judgement:
Criminal Appeal No. 461 of 1987.
From the Judgment and Order dated 20.5.1987 of the Delhi High Court in Criminal Revision No. 105 of 1987.
Ashok Desai, Additional Solicitor General, P.K. Chaube, G. Venkatesh Rao, Ms. A. Subhashini and P.K. Choudhary for the Appellant.
R.K. Garg, J.P. Pathak and P.H. Parekh for the Respondent.
The Judgment of the CoUrt was delivered by section RATNAVEL PANDIAN, J.
The State represented by C.B.I., New Delhi has directed this appeal against the Order dated 20.5.1987 of the High Court of Delhi passed in Criminal Revision No. 105 of 1987 dismissing the petition of the petitioner in limine.
The relevant facts which have given rise to this appeal can be stated thus: The respondent, S.J. Choudhary is taking his trial before the Additional Sessions Judge, New Delhi for the offences under Section 302 I.P.C. and Sections 3 and 4 of the Explosive Substances Act in Sessions Case No. 36 of 1983.
According to the prosecution that on 2.10.1982 at about 5.45 p.m., the deceased in this case, namely, Krishan Sikand received a parcel addressed to him.
The deceased being unaware of the camouflaged contents opened the parcel which on opening exploded resulting in the instantaneous death of the deceased.
Relating to this incident, a case was registered at Hazrat Nizamuddin Police Station as FIR No. 305 dated 2.10.1982.
The investigation was taken up by the police of the said police station.
Thereafter, the investi gation was transferred to Crime Branch, Delhi on the very next day i.e. on 3.10.1982 and finally in March 1983 to the Central Bureau of Investigation where it was registered as case RC 3/83 CBI/DSPE/CIUI(P)/New Delhi.
The respondent/accused was arrested by the C.B.I. on 1.8.83.
Under the orders of Court, the 126 custody of the respondent was handed over to the CBI for sometime.
After completing the investigator the CBI laid the charge sheet on 28.10.1983.
Presently, the case is pending trial before the Addi tional Sessions Judge, Delhi.
While the petitioner in the SLP, filed in August, 1987 would state that as many as 63 prosecution witnesses have been examined and PW 64 is in the witness box, the respondent in his affidavit dated 21.2.
1990 has stated that so far 67 witnesses have been examined.
Be that as it may, according to the prosecution the cover of the device parcel containing camouflaged live hand grenade was found pasted with a typewritten name and address of the deceased, Krishan Sikand on a white slip and the explosion of the hand grenade resulted in the shattering of the materials into pieces inclusive of the said slip.
The police collected from the scene of incident the typewritten pieces of the paper in which the grenade had been wrapped amongst the debris and remanents which were sent to the Central Forensic Science Laboratory for examination and expert opinion.
In the laboratory, the parcel sent by the Investigating Agency for examination was opened by PW 61, Dr. G.R. Prasad, Head of the Ballistic Division on 12.10.1982.
He while examining the contents of the parcel succeeded in partially reconstructing the typewritten name and address of the deceased from the shattered pieces of the slip.
It is the version of the prosecution that on 5.8.83, while the respondent was in the custody of the CBI pursuant to the order of the Court, he made a voluntary confession which led to the discovery of the fact that the address on the aforesaid parcel was got typed by him from a commercial college namely, Janta Commercial College at I 43, Lajpat Nagar II, New Delhi.
The Investigating Agency took the specimen of typing prints from the 13 English typewriters found in the said college.
The re constructed typed address and the specimen type prints were examined by Sh.
S.K. Gupta.
Head of Document Division in the Central Forensic Science Laboratory.
Mr. S.K. Gupta gave his opinion that on balance of similarities and dissimilarities, it is a asona ble to conclude that the typescripts found on the slip pasted on the wrapper of the parcel collected from the scene have been typed from one of the machines of the Janta Com mercial College as both the impressions are identical.
Now, the prosecution wants to examine Mr. S.K. Gupta as an expert to prove the above fact.
This request of the prosecution to examine Mr. S.K. Gupta was stoutly resisted by the learned counsel of the accused on the ground that the evidence of such typewriting expert is 127 inadmissible under Section 45 of the Indian Evidence Act as it does not fall within its ambit.
It seems from the. im pugned order that several decisions were cited at the Bar by both the parties but the Trial Court on the strength of certain observations made by this Court in Hanumant & Anr.
vs State of Madhya Pradesh, [1952] SCR 1091 dismissed the prayer of the prosecution holding thus: "It shows that Hon 'ble Judges of the Supreme Court meant that such evidence cannot be brought on record and be evaluated by the Court.
It is well settled that if their Lordships of the Supreme Court clearly intended to declare the law on a particular point then even though the observa tions may be 'obiter dictum ', they are nevertheless binding upon the High Court and subordinate Courts.
Under these circumstances, I uphold the objections raised by the counsel of the accused and order that Sh.
S.K. Gupta, who is sought to be examined as an expert on type written documents cannot be examined to give evidence on this point.
" On being dissatisfied with the above order of the High Court, this criminal appeal is filed by the State.
For proper understanding and appreciation of the ques tion involved in this case, the relevant portion of the observation of this Court in Hanurnant 's case on the strength of which the High Court has passed the impugned order may be reproduced hereunder: "Next it was argued that the letter was not typed on the office typewriter that was in use in those days, viz. article B and that it had been typed on the typewriter article A which did not reach Nagpur till the end of 1946.
On this point evidence of certain experts was led.
The High Court rightly held that opinions of such experts were not admissible under the Indian Evidence Act as they did not fail within the ambit of Section 45 of the Act.
This view of the High Court was not contested before us.
It is curious that the learned Judge in the High Court, though he held that the evidence of the experts was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it." Though a lengthy argument was advanced by the respective 128 counsel for both the parties by citing a series of decisions in support of their respective contentions, we are not adverting to all those contentions except to the relevant one, as we are of the view that the matter requires an in depth analysis and examination by a larger Bench in view of the observation in Hanumant 's case.
The learned Solicitor General has submitted that the words Science or Art ' occurring in Section 45 of the Indian Evidence Act should be given wide and liberal construction so as to cover all ranches of specialised knowledge to the formation of opinion, that by the march of science, the evidence of expert regarding type script has assumed impor tance, that such expert evidence on type script needs to be considered at par with the evidence of other experts brought within the ambit of Section 45 of the Evidence Act, and therefore, the expert opinion of Mr. S.K. Gupta cannot be shut out as being inadmissible.
According to him, the brief observation of this Court in Hanumant 's case (supra) cannot be construed as ratio decidendi binding on this Court or even obiter dictum but it is only a passing observation as there was no issue in that case as to whether the expert 's testimony on type script was admissible or not under the Evidence Act and consequently there was no discussion of law on that subject and in fact, there was no contest on the question of the admissibility of the evidence of an expert regarding typed documents.
He would reiterate that the judgment in Hanumant 's case has not declared the law in regard to the admissibility of the testimony of an expert in regard to typescript and that the learned Judges have pro nounced no independent opinion upon the same.
In support of this submission, firstly he drew our attention to the fol lowing passage appearing in Woodrofee and Ameerali 's Law of Evidence, which reads thus: "The Supreme Court has held in Hanumant v, State of M.P. that the opinion of an expert that a particular letter was typed on a particular typewriting machine does not fall within the ambit of section 45 of the Evidence Act and it is not admissible.
It is respectfully submitted it may require consideration in the light of the modern knowledge indicated to some extent by the research materials which show that detection of forgeries of typewritten documents has become an integral part of the science of questioned documents.
" Secondly, he brought to the notice of this Court the opinion expressed by the Law Commission in its 69th Report (Vol. IV) in Chap 129 ter 17 captioned 'Opinion of Expert ' wherein the Law Commis sion after referring to the decision in Hanumant 's case stated thus: "17.26 One could regard these observations as not laying down a definite view on the subject.
But the words "rightly held" could be construed as approving the negative view.
17.31.
We, therefore, recommend that Section 45 should be amended so as to include identity of typewriting".
According to the learned Solicitor General, as viewed by Woodrofee and Arneerali in 'Law of Evidence ' and by the Law Commission in its 69th Report, the word 'science ' occurring in Section 45 should be held comprehensive enough to include the opinion of an expert in regard to the transcript as well.
But the acceptability or otherwise of an expert testi mony on typewritten documents would depend upon the satis faction of the Court about the specialised skill and experi ence of that expert on that subject.
Finally, he requested that this Court notwithstanding the passing observation in Hanurnant 's case be pleased to examine in detail the ques tion of the admissibility or otherwise of an expert testimo ny on type script and lay down the law on this subject.
Mr. R.K. Garg, senior counsel appearing on behalf of the respondent vehemently urged that the observation in Hanu mant 's case cannot be discarded or brushed aside as a pass ing observation and if that argument is to be accepted by treating the view expressed by this Court as gratis dicta and to declare law on the subject ignoring the view in Hanumant 's case it would be tantamount to saying that the view expressed by the learned three Judges in that case as having been wrongly held and therefore, the argument of the learned Solicitor General has to be discountenanced.
The proceeding of the trial which has already been considerably delayed on this issue which is only academic so far as this case is concerned and so the respondent should not be sub jected to immeasurable hardship.
According to him, the High Court has passed this impugned order only on the strength of the observation in Hanumant 's case and rejected the plea of the prosecution to permit it to examine Sh.
S.K. Gupta as an expert and, therefore, the impugned order can neither said to be incorrect nor it calls for any interference.
He adds that this Court should not dissent lightly from the previous decision of this Court merely on the ground that the con trary view appears to be preferable and that the power of review must be exercised with due care and caution and that too only for advancing the public well being in the light of the surrounding cir 130 cumstances.
In support of this submission, he places reli ance in The Bengal Immunity Company Ltd. vs The State of Bihar & Ors., at 630.
He continues to state that this Court should exercise its discretionary jurisdic tion under Article 136 of the Constitution of India only in cases where there is violation of the principles of natural justice, causing substantial and grave injustice to parties or which raise important principles of law requiring eluci dation and final decision of this Court or which disclose such of the exceptional or special circumstances which merit the consideration of this Court on a particular issue.
He cites the decision of this Court in Bengal Chemical & Phar maceutical Works Ltd. Calcutta vs Their Workmen, ; at 140 in support of his later submission.
Finally, he states that the facts and circumstances of the case on hand do not warrant examination of the request made by the appellant.
After bestowing our anxious consideration on the ques tion of law involved, we without expressing any view at this stage on the observation made in Hanumant 's case feel that the question with regard to the admissibility of the opinion of an expert on type script should be examined in detail and decided.
Needless to say that by the march of time, there is rapid development in the field of forensic science and, therefore, it has become imperative to match the said march of modern vistas of scientific knowledge, the question whether the opinion of an expert in regard to type script would fall within the ambit of Section 45 of the Evidence Act has to be decided.
In fact, when the SLP in this matter came up for admission, the Bench considering the importance of the question involved made the following order: "Special leave granted.
Since the question involved is important and is involved in many cases, it is desirable that it should be heard as early as possible and the matter be mentioned to Hon 'ble the Chief Justice for appropriate directions.
" Taking the overall view of this matter, we feel that this important question of law involved in this case is to be examined in detail and decided by a larger Bench as the judgment in Hanumant 's case was rendered by three learned Judges of this Court.
Since the matter is urgent, it may be posted for hearing at an earliest point of time so that the trial of the case may not be further delayed.

summary:
A device parcel containing camouflaged live hand grenade exploded in the hands of the addressee resulting in his instantaneous death.
The police collected from the scene of incident the typewritten pieces of the paper in which the grenade had been wrapped and sent them to the Central Foren sic Science Laboratory where they succeeded in partially reconstructing the name and address of the deceased.
These were then examined by the Head of the Document Division in the said Laboratory with reference to the specimen of typing prints taken from the commercial college where they were alleged to have been got typed.
He opined that on balance of similarities and dissimilarities it was reasonable to con clude that the type scripts found on the slip pasted on the wrapper of the parcel had been typed from one, of the ma chines of the college as both the impressions were identi cal.
At the trial the prosecution wanted to examine the said expert to prove the fact.
This was resisted by the defence on the ground that the evidence of such typewriting expert was inadmissible under section 45 of the Indian Evidence Act as it did not fall within its ambit.
The trial court relying on the observations to that effect in Hanumant & Anr.
vs State of Madhya Pradesh, [1952] SCR 1091, dismissed the prayer.
The High Court dismissed the State 's revision petition in limine.
In the appeal by the State it was submitted that the word 'science ' occurring in section 45 of the Evidence Act should be held comprehensive enough to include the opinion of an expert in regard to transcript as well in view of the march of science.
Referring the matter to the larger Bench, the Court, HELD: By the march of time, there is rapid development in the 125 field of forensic science and it has become imperative to match the said march of modern vistas of scientific knowl edge.
The question in the instant case whether the opinion of an expert in regard to type script would fall within the ambit of section 45 of the Evidence Act should, therefore, be examined in detail and decided by a Large Bench as the judgment in Hanumant 's case was rendered by a Bench of three Judges.
[130D, G]


judgement:
DICTION: Civil appeals No. 18 15 of 1982 etc.
From the Judgment and Order dated the 20.1.1982 of the Allahabad High Court in C.W.P. No. 2701 of 1981.
Shankar Ghosh, R.K. Jain, R.B. Mehrotra, Ms. Abha Sharma, Sangira Tripathi Mandal, R.P. Singh, Harish N. Salve, D.K. trg, Gopal Subramanium, Mrs. Shobha Dikshit, C.P. Pandey, S.K pharwal, M.P. Sarawala, R.S. Sodhi, D.D. Gupta, Shakil Ahmed ed, K.R.R. Pillai, M.A. Firoz, R.D. Upadhyay, U.S. Prasad and VI.
Nayar for the appearing parties.
The Judgment of the Court was delivered by 173 RANGANATH MISRA, J.
Special leave granted.
This bunch of cases either by special leave or under Article 32 of the Constitution is by a set of Lekhpals serving in the State of Uttar Pradesh whose services have been terminated.
Their Writ Petitions to the High Court have not been entertained on the ground that alternate relief is available before the U.P. Public Services Tribunal set up under U.P. Act No. 17 of 1976.
In the Civil Appeal arising out of Special Leave Petition No. 8826 of 1982 the High Court examined the question at length as to whether the jurisdiction of the High Court has been taken away by the setting up of the Services Tribunal under the U.P. Act.
We have heard counsel for the parties at some length as apart from this group of cases, some other cases involving the same question have also been heard and those matters have been disposed of excepting this bunch.
On merit, we are of the view that the decisions of the High Court should be vacated and in each case the dispute shall stand transferred to the Services Tribunal for disposal in accordance with law.
The Tribunal shall dispose of these cases within six months from the date of the receipt of this order.
We are at the view, as we have already indicated else where, that the 'Services Tribunal set up under the U.P. Act No. 17/76 should be withdrawn and an appropriate tribunal under the Central of 1985 should be set up.
Such a Tribunal if constituted would be in accord with the service jurisprudence which is developing.
Several States have already constituted such Tribunals under the Central Act.
The Tribunal set up under the Central Act is deemed to be one in terms of Article 323A of the Constitution.
When such a Tribunal is set up the High Court 's jurisdiction in regard to service disputes is taken away and the Tribunal functions as a substitute of the High Court.
More or less this service jurisprudence has almost gained ground and there is no justification as to why the Services Tribunal of a different pattern should operate in the State of Uttar Pradesh with inadequate powers to deal with every situation arising before it.
A Tribunal set up under the Central would have plenary powers to deal with every aspect of the dispute and would be in accord with the current thinking on this subject matter at differ ent levels.
We are, therefore, of the view that the U.P. Services Tribunal should be substituted by a Tribunal under the Central as early as possi ble in order that there may be uniformity of functioning and the High Court may be relieved of the 174 burden of dealing with the service disputes as is the situa tion at present.
In course of the hearing, a statement showing yearwise institution, disposal and pendency before the Public Serv ices Tribunals has been placed before us and we extract the same for convenience: STATEMENT SHOWING THE YEARWISE DISPOSAL, FILING AND PENDING CASES BEFORE THE PUBLIC SERVICE TRIBUNALS Year No.of Opening Cases filed Total Disposal Closing Tribunals Balance during the during Balance year year 1 2 3 4 5 6 7 1977 Two 2568 2156 4724 1744 2980 1978 Three 3700 6834 10534 4761 5773 1979 Four 5773 2710 8483 2826 5657 1980 Five 5657 2690 8347 2689 5658 1981 Five 5658 3192 8651 2290 6561 1982 Five 6561 3072 9633 1718 7915 1983 Five 7915 2206 10121 1988 8133 1984 Five 8133 2461 10594 1178 9416 A cursory analysis would show that while in 1977 two Tribu nals only were functioning, in 1984 as many as five Tribu nals came to be set up.
The chart indicates that while institutions have sizeably fallen or remained more or less constant, there has been rapid fall in the disposal of cases.
For instance, while in 1978, 4,761 cases have been disposed of, in the years 1982 and 1984 the numbers have been 1,7 18 and 1,178 respectively.
Even five Tribunals in place of two have obviously not been meeting the mounting challenge of institutions.
Learned counsel for the State of Uttar Pradesh was not able to indicate any specific reason as to why while the strength of Tribunals went up there was a proportionate fall in the disposals.
Again we find that 50 to 60% of the institutions are being attended to which certainly would lead accumulation to mount up.
These aspects require to be noticed seriously and the State Government should have applied its mind if 175 any system of review was in force.
Apparently, the perform ance was not being reviewed either by the Tribunal itself or by any other agency.
We have been told that the Services Tribunal mostly consists of Administrative Officers and the judicial element in the manning part of the Tribunal is very small.
As was pointed out by us in S.P. Sam path Kurnar vs Union of India & Ors., ; , the disputes require judicial handling and the adjudication being essentially judicial in character it is necessary that an adequate number of Judges of the appropriate level should man the Services Tribunals.
This would create the appropriate temper and generate the atmosphere suitable in an adjudicatory Tribunal and the institution as well would command the requisite confidence of the disputants.
We have indicated in the connected matter that steps should be taken to replace the Services Tribunals by Tribunals under the Central of 1985.
That would give the Tribunal the necessary colour in terms of Article 323A of the Constitution.
As a conse quence of setting up of such Tribunals, the jurisdiction of the High Court would be taken away and the Tribunals can with plenary powers function appropriately.
The disputes which have arisen on account of the Services Tribunals not having complete jurisdiction to deal with every situation arising before it would then not arise.
We have pointed out that notice has been issued in a later case for the State 's response to the question of Tribunals to be located at different parts of the State.
State of Uttar Pradesh territorially is the second largest State in India but considering the population it comes first.
Almost every part of the State is well advanced and service litigation in such setting is likely to arise every where.
To locate the seat of the Tribunals at the State capital in such a situation is not appropriate.
The accepted philosophy relevant to the question today is that justice should be taken to everyone 's doors.
This, of course, is not a statement which should be taken literally but undoubtedly the redressal forum should be available nearabout so that litigation may be cheap and the forum of ventillating griev ance may not be difficult to approach.
Keeping that in view which is a legitimate consideration it would be appropriate for the State Government to consider, firstly, increase in the number of Benches of the Tribunal and secondly, to locate them not at the same station but at various sectors or depending upon the number of institution of disputes and pendency at the level of independent Commissionerate or by clubbing two or three of them together.
This, of course, is a matter which would require further 176 examination at the administrative level and, therefore, we express no opinion regarding location of such Tribunal although we are of the definite view that there should be Tribunals available in different parts of the State and all the Benches of the Tribunal should not be located at one place.
The writ Petitions and the civil appeals are disposed of with these directions.
, N.P.V. Petition & Appeals disposed of.

dataset_name: IN-Abs

summary:
The appellants/petitioners filed Writ Petitions before the High Court against the termination of their services as Lekhpals in the State of Uttar Pradesh.
The High Court did not entertain the petitions on the ground that alternate relief was available before the U.P. Public Services Tribu nals set up under U.P. Act 17 of 1976.
Hence, the appeals, by special leave/Writ Petitions.
Disposing of the appeals/petitions, this Court, HELD: 1.1 The Services Tribunal set up under the U.P. Act No. 17/76 should be withdrawn and an appropriate tribu nal under the Central should be set up.
Such a Tribunal is deemed to be one in terms of Article 323A of the Constitution.
When set up, it would take away High Court 's jurisdiction in regard to service disputes, and function as its substitute.
It would have plenary powers to deal with every aspect of the dis pute.
This would be in accord with the current thinking on this subject matter at different levels.
[173E; F G] 1.2 A cursory analysis of year wise institution, penden cy and disposal of cases between 1977 and 1984 before the Public Services Tribunal shows that while institutions have sizeably fallen or remained more or less constant, there has been rapid fall in the disposal of cases, even though there has been increase in strength of Tribunals, and only 50 to 60% of the institutions are being attended to, which cer tainly would lead accumulation to mount up.
These aspects require to be noticed seriously.
[174F H] 172 1.3 Since the disputes require judicial handling, and the adjudication being essentially judicial in character, an adequate number of judges of the appropriate level should man the Services Tribunals.
This would create appropriate temper and generate atmosphere suitable in n adjudicatory Tribunal and the institution as well would command he requi site confidence of the disputants.
[175B C] S.P. Sampath Kumar vs Union of India & Ors., , referred to.
1.4 State of Uttar Pradesh territorially is the second largest State India, but populationwise comes first.
Almost every part of the State well advanced and service litigation in such setting is likely to arise everywhere.
Therefore to locate the seat of the Tribunals at the State capital is not appropriate.
Keeping in view the accepted philosophy that justice should be taken to everyone 's doors, State Govern ment would consider increasing the number of Benches and locating them at various sectors or depending upon the number of institution of disputes and pendency at the level of independent Commissionerate or by clubing two or three of them together.
The location of Benches would inquire further examination at administrative level.
but definitely, the tribunals should be available in different parts of the State and all the benches of the Tribunal should not be located at one place.
[175E H; 176A] The decision of the High Court in each of the cases is set aside and e dispute transferred to the Services Tribunal for disposal within six months.
[173C D]


judgement:
Appeal No. 205 of 1953.
Appeal from the Judgment and Order dated the 24th February, 1953, of the High Court of Judicature at Calcutta in Appeal from Original Order No. 19 of 1952, arising out of the Order dated the 23rd day of August, 1951, of the High Court of Calcutta in its Ordinary Original Civil Jurisdiction Matter No. 157 of 1951.
K. P. Khaitan, (section N. Mukherjea and Rajinder Narain, with him) for the appellant.
M. C. Setalvad, Attorney General for India, (A. N. Sen, V. section Sawhney and section P. Varma, with him) for the respondents.
November 1.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal is directed against a judgment of an appellate bench of the Calcutta High Court, dated the 24th February, 1953, reversing, on appeal, the judgment and order of a single Judge sitting on the Original Side of that Court, passed on an application under section 34 of the .
The material facts are not in controversy and may be shortly stated as follows: On the 7th of July, 1950, the respondent, Moran and Company Limited, passed two Bought Notes to the appellant company, couched in identical terms, under which the appellant purchased 12,00,000 yards of hessian cloth, 6,00,000 yards under each contract, on certain terms and conditions stated therein.
The delivery was to be made every month from January, 1951, at the rate of 1,00,000 yards per month under 864 each of these notes and payments were to be made in cash 'on delivery, each delivery being treated as a separate and distinct contract.
The Bought Notes commenced thus: Dear Sirs, We have this day Bought by your order and on your account from our Principals.
" The particulars of the goods, the price, the time of delivery and other terms of the contract are then set out and amongst the terms is an arbitration clause worded as follows: " All matters, questions, disputes, differences and/ or claims arising out of and/or concerning and/or in connection with and/or in consequence of or relating to this contract, whether or not the obligations of either or both parties under this contract be subsisting at the time of such dispute and, whether or not this contract has been terminated or purported to be terminated or completed, shall be referred to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted.
" The notes were signed by the respondent, Moran and Company, describing themselves as brokers.
It is admitted that the goods covered by the Bought Notes were delivered to the appellant in all the months from January to June, 1951, with the exception of the goods due to be delivered for the month of March, 1951.
The appellant required from the respondent delivery of goods in respect of the month of March but the latter informed the appellant, by a letter dated the 27th March, 1951, that its principals disowned a liability in this respect as there was default on the part of the appellant in not giving shipping instructions for the said goods within the time mentioned in the contracts.
The appellant denied any default on its part and did not also accept the position that the respondent had any principal, and on the 27th of April, 1951, it sent its bills to the respondent claiming Rs. 1,13,042 3 0 as damages for non delivery of the 865 goods.
As the respondent did not comply with this demand, the appellant contemplated referring the matter in dispute to the arbitration of the Bengal Chamber of Commerce as provided in the contracts and while it was preparing to take steps in that direction, the respondent, on the 11th of June, 1951, filed a suit against the appellant in the Original Side of the Calcutta High Court (being Suit No. 2516 of 1951,) and it is in respect of this suit that the application under section 34 of the has been made.
It was alleged in the plaint that the plaintiff acted merely as broker and in that capacity brought about the two contracts of sale and purchase evidenced by the two Bought Notes mentioned above, that the real seller was a firm known as Gowarchand Danchand, and that the plaintiff not being a party to the contract could not incur any liability under its terms.
There were prayers in the plaint for a declaration that the plaint.
off was not a party to the said contracts and, that it had no liability under the same.
There was a further prayer for an injunction restraining the respondent from, claiming any damages in respect of the said contracts The writ of summons was served on the appellant on the 23rd of June, 1951.
On the 19th July, 1951, it filed an application under section 34 of the praying that the proceedings in the suit may be stayed in order that the matter in dispute between the parties may be dealt with under the arbitration clause contained in the contracts.
The application was heard by Das Gupta J. who allowed the prayer of the applicant and stayed further proceedings in the suit.
In the opinion of the learned Judge the dispute in this case was not whether there was any contract entered into by and between the appellant and the respondent: but whether the respondent, who admittedly passed the two Bought Notes to the appellant, could be made liable under the contract by reason of the fact that it described itself as broker.
The answer to this question depended according to the learned Judge upon the interpretation of the contract itself and the dispute arising as.
it did out of or concerning or relating to the 866 contracts would come within the purview of the arbitration clause.
Against this judgment the respondent took an appeal to the Appellate Division of the High Court and the appeal was heard by a bench consisting of Chakravartti C.J. and Sarkar J.
By two separate judgments which concurred in the result, the Chief Justice and the other learned Judge allowed the appeal and vacated the order for stay.
It is against this judgment that the appellant has come to this Court on the strength of a certificate under article 133(1)(a) of the Constitution.
The short point for our consideration is, whether on the facts of this case, the appellant is entitled to an order under section 34 of the , staying the proceedings of the suit commenced by the respondent.
Section 34 of the is in these terms: " Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings.
" Thus in order that a stay may be granted under this section, it is necessary that the following conditions should be fulfilled: (1)The proceeding must have been commenced by a party to an arbitration agreement against any other party to the agreement; (2)the legal proceeding which is sought to be.
stayed must be in respect of a matter agreed to be referred 867 (3)the applicant for stay must be a party to the legal proceeding and he must have taken no step in the proceeding after appearance.
It is also necessary that he should satisfy the Court not only that he is but also was at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration; and (4)the Court must be satisfied that there is no sufficient reason why the matter should not be referred to an arbitration in accordance with the arbitration agreement.
The third condition can be taken to have been fulfilled on the facts of the present case, and the fourth is one which is exclusively for the determination of the Court.
The controversy between the parties centres round the other two conditions, namely, conditions (1) and (2) ; and unless the applicant for stay succeeds in establishing that the respondent is a party to an arbitration agreement and that the subject matter of dispute in the suit is a matter coming within the scope of such agreement, it cannot possibly ask the Court to order a stay of the proceedings, under section 34 of the .
The learned Judges of the appellate bench of the High Court have taken the view that the only matter in dispute between the parties to the suit is whether the plaintiff was a party to the contract.
It was definitely alleged by the plaintiff that the contract was not between it and the appellant but was one between the appellant and a third party and since the arbitration agreement is contained in the contract, it is an agreement between those parties only, which could not bind or affect the plaintiff in any way.
The dispute, it is said, which is the subject matter of the suit does not arise under the contract and does not relate to it; it is outside the contract altogether and does not come within the scope of the arbitration agreement.
The decision in the appeal therefore rests entirely on the finding of the learned Judges that the matter in dispute between the parties to the suit does not come within the ambit of the arbitration clause.
In view of this decision the learned Judges did not consider it necessary to go into the first point as to whether in fact 868 there was a binding arbitration agreement between the parties to the suit.
The learned Chief Justice no doubt did in a manner consider that point also, but he refrained from pronouncing any decision upon it, being of opinion that a decision on this question which was the only issue in the suit itself might prejudice the parties and create a bar of res judicata against one or the other.
We think that on the facts of this case it was necessary for the learned Judges of the appellate bench to decide the question as to whether or not the plaintiff in the suit which the applicant wants to stay was a party to the arbitration agreement.
This would have a material bearing on the decision of the other question upon which the learned Judges rested their judgments.
The first and essential pre requisite to making an order of stay under section 34 of the is that there is a binding arbitration agreement between the parties to the suit which is sought to be stayed.
The question whether the dispute in the suit falls within the arbitration clause really pre supposes that there is such agreement and involves consideration of two matters, viz., (1) what is the dispute in the suit and (2) what disputes the arbitration clause covers?(1).
The contention raised by the plaintiff in the present suit is, that the contract was really between the appellant and another party and not between it and the appellant and consequently it was not bound by the contract and could not be made liable for any damages in terms thereof.
In substance therefore the controversy between the parties in the suit is whether the plaintiff did incur any liability in terms of the contracts evidenced by the two Bought Notes to which it was a signatory no matter in whatever capacity.
The question whether the plaintiff was a party to the agreement at all is undoubtedly one which cannot go before the arbitrators and with that question they cannot possibly deal.
But as Lord Porter pointed out in Heyman vs Darwins (2), "this does not mean that in every instance (1) Vide per Viscount Simon in Heyman vs Darwins, at 360.
(2) , 393.
869 in which it is claimed that the arbitrator has no juris diction the Court will refuse to stay an action.
If this were the case such a claim would always defeat an agreement to submit disputes to arbitration, at any rate until the question of jurisdiction had been decided.
The Court to which an application for stay is made is put in possession of the facts and arguments and must in such a case make up its mind whether the arbitrator has jurisdiction or not as best it can on the evidence before it.
Indeed, the application for stay gives an opportunity for putting these and other considerations before the court that it may determine whether the action shall be stayed or not.
" Section 34 of the as is well known is a virtual reproduction of section 4 of the English of 1889.
The observations quoted above were approved of by Mr. Justice section R. Das in the case of Khusiram V. Hanutmal (1) and it was held by the learned Judge that where on an application made under section 34 of the for stay of a suit, an issue is raised as to the formation, existence or validity of the con.
tract containing the arbitration clause, the Court is not bound to refuse a stay but may in its discretion, on the application for stay, decide the issue as to the existence or validity of the arbitration agreement even though it may involve incidentally a decision as to the validity or existence of the parent contract.
We are in entire agreement with the view enunciated above.
As we have said already, it is incumbent upon the Court when invited to stay a suit under section 34 of the to decide first of all whether there is a binding agreement for arbitration between the parties to the suit.
So far as the present case is concerned if it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause worded as it is in the widest of terms, in accordance with the principle enunciated by this Court in A. M. Nair and (1) at 518.
870 Company vs Gordhandass (1).
If on the other hand it is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.
The appellate Judges of the High Court in our opinion held rightly that the decision in A. M. Mair and Company vs Gordhandass (1) was not in any sense conclusive in the present case on the question of the dispute in the suit being included in the arbitration agreement.
The report shows that the dispute in that case was whether the appellants had made the contract in their own right as principals or on behalf of the Bengal Jute Mill Company as agents of the latter.
The decision of this question was held to turn upon a true construction of the contract and consequently it was a dispute under or arising out of or concerning the contract.
The judgment proceeds on the footing that there was in fact a contract between the parties and the only dispute was in which character they were parties to it, the respondents contending that the appellants were not bound as principals while the latter said that they were.
Mr. Justice Fazl Ali in delivering the judgment pointed out that the error into which the learned Judges of the appellate bench of the High Court appeared to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract never having been entered into.
In this case it is certainly not admitted that the respondent was a party to the contract.
In fact that is the subject matter of controversy in the suit itself.
But, as has been said already, the question having been raised , in this application, under section 34 of the , the Court has undoubted jurisdiction to decide it for the purpose of finding as to whether or not there is a binding arbitration agreement between the, parties to the suit.
It has been said by Chakravartti C.J. and in our opinion rightly, that if the person whose concern with the agreement is in question is a signatory to,the contract and formally a (1) ; 871 contracting party, that will be sufficient to enable the Court to hold for purposes of section 34 that he is a party to the agreement.
It was the contention of the respondent in the Court below that this test was not fulfilled in the present case.
The point has been canvassed before us also by Mr. Sen and it has been argued on the authority of several decided cases that in cases of this description the Bought Note is a mere intimation to the buyer, that the orders of the latter have been carried out and purchases have been made from other persons and not from them.
The writer does not thereby become a party to the contract of purchase and sale even as an agent.
He remains a mere broker or intermediary and the provision of section 230(2) of the Contract Act 'Cannot be invoked against him.
Mr. Khaitan on the other hand argues that the English law being quite different from the Indian law regarding the liability of an agent contracting on behalf of an undisclosed principal, the English authorities are no guide to a solution of the problem.
It is said that the case of Patiram Banerjee vs Kanknarrah Co., Ltd.(1), upon which the respondent relies, was wrongly decided being based upon English authorities which have no application to India.
The respondent here, it is pointed out, signed an elaborate document setting out in full every particular of the contract entered into and it is impossible to say that he was not an agent executing a contract on behalf of another whose identity he did not disclose but was a mere intermediary conveying an information to the buyer.
In our opinion, the point is not free from doubt and requires careful consideration and as it was not decided by the learned Judges of the High Court and we have not the advantage of having their views upon it, the proper course for us to follow would be to send the case back for a hearing of and decision on this point.
We, therefore, allow the appeal and set aside the judgments of both the Courts below.
The matter will go back to the appellate bench of the Calcutta High Court which will decide as an issue in the proceeding under section 34 of the the question whether the respondent was or was not a party (1) Cal.
I050. 872 to the arbitration agreement.
If the Court is of opinion that the respondent was in fact a party, the suit shall be stayed and the appellant would be allowed to, proceed by way of arbitration in accordance with the arbitration clause.
If on the other hand the finding is adverse to the appellant, the application will be dismissed.
The appellant will have its costs of this appeal.
Further costs between the parties will abide the result.
Appeal allowed.

summary:
Held, that in order that a stay may be granted under section 34 of the Indian , it is necessary that the following conditions should be fulfilled: (1) The proceeding must have been commenced by a party to an arbitration agreement against any other party to the agreement; (2) the legal proceeding which is sought to be stayed must be in respect of a matter agreed to be referred ; (3) the applicant for stay must be a party to the legal proceeding and he must have taken no step in the proceeding after appearance.
It is also necessary that he should satisfy the court not only that he is, but also was at the commencement of the proceedings, ready and willing to do everything necessary for the proper conduct of the arbitration ; and (4) the Court must be satisfied that there is no sufficient reason why the matter should not be referred to an arbitration in accordance with the arbitration agreement.
The first and essential pre requisite to making an order of stay under a. 34 of the is that there is a binding arbitration agreement between the parties to the suit which is sought to be stayed.
The question whether the dispute in the suit falls within the arbitration clause really pre supposes that there is such agreement and involves consideration of two matters, viz., (1) what is the dispute in the suit and (2) what disputes the arbitration clause covers.
It is incumbent upon the Court, when invited to stay a suit under section 34 of the Indian , to decide first of all whether there is a binding agreement for arbitration between the parties.
If, in the present case, it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause 863 worded as it is in the widest of terms.
If, on the other hand, it is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.
Case sent back for the decision of the question whether the respondent was or was not a party to the arbitration agreement.
Heyman vs Darwins ([1942] A.C. 356), Khusiram vs Hanutmal ((1948) , A. M. Mair and Companay vs Gordhandas ([1960] S.C.R. 792) and Patiram Y. Kankarah Company ((1915) I.L.R. referred to.


judgement:
iminal Appeal No. 103 of 1956.
H. J. Umrigar and R. H. Dhebar, for the appellant.
The sole question arising for determination is whether on the facts and circumstances of the case the High Court was correct in holding that the act of the respondent complained of constituted an offence under section 228 of the Indian Penal Code, and the jurisdiction of the High Court was, therefore, ousted by reason of the provision of section 3(2) of the .
The High Court in coming to this conclusion appears to have relied on two decisions of the Supreme Court [1952] S.C.R. 425 and The facts in the two Supreme Court cases were quite different and they do not, in any way justify the view taken by the High Court.
It will be my submission that the allegations made in the so called transfer application as also the affidavit are of such a serious nature that they are not a mere personal insult to the Magistrate, but go far beyond; they scandalise the Court in such a manner as to create distrust in the minds of the public, and pollute the stream of justice, and in such cases the jurisdiction of the High Court is not ousted (Reads out portions of the transfer application and the affidavit in support).
From a perusal of the extracts which have been read, it will be seen that the aspersions made against the Magistrate are of a very serious nature alleging criminal conspiracy, and also that he had taken a bribe of Rs. 500 from the opposite side.
So far as the offence under section 228 of the Indian Penal Code is concerned, the first essential ingredient is that there must be an " intention " to insult.
In the affidavit filed in the High Court in reply to the 1370 show cause notice the respondent had stated that there was no intention to insult or show disrespect to the Magistrate.
[Imam J. I cannot agree with that, the language used in the application and affidavit is such that intention to insult was clearly there.] That may be true, but there are several earlier decisions of the Allahabad High Court which have been referred to in the case relied upon by the High Court Narotam Das vs The Emperor, A.I.R 1943 All.
97, wherein it was held that where scandalous allegations were incorporated in a transfer application, there was not necessarily an intention to insult, as the primary object was to seek a transfer and not to insult the Court.
So far as the decisions are concerned, they support my contention that when scandalous allegations are made against a Magistrate in a transfer application they would not necessarily constitute an offence under section 228 of the Indian Penal Code and could be punished by the High Court.
In I.L.R. 1941 Nagpur 304, the Judge, who was seized of the case, made a complaint to the High Court about a letter sent to him by one of the parties, and it was there held that the sender of the letter could be punished for Contempt of Court by the High Court.
It is true that there is no discussion about.
228 of the Indian Penal Code but in the course of the judgment the case of Emperor vs Jagnath Prasad Swadhiry, I.L.R. 1938 All.
548, was mentioned.
In the Allahabad case a person during the pendency of a suit sent communications by post to the Judge containing scandalous allegations.
It appears that it was urged that section 228 of the Indian Penal Code would bar the jurisdiction of the High Court under section 3(2) of the Contempt of Courts Act, 1926, but this contention was repelled and the High Court stated that its jurisdiction to punish for contempt was not ousted.
[Reference was also made to I.L.R. 12 Patna I and I.L.R. 12 Patna 172].
I submit that where the allegations made go beyond 1371 mere personal insult and tend to bring the whole administration of justice, into disrepute, then the juris diction of the High Court would not be ousted by section 3(2) of the Act.
In a case where there is only an insult to the Judge by using vulgar abuse such as " rogue or rascal " and this abuse was made " ex facie curiae ", then it may be said that the jurisdiction of the High Court is ousted as the offence falls within the purview of section 228 of the Indian Penal Code.
[Das J. Also if the abuse relates to the private life of the Judge, such as, calling him a drunkard or imputing some immorality to him, unconnected with his judicial duties.] I agree.
In the instant case the Magistrate must have been fully conscious of the powers possessed by him under section 228 of the Indian Penal Code as also the relevant provisions in the Criminal Procedure Code which permit him to punish for Contempt of Court, yet he presumably must have felt that the aspersions made in the present case were so grave as to transcend mere personal insult and as such it was a fit case to be referred to the High Court for taking necessary action.
In conclusion, it is submitted that the view taken by the High Court is much too narrow.
and cannot be supported either in principle or by the, authorities cited.
J. B. Dadachanji and section N. Andley, for the respondent.
The view taken by the High Court is correct and is in accordance with the judgments of the Supreme Court in the cases reported in [1952] S.C.R. and [1953] S.C.R.
If the act complained of intentionally offers a personal insult to the Magistrate concerned, it may tend to undermine the administration of justice thereby, but it will nevertheless amount to an offence under section 228 of the Indian Penal Code and as such the jurisdiction of the High Court will be ousted by section 3(2) of the Act.
It is unsound to say that there are two kinds of contempt, and the lesser kind of contempt will come under section 228 of the Indian Penal Code and the grosser kind will not come under section 228 ; every insult to a Court, whatever its nature, is contempt and punishable under section 228 of the Indian Penal Code.
1372 [Kapur J.
Every insult to a Judge will not necessarily be a contempt.
A libel attacking the integrity of a Judge may not, in the circumstances of a particular case, amount to a contempt at all, although it may be the subject matter of a libel proceeding.] [Das J.
It appears that there is a further difficulty in your way, that is, whether the Magistrate was sitting in any stage of a judicial proceeding when the application and the affidavit were filed; if he was not, then one of the essential ingredients of section 228 of the Indian Penal Code was not satisfied.] The High Court has assumed that the Magistrate was sitting as a Court at that time and this was also borne out by the facts stated in the petition for special leave to appeal filed by the appellant wherein it is stated " the application having been presented during the sitting of the Court was clearly calculated to lower the dignity of the Court in the public mind ".
Section 480 of the Code of Criminal Procedure specifically mentions section 228 of the Indian Penal Code and treats it as a form of contempt, therefore, it will be an offence of contempt punishable under the Indian Penal Code and as such the jurisdiction of the High Court would be ousted under section 3(2) of the Act.
I submit that the view taken by the High Court is the correct view and is supported by the two decisions of the Supreme Court as also the judgment of the Bombay High Court in Bom.
Umrigar in reply.
During the course of discussion, doubts have arisen whether there was any intention to insult, or whether what was said was an insult, or whether the insult was offered in any stage of a judicial proceeding.
If any one of these three essentials is lacking, then, obviously, there is no offence under section 228 of the Indian Penal Code.
Where there is so much doubt as to whether an offence under section 228 of the Indian Penal Code has been committed or not, and there is no doubt that " prima facie " a Contempt of Court apart from the provisions of section 228 has been committed, it is wrong to say that the jurisdiction of the High Court is ousted.
1373 I submit that the case relied upon by the High Court, Narotam Das vs Emperor, A. 1.
R. 1943 All. 97, correctly lays down the law so far as the question of intention " is concerned.
September 24.
The Judgment of the Court was delivered by section K. DAS, J.
This is an appeal by special leave from the judgment and order of the then Madhya Bharat High Court, dated February 9, 1955, in Criminal Miscellaneous Application No. 2 of 1954.
Originally, the appeal was filed on behalf of the State of Madhya Bharat, now substituted by the State of Madhya Pradesh.
The appeal raises an important question with regard to the interpretation of section 3(2) of the (XXXII of 1952), hereinafter referred to as the Act, which repealed the earlier Contempt of Courts Act, 1926 (XII of 1926), as also the Indore Contempt of Courts Act (V of 1930) which was earlier in force in the State of Madhya Bharat.
The facts so far as they are relevant to this appeal are these.
One Ganga Ram, stated to be the landlord of the respondent Revashankar, instituted a suit, which was numbered as 1383 of 1952 in the court of the Additional City Civil Judge, Indore, for ejectment and arrears of rent against Revashankar.
It was stated that the suit was filed in the name of Ganga Ram and his wife Chandra Mukhi Bai.
It was further alleged that one Mr. Uma Shankar Chaturvedi, a lawyer acting on behalf of Ganga Ram, advised the latter to sign the name of his wife Chandra Mukhi Bai though Chandra Mukhi Bai herself did not sign the plaint or the vakalatnama.
In this suit Chandra Mukhi Bai filed an application for permission to prosecute her husband for forgery.
Another application was filed by certain other persons said to be other tenants of Ganga Ram in which some allegations were made against Revashankar.
On June 29, 1953, Revashankar filed a complaint against five persons for an alleged offence under section 500, Indian Penal Code.
This complaint was verified on July 13, 1953, and was registered as Criminal Case No. 637 of 1953 in the court of one 1374 Mr. N. K. Acharya, Additional District Magistrate, Indore.
In that case one Mr. Kulkarni appeared on behalf of the complainant Revashankar.
The accused persons appeared on August 8, 1953, through Messrs. Mohan Singh and Uma Shankar Chaturvedi.
An objection was raised on behalf of the accused persons to the appearance of Mr. Kulkarni as the latter 's name appeared in the list of witnesses.
This was followed by a spate of applications and counter applications and on October 12, 1953, the learned Additional District Magistrate passed an order to the effect that the copies of the applications as well as of the affidavits filed by both parties should be sent to the District Judge for necessary action against the lawyers concerned.
In the meantime a criminal case was started against Revashankar in the court of the Additional City Magistrate, Circle No. 2, for an alleged offence under section 497, Indian Penal Code.
The case was started on the complaint of Ganga Ram.
That case was numbered as 644 of 1953.
We then come to the crucial date, namely, December 17, 1953.
On that date Revashankar filed an application in the court of the Additional District Magistrate who was in seizin of Criminal Case No. 637 of 1953.
The application purported to be one under section 528, Code of Criminal Procedure.
This application contained some serious aspersions against the Magistrate, Mr. N. K. Acharya.
The aspersions were summarised by the learned Judges of the High Court under the following four categories.
The first aspersion was that from the order dated October 12, 1953 it appeared that Mr. N. K. Acharya wanted to favour Mr. Uma Shankar Chaturvedi.
The second aspersion was that from certain opinions expressed by the Magistrate, Revashankar asserted that he was sure that he would not get impartial and legal justice from the Magistrate.
The third aspersion was of a more serious character and it was that the Magistrate had a hand in a conspiracy hatched by Messrs. Mohan Singh and Uma Shankar Chaturvedi regarding certain ornaments of Chandra Mukhi Bai with the object of involving, Revashankar and his brother Sushil Kumar in a false case of theft of ornaments.
The fourth aspersion was that Mr. Uma 1375 Shankar Chaturvedi had declared that he had paid Rs. 500 to the Magistrate through Ganga Ram.
These aspersions were later repeated in an affidavit on December 21, 1953.
On January 11, 1954, the learned Magistrate reported the aforesaid facts to the Registrar of the Madhya Bharat High Court, and prayed for necessary action against Revashankar for contempt of court.
On this report the High Court directed the issue of notice to Revashankar to show cause why action should not be taken against him under the and Criminal Miscellaneous Application No. 2 of 1954 was accordingly started against Revashankar.
On March 3, 1954, Revashankar showed cause.
The case was then heard by a Division Bench consisting of V. R. Newaskar and section M. Samvatsar, JJ.
and by an order dated February 9, 1955, the learned Judges held that by reason of the provisions in section 3(2) of the Act the jurisdiction of the High Court was ousted inasmuch as the act complained of constituted an offence under section 228 of the Indian Penal Code.
The question for consideration in the present appeal is if the aforesaid view of the High Court is correct.
Mr. H. J. Umrigar, who has appeared on behalf of the appellant, has very strongly submitted before us that the High Court has erred in holding that the act of the respondent complained of constituted an offence under section 228, Indian Penal Code, and the jurisdiction of the High Court was, therefore, ousted by reason of the provisions in section 3(2) of the Act.
It is necessary to read first section :3(2) of the Act.
We may state here that the corresponding section in the earlier Contempt of Courts Act, 1926 was section 2(3) and in the judgment under consideration there is some confusion as to the correct number of the sub section.
Section 3(2) of the Act is in these terms : " No High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (Act XLV of 1860).
" 175 1376 The sub section was considered in two decisions of this Court, Bathina Ramakrishna Reddy vs The State of Madras (1) and Brahma Prakash Sharma vs The State of Uttar Pradesh (2).
In the earlier case of Ramakrishna Reddy (1) the appellant was the publisher and managing editor of a Telugu Weekly known as " Praja Rajyam ".
In an issue of the said paper dated February 10, 1949, an article appeared which contained defamatory statements about the stationary sub Magistrate, Kovvur, and the point for consideration was if the jurisdiction of the High Court to take cognisance of such a case was expressly barred under section 2(3) of the earlier Contempt of Courts Act, when the allegations made in the article in question constituted an offence under section 499, Indian Penal Code.
On behalf of the appellant it was argued that what the subsection meant was that if the act by which the party was alleged to have committed contempt of a s subordinate court constituted offence of any description whatsoever punishable under the Indian Penal Code, the High Court was precluded from taking cognizance of it.
This argument was repelled and this Court said (at page 429): " In our opinion, the sub section referred to above excludes the jurisdiction of High Court only in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code.
This would be clear from the language of the sub section which uses the words " where such contempt is an offence " and does not say " where the act alleged to constitute such contempt is an offence ".
On an examination of the decisions of several High Courts in India it was laid down that the High Court had the right to protect subordinate courts against contempt but subject to this restriction, that cases of contempt which have already been provided for in the Indian Penal Code should not be taken cognizance of (1) ; (2) 1377 by the High Court.
This, it was stated, was the principle underlying section 2(3) of the Contempt of Courts Act, 1926.
This Court then observed that it was not necessary to determine exhaustively what were the cases of contempt which had been already provided for in the Indian Penal Code; it was pointed out, however, that some light was thrown on the matter by the provision of section 480 of the Code of Criminal Procedure which empowers any civil, criminal or revenue court to punish summarily a person who is found guilty of committing any offence under sections 175, 178, 179, 180 or section 228 of the Indian Penal Code in the view or presence of the court.
The later decision of Brahma Prakash Sharma (1) explained the true object of contempt proceedings.
Mukherjea J. who delivered the judgment of the Court said (at page 1 176) : " It would be only repeating what has been said so often by various Judges that the object of contempt proceedings is not to afford protection to Judges personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened ".
It was also pointed out that there were innumerable ways by which attempts could be made to hinder or obstruct the due administration of justice in courts and one type of such interference was found in cases where there was an act which amounted to " scandalising the court itself ": this scandalising might manifest itself in various ways but in substance it was an attack on individual Judges or the court as a whole with or without reference to particular cases, causing unwarranted and defamatory aspersions upon the character and ability of the Judges.
Such conduct is punished as contempt for the reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties.
(1) 1378 Bearing the aforesaid principles in mind, let us now examine the case under consideration.
The High Court expressed the view that the act of the respondent complained of merely amounted to an offence under section 228, Indian Penal Code.
Nevaskar J. said: " It appears to me that the application, though it was stated to be an application for transfer, was intended to offend and insult the Magistrate.
A man 's intention can be judged by the nature of the act he commits.
The application directly and in face attributes partiality and corruption to the Magistrate.
It was not an application made bona fide to a court having jurisdiction to transfer the case from that Court to some other Court.
It was an application thrown in the face of the Magistrate himself.
The action is no better than telling the Magistrate in face that he was partial and corrupt.
The allegations in the application no doubt are insulting to the Magistrate and he felt them to be so and at the time the application was submitted on 17th December, 1953, when he was sitting as a Court and dealing with the case of the opponent." " Thus, since I hold that the opponent intended to offer insult to the Magistrate concerned there is no doubt that the act would fall within the purview of section 228, Indian Penal Code, and this Court will be precluded from taking action for the contempt committed before the Court of the Magistrate by reason of section 2(3) of the Contempt of Courts Act ".
The other learned Judge also expressed the same view in the following words: " The subordinate Courts can sufficiently vindicate their dignity by proceeding against the offenders under the provisions of criminal law in such cases.
Legislature has deemed it proper to exclude such cases from the jurisdiction of the High Court under section 2(3) of the Contempt of Courts Act.
This, however, does not mean that High Court 's jurisdiction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is otherwise an offence under the Indian Penal Code." "The question to be considered in this case is 1379 whether the act complained of is punishable as contempt under any one of the specific provisions of the Indian Penal Code.
In other words whether it falls under any one of the sections 175, 178, 179, 180 or 228 of the Indian Penal Code." " If the act complained of constitutes an offence under any of these sections, it can be dealt with by the subordinate Court itself under section 480 of the Criminal Procedure Code and the High Court will have no power to take cognizance of it under the Contempt of Courts Act.
" We are of the opinion that the learned Judges were wrong in their view that prima facie the act complained of amounted to an offence under section 228, Indian Penal Code, and no more.
We are advisedly saying prima facie, because the High Court did not go into the merits and we have no desire to make any final pronouncement at this stage on the merits of the case.
Section 228, Indian Penal Code, is in these terms: " Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." The essential ingredients of the offence are (1) intention, (2) insult or interruption to a public servant and (3) the public servant insulted or interrupted must be sitting in any stage of a judicial proceeding.
In the present case there is an initial difficulty which has been pointed out to us.
The respondent was sought to be proceeded against by reason of the aspersions he made in the application dated December 17, 1953, and the affidavit dated December 21, 1953.
It is not very clear from the record if the learned Magistrate was sitting in any stage of a judicial proceeding when the application and the affidavit were filed.
The High Court no doubt says that the Magistrate was sitting as a court at the time; but there is no reference to the particular work, judicial or otherwise, which the 1380 Magistrate was doing at the time.
The practice as to the filing of applications and affidavits varies from court to court and in some courts applications and affidavits are filed within stated hours before the reader or the bench clerk; they are so filed even when the Judge or Magistrate is in chamber or preoccupied with some administrative duties.
So far as the present case is concerned, it is not at all clear, from the record as placed before us, as to what was the judicial work which the learned Magistrate was doing when the application and affidavit were filed.
If he was not doing any judicial work at the relevant time, then the third essential ingredient mentioned above was not fulfilled and the act complained of would not amount to an offence under section 228, Indian Penal Code.
We are not, however, basing our decision on the mere absence of materials to show what particular judicial work the learned Magistrate was doing when the application dated December 17, 1953, and the affidavit dated December 21, 1953, were filed.
If that were the only infirmity, the proper order would be to ask for a finding on the question.
Our decision is based on a more fundamental ground.
Learned counsel for the parties have taken us through the applica tion dated December 17, 1953, and the affidavit dated December 21, 1953.
The aspersions made therein prima facie showed that they were much more than a mere insult to the learned Magistrate ; in effect, they scandalised the Court in such a way as to create distrust in the popular mind and impair the confidence of people in Courts.
Two of the aspersions made, taken at their face value, were (1) that the learned Magistrate had joined in a conspiracy to implicate the respondent in a false case of theft.
In the affidavit it was stated that the learned Magistrate had sent for the respondent and his brother and had asked them to make a false report to the police that the ornaments of Chandra Mukhi Bai had been stolen.
The learned Magistrate characterised the aspersion as totally false and said that he neither knew the respondent nor his brother and had no acquaintance with them.
Another aspersion was that the Magistrate had taken a bribe 1381 of Rs. 500.
This aspersion was also stoutly denied.
We must make it clear here that at this stage we are expressing no opinion on merits, nor on the correctness or otherwise of the aspersions made.
All that we are saying is that the aspersions taken at their face value amounted to what is called scandalising the court itself, manifesting itself in such an attack on the Magistrate as tended to create distrust in the popular mind and impair the confidence of the people in the courts.
We are aware that confidence in courts cannot be created by stifling criticism, but there are criticisms and criticisms.
" The path of criticism ", said Lord Atkin in Ambard vs Attorney General for Trinidad and Tobago (1), " is a public way: The wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune ".
If, therefore, the respondent had merely criticised the Magistrate, no notice need have been taken of such criticism as contempt of court whatever action it might have been open to the Magistrate to take as an aggrieved individual; but if the respondent acted in malice and attempted to impair the administration of justice, the offence committed would be something more than an offence under section 228, Indian Penal Code.
Learned counsel for the respondent has contended before us that as soon as there is an element of insult in the act complained of, section 228, Indian Penal Code, is attracted and the jurisdiction of the High Court to take cognizance of the contempt is ousted.
We are unable to accept this contention as correct.
Section 228 deals with an intentional insult to a public servant in certain circumstances.
The punishment for the offence is simple imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.
Our attention has been drawn to the circumstance that under section 4 of (1) [1936] A. C.322, 335.
1382 the Act the sentence for contempt of court is more or less the same, namely, simple imprisonment for a term which may extend to six months.
The fine is a little more and may extend to two thousand rupees.
Section 4 of the Act contains a proviso that the accused person may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
We do not, however, think that a similarity of the sentence in the two sections referred to above is a real test.
The true test is: is the act complained of an offence under section 228, Indian Penal Code, or is it something more than that ? If in its true nature and effect, the act complained of is really " scandalising the court " rather than a mere insult, then it is clear that on the ratio of our decision in Ramakrishna Reddy 's case(1) the jurisdiction of the High Court is not ousted by reason of the provision in section 3(2) of the Act.
Mr. Umrigar has urged a further point in this connection and has contended that for an offence under section 228, Indian Penal Code, the insult must be an intentional insult.
The first essential requirement of the offence, according to him, is that the insult must be offered intentionally.
He has pointed out that the application which the respondent filed purported to be an application under section 528, Criminal Procedure Code, and though it is difficult to see how that section applied in the present case, the intention of the respondent was not to insult the Magistrate, but merely to state the 'Circumstances in which the respondent was praying for a transfer of the case.
Mr. Umrigar has pointed out that in the reply which the repondent gave to the notice issued from the High Court, he said that he had no intention to insult or show disrespect to the learned Magistrate.
Mr. Umrigar has further submitted that the decision in Narotam Das vs Emperor (2) (on which the learned Judges of the High Court relied) where in somewhat similiar circumstances it was held that section 228, Indian Penal Code, applied, does not correctly lay down the law.
In that case Yorke J. observed that it would be a matter for (1) ; (2) A.I.R. 1943 All. 97.
1383 consideration in each individual case how, insulting the expressions used were and whether there was any necessity for the applicant to make use of those expressions in the application which he was actually making to the court.
While we agree that the question of intention must depend on the facts and circumstances of each case, we are unable to accept as correct the other tests laid down by the learned Judge as finally determinative of the question of intention.
In two earlier decisions of the same High Court, in Queen Empress vs Abdullah Khan(1) and Emperor vs Murli Dhar (2), it was held that where an accused person made an application for transfer of the case pending against him and inserted in such application assertions of a defamatory nature concerning the Magistrate who was trying the case, there was no intention on the part of the applicant to insult the court, but the intention was merely to procure a transfer of the case.
We do not think that any hard and fast rule can be laid down with regard to this matter.
Whether there is an intention to offer insult to the Magistrate trying the case or not must depend on the facts and circumstances of each case and we do not consider it necessary, nor advisable, to lay down any inflexible rule thereto.
Taking the aspersions made by the respondent in the application dated December 17, 1953, and the affidavit dated December 21, 1953, at their face value, we have already expressed the view that they amounted to something more than a mere intentional, personal insult to the Magistrate; they scandalised the court itself and impaired the administration of justice.
In that view of the matter section 3(2) of the Act did not stand in the way and the learned Judges of the High Court were wrong in their view that the jurisdiction of the High Court was ousted.
We accordingly allow the appeal and set aside the order of the High Court dated February 9, 1955.
In our view, the High Court had jurisdiction to take cognizance of the act complained of and the case must (1) 176 (2) (1916) 38 All.
1384 now be decided by the High Court on merits in accordance with law.
It is only necessary to add that the act complained of was committed as far back as 1953 and it is desirable that the case should be dealt with as expeditiously as possible.
Appeal allowed.

summary:
The respondent, who had filed a complaint in respect of an alleged offence under section 500 of the Indian Penal Code in the Court of the Additional District Magistrate of Indore, made a number of aspersions against the Magistrate in an application I74 1368 made to him under section 528 of the Code of Criminal Procedure, two of which were of a serious character.
It was alleged that the Magistrate was a party to a conspiracy with certain others the object of which was two implicate the complainant in a false case of theft and that a lawyer appearing for the accused persons, to whom the Magistrate was favourably inclined, had declared that he had paid a sum of Rs. 500 to the Magistrate.
Those allegations were later on repeated in an affidavit.
The Magistrate reported the matter to the Registrar of the High Court for necessary action.
The High Court called upon the respondent to show cause why he should not be proceeded against in contempt under the .
The judges of the Division Bench who heard the matter, without going into the merits of the case, held that, Prima facie, the offence was one of intentional insult under section 228 of the lndian Penal Code and, consequently, the jurisdiction of the High Court was ousted under section 3(2) Of the .
Held, that the High Court had taken an erroneous view of the matter and its order must be set aside.
The mere existence of an element of insult in the alleged act of contempt was not conclusive as to the applicability of section 228 Of the Indian Penal Code so as to oust the jurisdiction of the High Court under section 3(2) of the .
While Judges and Courts are not beyond criticism, and there are well recognised limits to such criticism, and contempt proceedings are not meant to shield judges from personal insults, there can be no question that where defamatory aspersions are cast upon the character and ability of individual judges or of Courts in general, which in substance scandalise the Court itself and have the effect of undermining the confidence of the public in it and thus hinder due administration of justice, the contempt is of a kind which exceeds the limits of section 228 of the Indian Penal Code.
The true test, therefore, is: is the act complained of an offence under section 228 of the Indian Penal Code, or something more than that ? If it is something more, the jurisdiction of the High Court is not ousted by section 3(2) Of the .
So judged, there could be no doubt that the aspersions cast in the present case amounted to scandalising the court itself, and were no mere personal insults, and the High Court had jurisdiction to take cognizance of the same.
Bathina Ramkrishna Reddy vs The State of Madras, [1952] section C. R. 425 and Brahma Prakash Shayma vs The State of Uttar Pradesh, , relied on.
Ambard vs Attorney Geneyal for Trinidad and Tobago, , referred to.
1369 The question whether an insult offered to a public servant is intentional so as to attract section 228 of the Indian Penal Code has to be decided on the facts of each particular case and it is neither necessary nor advisable to Jay down any hard and fast rule.
Narotam Das vs Emperor, A.I.R. 1943 All. 97, Queen Empress vs Abdullah Khan, and Emperor vs Murli Dhar, All. 284, considered.


judgement:
ivil Appeal No. 6729 of 1983.
From the Judgment and Order dated 22.3.1983 of the Allahabad High Court in C.M.W.P. No. 7787 of 1979.
Shankar Ghosh, R.K. Jain, R.B. Mehrotra, Ms. Abha Shar ma, Ms. Sangita Tripathi Mandal, R.P. Singh, Harish N. Salve, D.K. Garg, Gopal Subramanium, Mrs. Shobha Dikshit, C.P. Pandey, S.K. Sabharwal, M.P. Sarawala, R.S. Sodhi, D.D. Gupta, Shakil Ahmed Syed, K.R.R. Pillai, M.A. Firoz, R.D. Upadhyay, U.S. Prasad and C.M. Nayar for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave was heard along with Civil Appeals Nos. 776 of 1984 and 4356 of 1986.
Those two appeals were disposed of by a common judg ment dated March 1, 1990, by remitting the dispute forming the subject matter of those appeals to the U.P. Public Services Tribunal for disposal on merit and judgment was reserved in this appeal as we were of the view that certain relevant aspects required notice and we should commend to the U.P. State to bring its Services Tribunal at par with the State Administrative Tribunals set up under the Central of 1985.
So far as the merits of the case go, we are of the view that it should also be remitted for disposal by the Services Tribunal and we direct that the Tribunal shall dispose of the matter in accordance with its rules by the end of Sep tember, 1990.
The of 1985 is a legisla tion in terms of article 323A of the Constitution.
By setting up a Tribunal under that Act for resolution of service disputes, the jurisdiction of the High Court in regard to such matters is intended to be taken away and under 170 the scheme of that Act, the jurisdiction of the High Court in regard to service disputes is intended to be vested in the Tribunal.
That is the view expressed by the Constitution Bench of this Court in S.P. Sampath Kurnar vs Union of India & Ors., ; The Uttar Pradesh Public Services Tribunal which func tions under a different State Act does not have power to make any interim order.
In fact, exercise of that power is denied to the Tribunal by specific provision.
That is why the appellants had taken up the plea before the High Court that filing of a claim in the Tribunal was not an adequate alternate relief.
In such setting it had been canvassed that the High Court under article 226 of the Constitution was not debarred from entertaining writ petitions.
Under the Admin istrative Tribunals Act, it is open to the State to also set up Tribunals for adjudication of service disputes in regard to employees of the State.
Several States have already set up their own Tribunals.
We commend to the State of Uttar Pradesh to consider the feasibility of setting up of an appropriate tribunal under the Central Act in place of the Services Tribunal functioning at present so that apart from the fact that there would be uniformity in the matter of adjudication of service disputes, the High Court would not be burdened with service litigations and the Tribunal with plenary powers can function to the satisfaction of everyone.
case the Uttar Pradesh Services Tribunal set up under the U.P. No. 17 of 1976 is continued, it would be appropriate for the State of Uttar Pradesh to change its manning and a sufficient number of people qualified in Law should be on the Tribunal to ensure adequate dispensation of justice and to maintain judicial temper in the functioning of the Tribu nal.
We find that in Writ Petition No. 373 of 1989 relating to the self same question a Bench of this Court has issued notice wherein the proposal for additional Benches at places like Allahabad, Meerut and Agra apart from the seat at Lucknow have been asked to be considered.
We are of the view that if the Services Tribunal is to continue, it is neces sary that the State of Uttar Pradesh should plan out immedi ately diversification of the location of the Benches for the Tribunal so that service disputes from all over the State are not required to be filed only at Lucknow and on account of a single tribunal disputes would not pile up without disposal.
There would be no order as to costs.
P.S.S. Appeal disposed of.

summary:
The writ petitions preferred by the appellants before the High Court were sought to be resisted by the State on the preliminary objection that they had an alternative remedy available before the Public Services Tribunal set up under the U.P. Act 17 of 1976.
The appellants took the plea that filing of a claim in the Tribunal was not an adequate alternate relief inasmuch as it did not have power to make any interim order.
The High Court declined to exercise its power under article 226 of the Constitution.
Remitting the case to the Public Services Tribunal for disposal on merits, the Court, HELD: 1.
The Uttar Pradesh Public Services Tribunal which functions under a State Act does not have power to make any interim order.
Under the .
which is a legislation in terms of article 323 A of the Constitution, the jurisdiction of the High Court in regard to service matter is intended to be taken away and vested in the Tribunal.
It is open to the State to also set up Tribunals for adjudication of service disputes in regard to its employees.
Several States have already set up their own Tribunals under that Act.
[170B, 169H, 170C] S.P. Sampath Kumar vs Union of India & Ors., ; , referred to. 2.
It is commended to the State to consider the feasi bility of setting up of an appropriate tribunal under the Central Act in place of the Services Tribunal so that apart from the fact that there would be uniformity in the matter of adjudication the High Court would not be burdened with service litigations and the Tribunal with plenary powers 169 can function to the satisfaction of everyone.
[1701)] 3.
In case the existing Services Tribunal is continued the State should change its manning so that a sufficient number of people qualified in Law could be on the Tribunal to ensure adequate dispensation of justice, and plan out diversification of the location of the Benches for the Tribunal.
[170E G]