( 1 ) MAIN point that calls for decision at the moment in both these petitions is whether the proceedings for contempt were initated within a period of one year from the date on which contempt is alleged to have been committed. The further point for consideration in Criminal Petition No. 1 of 1991, is whether a petition for contempt is not maintainable, if it is not supported by an affidavit of the petitioner. ( 2 ) IN Criminal Contempt Petition No. 1/91, respondent is Shri Ashok Kumar Subba, President, Sikkim Pradesh Congress Committee (I ). On 2-12-1991 a petition under Section 15 (1) (a) of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act) was filed by Shri V. P. Sarathi, Advocate General of Sikkim, on the allegation that he had received from someone on 1-11-91 by post a photocopy of a memorandum alleged to have been submitted by the respondent to Shri Arjun Singh, the then Union Minister for Human Resources Development, on the occasion of his visit to Gangtok on 1-10-1991 which contains certain statements under the heading "corruption of Judiciary" casting aspersions on the judicial machinery in the State and the administration of Justice and bringing the administration of justice of Sikkim into contempt. A photocopy of the aforesaid memorandum dated 1-10-91 and the envelope in which the said copy of the memorandum was received were filed along with the petition as Annexures 'a' and 'b' respectively. The petition was not, however, supported by any affidavit. The case was taken up for hearing on 3-12-91 when on request of learned Advocate General the matter was adjourned for orders to 4-3-1992. The learned Advocate-General was also required to file on affidavit connecting the respondent with Annexure 'a' by the date fixed. On 4-3-92, the learned Advocate General requested for two weeks' time for further examination of the matter whereupon the case was adjourned to 20-3-92. On that date again a direction was given that an "affidavit shall be filed by the date fixed as directed in the previous order". Again no affidavit was filed. However, an application was filed on 18-3-92 by the learned Advocate General to the effect that he had written a letter to Shri Arjun Singh on 9-1-1992 requesting him to let the petitioner know if the original of the memorandum had been received by him. Again no affidavit was filed. However, an application was filed on 18-3-92 by the learned Advocate General to the effect that he had written a letter to Shri Arjun Singh on 9-1-1992 requesting him to let the petitioner know if the original of the memorandum had been received by him. The said letter was received by the office of the Minister on 17-1-1992 but no reply had been received from the Minister even though almost two months had passed, and as such, in view of his inability to establish a nexus between Annexure 'a' and the respondent, he was not in a position to file an affidavit as directed by the Court. A copy of the letter dated 9-1-92 was filed as Annexure 'c' and the A. D. Card as Annexure 'd' along with the application. The application further mentions that the petitioner had been able to pracure copies of the local newspaper 'sikkim Observer' dated 12-10-1991, a copy of which was filed as Annexure 'e' which contained similar derogatory statements. A prayer was made in the application for keeping all these three documents on record and to condone the non-filing of the affidavit. Vide order dated 20-3-92, all these three documents were directed to be kept on record and the case was adjourned, on the request of the learned Advocate-General, to 28-4-92 for orders. ( 3 ) ONE day earlier on 27-4-92, the learned Advocate-General filed the other Criminal Contempt Petition which was registered as Criminal Petition No. 1/92 impleading Shri Tshering T. Namgyal, Publisher and Printer of Sikkim Observer as the first respondent and Shri Jigme N. Kazi, Editot of that paper, as the second respondent and making a prayer to initiate contempt proceedings against both these respondents in respect of the publication. Both these petitions came up for orders on l6-6-199, on which date notices were directed to be issued in accordance with Rule 183, of the Sikkim High Court (Practice and Procedure) Rules, 1991 to the respondents "to show cause", either in person or through counsel, as to why proceedings under the Contempt of Courts Act, 1971 shall not be initiated against" them and the cases were directed to be listed for orders on 24-7-1992. ( 4 ) IN petition No. 1/91 address of Shri Ashok Subba had been given as -. ( 4 ) IN petition No. 1/91 address of Shri Ashok Subba had been given as -. :"shri Ashok Kumar Subba president, Sikkim Pradesh Congress committee (1), mahatma Gandhi Marg, gangtok, East Sikkini"the notice came back unserved with the report of the process server that the respondent had gone to Delhi. Notice was again directed to be issued and the case was listed for orders on 23-9-1992. This time the notice was sent on the above referred Congress Committee address and also at 'e-93, Greater Kailash 1, New Delhi'. Notice sent to the Congress Committee office at Gangtok came back with the report that the respondent was out of Gangtok. The other notice which was sent through registered post came back with the remarks that addressee was out of station. Since the then Hon'ble Chief Justice was to be out of station on 23-9-92, the case was adjourned on 25-9-92 and was taken up on 3-l2-92, on which date, on an application for adjournment filed on the ground that the learned Advocate General was our of station, the case was adjourned to 3-3-93 for orders. On 3-3-93, the petitioner made a request to issue summons to the respondent on the address given in contempt petition No. 1/92 by the respondents of that case. Accordingly, notice was issued to the respondent, Shri Ashok Kumar Subba, on the address at "national Highway below Lal Market Road, Gangtok-737 101" and the notice was duly served. The respondent filed a counter-affi davit on 14-6-93 requesting for dismissal of the contempt petition, firstly, on the ground that no affidavit was filed by the learned Advocate-General and, secondly, because the petition is not maintainable being barred by limitation. ( 5 ) IN Criminal Petition No. 1/ 92, Criminal Misc. Application No. 6/92 was filed by the respondents on 1-12-1991 requesting for dismissal of the petition with exemplary costs on the ground that the prescribed period of one year from the date of the alleged contempt had expired on 12-10-1992. It is alleged that if the petitioner had been really serious, he would have taken steps for initiating contempt proceedings in time and since no contempt proceedings had been initiated within one year, the petition is not maintainable. It is alleged that if the petitioner had been really serious, he would have taken steps for initiating contempt proceedings in time and since no contempt proceedings had been initiated within one year, the petition is not maintainable. The respondents have further alleged that both the contempt petitions are interlinked and service on the respondent of petition No. 1/91 could not be effected as the petitioner did not furnish correct address of the respondent. lt is stated that everyone at Gangtok knows about the elegant building in which the respondent Shri Ashok Kumar Subba resides at Gadgtok which is situated on the National Highway below Lal Market, but, even though the petitioner took pains to trace out the address of Shri Subba at Greater Kailash, New Delhi but for reasons best known to him, the residential address of Gangtok was not furnished. Reference has been made to three letters, copies of which have been filed as Annexures R-1 to R-3. The first letter is Annexture R-1 dated 5-8-1992 sent by Shri Jigme N. Kazi, respondent No. 2, to the Law Minister, Government of Sikkim, saying that on an earlier occasion the Law Minister had assured him, in the presence of the learned Advocate-General that a lawyer of his choice would be provided to defend him and his wife (respondent No. 1) in this case, giving the names of four senior advocates of Delhi as the lawyers of his choice and making a request that the Secretary, Legal Aid, be directed to make correspondence with them to ascertain their fees and terms and conditions so that any of them could take up his case and defend him in the High Court. Annexure R-2 is the copy of a letter dated 15-8-1992 addressed by respondent No. 2 to the Chief Minister mentioning therein that on 8-4-1992, he had been called by the Law Minister where the Law Secretary, the Advocate-General, the Assistant Govt. Advocate and ex-MP, Shri Nandu Thapa, were present and during the discussion the Law Minister had been pleased to assure him that a senior counsel of his, choice would be provided by the State Government by way of legal Aid. Advocate and ex-MP, Shri Nandu Thapa, were present and during the discussion the Law Minister had been pleased to assure him that a senior counsel of his, choice would be provided by the State Government by way of legal Aid. The letter continues to say that the "advocate General stated that to uphold the prestige of the judiciary it became necessary to file a criminal contempt application against me and my wife and he advised me that we should express our regrets before the Hon'ble High Court. In reply, I told the Advocate-General that I would not be in a position to assure him what he wanterd me to do. "the letter further states that the criminal contempt case was fixed in November, 1992 and he had not received any decision from the Law Minister with regard to the engagement of a senior counsel and, therefore, appropriate orders might be passed for providing a senior counsel for him and his wife in the contempt case. The letter contains an endorsement about a copy being sent to the Minister for Law and also the Advocate-General. Annexure R-3 is the copy of the letter dated l3-11-1992 from the Minister for Law to, Shri Kazi making a reference to the above referred two letters dated 5-8-92 and 15-10-1992 and stating that both these letters were forwarded to the Legal Cell of Sikkim Sangram Parisad for its opinion and "our legal cell has opined that the case is very simple". "all that is necessary is to draft an unconditional apology which can be done by any member of the Local Bar with little bit of experience. Thus the services of an Advocate of the Local Bar of Mr. Kazi's choice may be given to them. Our Legal Cell is also in a position to provide free legal service, if so considered. It is absolutely unnecessary to engage a senior counsel that would involve lot of expenses for this purpose. "the letter further states" I have also sought the opinion of our Learned Advocate-General who is also a Senior Advocate in this matter. He also feels that engaging a lawyer from Supreme Court is unnecessary. As per him "if they tender an unconditional apology, the Court, in all probability may accept the apology and not take any action against them. "the letter further states" I have also sought the opinion of our Learned Advocate-General who is also a Senior Advocate in this matter. He also feels that engaging a lawyer from Supreme Court is unnecessary. As per him "if they tender an unconditional apology, the Court, in all probability may accept the apology and not take any action against them. "it further states that in "view of the above opinion, if you wish I am ready to provide any lawyer of our choice from the local bar to contest your case. " ( 6 ) WHEN the case came up for orders on 3-3-93, Shri Kazi requested the Court for legal assistance on the ground that he had no means to engage an advocate. In the circumstances of the case, Shri Anup Deb, Senior Advocate, who was present in Court agreed to appear on behalf of the respondents and assist the Court in the matter. Thus in petition No. 1/92, Shri Deb appeared on behalf of the respondents. Later, on the date of final arguments on 25-6-93, Shri Deb appeared in the other case as well. ( 7 ) THE first point for decision, as stated earlier, is whether the contempt petition is maintainable, since it is not supported by an affidavit of the petitioner. Clause (2) of Rule 178 of the Sikkim High Court (Practice and Procedure) Rules, 1991 provides that every "such petition shall be supported by affidavit. " However, as pointed out in Sharif-ud-Din v. Abdul Gani, AIR 1980 SC 303,"the fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. "further, it was pointed out that a "procedural rule ordinarily should not be construed as mandatory, if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by, according such permission to rectify the error later on, another rule would be contravened". "further, it was pointed out that a "procedural rule ordinarily should not be construed as mandatory, if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by, according such permission to rectify the error later on, another rule would be contravened". The purpose of Rule 178 (2) is to ensure that contempt proceedings are not initiated without there being any authentic material on record. This is to help in the cause of justice and is not intended to provide a shield to a person against whom the Court may decide to proceed for contempt. The fact that contempt proceedings may be initiated by the Court suo motu in itself implies that the intention of clause (2) of Rule 178 could not be that if the Court initiates action for contempt, it would be vitiated by illegality for want of an affidavit. As observed in Baradakanta Misra v. Mr. Justice Gatikrushna Misra C. J. , Orissa High Court, AIR 1974 SC 2255 : ( 1975 Cri LJ 1 ). "it has always been regarded as well settled law that so far as criminal contempt is concerned it is a matter entirely between the Court and the alleged contemner. No one has a statutory or common law right to say that he is entitled as a matter of course to an order for committal because the alleged contemner is guilty of contempt. ""so far as the contempt jurisdiction is concerned, the only actors in the drama are the Court and the alleged contemner. An outside party comes in only by way of drawing the attention of the Court to the contempt which has been committed: he does not become a part to the proceeding for contempt which may be initiated by the Court. " We are, therefore, of the view that the requirement about affidavit under Rule 178 (2) is not mandatory but directory and so lack of affdavit does not per se render the petition brought by the learned Advocate General to be non-maintainable. ( 8 ) THIS leads us to the question whether contempt proceedings have been initiated in the present cases within one year from the date on which the contempt is alleged to have been committed. ( 8 ) THIS leads us to the question whether contempt proceedings have been initiated in the present cases within one year from the date on which the contempt is alleged to have been committed. There is no dispute that if the orders passed on 16-6-92 in both the cases are to be construed as initiating contempt proceedings, the proceedings were initiated within one year as stipulated under Section 20 of the Act, but if not, the proceedings were not initiated within that period, and so in that event, proceedings cannot be initiated now as the condition precedent to the exercise of the jurisdiction for contempt would be non-existent. The aforesaid order required the respondents only to show cause "as to why proceedings shall not be initiated against them under the Contempt of Courts Act, 1971". To require to show cause why the proceedings be not initiated in itself means that the proceedings are not initiated by the order. However, the learned Advocate General submits that Section 17 of the Act contemplates only one notice and that is the notice of a proceeding under Section 15 which is required to be issued after cognizance has been taken and as such the aforesaid order amounted to taking cognizance. On the other hand, Shri Deb has submitted that in view of the fact that the petitioner did not file any affidavit despite several orders having been passed requiring him to file an affidavit, the Court did not take cognizance of the contempt and merely issued notices in order to decide as to whether action for contempt should, in fact, be initiated. ( 9 ) SCCTION 15 of the Act provides how cognizance of a criminal contempt other than a contempt referred in Section 14, may be taken by the Court. It says that cognizance may be taken by the Court on its own motion or otherwise as provided in that section. Words 'cognizance' and 'action' have been used as synonyms. The word 'cognizance' has been used in the heading which is "cognizance of criminal contempt in other cases" and the word 'action' has been used in sub-sections (1) and (2) thereof. For instance, sub-section (1) inter alia provides ". . . that the Supreme Court or the High Court may take action on its own motion or on a motion made by. . . . . . . ". For instance, sub-section (1) inter alia provides ". . . that the Supreme Court or the High Court may take action on its own motion or on a motion made by. . . . . . . ". Section 17 provides for the procedure after cognizance and it says that notice of every procceding under Section 15 shall be served personally on the person charged, unless the Court for reasons to be recorded directs otherwise. Sub-section (2) provides what should accompany such notice and section (5) provides that any person charged with contempt under Section 15 may file an affidavit in support of his defence, and the Court may determine the matter of the charge either on the affidavit filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires. It is evident that Section 17 provides for notice where the Court has taken cognizance of the contempt and has decided to issue notice to require the contemner as to why he should not be punished. It is the decision of the Court to issue notice so as to require the contemner to show cause why he should not be punished which decision, in other words, means taking cognizance of the contempt, that amounts to initiation of proceedings within the meaning of Section 20. Section 20 speaks not of filing any petition but of initiation of proceedings by the Court. Initiation is entirely an act of the Court. If the Court has not taken a decision to require the contemner to show cause as to why he should not be punished but is only considering for want of an affidavit or any other reason as to whether contempt proceedings should or should not be initiated, then it means that the Court has not taken cognizance of the contempt, has not taken decision to issue notices under Section 17 and has not initiated action for contempt for the purpose of Section 20. For this view, we find support from Baradakanta M isra's case (supra) where the Court has observed-". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Where the Court initiates a proceeding for contempt suo motu, it assumes jurisdiction to punish for contempt and takes the first step in exercise of it. But what happens when a motion is made by the Advocate-General or any other person with the consent in writing of the Advocate-General or a reference is made by a subordinate Court. Does the Court enter upon the jurisdiction to punish for contempt and act in exercise of it when it considers such motion or reference for the purpose of deciding whether it should initiate a proceeding for contempt? We do not think so. . . . . . . . . . . . . . . . . . . . "further, in Smt. Bano v. Ram Autar Gautam, 1987 Cri LJ 647, notice issued required the contemner to show cause why the application be not admitted. The Allahabad High Court observed that it is clear that the Court wanted to give an opportunity to the alleged contemner to "show cause why apptication not be admitted, meaning thereby to show cause why proceedings for civil contempt not be initiated. " It was held that the Court "has not yet dccided to take action for contempt against the contemner and the proceedings have not yet been initiated. " ( 10 ) IT is true that the Act does not provide for issue of notice to show cause as to why action be not initiated or cognizance be not taken or contempt proceedings be not initiated and provides under S. 17 only for issue of notice after the cognizance is taken but such a procedure. is provided in the Sikkim High Court (Practice and Procedure) Rules, 1991 and there is nothing in the Act to prohibit that procedure. Part 'b' of Chapter V VI of the Rules were framed under Section 23 of the Act. is provided in the Sikkim High Court (Practice and Procedure) Rules, 1991 and there is nothing in the Act to prohibit that procedure. Part 'b' of Chapter V VI of the Rules were framed under Section 23 of the Act. Relevant rules under that part read as under-"177. (1) In respect of contempt other than the contempt referred to in sub-section (1) of Section 14 of the Contempt of Courts Act, 1971 (70 of 1971), the High Court may take cognizance of contempt- (a) suo motu; (b) upon a pctition made by the Advocate General of the State of Sikkim; (c) upon a petition presented by any other person with the consent in writing of the Advocate-General;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "179. (1) Every petition under clauses (b) and (c) of Rule 177 shall be posted before the Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the Court, if satisfied that a prima facie case has been made out for issue of notice, shall direct issue of notice to the contemner either to show cause why proceeding under the Contempt of Courts Act, 1971 may not be initiated against him or to show cause why the contemner may not be suitably punished, and when no prima facie case is found, the petition shall be dismissed. (2) In matters covered by clause (a) of Rule 177, if the Court is satisfied that there is a prima facie case it shall issue notice to contemner either to show cause as to why a proceeding under the Contempt of Courts Act, 1971 may not be initiated against him or why he may not be suitably punished. ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "183. (1) All proceedings under the Contempt of Courts Act, 1971 shall be registered as Original Criminal Miscellaneous cases. (2) The Registrar shall cause the notice to be served to the person charged in Form I as appended hereto. The person charged shall, unless otherwise ordered, appear in person before the Court on the date fixed for hearing of the proceeding, and shall continue to remain present during hearing unless otherwise directed. (3) Notice to the contemner to show cause why proceedings under the Contempt of Courts Act, 1971 may not be initiated against him shall be issued in Form IV as appended hereto and the contemner may, unless otherwise ordered by the Court, appear through Advocate or Agent. (4) When action is initiated on a petition, a copy of the petition along with the annexures and affidavits shall be served upon the person charged. (5) ln all proceedings started suo motu or on a reference made by a Court subordinate to the High Court, a copy of the notice in Form I shall be sent to the Advocate-General. "thus the rules provide for issuance of noticc either to show cause as to why proceedings may not be initiated or why the contemner may not be suitably punished even if the proceedings start suo motu. Form I gives the heading "notice TO A PERSON CHARGED WITH CONTEMPT OF COURT". It requires a person to show cause why he "shall not be punished or other appropriate order be not passed against" him. Form I gives the heading "notice TO A PERSON CHARGED WITH CONTEMPT OF COURT". It requires a person to show cause why he "shall not be punished or other appropriate order be not passed against" him. On the other hand Form IV gives the heading "notice TO A PERSON TO SHOW CAUSE". It requires a person to show cause why "a proceeding shall not be initiated against" him. Thus a distinction has been made under the rules of two types of cases: (1) where the cognizance has been taken and the contemner is required to show cause why he should not be punished and (2) where cognizance has not been taken and the contemner is required to show cause why proceedings should not be initiated against him. Where cognizance has been taken and notice is issued in Form I, the contemner is required to appear in person, unless otherwise ordered but in the other case where notice is issued in Form 1v, the person may appear ordinarily through an Advocate or Agent, unless the Court orders otherwise. The first paragraph of Form IV reads as under-". . . . . . . . . . . . . . . Whereas (i) a Petition has becn filed before this Court (a copy whereof is enclosed) to initiate a proceeding against you for contempt, or, (ii) cognizance of contempt has been taken by the Court suo motu (vide enclosure ). . . . . . . . . . . . . . . . . . . . . "the learned Advocate-General referred to the words "cognizance of contempt has been taken by the Court suo motu" and has submitted on the basis of these words that notice to show cause is prescribed even where cognizance has already been taken by the Court suo motu. But the submission is based on the reading of the words out of context. Keeping in view the rules and the form of the notice as a whole, there is no doubt that notice under Form IV is to be issued where cognizance has not been taken. These words have been used in the form as also in Rule 179 (2) to make it clear that such a notice may be issued, even where the proceedings start suo motu. These words have been used in the form as also in Rule 179 (2) to make it clear that such a notice may be issued, even where the proceedings start suo motu. There is a clear distinction between the starting of a case and the initiation of proceedings for contempt under Section 15 in that cases. In all the cases, which start on petitions, a case is registered on the basis of a petition and it is subsequently that proceedings may be initiated under Section 15. This is also the position in some of the cases, where, the case starts on the motion of the court itself. Neither Section 17 nor Section 20 refers to a petition which may be the basis for initiation; they refer to initiation of proceedings. The words referred by the learned Advocate-General have undoubtedly been used in the sense of starting of a case tint before cognizance has been taken. If proceedings have already been initiated, there can be no question of requiring by notice to show cause why proceedings be not initiated. The present cases started when the learned Advocate-General filed the contempt petitions. After the petitions were filed, they were registered and several orders were passed, but no order was passed taking cognizance of the contempt and directing issuance of notices under Section 17. The result is that proceedings have not yet been initiated. ( 11 ) THE learned Advocate General has referred to in the matter of B. Yegnanarayaniah, AIR 1974 Mad 313, Advocate General, A. P. v. A. V. Koteswara Rao, 1984 Cri LJ 1171, Gulab Singh v. Sri Ramji Das, AIR 1975 All 366 : (1975 All LJ 481), Purshotam Dass v. B. 5. Dhillon, AIR 1978 SC 1014 : N. , Venkataramanappa v. D. K. Naikar, AIR 1978 Kar 57 Dineshbhai v. Kripalu Co-op. Housing Society, AIR 1980 Guj 194 and Court on its own motion v. Kasturi Lal, AIR 1980 P and H 72 in support of his submissions. However, we do not find anything therein to support him. ( 12 ) IN the result, we hold that contempt proceedings have not yet been initiated, and a period of one year has already elapsed from the date on which the alleged contempt was committed. As such, the proceedings are barred by Section 20 of the Act. However, we do not find anything therein to support him. ( 12 ) IN the result, we hold that contempt proceedings have not yet been initiated, and a period of one year has already elapsed from the date on which the alleged contempt was committed. As such, the proceedings are barred by Section 20 of the Act. Accordingly, both the petitions are dismissed but without any order as to costs. Petitions dismissed. --- *** ---