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2007 DIGILAW 128 (KAR)

A. v. AMARNATHAN VS H. D. KUMARASWAMY

2007-02-23

C.R.KUMARASWAMY, R.GURURAJAN

body2007
R. GURURAJAN, J. ( 1 ) SRI. A. V. AMARNATHAN is before this Court seeking for a relief of initiation of proceedings against Sri. H. D. Kumaraswamy, Hon'ble chief Minister for committing criminal contempt of this Court on the following facts: Complainant is an advocate of this Court. Karnataka electricity Reforms Act 1999 (for short 'the Act') was brought into force on 1. 6. 1999. It had established a Regulatory Commission in terms of the Statutory provision. Commission has the necessary power, so vested in the Civil Court in terms of CPC. Electricity Act 2003 came into force with effect from 10. 6. 2003 under the Central Act. The State Electricity Regulatory Commission is constituted and is functioning as Electricity Court. Electricity Company filed its tariff before the Commission and in the case on hand all electricity companies filed an application seeking for enhancement of tariff for the year 2006. After a public hearing, the Commission passed an order. ( 2 ) THE respondent is the Chief Minister of the State. His brother is the Minister for power. The first respondent made a scathing attack on the Regulatory Commission. He made personal scathing attack on the Regulatory Commission, on the Chairman and the members of the commission. Complainant has filed Annexures 'a, 'b', 'c' and 'd' (paper cuttings ). Thereafter, the complainant submitted an application before the Advocate General seeking for a permission to proceed u/s. 15 of the Act. The same was rejected. With these facts, the complainant is before us for initiation of criminal proceedings against the respondent. ( 3 ) WE have heard the complainant appearing in person. On 31. 1. 2007, we directed the learned Counsel to convince us with regard to the Commission being a Court for the purpose of Contempt of courts Act. We also wanted him to convince us with regard to initiation of contempt proceedings based on newspaper reports. We have also sought an answer from him as to whether despite rejection of the consent by the Advocate General, can we proceed to initiate proceedings U/s. 15 of the Contempt of Courts Act. ( 4 ) LEARNED Counsel today argues that U/s. 95 of the Act, the commission has the necessary power and jurisdiction as that of a civil Court and that therefore it is a Court for the purpose of Section 15 of the Contempt of Courts Act. ( 4 ) LEARNED Counsel today argues that U/s. 95 of the Act, the commission has the necessary power and jurisdiction as that of a civil Court and that therefore it is a Court for the purpose of Section 15 of the Contempt of Courts Act. He would also place reliance on 2002 (3) SCC 243 in support of his submissions. In so far as the rejection by the Advocate General of the consent is concerned, he relies on the Rules of this Court and he would say that this Court despite refusal by Advocate General can take suo-moto proceedings against the respondent. The complainant is only an informer for the purpose of initiation of proceedings. In so far as newspaper reports are concerned, he would say that Court can initiate proceedings and the respondent after notice can place his objection/views in the matter of objection of the paper reports. ( 5 ) AFTER hearing, we have carefully perused the material placed on record. ( 6 ) CONTEMPT of Courts Act 1971 deals with the powers of certain courts in punishing contempts of Courts and to regulate their procedure in relation thereto. Courts have considered contempt proceedings in various case laws. ( 7 ) THE Supreme Court in the famous case of Arundhati Roy has considered various case laws in its Judgment in 2002 (3) SCC 343 . The Apex Court has noticed that rule of law is the basic rule of governance of any civilised policy. The scheme of the Constitution of india is based upon the concept of rule of law. Everyone, whether individually or collectively, is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no one is above the law notwithstanding how powerful and how rich he or she may be. For achieving the establishment of the rule of law, the constitution has assigned the special task to the judiciary in the country. The Court further ruled that maintenance of dignity of courts is one of the cardinal principles of rule of law in a democratic set-up and any criticism of the judicial institution couched in language that apparently appears to be mere criticism but ultimately results in undermining the dignity of the Courts cannot be permitted when found to have crossed the limits and has to be punished. The Court further ruled that a fair criticism of the conduct of a judge, the institution of the judiciary and its functioning may not amount to contempt if made in good faith and in public interest. To ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. ( 8 ) IN the light of these principles rendered by the Apex Court, let us see as to whether a case is made out by the complainant for the initiation of contempt of Court proceedings as sought for by the complainant. The word 'court' is not defined under the Contempt of courts Act. Complainant admittedly wants us to initiate criminal contempt proceedings against the respondent on the basis of certain paper cuttings in terms of Annexures 'a', 'b', 'c'and 'd'. Learned advocate General has refused consent. ( 9 ) SEC. 2c would deal with the criminal contempt. The same reads as under: "criminal contempt" means the publication (Whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which- (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any Court; or (ii) prejudices, or interferes or tends to interfere with the due course of any judicial proceedings; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice in any other manner. Sec. 15 of the Act would provide for cognizance of criminal contempt in other cases. Sub Sec. 2 of Sec. 15 would read as under: "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. " ( 10 ) THIS very provision has been noticed by the Supreme Court and after noticing the same, the Apex Court has ruled as under in para 20: "it is well settled that the requirement of obtaining consent in writing of the Advocate General for making motion by any person is mandatory. A motion U/s. 15 not in conformity with the requirements of that Section is not maintainable. " ( 11 ) WHEN the same was pointed out to the complainant, he would place reliance on Rule 5 of the Contempt of Court Rules. The said rule reads as under: "5 (v):in the case of criminal contempt of the High Court other than a contempt referred to in Sec. 14 of the Act, the complainant shall state whether he has obtained the consent of the Advocate General and if so, produce the same. Nothing shall preclude the High Court from taking action suo-motu on the basis of the information disclosed. " A reading of the said Rule would show that in the event of refusal of consent by the learned Advocate General, the Court can take suo-moto proceedings against the respondent. However, before initiation of suo-moto proceedings, the Court has to be satisfied with regard to the foundation for the purpose of initiation of criminal proceedings. It cannot be forgotten that the power of contempt has to be used sparingly and not just for asking for the same as ruled by courts of law. Criminal contempt is much more serious. Therefore, a party requesting the Court to take suo-moto proceedings has to place acceptance material for the purpose of initiation of criminal contempt proceedings. ( 12 ) THE Apex Court has considered the value of Paper Report for the purpose of criminal contempt in 1993 AIR SCW 524. The apex Court has noticed its earlier Judgment in 1988 SC 1274. The supreme Court has ruled as under: "we cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78 (2) of the Evidence Act, 1872 by which an allegation of fact can be proved. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78 (2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached u/s. 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein. It is now well settled that a statement of fact contained in a newspaper is merely hearsay and, therefore, in-admissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. After noticing the Judgment, the Apex Court says that in the present case, no evidence has been let in proof of the statement of facts contained in the newspaper report. The absence of any denial by Ch. Bhajan Lal will not absolve the applicant from discharging his obligation of proving the statement of facts as appeared in the Press report. " ( 13 ) THIS Judgment would categorically show that a mere paper publication would not be a foundation for initiation of criminal contempt proceedings, unless the same is supported by other supporting material. On the facts of this case and in the given circumstances, we are satisfied that with the existing material on record, no suo-moto proceedings are possible or permissible in law. We make it clear that we have not expressed any views with regard to other issues and on the merits of the matter. ( 14 ) PETITION stands rejected.