ABRAR REYAZ

The Jammu & Kashmir Police has filed an open FIR against people criticising the High Court judgment that upheld the detention under Public Safety Act of Kashmir Bar President Mian Qayoom on the basis of his “separatist ideology”. On the face of it, it appears that J&K Police has failed to read, construe, interpret and apply contempt law (Contempt of Court Act, 1971) before trying to intrude into the jurisdiction of High Courts and Supreme Court. It is ironical, delusional and typical misreading of constitutional law and criminal law to invoke Sections 153A and 505 of IPC for the purpose of contempt. Never ever in the history of criminal Jurisprudence in India, these provisions have been invoked for the said purpose. The contempt law subjects contempt matters with the judiciary itself.
Article 129 of the Constitution provides that the Supreme Court and Article 215 provides that every High Court shall be a court of record and shall have all the powers of such courts including to punish for their contempt. These courts of records have inherent power to punish for contempt and therefore these courts of records can deal with such matters summarily and can adopt their own procedure.
Section 15(1) of the Contempt of Court Act, 1971 deals with the notice of Criminal Contempt by Court of Record such as the Supreme Court and the High Court. Following manners can be taken by the Supreme Court and the High Court for cognisance of the Criminal Contempt:

On the motion of court of records.
On the motion of the Advocate General of the Supreme Court and the High Court.
If any person proceeds the motion with the consent of the Advocate General in writing.
If the law officer who is related to the High Court for the Union Territory of Delhi as the Central Government notifies proceeds the motion. Then it can be considered as contempt committed outside the court.

Section 15(2) of this Act states that in the criminal contempt of the subordinate court, the high court may take certain actions in the manner given in this Act.
According to Vidhi Kumar, author of ‘Contempt of court: Analysis’, which has been published on website, Legal Service India, “Contempt proceedings are neither civil proceedings nor criminal. They are sui generis. Consequently, contempt proceedings will neither be governed by Civil Procedure Code nor by Code of Criminal Procedure. Even the provisions of Indian Evidence Act will not be attracted in the contempt proceedings. The contempt of court including the criminal contempt is not an offence within the meaning of Code of Criminal Procedure and therefore a procedure prescribed by Code of Criminal Procedure for investigation, enquiry and trial of the offence is not required to be followed in contempt proceedings.”
Vidhi Kumar further writes, “The contempt of court and the power of the Supreme Court and High Courts to initiate proceedings for contempt and pass punishment orders, is a special jurisdiction which is inherent in all the courts of record. Section 5 of the Code of Criminal Procedure expressly excludes special jurisdiction from the scope of Code of Criminal Procedure.”
It is well established that police derives its power of filing an FIR, summoning and arresting a person by virtue of deriving the authority from the Criminal Procedure Code (CrPC). Moreover, the criminal contempt is not an offence within the meaning of CrPC. Therefore, if CrPC does not apply in contempt proceedings, the contempt is to be kept to the jurisdiction of courts itself; and police cannot issue summons for the purpose of answering any contempt of court.
To fit the case outside of contempt act, police has invoked the provisions of IPC which will set a very dangerous trend for democracy and fair criticism. The comment on decisions of court cannot invite provisions of IPC; if that would have been the case, there would have been no commentaries on the criminal law today. The criminal law could not have evolved and flourished the way we see it today, if criticism and dissent would have been punished. In every decision of Supreme Court, there is most of the times a judge or judges who disagrees with his learned judge or judges.
It will be relevant to mention S.9 of the Contempt of Court Act, 1971 which states that “Nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which not be so punishable apart from this Act.” Also, there is a reason that there is a separate law for contempt, and law on criminal contempt has been framed in a way that it does not become a tool to oppress and suppress opinions and dissent, which is required for growth and development of law.
Therefore, if anyone is to be punished for contempt, we need to stick to contempt law, and courts have the exclusive jurisdiction for that purpose. Otherwise, this will amount to colourable intrusion into domain of judiciary and more importantly, it will hamper the growth of criminal law in particular and of law in general.

The writer is a law student at Central University of Kashmir. [email protected]

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