BRAJNANDAN SINHA v. JYOTI NARAIN

as Commissioner inquiry against him and that a confirmed District and Sessions demanding Judge be appointed as Commissioner in his place, and a the 17th November 1952 in which he requested three Commis instead of one for holding the inquiry against sioners him and also to pay the entire cost of his defence at the same rates at which the Special Public Prosecutor engaged by the Government was being paid and also to be incurred turned down by him. All these in his attempts the inquiry on some pretext or the the same and other, failed and neglected to reply to the queries made from the Commissioner. The Commissioner also him by the orders passed by could not communicate respondent did him from the he.:idquarters and did not leave his not stay at for communication either at Gaya or proper address at Motihari. On the 24th November 1952 the Com the parties to missioner passed an order calling upon attend the hearing of the proceedings before him on the 8th December 1952 and forwarded a copy of this to the order to the appellanr for communication of Champaran pondent. The District Magistrates and Gaya who were requested to serve a true copy of the respondent could not do so as he the order upon was available neither at Motihari nor at Gaya and it that he could be traced at was with great difficulty Patna and the order served upon him. On the 18th the Commissioner passed another December that he was feeling great difficulty in order recording the respondent and in communicating his contacting orders that this was a highly undesirable state of affairs and that it was necessary that his orders should be communicated this order pondent as early as possible. A copy of was forwarded by to the appellant the 20th December 1952 along with his for information and doing the needful. The appel the letter complained against to thereafter wrote to him. He observed the Commissioner letter dated 1952, 1955 Brl!fattmdM Sinka v. Jyoli NOl'din Bhagwati ]. 958 SUPREME COURT REPORTS [1955} the Commissioner on D.O. No. II/3C-306/52A-11614 which ran as under:- the 26th December 1952 being "Dear Mr. Saran, I am desired to refer to your memo. No. 8266 to say the 26th November 1952 and to allow that Government are anxious not Mr. Jyoti Narayan to adopt dilatory tactics inquiry against the progress of and delay him. to be vigilant such tac.tics adopted by Mr. Narayan. against to request you I am Yours sincere! y, (Sd.) B. N. Sinha". The Commissioner acknowledged receipt of this by his D.O. stating adopt any dilatory the inquiry against him. letter letter No. 244, dated the 5th January 1953 the progress of that he would not allow tactics and delay the respondent the Commissioni;r stating On the 2nd February 1953, the respondent filed a inter alia petition before that he had not been able to engage any lawyer or counsel for want of necessary papers and copies and inquiry. He also prayed for an adjournment of starting a contempt of Court proceed prayed ing against the Commissioner re the appellant but jected both his prayers. The order which was passed the Commissioner . on these applications may as in extenso inasmuch as well be set out it has a bear ing on the question whether the appellant was guilty of contempt of Court for having addressed ·the letter complained against to him :- "3-2-53. Another point first peti tion of the accused was that· Mr. B. N. Sinha, Deputy Secretary to Government in addressing his D.O. letter No. 11614, dated the 26th of December, 1952, was in my guilty of contempt because he had judicial discretion. that the author inferred letter from which letter intended to influence me in the exercise of my judicial function. This letter was sent to me to my memo. No. 8266 dated 26-11-1952 in reply forwarded a copy of my order dated whereby I had to Mr. Narayan. Mr; 24-11-1952 for communication find anything I do not it can be interfered raised 1955 Brajrumdan Sinha v. Jyoti Narain Bhagwali]. 2S.C.R. SUPREME COURT REPORTS 959 in his letter dated inquiry and inquiry. Now the progress of tactics and the 26th of De B.N. Sinha wrote that Government are anxious not to allow cember 1952 Mr. Jyoti Narayan to adopt dilatory is to be in paragraph 11 of his peti noted that Mr. Narayan tion has himself charged the State Government for thereby causing harass delaying that both parties, accused are anxious what Mr. B. N. Sinha meant by writing the D.O. was inquiry should be expedited. This cannot to mean by any stretch of imagination be construed to in judicial functions. fluence me For these two prayers con tained in the first petition of Mr. J. Narayan". to him. Therefore, is, the State and inquiry in the discharge of my is obvious should be expedited the aforesaid officer in any way rejected reasons I The respondent lettet complained against amounted thereafter started proceedings the appellant in the High Court of contempt against Judicature at Patna. A Rule was issued by the High the appellant which was heard and Court against finally disp0sed of on the 12th June 1954. The High Court was:;of the opinion the Commissioner ap pointed miaer Act XXXVII of 1850 was a Court, that the Courf was subordinate to a con the appellant was guilty of tempt ~£.Court and that such contempt. the appel lant to · pay a fine of Rs. 250 and in default to undergo simple imprisonment for a period of one month. The appellant obtained a certificate under Article 134( 1) the High Court. The ( c) of the Constitution from the question as certificate was, however, to whether Act is a Court. limited to the Commissioner appointed under It accordingly sentenced the High Court, At the hearing before us, for urging additional grounds which inter alia the ground holding Act the meaning of the Contempt of Courts Act for that its orders are open mere reason the High Court erred that the Commissioner appointed under the appellant filed a peti included the High Court within reviewed is a Court subordinate to be %0 SUPREME COURT REPORTS [1955] 1955 Brqjnant!an Sinha v. Jyoti Narain Bhagwati]. judicially in exercise of the power vested in the High Court under article 227 of the Constitution and also the ground that the High Court erred in holding that interfere letter with or obstruct the course of justice and constituted contempt of Court. complained against tended The in the first instance letter complained against did not learned Attorney-General the appellant the Commissioner the Act is not a Court. He next that even if he is a Court, he is not a Court to the High Court within the meaning of lastly contended tend to the course of justice and contended appointed under contended subordinate the Contempt of Courts Act. He interfere with or obstruct did not constitute contempt of Court. the Contempt of Courts Prior to the enactment of Act, 1952, there was in existence India the Con tempt of Courts Act, 1926 (XII of 1926). The various States also had their corresponding enactments. The Contempt of Courts Act, 1926 (XII of 1926) and the in the States of Hyderabad, corresponding enactments Madhya Bharat, Mysore, Travancore-Cochin and II of 1948 were repealed by the Contempt of Courts Act, 1952 and a uniform Act to define and limit the powers in punishing contempts of Courts of certain Courts was enacted which extended to the whole of India except In section 2 of the Act, "High Court" was defined as meaning the High Court for a Part A State or a Part B State and including the Court of the Judicial Commissioner in a Part C State. Section 3 of the Act enacted :- the State of Jammu and Kashmir. the Saurashtra Ordinance Pepsu, Rajasthan "3. ( 1) Subject the provisions of (2) every High Coun shall have and exercise jurisdiction, contempts of Courts subordinate exercises in respect of contempts of itself. the same procedure and practice, sub-section the same authority,· in accordance in respect of to it as it has and powers (2) No High Court shall take cognisance of a con to have been committed in respect of a is an to it where such contempt tempt alleged Court subordinate 2S.C.R. SUPREME COURT REPORTS 961 offence punishable under XLV of 1860)". the Indian Penal Code (Act 1955 B nan dan Sinha v. Jyoti Narain Bhagwali "Courts expression The word "Court" was not defined in the Act and the High the Courts of law the hierarchy of the purpose of administration Courts" would prima f acie mean subordinate to the High Courts Courts established of justice throughout subordinate the Union. It would be relevant, however, to notice the defini tions of "Court" available elsewhere. Coke on Littleton and Stroud defined the word is judicially ad the place where justice "Court" as ministered. According injury done ; to Stephen, "In every Court, there must .constituent parts-the actor, judex ; actor or plaintiff, who complains of the reus, or defendant, who is called judex, or the truth of the the law arising upon that fact, to ascer be at judicial power, which fact, 8n<l and if any injury appears tain, and by its officers to apply, the remedy". to make satisfaction for it ; and the to have been done, to determine to examine all persons, except Indian Evidence Act (I of 1872) Section 3 of the including all Judges and Magis defines "Courts" as legally trates, authorised to take evidence. This definition, however, has been held to be not exhaustive but framed only the purpose of Indian Evidence Act and is not to is not warranted. be extended where such an extension (Act Sections 19 and 20 of the Indian Penal Code the. words "Court" and arbitrators, XL V of 1860) define "Court of Justice" as under :- in any "Section 19. The word 'Judge' denotes not only every person who is officially designated as a Judge, but also every person-who legal proceeding, civil or criminal, a give, definitive if not appealed against would be definitive, or a judgment if confirmed by some other authority would which, be definitive, or is empowered by law judgment which, judgment, or a who is one of a body of persons, which body of is empowered by law to give such a judgment. persons 962 SUPREME COURT REPORTS [1955] 1955 Brajnandan Sinha v. Jyoti Narain BhagwaJi]. Section 20. The words "Court of .Justice" denote judicially is empowered by judicially as a body, when such Judge or a Judge who is empowered by law alone, or a body of Judges which law to act body of Judges is acting judicially''. to act The pronouncement of a definitive thus considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of they con persons stitute a Court. it cannot be predicated that he or judgment The Privy Council in the case of Shell Co. of Aus thus de tralia v. Federal Commissioner of Taxation ( 1 ) fined "Judicial Power" at page 295 :- "Is the words 'judicial power' as used is "judicial power" ? Their this right ? What Lordships are of opinion that one of the best defini tions is that given by Griffith, C. J. in Huddart, Par ker & Co. v. Moorehead (') where he says: "I am of opinion section 71 of the Constitution mean the power which every sovereign authority must of necessity have its subjects, or between decide controversies between itself and its this power life, tribunal which has power does not begin until some (whether to give a binding and authoritative decision to take ac subject tion". further enumerated at page 297 cer Their Lordships tain negative propositions in relation to this subject :- in this subjects, whether liberty or property. The exer.cise of is not necessarily a Court to appeal or not) is called upon "l. A tribunal the rights relate ' ' • strict sense because it gives a final decision ; 2. Nor because it hears witnesses on oath ; 3. Nor l>-ecause appear before 1. .between whom two or more contending parties it has to decide ; it gives decisions which affect

#4. Nor bec'1\Jse the rights of subjects ; 5. Nor because 6. Nor because there 1s an appeal is a body to a Court ; to which a matter is referred by another body. See Rex v. Electricity Commissioners( )" (I) [1931] A.C. 275. (3) [1924] I K.B. 171. (2) [1909] B C.L.R. 330, 357. 1955 Brqjnatidtm Sinha v. ]Jou Narain Bhagwati]. • 2S.C.R . SUPREME COURT REPORTS 963 and observed at page 298 : "An admiqistrative from a Court, but still remairt an administrative tinguished strictly externals do not make a direction tive officer by an ad hoc Co.urt of Judicial power". tribunal may act judicially, tribunal as dis so-called. Mere to an administra tribunal an exercise by a The same principle was reiterated by this Court in Bharat Bank Limited v. Employees of Bharat Bank Ltd. (1) and Maqbool Hussain v. The "State of Bombay( 2 ) tribunal as laid down in a passage from Cooper v. Wilson ( 3) was adopted by this Court :- test of a judicial if the dispute between two or more parties, and then the ascertainment of the the parties "A true judicial decision presupposes an ex1stmg dispute between requjsites :-(1) The (not volves presentation necessarily orally) of their case by the parties to the them is a question dispute ; (2) fact by means of of fact, evidence adduced by to the dispute and the assistance of argument by or on be often with if the dispute half of the parties on the evidence ; (3) between them the submission of legal arguments by the parties ; and ( 4) a decision which disposes of the whole matter by a finding upon in disput..: and an application of the law of the facts the facts so found, including where re law". quired a ruling upon any disputed question of to, was followed by this Court in S. A. Venkataraman v. The Union of India and Another\ ) where a Constitution that both finality Bench of this Court also tests of a and authoritativeness were . the essential judicial pronouncement. Maqbool Hussain's case, above is a question of law, laid down referred therefore, It is clear, that in order to constitute a Court in th~ strict sense of the term, an essential con dition the Court should have, apart from hav ing some of the tribunal, to give a decision or a definitive judgment finality and authoritativeness which are which has trappings of a judicial (I) [1950] S.C.R.459. (3) [1937] 2 K.B. 309. 340. (2) [1953] S.C.R. 730. (4) [1954] S.C.R. 1150. 1955 Brajnandan Sinlla v. Jyoti Narain BhagwaliJ. 964 SUPREME COURT REPORTS [1955] the essential tests of a judicial pronouncement. limited respondent It was, however, urged by Shri Purshottam Tircam the word "Court" should das for the not be to a Court of Justice or a Court of law but should be construed includ ing within the connotation, other Courts which, though not Courts of Justice, were nevertheless Courts according to law and he relied upon a decision of the in England in Royal Aquariun and Court of Appeal . Stemmer and Winter Garden Society Ltd. v. Parkinson ( ) and the observations of Fry, L.J. at page 446 therein : in a wide sense, to our therefore, judgment, investigation, it is a Court It is obvious that, according "I do not desire functions. Parliament to attempt any definition of a to our law, a Its duties as a whole are deliberative and the duties of a part of it only are judicial. is nevertheless a court. There 1 are many other though not Courts of Justice, are never law. There are, for the coroner's the existence of immunity claimed docs not depend upon the ques a in law. "court". court may perform various a court. . legislative : It courts which, theless courts according instance, courts of In my court. tion whether the subject-matter of consideration is Court of Justice, but whether Wherever you find a Court in law, attaches certain privileges, among which munity in question". in that case was whether the The question involved defendant was entitled immunity from to absolute for anything done by him while performing action his duty as a member of for music dealing with and dancing. defendant judicial function the words complained of and there when he spoke in respect fore was entitled of anything he said. The argument that "wherever law attaches you find a Court certain privileges among which is question" was used on behalf of the defendant and Fry, L. J. dealt with th: same as under at page 447 :- the applications for It was coptended on behalf of that he was exercising a the County Council is the to absolute immunity immunity in law, licences to that (1) [1892] l Q.B.431. 1955 Brajnanda11 Sinha v. Jyoti Narain BhagwatiJ. 2 S.C.R. SUPREME COURT REPORTS %5 to attach. "It was said immunity ought is this : it is used as meaning in Courts of Justice, and are proper the existence of this immunity that, 1s based on considerations of public policy, and as a matter of public policy, wherever a body has to decide questions, and in so doing has to act judicially, it must be held is a judicial proceeding to that there It seems .to is used me that the sense in which the word "judicial" in that argument the proceedings are such as ought to be conducted with the fairness and impartiality. which characterize proceedings the functions of a judge, not that the members of the supposed body are members of a Court. Consider this im what lengths munity were applied is bound to in the sense of deciding fairly and decide judicially It would apply to assessment committees, impartially. boards of guardians, Inns of Court, when con sidering to the General Medical Council when considering questions the position of a medical man, and to all affecting arbitrators. it necessary, on grounds of public should be polit.:y, carried as far · as I say is ample protection afforded in such cases by ordinary I find no necessity or pro the doctrine so far as this argument priety requires" . the doctrine would extend, to every body which Is the doctrine of the conduct of one of this ? I say not. law of privilege. their members, in carrying immunity to the . Lord Esher, M. R. expressed himself as follows while "It is true immunity dealing with this argument at page 442 :- that, in respect of statements made in the course of proceedings before a Court of Justice, whether by judge, or couQsel, or witnesses, there is an absolute to an action. The It is applicable ground of that rule to all kinds of Courts of Justice ; but the doctrine has been carried further ; and it seems that this immunity applies wherever there is an authorized inquiry which, though not before a Court of Justice, is before a tribunal which has similar attributes. In the case of Dawkins v. Lord Rokeby( 1 ) the doctrine was extended liability is public policy. (I) L.R. 8 Q.B. 255; L.R. 7 H.L. 744. 1955 Br'!jnant!an Sinha v. ]7oli Narain Bh•gwali J. %6 SUPREME COURT REPORTS [1955] judicially, . that to a military court of inquiry. It was so extended on the case was one of an authorized the ground inquiry before a tribunal acting is to say, in a manner as nearly as possible similar in which a Court of Justice acts in respect of an in it. This doctrine has never been extended quiry before than to Courts of Justice and tribunals acting further in a manner similar in which such Courts act. Then can it be said that a meeting of the county in considering applications for council, when engaged is such a tribunal ? It licences for music and dancing, is difficult to say who are to be considered as judges in such a case". acting judicially to that The case of Dawkins v. Lord Rokeby(') was a case immunity was claimed by a witness who had given evidence before a military. Court of inquiry. The case went to the House of Lords and the Lord Chancellor, in 7 H.L. 744 observed:- in his speech at page 754, "Now, my Lords, adopting learned Judges with regard the expressions of to what I take to be to the protection of witnesses in law as the settled judicial proceedings, I certainly am of opinion upon all principles, and certainly. upon all considera the same tions of convenience and of public policy, protection which is extended to a witness in a judi cial proceeding who has been examined on oath to be extended, and must be extended, to a military man who is called before a Court 0f Inquiry there upon of this kind for the purpose of testifying a matter of military discipline connected with army". Both and the other before the extension of cerned with munity of members of a tribunal or witnesses cial proceedings and the principle of Justice in a manner and according assimilated these cases, the one before the Court of Appeal the House of Lords, were con the principle of im in judi logically extended the Courts of functioning to procedure which was to a judicial inquiry. The extension of the Courts immunity beyond to tribunals or bodies of persons (I) L.R. 8 Q.B. 255; L.R. 7 H.L. 744. 1955 BrajntwlQfl SiMa v. Jyoti N orain Bhagwati]. 2S.C.R. SUPREME COURT REPORTS %7 immunity ever, constitute law. to such tribunals or bodies would not, how them Courts of Justice or Courts of The position thus summarised in the following in Halsbury's Laws of England, Hailsham passage Edition, Volume 8, page 526 :- in the sense "Many bodies are not courts, although they have to decide questions, and in so doing have to act that the proceedings must be con cially, ducted with fairness and impartiality, such as assess the Court of ment committees, guardians committees, Insur referees constituted under ance Acts insurance funds, Inns of Court when con sidering their members, General Medical Council, when considering questions affecting the position of a medical man". to decide claims made on the conduct of one of the benchers ·of the the Unemployment We must, the connotation of therefore, fall back upon the tests laid for determining what is a Court strictly down above the term as used so-called within It would be appro in the Contempt of Courts Act. the relevant provisions of priate at this stage the Public (XXXVII of 1850) which would fall to be considered for determin ing whether Act is a Court or not. the Commissioner appointed under (Inquiries) Act Servants to note The Act was passed for regulating inquiries into the the preamble servants public behaviour runs :- "Whereas is expedient throughout India ; It the sanction of Government, and to make to amend the law for the behaviour of public ser their appointments with is enacted as fol inquiries regulating vants not removable same uniform lows:-" to be drawn Section 2 requires out and a formal and public to be ordered whenever there are good grounds for making a formal and public imputation of misbehaviour by any such person. The inquiry may be committed under section 3 either the Court, the Government shall be of opinion the articles of charges truth of any inquiry inquiry 1955 .. Brq/Mll4oo Siltlra JyotfNarain B/UJgwati j. 968 SUPREME COURT REPORTS [1955] to which the person ac Board or other authorities cused is subordinate or to any other person or per sons specially appointed by the Government, Com for the purpose. Sections 4 to 7 contain missioners to the conduct of the prosecution in regard provisions the Com and section 8 prescribes missioners. This section has been particularly relied upon as constituting the Commissioners a Court, and runs as under :- the powers of is given comm1ss1oners "Section 8. The same power of punishing contempts and obstructions to their proceedings, as to Civil and Criminal Courts by the Code of Criminal Procedure, 1898, and shall have the same powers fot the summons of wit nesses, and for compelling the production of docu the discharge of their duty under the ments, and for to the same protec commission, and shall be entitled that all tion as the Zila and City Judges, except the attendance of witnesses or other process to cause compulsory process, shall be through and served executed by the Zila or City Judge in whose jurisdic tion the witness or other persons resides, on whom the to be served, and if he resides within Cal process is the Supreme cutta, Madras or Bombay, Court of the commission to a court, or other person or persons has been to issue such process in the exercise of having power they may also use all such Judicature issued thereto. When then through ' their ordinary authority, to be followed for disobedience the purpose of power for the purposes of the commission". Section 9 prescribes a penalty process issued as aforesaid commission and sections 10 to 20 prescribe the proce in the conduct of the inquiry. It may be noted is assimilated as this procedure far as possible to the conduct of a prosecution in a Criminal Court of law and the person accused is given the fullest opportunity to enter upon his defence and lead evidence in ord~r to clear himself of the charges levelled against him. Sections 21 and 22 lay down the to the re functll)ns of the Commissioners port to be mad~ by them the powers of .proceedings under the commission and in regard to the Government of 1955 Br~andtm Sin/ia v. ]µti Narain B/iagwati ]. is.c.R. SUPREME COURT REPORTS %9 the Government to pass final orders on such reports. These sections have an question before us and they enact :- important bearing on report their opinions. "Section 21.-After the close of the shall forthwith inquiry to Government comm1ss1oners the commission, and shall their proceedings under send with their opinion upon thereof record each of the articles of charge separately, with such observations as they think fit on the whole case. consideration Section 22.-The Government, on the report of the commissioners, may order them further explanation to take further evidence, or give It may also order additional arti the inquiry in which case cles of charge to be framed, truth of such additional articles shall be made in the same manner as is herein directed with the original charges. When special com respect the Government may missioners have been appointed, also, if it thinks refer the report of the commis sioners to which the their opinion on person accused the case ; and will finally pass such orders thereon as appear its powers in such just and consistent with cases". the Court or other authority is subordinate, for fit, the Act amounted These provisions were considered by this Court in the case of S. A. Venkataraman v. The Union of India and Another( 1 ). The question that arose for consider there was whether an inquiry made and con cluded under to prosecution and for an offence as contemplated under punishment article 20(2) of the Constitution. Articles of charge in that case had been framed against and evidence had been led both by the prosecutor and by the defence arid witnesses on both sides were re-exa examined on oath and cross-examined and mined in the usual manner. The Commissioner had that some found, on a consideration of the evidence, of the charges had been the petitioner and had submitted a report to that effect to the Gov vernment. The President had accepted the opinion of the Commissioner and, in view of the findings on ,:J"oved against the petitioner U) [1954] S.C.R. 1150. 1955 Brtgnll1llhn S'rn!ra v. ]1.tiNMaio B,.,,_. ]. 970 SUPREME COURT REPORTS (1955] the action proposed the President finally decided the Constitution the latter, was pro the several charges arrived at by the petitioner should the opinion visionally of the peti be dismissed. Opportunity was given tioner under Article 311 (2) of show · cause against to be taken in regard · to him and after considering his representa the Union Public tion and after consultation with Service Commission, the penalty of dismissal upon him and he was impose the police according! y dismissed. After his dismissal, submitted a Special Judge. Sessions Court, Delhi, charging him with offences under sections 161 and 165 of the Indian Penal Code and section 5(2) of the Prevention of Cor issued by ruption Act and upon that summons were to appear the petitioner learned Judge directing before his Court. The petitioner thereupon challenged the legality of this proceeding in a writ petition con tending jurisdic to a fresh prosecu they amounted tion for offences for which he had been prosecuted and punished already. the proceedings were without inasmuch as him before charge-sheet against this Court scrutinised law stands at present, the petitioner under Article 20(2) of While considering whether under the circumstances fundamental right the Con the provisions of the Commissioner appointed then was, de judgment of the Court and observed at there had ·been a violation of the stitution, Act and t)te position of thereunder. Justice Mukherjea, as he livered page 1159 :- "As the only purpose, for which an enquiry under Act XXXVII of 1850 could be made, the misbehaviour of a a definite conclusion regarding it to determine provi public servant and thus enable sionally imposed the punishment which should be upon him, prior to giving him a reasonable opportu required under article nity of showing cause, as is 311(2) of is quite open to is not at all compulsory and it Act if it so the Government to adopt any other method chooses. It is a matter of convemence merely and the Constitution. An enquiry under is to help the Government to come 2 S.C.R. SUPREME COURT REPORTS 971 to examine It is against this background that we the material provisions of (Inquiries) Act of 1850 and see whe the nature and result of the enquiry which it is at all possible to say that the Act to prosecution and punishment for a criminal nothing else. will have Public Servants ther from the Act contemplates the proceedings amount offence." ; and at page 1160 :- taken or concluded under 1955 Brajnandan Sinha v. Jyoti JV arain Bhagwati J. , to do instances of misbehaviour truth or otherwise of the "A Commissioner appointed under this Act has no duty to investigate any offence which is punish able under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdic investigation so. The subject-matter of imputation by him of misbehaviour made against a public servant and is only as the several investigated, upon which disci articles of charge are the Government if ·plinary action might be taken by it so chooses. The mere fact the word "prose cution" has been used, would nol make the proceed the Commissioner one for prosecution of an ing before offence. As the Commissioner has to form his opinion upon l~gal evidence, he has been given the power summon witnesses, administer oath them and also .compel production of relevant documents. These may be some of tribunal, trappings of a judicial the proceeding anything more than a mere fact finding enquiry. This is conclusive ly established by the provisions of sections 21 and 22 the Com of the Act. At missioner has to submit a report to the Government regarding his finding on each one of the charges made. This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement. The opinion is not even binding on the Government. Under section 22 the Government can, after receipt of the of the Act, further the Commissioner report, call upon evidence or give further explanation of his opinion. When Special Commissioners are appointed, their re port could be referred to the court or other authority they cannot make the close of the enquiry, to take 7-85 S.C· India/59 1955 Brajnandan Sinha v . . Jyoti Narain B!iagwati ·J. 972 SUPREME COURT REPORTS [1955] appointed is sufficient the opinion of the report made by the Commissioner the Government has is subordinate for fur the diff to which the officer concerned ther advice and after taking erent authorities and persons, decide finally what action it should take". The Court. was no doubt concerned in that case with the Commissioner inquiry before finding whether the the petitioner. to a prosecution of was tantamount the position of While .considering the same, however, the Commissioner was discussed and the conclusion the Court came was that he was a mere fact to which finding authority, the Com missioner to the Government was merely his expres sion of opinion and it lacked both finality and auth oritativeness which are the essential tests of a judicial pronouncement. This conclusion to estab Act was not a Court and his report or findings were judgment or a judicial pronouncement not a definitive inasmuch as they were not binding and authoritative and lacked finality. We are also of the same opinion. Apart from. the above considerations which weighed the Court in that case. we have also the provi sions of section 8 of the Act itself which go to show the Commissioners are given certain powers of the Civil and Military Courts to punishing to their proceedings, sum contempts and obstruction the production of moning of witnesses, compelling documents and for service of their process as also same protection as Zila and City Judges. The very that this provision had got to be enacted shows the position of the Commissioners was not assi l)'lilated to that of Judges and that they did not con stitute Courts of Justice or Courts of law but were tribunals deriving whatever powers mere fact finding they could exercise under the very terms of the Act which created them. The power of punishing con tempts and obstruction -to the Code of Criminal Procedure, 1898 was also nature and the power they were not Courts in the ordinary indicated term, No such provision would have been sense of the to Civil and Criminal Courts by the very nature and extent of their proceedings in regard similar 1955 Brajnandan Sinha v. Jyoti Narain B/iagwali J. 2S.C.R. SUPREME COURT REPORTS 973 if in fact to be enacted they were not strictly necessary they were constit necessary uted Courts of Justice or Courts of law and it_ is no these provisions were enacted argument to say that even though merel~· for the sake of abundant caution or clarification of the position. We are of the opinion the Com missioner appointed under the Act, having regard to the circumstances above set out, does not constitute term as used in a Court within the meaning of the Contempt of Courts Act. Our attention was, however, drawn by Shri Pur shottam Tricamdas · to a decision of a Division Bench the Punjab High Court in Kapur Singh v. fagat Narain( ). That was a case directly in point and on all fours with the case before us. The learned Chief Justice of the Punjab High Court had been appointed a Commissioner under the Act in the matter of an inquiry against Sardar Kapur Singh, I.C.S., and Lala Jagat Narain, the editor, printer and publisher of an Urdu Daily newspaper published at Jullundur called The Hindu Samachar, was called upon to show cause why he should not be punished under section 3 of Contempt of Courts Act with regard to a leading in his name in the issue of the article which appeared the 12th March paper dated 1951. A preliminary taken on his behalf that the Court had objection was jurisdiction contempt and that the Court of the Commissioner appointed to hold an inquiry under the Act was not a Court and in any event was not a Court subordinate to the High Court. Mr. Justice Falshaw who delivered the judgment of the Court observed at this argument : "The itself seems clearly Public Servants that a Commissioner or Commissioners indicate appointed under the Act constitute a Court as are given all the powers of a Court regarding summoning of witnesses and other matters, and only ground on which the learned coun~el for respondent could base his argument the Com :missioner does not constitute a Court was that he can to take proceedings against him in connection with the argument was (Inquiries) Act (I) A.I.R. 1951 Punjab 49 1955 Brajnandan Sinha \". Jyoti Narain B!iagwaJi ], 974 SUPREME COURT REPORTS (19551 learned is to be forwarded indeed as is not sufficient the respondent, which legally authorised f~ive no final decision, but merely has to draw up a teport giving his findin gs on the charge or charges against the Government. In my opinion, however, to make the Commissioner or : lone Commissioners any than a Court and ir thing other the definition of Court in section is to be noted it reads : is very wide 3, Evidence Act, includes all Judges and Magistrates and all "'Court' to take persons, except arbitrators, evidence". relied upon The the definition of Court given in section 3 of the Indian Evidence Act which, as has already been noted, the purposes of the Act and is not £ramed only for is not · to be such an extension This definition does not help warranted. the Commi~· the question whether determination of sioners appointed under the Act constitute a Court and the attentio11 of the learned Judges was not drawn authoritativeness the position finality judicial pronouncement. tests of a the essential that the decision reached by We are of the opinion the learned Judges of the Punjab High Court in case was wrong and cannot help the respondent. extended where Judges " Our attention was also drawn the Nagpur High Court to another decision in M. V. Rajwade v. Dr. ). The question which came to be con S. M. Hassan( 1 the Court in that case was whether a com sidered by the Commissions of Inquiry mission appointed under Act, 1952 was a Court within the meaning of section 3 of the Contempt of Courts Act, 1952, and while con sidering the provisions of that Act, the learned Judges of the Nagpur High Court incidentally considered the (Inquiries) Act, provisions of 1850. They 'Court' 1-ias not been defined in the Contempt --£ Courts Act, 1952. The Act, however, does contemplate a 'Court Indian section 20, 'a judge who is empowen·d is requirf'.d judg- Penal Code, 1860, denotes by law to act of a Court is the capacity ( t ) A.I.R. 1954 N"-g. 71. Justice' which as defined to ddiver a "definitive the Public Servants judicially'. The least rightly observed that "the · of 1955 Brl!feandan Sinha v. Jyoti J( araiR BhagwatiJ. 2 S.C.R. SUPREME COURT REPORTS <J75 the mere fact the provisions of they made in regard latter Act by way of comparing ment'', and ur.less this power vests in a tribunal any particular case, that the procedure adopted by it is of a legal character and it has power to administer an oath will not impart to it the status of a Court'', and came to the conclusion the commission appointed under the Commissions of Inquiry Act, 1952 is not a Court within the meaning of the Contempt of Courts Act, 1952. The learned Judges were merely considering Commissions of Inquiry Act, 1952 and were not con cerned with the construction of the provisions of (Inquiries) Act, 1850 and whatever Public Servants to the provisions or obsen-1tions there con provisions of the former which sidering would not have the effect of putting cr1 latter Act a construction which provisions of the to the respondent before us. The would be any avail learned Judges was rati0 which was adopted by the quite correct but a consideration of the provisions of the Public Ser vants (Inquiries) Act, 1850 in order to emphasize the commission ap the character and position of the Commissions of Inquiry Act, 1952 pointed under it" was not strictly necessary for the pur ev":n though though pose of arriving it must be the nature and func mentioned themselves expressed correctly as under:- :it their decision, that while discussing the commission the same with they digressed they were it appears "The Commission governed by the Commissions of Inquiry Act, 1952 is appointed by the State Gov its own mind'', ernment "for the information of in exercise of its execu order that it should not act, tive power, "otherwise dictates of justice & equity" in ordering a depart therefore, its officers. is, mental enquiry against a fact finding body meant only to instruct the mind of the Government without producing any docummt of a judicial nature". in accordance with It We are of the opinion which have been Tricamdas relied upon is of any help to the these cases that neither of l-y ~hri I-·urshottam respondent or detracts 976 SUPREME COURT REPORTS [1955] !955 Braj'ft01fdan Sinha v. Jyoti Narain BhagwatiJo true position as we have laid down above. The only conclusion to which we can come on a con relevant provisions of the Act sideration of all is that the Commissioner appointed under the Act is not a Court within the meaning of the Contempt of Courts Act, 1952. the appellant the Commissioner, to the High Court within the meaning of In view of the conclusion reached above, we do not it necessary to go into the question whether the the Act is a Court sub Commissioner appointed under ordinate Contempt of Courts Act. Nor do we think it neces sory to express any opinion as to whether letter complained against constituted a contempt of Court. in passing that the circum We may, however, note letter came to be addressed stances under which thereof and the order which was passed by the Com missioner on the application made by respondent in contempt on date to proceed against the 2nd February 1953 lend support to the argument which was advanced on behalf of the appellant the letter complained against did not constitute con tempt of Court. The result, the appeal will be allowed, the appellant by the Court below will be set aside and the original Criminal Miscellaneous Petition No. 10 of 1953 filed the High Court of Judicature at Patna will stand dismissed. The fine if paid will be refunded. the order passed against the respondent the appellant therefore,