It is not necessary to multiply authorities on this issue except to observe that unless the act of commission or omission is established to be wilful and/or is replete with mens rea, it would not constitute contempt of Court.
Whether it is a civil contempt or criminal contempt, the quintessence, is, that the breach must be a wilful breach or wilful disobedience or replete with mens rea. If the Judge of the subordinate Court were to commit some error in discharge of his/her official or judicial duty or functions, that per se cannot be the basis to proceed against the judicial officer. It may be apposite
to advert to Section 3 of the Judges (Protection) Act, 1985, which opens with non obstant clause. It gives additional protection to the judges in this behalf. Section 3 of the said Act reads thus: "3. Additional protection to Judges. -(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-sec.(2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or puporting to act in the discharge of his official or judicial duty or function.
(2) Nothing in sub-sec.(1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge."
26) Indeed, Sub-Section (2) of Section 3 is an exception to the general Rule specified in Sub-Section [1] of Section 3 of the Act, which enables the specified Authority including the High Court to take such action (whether by civil, criminal or departmental proceedings or otherwise) against any person who is/was a judge. The jurisdiction of the Supreme Court and High Court to initiate contempt action is sui generis. It inheres in the court of records. But, at the same time, failure to comply with any direction issued by the High Court about the procedure to be adopted post committing accused to prison and rejecting his prayer
for bail, which is required to be complied with utmost dispatch as it brooks no delay, per se, would not warrant action for civil or criminal contempt. That, however, would depend on the facts of each case. Unless it is noticed that the disobedience or committing breach was wilful or replete with mens rea, as the case may be, it will not be just and proper to proceed against the judicial officer. 27) A priori, the second question posed and referred to us will have to be answered in the negative. In other words, it is not as if the Judge of the subordinate Court can be proceeded for any or every breach of direction of the High Court as constituting contempt of the Court but, it is only when the breach is found to be wilful and involves mens rea, it may be open to initiate contempt action against such judicial officer.
Bombay High Court
Balkrishna Mahadev Lad vs State Of Maharashtra on 5 October, 2012
Bench: A.M. Khanwilkar, R. M. Savant, P. D. Kode
