and the brethren Judges.
2.Patient Hearing: Judges should hear the case with open and respective
mind without any prejudice or bias. They should act only to the interest of
justice. They should give sufficient opportunity for the Advocates to
present the case in full.
3.Impartiality: Judges should act impartialy. They should not act in favour
of any Advocate or a party to the dispute.
4.Avoidance of Interruptions: As far a possible, Judges must avoid
interruptions while the Advocate is examining witnesses and arguing the
case.
Unwarrented interference and adverse comments by the Judges may
upset the Advocates and thereby he may not be able to present the case
properly. This may cause the failure of justice.
Interference may be limited to the following circumstances
(i)to prevent repetition and waste of time
(ii)to check the relevancy
(iii)to get clarifications
(iv)to express courts view on a point and (v)to promote speedy disposal of
the case.
5.Proper Interpretation: During the process of administration of justice,
often the courts have to interpret the Act, Rules, Orders and Notifications
in order to ascertain the actual meaning of the provisions or to remove the
ambiguity or inconsistency. In such cases proper interpretation should be
given with the object of rendering complete justice to the parties.
6.Avoidance of Unreasonable Adjournments: Adjournments are given to
afford reasonable opportunity to the parties to present the case. As far as
possible cases shall not be adjourned without reasonable and sufficient
grounds . Unreasonable adjournment is the main reason for the mounting
arrears of cases and it causes hardship to the parties.
7.Speedy Disposal: `Justice delayed is justice denied’, hence cases should
be disposed off as quickly as possible. When preference is given for
disposal of old cases, care should be given to see that new cases should
not get into arrears.
8.Avoiding Unwarranted comments: Judges should not make any
unwarranted comments in the open court about the Advocates lack of
knowledge in the law. They should not ask any Advocate to leave them
court, without sufficient reasons. Similarly, they should not ask any
Advocate not to come to his court hereafter.
9.Knowing in Law: Judges should possess deep knowledge in law. They
should have the ability to apply the proper law to the disputed facts and to
take the right decision.
10.Independence: Judges have the primary responsibility to protect and
preserve the independence of judiciary, hence they should not yield to the
pressure of the Government.
11.Integrity: A Judge should be honest and morally upright. He should
have personal and intellectual integrity. His character and conduct should
be praise worthy. Then only the Advocates and the general public will have
confidence on him.
12.Industriousness: It means regular and systematic hard work and study.
A Judge should get acquainted with the latest developments and changes
in the law by regular updating of the knowledge.
13.Meeting of Judges and Lawyers: To strengthen Bar-Bench relation, at
regular intervals meeting of judges and the Advocates shall be arranged. In
such meetings the respective sides difficulties can be discussed and the
differences can be sorted out and many other things which is related to.
Criminal contempt
S.2C defines the term `criminal contempt’. It means
(i) Publication of any matter (by words, spoken or written, or
by signs or by visible representation or otherwise.)
(ii) Doing of any other act which
(a) Scandalises or tenda to scandalide, or lowers or tends to
lower the authority of any court; or
(b) Prejudices or interferes or tends to interfere with the due
course of judicial proceeding; or
(c) Interferes or tends to interfere with, or obstructs or tends to
obstruct the Administration of justice.
Publication means publishing something orally or in writing
through news paper, pamplets, radio, television or cinema. conversation
between two persons cannot be treated as publication.
To decide criminal contempt, the absence of criminal
intention on the part of the person who has published the matter
containing criminal contempt or done the act of contempt will not be
taken into account.
In E.M.S.Namboodiripad v.T.N.Nambiar (AIR 1970 SC 2015) the
then Chief Minister of Kerala, Mr.Namboodiripad in a press meet
expressed the following about judiciary. judiciary is responsible for the
suppression of people. Judges are favouring some class of people and
working against the other classes. Judiciary is acting against the interest
of working class and the agriculturist. judiciary is helping the oppressor
group. The supreme court held that the act of Mr. Namboodiripad
amounts to criminal contempt.
Making complaint against a Judge about his misconduct with
sufficient evidence to the higher authorities is not a contempt. But, the
same complaint is published in any manner then it amounts to
contempt.
Preventing the court Amin from executing the court order,
Threatening an Advocate not to appear in a particular case, Threatening
the witness, Preventing the witnesses from attending the courts,
Preventing the Commissioner from performing his duties are treated as
criminal contempt.(see D.C. Saxina v. Chief Justice of India at P 67).
Punishment: Punishment for the criminal contempt is same like
civil contempt.(see p 36)
Punishment for contempt
S.12 Prescribes the punishment for contempt of court.
punishment is same for the civil as well as the criminal contempt. If the
charge of contempt of court is proved, the Court shall award any one of
the following punishment.
1.Simple imprisonment for a term which may extend to 6
months. 2.Fine which may extend to Rs.2000/-.
3.Both the punishments ie., imprisonment and fine together.
According to S.12(2),For contempt of court any one of the
above mentioned punishment alone can be given and not any other
punishment alone can be given and not any other punishment. But, in
Delhi Judicial Services Association v. State of Gujarat (AIR 1991 SC
2176)the Supreme Court held punishment not mentioned in S.12 can
also be given for contempt of court.
In Re Vinay Chandra Mishra (AIR 1995 SC2348)the supreme
court held that for contempt of court committed by an Advocate, he
shall be suspended from practice for a fixed period or he shall be
permanently restrained from practice.
The Supreme Court Bar Association has filed a review petition
against this order. In which the supreme court held that for contempt of
court the court cannot cancel the Advocates right to practice. But,
he shall be suspended from practice for a fixed period.
For the civil contempt, normally fine alone will be imposed. If
the court thinks that fine alone is not a sufficient punishment then he
shall be put in the civil prison instead of ordinary imprisonment.
If the contempt of court is committed by a company in collusion
of the Directors, Secretary and other Managerical staff then shall be
detained in the civil prison.
If the contempt is committed by a firm then the punishment
shall be enforced against the partners of the firm.
Defences in Criminal
Contempt Or
Criminal Contempt not Punishable
S.3 to 7 deals with the defences avilable in Criminal Contempt. They
are as follows:
1. Innocent Publication(S.3):A person shall not be guilty of
contempt of court if he had made any innocent publication of any
matter pending before a court without knowing that the mater is
pending a court. The person charge with contempt must prove that
publication is made without knowing that the Matter is pending in the
court.
2. Publication Relating to a Decided Case (S.3(2)):Publication about
the decided case is not a contempt since the case is already decided by
the court, the publication is not going to interfere with the disposal of
the case. that is why it is not treated as contempt.
3. Distribution of publication without knowing that it contains
defence in an affidavit.
3. The trial shall be conducted by persuing the defences submitted
5. If the court feels that the person charged with contempt may