B. N. Katju, J. - (1.) THIS is a petition praying that the opposite parties be punished under Sections 12 of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act).
(2.) OPPOSITE party No. 3 Pooran Chandra Mao is the producer of the film 'Andha Qanoon'. Dr.Rahi Masoom Raza opposite party No. 2 is the writer of the dialogues of the said film. T.Rama Rao opposite party No. 4 is the director of the said film and Amitabh Bachchan opposite party No. 1 is an actor in the said film. It is alleged in the petition that the speech made by Amitabh Bachchan in the film 'Andha Qanoon', a copy of which is attached as annexure 1 to the petition, the song sung by Amitabh Bachchan in the said film, a copy of which is attached as annexure 2 to the petition and also the film as a whole scandalised or tended to scandalise the courts of this country in general, which amounts to criminal contempt under section 2 (c) of the Act and is punishable under Section 12 of the Act. In the counter-affidavit filed by Pooran Chandra Rao opposite party No. 3 it has been stated that the Board of Censors had issued certificate 'A' under Section 5-A of the Cinematograph Act 1952 certifying that the film was fit for being exhibited to adults only and not to persons below the age of 18 years,. The opposite parties were, therefore, justified by law in exhibiting the film. They cannot thus be convicted under Section 12 of the Act in view of Section 79 of the Indian Penal Code. Section 79 IPC runs as follows :- "Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of mistake of law in good faith, believes himself to be justified by law, in doing it" Section 40 IPC runs as follows :- "Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code. In Chapter IV, Chapter V A and in the following sections, namely, sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195,202, 211,213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined." Section 41 IPC runs as follows :- "A "special law" is a law applicable to particular subject."
(3.) IN view of Sections 40 and 41 IPC the word 'offence' in Section 79 IPC does not only denote a thing made punishable under the INdian Penal Code but also denotes a thing made punishable under 'special laws' as it is contained in Chapter IV of the INdian Penal Code. The Act is obviously a 'special law' as it relates to a particular subject, namely, contampt of court. Thus if contempt of court is made punishable under the Act it will be an offence within the meaning of Section 79 IPC but if it is punishable under the inherent powers of this Court as a court of record under Article 215 of the Constitution and not under the Act it will not be so. This is, therefore, the first question that requires determination. The High Courts were established under Article 214 of the Constitution and Article 215 of the Constitution lays down that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. In State v. Padma Kant Malviya, AIR 1954 Alld. 523 it was observed :-- "What the Constitution (Art. 215) and the Contempt of Courts Acts of 1926 and 1952 have done is simply to recognise that contempts are punishable, and punishable by High Courts under their inherent and supervisory powers, and to regulate these powers. It was expressly stated in the preamble of the Act of 1926 that it was enacted to define and limit the powers exercisable by High Courts in punishing contempts. In the face of this statement in the preamble it cannot be argued that the Act was enacted to create the powers on that contempt is made punishable under a law since 1926. The Act of 1926 not only did not define contempt of court but also did not contain any provision making it punishable. "Contempt" was not defined in the Act, not because it was difficult, or not necessary, to define it but because the legislature had no power to define it, a court of record having the exclusive power to define and determine what amounts to contempt. Section 3 by itself did not make contempt punishable ; it assumed that it was punishable and only fixed limits to the punishment that could be imposed...... contempt was not defined in the Act because the Act did not purport to make contempt punishable" and it was held that contempt of court was not an offence within the meaning of Section 5 (2) CrPC. It was further held that offence has been defined in the General Clauses Act in exactly the same language as is used in Section 4 (1) (O) of the Code of Criminal Procedure. The General Clauses Act applies for the interpretation of the Constitution by Article 367 of the Constitution As contempt of court has not been found to be an offence within the meaning of the Code it cannot be an offence within the meaning of Article 20 (3) of the Constitution.;