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2007 DIGILAW 122 (KER)

One Earth One Life v. Sindhu Joy

2007-02-19

ANTONY DOMINIC, RADHAKRISHNAN

body2007
Judgment :- Radhakrishnan, Ag.C.J. This contempt case was preferred under Article 215 of the Constitution of India and section 12 of the Contempt of Courts Act, 1971. Registry did not number the case since no consent of the Advocate General as provided under section 15 of the Contempt of Courts Act, 1971 was obtained for filing the contempt case. On a request made by the counsel this matter has been posted before us for orders. In paragraph 9 of the contempt case it is stated that the petitioner has not obtained the consent of the Advocate General as envisaged under Section 15 of the Contempt of Courts Act, since it may delay the matter and the respondents are continuing with the process of scandalizing this court and the situation warrants immediate interference. Further, counsel also submitted that even if no consent was obtained from the Advocate General this court under Article 215 of the Constitution of India have got sufficient powers to initiate contempt of court proceedings against the respondents for scandalizing this Hon'ble Court and to punish them under the provisions of the Contempt of Courts Act, 1971 in the interest of justice. Counsel submitted that the conduct of the respondents in symbolically impeaching the Chief Justice of this Court and extraditing him after conducting a mock trial amounts to interference with the administration of justice undermining the dignity and prestige of this institution warranting immediate interference by this court. 2. We may first examine the sustainability or otherwise of the objection made by the registry that this contempt case is not maintainable without following the procedure laid down under section 15(2) of the Contempt of Court Act. Admittedly, no consent of the Advocate General was obtained as per section 15(1)(b) of the Contempt of Courts Act, 1971. The question that is germane for consideration in this case is whether the permission of the Advocate General is a mandatory requirement for moving this court under the Contempt of Court Act. Before examining the rival contentions it is necessary to refer to Section 15 of the Contempt of Courts Act, 1971 and Rules 3 and 7 of the Contempt of Court (High Court) Rules 1988 which are extracted hereunder for easy reference. "15. Before examining the rival contentions it is necessary to refer to Section 15 of the Contempt of Courts Act, 1971 and Rules 3 and 7 of the Contempt of Court (High Court) Rules 1988 which are extracted hereunder for easy reference. "15. Cognizance of criminal contempt in other cases:- (1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by-- (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate General, or (c) in relation to the High Court for the Union Territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer. (2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. Explanation:- In this section, the expression "Advocate General" means,- (a) in relation to the Supreme Court, the Attorney General or the Solicitor General; (b) in relation to the High Court, the Advocate General of the State or any other States for which the High Court has been established; (c) in relation to the court of a Judicial Commissioner such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. A perusal of clauses (a) and (b) of Section 15(1) makes it clear that in the case of criminal contempt the Supreme Court or the High Court may take action on its own motion or on a motion made by the Advocate General or on the motion of any other person, with the consent in writing of the Advocate General. "3. Receipt of proceedings etc:- Every petition/proceeding for initiating action for contempt shall be received in the Registry of the High Court and registered as "Contempt of Court Case". 7. "3. Receipt of proceedings etc:- Every petition/proceeding for initiating action for contempt shall be received in the Registry of the High Court and registered as "Contempt of Court Case". 7. Initiation of suo motu proceedings on information: (i) Any information other than a petition under rule 3 or reference shall, in the first instance, be placed before the Chief Justice on the administrative side. (ii) If the Chief Justice, or such other judge as may be designated by him for the purpose, considers it expedient or proper to take action under the Act, he shall direct that the said information be placed for preliminary hearing: Provided that if action for Contempt of Court is directed to be taken by any Judge or Judges in any proceedings before the High Court, the same shall be placed before the appropriate Bench. (iii) When suo motu action is taken by the High Court, the statement of facts constituting the alleged contempt and the copy of the draft charges shall be prepared and signed by the registrar'. 3. Question as to whether consent of the Advocate General is necessary before making a motion in the case of criminal contempt in the High Court came up for consideration before the Apex Court in State of Kerala v. M.S. Mani, (2001) 8 SCC 82. The court held as follows: “The requirement of consent of the Advocate General/Attorney General/Solicitor General where any person other than the said law officers makes motion in the case of a criminal contempt in a High Court or Supreme Court, as the case may be, is not a mere formality; it has a salutary purpose. The said. law officers being the highest law officers at the level of the State/Centre as also the officers of the courts are vitally interested in the purity of the administration of justice and in preserving the dignity of the courts. They are expected to examine whether the averments in the proposed motion of a criminal contempt are made vindicating public interest or personal vendetta and accord or decline consent postulated in the said provision. Further, cases found to be vexatious, malicious or motivated by personal vendetta and not in public interest will get filtered at that level. They are expected to examine whether the averments in the proposed motion of a criminal contempt are made vindicating public interest or personal vendetta and accord or decline consent postulated in the said provision. Further, cases found to be vexatious, malicious or motivated by personal vendetta and not in public interest will get filtered at that level. If a motion of criminal contempt in the High Court/Supreme Court is not accompanied by the written consent of the aforementioned law officers, the very purpose of the requirement of prior consent will be frustrated. For a valid motion compliance with the requirements of Section 15 of the Act is mandatory." A Constitution Bench of the Supreme Court in L.P. Misra v. State of U.P., (1998) 7 SCC 379 dealing with the requirement to follow the procedure prescribed by law while exercising powers under Article 215 of the Constitution to punish for contempt held that the High Court can invoke powers and jurisdiction vested in it under Article 215 of the Constitution but such a jurisdiction has to be exercised in accordance with the procedure prescribed by law. Further, the apex court also observed that the procedure prescribed by the Rules has to be followed even in exercise of jurisdiction under Article 215 of the Constitution. Same is the view taken by the apex court in Pallav Sheth v. Custodian, (2001)7 SCC 549. 4. In Pallav Sheth's case it was noticed that action for contempt is divisible into two categories, namely, that initiated suo motu by the court and that instituted otherwise than on the court's own motion. It was noted that while in the case of suo motu proceedings, it is the court itself which must initiate by issuing a notice and in other cases initiation can only be by a party filing an application. So far as the present case is concerned contempt case has been initiated by the party invoking the jurisdiction under Article 215 of the Constitution of India and Section 12 of the Contempt of Courts Act, 1971. Admittedly, the petitioner in this case has not obtained the consent of the Advocate General. In such a situation the procedure to be followed was considered by the Delhi High Court in Anil Kumar Gupta v. K.Suba Rao, ILR (1974) 1 Delhi 1 and issued the following directions. Admittedly, the petitioner in this case has not obtained the consent of the Advocate General. In such a situation the procedure to be followed was considered by the Delhi High Court in Anil Kumar Gupta v. K.Suba Rao, ILR (1974) 1 Delhi 1 and issued the following directions. "The office is to take note that in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice for orders in chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the Court whether to take any cognizance of the information." The above mentioned direction given by the Delhi High Court was approved by the Supreme Court in P.N.Duda v. P.Shiv Shanker, (1988) 3 SCC 167 stating that the direction given by the Delhi High Court sets out the proper procedure in such cases and may be adopted, at least in future, as a practice direction or as a rule, by the apex court as well as other High Courts. 5. A two Judge Bench of the apex court while hearing Bat Thackrey's case expressed the view that the directions approved by the apex court in P.N.Duda's case would have far reaching consequences and observed that the power under section 15 of the Act to punish contemners for contempt rests with the court and in Duda case they seem to have been denuded to rest with the Chief Justice on the administrative side. Expressing doubts about the correctness of the observations made in Duda's case and observing that the same require re-consideration the appeals were placed before a larger bench of the apex court which led to the decision in Bal Thackrey v. Harish Pimpalkhute (2005) 1 SCC 254. That was a case where Bal Thackrey was convicted for offence under section 15 of the Contempt of Courts Act, 1971. That was a case where Bal Thackrey was convicted for offence under section 15 of the Contempt of Courts Act, 1971. It was contended that the directions in P.N.Duda's case were not followed by the High Court inasmuch as the informative papers styled as contempt petitions were not placed before the Chief Justice of the High Court for suo motu action and therefore the exercise was uncalled for and beyond legal sanctity. It was also noticed that the contempt petitions were filed in the High Court without the consent of the Advocate General and therefore, not competent except when the court finds that the contempt action was taken by the court on its own motion. Apex court affirmed the view expressed by it in L.P.Misra (Dr.) v. State of U.P. (1998) 7 SCC 379 and also in Pallav Sheth's case and held that the exercise of jurisdiction under Article 215 of the Constitution is also governed by laws and the rules subject to the limitation that if such laws/rules stultify or abrogate the constitutional power then such laws/rules would not be valid. It was noticed that the procedure prescribed by the Rules has to be followed even in exercise of jurisdiction under Article 215 of the Constitution. It was reiterated that the High Court can invoke powers and jurisdiction vested in it under Article 215 of the Constitution but such a jurisdiction has to be exercised in accordance with the procedure prescribed by law. In Bal Thackrey's case the apex court held as follows: "The directions in Duda case when seen and appreciated in the light of what we have noticed hereinbefore in respect of contempt action and the powers of the Chief Justice, it would be clear that the same prescribe the procedure to be followed by High Courts to ensure smooth working and streamlining of such contempt actions which are intended to be taken up by the Court suo motu on its own motion. These directions have no effect of curtailing or denuding the power of the High Court. It is also to be borne in mind that the frequent use of suo motu power on the basis of information furnished in a contempt petition otherwise incompetent under Section 15 of the Act may render the procedural safeguards of the Advocate General's consent nugatory. These directions have no effect of curtailing or denuding the power of the High Court. It is also to be borne in mind that the frequent use of suo motu power on the basis of information furnished in a contempt petition otherwise incompetent under Section 15 of the Act may render the procedural safeguards of the Advocate General's consent nugatory. We are of the view that the directions given in Duda case are legal and valid." Apex court reiterated that the requirement of obtaining consent in writing of the Advocate General for making motion by any person is a mandatory requirement and a motion under Section 15 in conformity with the requirements of that section is maintainable. In Bal Thackrey's case apex court noticed that the court had not taken suo motu action against appellant and no consent of the Advocate General was also obtained. Holding so the court observed as follows: "In these matters, the question is not about compliance or non-compliance with the principles of natural justice by granting adequate opportunity to the appellant but is about compliance with the mandatory requirements of Section 15 of the Act. As already noticed the procedure of Section 15 is required to be followed even when petition is filed by a party under Article 215 of the Constitution, though in these matters petitions filed were under Section 15 of the Act. From the material on record, it is not possible to accept the contention of the respondents that the Court had taken suo motu action. Of course, the Court had the power and jurisdiction to initiate contempt proceedings suo motu and for that purpose consent of the Advocate General was not necessary. At the same time, it is also to be borne in mina that the courts normally take suo motu action in rate cases. In the present case, it is evident that the proceedings before the High Court were initiated by the respondents by filing contempt petitions under section 15. The petitions were vigorously pursued and strenuously argued as private petitions. The same were never treated as suo motu petitions. In absence of compliance with the mandatory requirement of Section 15, the petitions were not maintainable". The petitions were vigorously pursued and strenuously argued as private petitions. The same were never treated as suo motu petitions. In absence of compliance with the mandatory requirement of Section 15, the petitions were not maintainable". Under such circumstance apex court held that it is unnecessary to examine the effect of non-compliance with the directions issued in Duda case by placing the informative papers before the Chief Justice of the High Court. But expressed the necessity to frame necessary rule or practice direction by the High Courts in terms of Duda case. Apex court therefore directed the Registrar General to send a copy of the judgment to the Registrars General of the High Courts so that wherever rule and !or practice direction on the lines suggested in Duda case has not been framed, the High Courts may now frame the same at their earliest convenience. 6. We are of the view that the principle laid down by the apex court in Bal Thackrey's case is applicable to the facts of this case. This is a case where the petitioner has filed this contempt petition under Article 215 of the Constitution of India and Section 12 of the Contempt of Court Act, 1971 without obtaining the consent of the Advocate General under section 15 of the Contempt of Court Act. Such a petition going by the principle laid down by the apex court in Bal Thackrey's case cannot be entertained. Further the principle laid down by the Delhi High Court in Anil Kumar Gupta's case which was approved by the apex court in Duda's case has to be followed in this case. We make it clear that the registry has to take note of in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the Contempt of Court Act it should not be styled as a petition and should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice on the administrative side and if the Chief Justice or such other Judge as may be designated by him for the purpose, considers it expedient or proper to take action under the Act, shall direct that the said information be placed for preliminary hearing. We may also remind the registry of the necessity of framing necessary rule as suggested in Duda's case. Registry should also take note of the direction given by the apex court in Bal Thackrey's case to frame necessary rule or practice direction in terms of Duda's case at the earliest. 7. We therefore hold that the Registry is justified in not numbering the contempt case since the consent of the Advocate General was not obtained as per section 15 of the Contempt of Court Act before moving this court. We make it clear that the non-entertaining of this contempt case would not stand in the way of the petitioner moving the Advocate General under section 15(2) of the Contempt of Court Act.