Judgment :- AMIT TALUKDAR, J (1) GOD above us, the Law before us and with a perennial sense of Justice and it is only after sterilising ourselves from the Fraternity factor, we would proceed to decide the scope of the applicability of Section 16 of The Contempt of Courts Act, 1971 (hereinafter referred to as the "said act") against Three of our Esteemed Learned Brethren whom, for the sake of propriety and grace we would refer respectively as brother - L, brother - A and brother - W. (2) WHILE deciding the said question we have a silent prayer in our heart that none of our Brethren, for that matter, in the entire country may not ever have such an experience in which we have been catapulated. (3) IN the long History of this Court for over 147 years perhaps this is the first and we hope with a loud prayer that this would be the last of its genre. (4) IN this Application under Article 215 of the Constitution of India read with Section 16 of the said Act the Petitioner has come out with the following prayer:- (a) The Honble Chief Justice may constitute a Full Bench to go into the matter of determining through judicial investigation as to the judicial mafia who has influenced the Honble Single Judge Justice Jayanta kumar Biswas and the Judges of the Honble Division Bench Honble justice Sengupta Honble Justice Arun Kumar Bhattacharya in passing orders blatantly in violation of the specific and unambiguous directions of the Honble Supreme Court dated 11. 12. 2002 and also to initiate contempt proceedings against the said Judges of the High Court of calcutta in view of the provisions of Section 16,12 of the Contempt of courts Act read with Article 141 and 144 of the Constitution of India. 12. 2002 and also to initiate contempt proceedings against the said Judges of the High Court of calcutta in view of the provisions of Section 16,12 of the Contempt of courts Act read with Article 141 and 144 of the Constitution of India. " (b) Rule be issued calling upon the contemnors to show cause as to why should not be held guilty for contempt of this Honble Court for doing the following acts of contempt : (i) Failure to comply with the order 11th December, 2002 passed by the supreme Court of India ; (ii) Deliberately violating the order dated 11th December, 2002 passed by the Supreme Court of India and thereby attempting to render the said order infructuous and invalid to the extent that the Company Petition that is to be heard on merits after recording oral evidence ; (Hi) Deliberately violating the order dated 11th December, 2002 passed by the Supreme Court of India and thereby attempting to render the said order infructuous and invalid; (iv) The Contemnors have willfully and deliberately obstructed administration of justice, besides committing gross contempt of Orders of Apex Court. " (5) PRIOR to assessing the impact of the prayer made by the Petitioner who is appearing in person, we feel it necessary to adumbrate the factual matrix leading to the filing of the present Application so as to have a whole-hog of the entire issue. (6) A Company Petition was heard by Brother - l of the Trial Court and was dismissed by the Judgment and Order dated June 21, 2007 in C. A. No. 439 of 2006 (C. P. No. 33 of 1988). Before Brother - l1 was in seisin of the entire matter, a Division Bench of Brother a and Brother w, since superannuated in connection with ACO No. 19 of 2007 (A. P. O. P. 51 of 2007)disposed of the said Appeal passing necessary direction upon Brother - l by their Order dated March 9, 2007. Incidentally the Judgment and Order dated june 21,2007 in C. A. No. 439 of 2006 (C. P. No. 33 of 1988) passed by Brother- l is also in appeal before us being assigned by The Honble The Chief justice. Incidentally the Judgment and Order dated june 21,2007 in C. A. No. 439 of 2006 (C. P. No. 33 of 1988) passed by Brother- l is also in appeal before us being assigned by The Honble The Chief justice. (7) IN this trajectory this Application, for whatever worth it is for, has been taken out by the present Petitioner, who is appearing in person with the aforesaid prayers which find place in Paragraph - 35 of this Petition. He feels that our learned Brethren of the Trial Court (Brother - l) and the Appeal Court- the Division Bench of Brothers - a and w have in a way subterfuge the order passed by the Honble Apex Court on 11. 12. 2002. As such, he has moved this Court for taking necessary notice against Three of our Esteemed learned Brethren whom in discharge of their Judicial Duty had come to certain findings, which were not to the liking of the present Petitioner. (8) IT would be pertinent to keep in mind that in Annexure - "p-5" of this application the Petitioner, who is appearing in person, has drawn our attention to an order of October 12, 2007 passed by the Honble Apex Court in Contempt petition (C) No. D25493 of 2007 in connection with Civil Appeal No. 2138 of 2000 as passed by The Honble The Chief Justice of India and the Honble justice R. V. Raveendran that:-The Petitioner is permitted to withdraw the contempt petition to seek any other appropriate remedy. Permission sought for is granted. The contempt petition is dismissed as withdrawn. " (9) AFTER apprising ourselves with the outline of this Application and before we proceed to assess the Application of Section 16 of the said Act in the light of the Judicial Orders passed by our Learned Brethren we would at first glean through the legal position. (10) FOR a profitable discussion we would, at first, refer to the provisions of Section 16 of the said Act: s. 16. (10) FOR a profitable discussion we would, at first, refer to the provisions of Section 16 of the said Act: s. 16. Contempt by Judge, Magistrate or other person acting judicially.- (1) Subject to the provisions of any law for the time being in force, a Judge, Magistrate or other person acting judicially shall also be liable for contempt of his own Court or of any other Court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly. (2) Nothing in this section shall apply to any observations or remarks made by a Judge, Magistrate or other person acting judicially, regarding a subordinate Court in an appeal or revision pending before such Judge, magistrate or other person against the order or Judgment of the subordinate court. " (11) WHILE looking into the Law we have come across a number of decision of various High Courts of the country and the Supreme Court. The perusal of the said Citations persuades us to reach to the conclusion that there cannot be any application of Section 16 of the said Act against three of our Esteemed Learned Brethren, who are the Judges of a Court of Record. (12) THE question as to whether the provisions of Section 16 of the said act would be applicable against a Judge of a High Court in connection with the judicial Order passed by him is perhaps no longer res integra in view of the 3- Judge Bench decision of the Supreme Court in State of Rajasthan v. Prakash chand, (1998)1 SCC 1 wherein in paragraph 35 of the said Judgment Dr. Anand, J. (as the learned Chief Justice of India then was) writing the Judgment for the 3-Judge Bench of the Supreme Court held :- "section 16 (1) of the Contempt of Courts Act, 1971 does not apply to the Judges of the Court of Record but only to the subordinate judiciary. " (13) IN Paragraph 34 of the said Judgment the Supreme Court further held :-"34. . . . . .. . . . . . . . . it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against a Judge of a Court of Record for a judicial act done by the Judge. . . . . .. . . . . . . . . it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against a Judge of a Court of Record for a judicial act done by the Judge. The remedy of the aggrieved party against such an order is to approach the higher forum through appropriate proceedings. This immunity is essential to enable the Judges of the Court of Record to discharge their duties without fear or favour, though remaining within the bounds of their jurisdiction. Immunity from any civil or criminal action or a charge of contempt of Court is essential for maintaining independence of the judiciary and for the strength of the administration of justice. " (14) REFERENCE may also be made to the Full Bench decision of the patna High Court in the decision of Harish Chandra Mishra and Ors. v. The honble Mr. Justice S. AH Ahmed reported in AIR 1986 Pat 65 where Shri N. P. Singh (As the learned Judge and the learned Chief Justice then was) writing the Judgment for the majority view of the Full Bench of the Patna High Court held : "in view of section 9 nothing contained in the Act shall be construed as implying to make an act punishable as contempt of Court which would not have been so punishable apart from the Act. In other words an act or action which was not contempt of Court before the act came into force shall not be punishable as contempt of Court under the Act. The provisions incorporated in the Act are supplemental to already existing law of contempt as interpreted by the Supreme Court and different High Courts. Now in this background can it be said that Section 16 has purported to enlarge the scope of the Act to coyer even the acts and actions of the supreme Court and High Court Judges while administering justice and to take them punishable under the provisions of the Act, having said in Section 9 that, nothing shall be punishable as contempt of court which would not be so punishable apart from the Act? In this connection it may also be pointed out that Section 16 opens with the words "subject to the provisions of any law for the time being in force", which means that Section 16 is subject to the existing law which was in force before the Act was enacted. On the day the Act came in force neither the Supreme Court nor High Court was answerable to a charge of Contempt of Court. If the framers of the Act wanted to make a change in this respect they should have introduced a non obstante clause in Section 16 by saying notwithstanding anything contained in any other law instead of making it subject to the law for the time being in force. . . . . . .. . . . . " (15) IDENTICAL view has been expressed in the Full Bench decision of the Andhra Pradesh High Court in Advocate General, Hyderabad v. Rachapudi subha Rao, 1991 Cr LJ 613 where the decision of the Patna High Court Full bench Decision Harish Chandra Mishra and Ors. v. The Honble Mr. Justice S. All Ahmed (supra) was also approved. (16) IT would be of some interest if we advert to Section 9 of the said act which reads as follows : "s. 9. Act not to imply enlargement of scope of contempt.-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 would not be so punishable apart from this Act. " (17) FROM a plain reading of Sections 16 and 9 of the said Act in juxtaposition with each other it would, at once, be evident that Section 9 of the said Act does not expressly provide that the scope of contempt can be amplified by any other provisions. (18) IN our considered view, since our Esteemed Learned Brethren were discharging their Judicial Duty as a Judge of Court of Record they cannot be touched by Section 16 of the said Act. They cannot be treated apart from the office in respect of the work they discharge in Court. (19) THE provisions of Section 16 even though it may have application against the members of the Associate Judiciary but will have no manner of application against the Members of the Court of Record. They cannot be treated apart from the office in respect of the work they discharge in Court. (19) THE provisions of Section 16 even though it may have application against the members of the Associate Judiciary but will have no manner of application against the Members of the Court of Record. More so, when the action (read: the Judgment under Appeal of Brother - l) which is in appeal before us has been affirmed, we cannot, even in our wildest dream conceive of such a situation that there is any contumacious action on the part of Brother- L and the fact that the Judgment under appeal by Brother - l has been affirmed by us in a separate judgment. (20) IN all, in nothing in Law, in logic, in substance - the Petition deserves summary dismissal, simply on the preliminary point in view of the discussion held by us earlier. (21) BEFORE saying omega we find that the Petitioner has the temerity to come up with such an Application not only making sweeping insinuation but incorporated averments in the Application which are simply aimed at demeaning this Institution without any basis. (22) UNFOUNDED and baseless allegations have been made against our brethren - l, a and W. Although even for a single moment we have not been driven by the Fraternity Factory but we cannot be oblivious of the fact that unless this trend, which we notice with utter dismay, is on the rise is not arrested, posterity will see several such litigations. (23) EVEN though the Majestic Portals of this Abode of Justice is not so fragile to be whittled by such ill-wind; but time has come that to maintain the sanctity of this Temple of Justice that such type of misadventure is not allowed to recur in future. (24) WE would be inclined to impose an exemplary cost while dismissing such Application so that it sends down the right message to such persons who would falter umpteen number of times before such sacrilege. (25) BUT in hindsight we find that the Petitioner is a geriatric person. He has been arguing his case in person for all these years. In fact, he is a largely confused and a misdirected soul. Taking into account his gerontic age (86 yrs.), we feel a charitable view of the entire profile is required to be taken. (25) BUT in hindsight we find that the Petitioner is a geriatric person. He has been arguing his case in person for all these years. In fact, he is a largely confused and a misdirected soul. Taking into account his gerontic age (86 yrs.), we feel a charitable view of the entire profile is required to be taken. (26) ACCORDINGLY, we would dismiss the Application without imposing any costs. Application dismissed without any costs.