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2008 DIGILAW 450 (KAR)

S. R. Nelivigi v. Advocates General

2008-08-27

K.BHAKTHAVATSALA

body2008
ORDER K. Bhakthavatsala, J. The petitioner is before this Court under Articles 226 and 227 of the Constitution of India, praying for quashing the order dated 19.12.2005 at Annexure-B, on the file of respondent No.1/Advocate General, and direct the respondent No.1 to grant consent to institute criminal contempt of Court proceedings against the respondent Nos.2 and 3. 2. The brief facts of the case leading to the filing of the Writ Petition may be stated as under: The petitioner claims that he is a Senior Member of Haveri Bar Association and an Advocate for the plaintiffs in O.S. No.9/2005 on the file of Civil Judge (Sr.Dvn.) at Haveri. It is the case of the petitioner that the 2nd respondent-Managing Partner of the 2nd defendant/Firm in the Suit had filed a written statement on 23.5.2005 through the 3rd respondent/Advocate. The petitioner has pleaded that respondent Nos. 2 and 3 herein are hand in glove with each other and with common intention, have made false allegations against the petitioner. Therefore, he made an application dated 8.12.2005 to the respondent No.1 seeking consent for instituting criminal contempt proceedings against respondent Nos. 2 and 3. The respondent No.1, by order dated 19.12.2005 (Annexure-B) rejected the application. Hence, the petitioner has approached this Court praying for the reliefs, as mentioned above. He has urged the following grounds. (i) that the impugned order is contrar to law, facts and material on record and it has caused great prejudice to the petitioner, (ii) that the respondent No.1 has proceeded on the legal premise that the consent of the Advocate General is not required to initiate criminal contempt of Courts subordinate to the High Court and Supreme Court, and (iii) that the impugned order has been passed without application of mind. 3. The respondent No.3 has filed statement of objections contending that the petitioner is not entitled for the relief sought for. He has stated that once Bangarevva and others had filed a Suit on O.S. No. 9/2005 on the file of Civil Judge (Sr.Dvn.) at Haveri, for partition and separate possession through the petitioner/Advocate against one Ashok C Niralagi, M/s. Varada Finance Corporation and Yallappa G. Baddi as defendants-1 to 3, respectively. The 3rd defendant is the husband of the 1st plaintiff and father of plaintiff Nos.2 to 7. The 2nd respondent herein as the Managing Partner, was representing the 2nd defendant-M/s. Varada Finance Corporation. The 3rd defendant is the husband of the 1st plaintiff and father of plaintiff Nos.2 to 7. The 2nd respondent herein as the Managing Partner, was representing the 2nd defendant-M/s. Varada Finance Corporation. The 2nd respondent herein had engaged the 3rd respondent/Advocate in the above-said suit to defend his case. The 2nd defendant filed his written statement. The respondent No.3 has discharged his duties as an Advocate for the defendant No.2 in the suit. The defendant No.2 is in no way connected with the suit property. The 2nd defendant was neither a necessary party nor a proper party to the suit. The 2nd defendant has taken all defences available to him and the averments made in the written statement in para-10 (a) to (c) are correct and they are not amounting to contempt of Court. It is also contended that the petitioner in most of the cases, due to rancor and professional jealousy, wherein the respondent No.3 has appeared as an Advocates, invariably moved to initiate contempt proceedings. Further, the petitioner has filed may suits against many Advocates of the Bar. It is also pleaded that the High Court of Karnataka had initiated contempt proceedings against the petitioner on a reference made by Munsiff and JMFC, Haveri, and the petitioner had appeared and tendered un-conditional apology (vide order dated 1.12.1967 at Annexure-R1). Therefore, the respondent No.3 has prayed for dismissal of the Writ Petition with exemplary costs. 4. Learned Counsel for the petitioner submits that in W.P. No. 405/2006, the present petitioner has challenged the order dated 19.12.2005 made by the Advocate General refusing to give the consent to initiate criminal contempt proceedings under Section 15(1)(b) of the Contempt of Courts Act (in short ‘the Act’) against one Ashok C. Neeralagi and N.M. Kulkarni, bu the same was disposed of on 20.2.2006 relying on the ruling of the Apex Court reported in AIR 1981 SC 723 (S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow Vs. Vinay Chandra Misra) holding that it is open for the complainant to lodge a complaint to initiate criminal contempt directly in the High Court. Learned Single Judge of this Court has observed the question as to whether the consent of the Advocate General is required or not, would be considered in the present Writ Petition. Vinay Chandra Misra) holding that it is open for the complainant to lodge a complaint to initiate criminal contempt directly in the High Court. Learned Single Judge of this Court has observed the question as to whether the consent of the Advocate General is required or not, would be considered in the present Writ Petition. It is further contended that the avernment made in the written statement filed by respondent No.2 through respondent No.3 are amounting to criminal contempt. But the Advocate General, State of Karnataka, erred in rejecting the application dated 8.12.2005 seeking his consent for instituting the proceedings for the contempt of Court. 5. Learned Counsel for the petitioner has cited the following decisions: (i) AIR (36) 1949 Lahore 270 (Muhammad Shafi Vs. Chowdhary Qadir Bakhsh Magistrate) on the point that the remarks made by the Magistrate amounted to serious contempt of the Court of the Sub-Judge and that it was not only to protect that Sub-Judge as a private individual that action had to be taken against the Magistrate, but because the Sub-Judge was dispensing justice and in doing his duty was representing the State. Any insulting remarks made about him would excite in the minds of the people a general dissatisfaction against all judicial proceedings. The intimidating of the Counsel was also contempt of Court as it would seriously interfere with the administration of justice. (ii) 1956 Madras 624 (Medai Dalavoi K. Thirumalaippa and Others Vs. Medai Dalavoi T. Kumaraswami) on the point that the Counsels do form an integral part of the machinery for the administration of justice and any abuse, insult or aspersions cast on them in the course of the discharge of their duties and whch migh tend to hamper or interfere with the administration of justice by deterring them from doing their duty can reasonably be held as amounting to contempt of Court. Further while Counsel who are Officers of Court and must be considered to be essential limbs in the administration of justice, require protection of Courts from unjustifiable attacks by parties or opposing Counsel by the Court’s jurisdiction in punishing for contempt being invoked, it is doubtful whether such protection and consequent exercise of this summary jurisdiction of Court would become necessary in a case where the opponent’s Counsel is abused and threatened two days after the termination of the proceedings and the words used or the action taken not having any special reference to the proceedings. (iii) AIR 1969 Delhi 201 (Brig. E.T. Sen (Retd.) Vs. Edatata Narayana and Others) on the point, to constitute contempt of Court, it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of offending statements and it is enough if it is likely or it tends in any way to interfere with the proper administration of justice. (iv) AIR 1941 Patna 185 (Legal Affairs, Bihar Vs. Murali Manohar Prasad) on the point however guilty a man may be, Counsel who is duly instructed must appear and present the man’s case to the best of his ability. An article demanding that Counsel should not undertake defence of accused is contempt of Court as it tends to prejudice the accused in the eyes of mankind, and (v) AIR 2000 SC 1136 (Om Prakash Jaiswal Vs. D.K. Mittal and Another) on the point that a private party or a litigant may also invite that attention of the Court to such facts as may persuade the Court in initiating proceedings for contempt. However, such person filing an application or petition before the Court does not become a complainant or petitioner in the proceedings. He is just an informer or relator. His duty ends with the facts being brought to the notice of the Court. It is thereafter for the Court to act on such information or not to act thought the private party or litigant moving the Court may at the discretion of the Court continues to render its assistance during the course of proceedings. His duty ends with the facts being brought to the notice of the Court. It is thereafter for the Court to act on such information or not to act thought the private party or litigant moving the Court may at the discretion of the Court continues to render its assistance during the course of proceedings. That is why it has been held that an informant does not have a right of filing an appeal under Section 19 of the Act against an order refusing to initiate the contempt proceedings or disposing the application or petition filed for initiating such proceedings. He cannot be called an aggrieved party. 6. On the other hand, learned Government Pleader appearing for respondent No. 1/Advocate General submits that there is no illegality or infirmity in the impugned order. 7. Learned Counsel for respondent No.2, Sri R.L. Patil, submits that the averments made in the written statement are true and correct and they are not amounting to contempt of Court. 8. Learned Counsel Sri Vivek Mehta for respondent No.3 submits that respondent No.3, has prepared the written statement as per the instructions given by respondent No.2 and the respondent No. 3 has not committed any criminal contempt and there is no illegality or infirmity in the impugned order. 9. The short question that arises for consideration in this Write Petition is: Whether the consent of the Advocate General is mandatory to intiate proceedings for criminal contempt of subordinate Court? 10. My answer to the above point is in the negative for the following reasons: 11. As per Section 20 of the Act, no Court shall initiate proceedings of contempt, either on its motion or otherwise, after the expiry of one year from the date on which the contempt is alleged to have been committed. According to the petitioner, the respondent Nos. 2 and 3 alleged to have committed criminal contempt by filing a written statement on 23.5.2005. The period of limitation of one year expired on 22.5.2006. It is pertinent to note that no intervening event or order stops the running of time specified in Section 20 of the Act. Further, the delay in initiating contempt proceedings cannot be condoned. 2 and 3 alleged to have committed criminal contempt by filing a written statement on 23.5.2005. The period of limitation of one year expired on 22.5.2006. It is pertinent to note that no intervening event or order stops the running of time specified in Section 20 of the Act. Further, the delay in initiating contempt proceedings cannot be condoned. Hence, the Writ Petition does not survive for consideration except from academic point of view and observation made on 20.2.2006 in W.P. No. 405/2006 that whether the consent of the Advocate General to initiate contempt proceedings is required or not has to be considered in this Writ Petition. 12. It is for the contempt Court to examine whether the avernments made in paragraph No. 10(a) to (c) of the written statement filed by respondent No.2 herein in the suit are amounting to contempt of Court or not. Further, in view of the relief sought for by the petitioner, this Court need not dwell on the issue whether the averments are amounting to contempt of Court or not. Therefore, the decisions cited by the learned Counsel for the petitioner on that point are of no avail. 13. Admittedly, the petitioner made an application dated 8.12.2005 to the respondent No.1/Advocate General under Section 15(1)(b) of the Act seeking his consent to initiate proceedings for contempt of Court. It is useful to excerpt Section 15 of the Act, which reads as under: Section 15: Cognizance of criminal contempt in other cases.– (1) In the case of a criminal contempt, other than a contempt referred to in Seciton 14, the Supreme Court or the High Court may take action on its own motion or on a motion mady by- (a) the Advocate-General, or (b) any other person, with the consent in writing to 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 of the 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 Officer Gazette, specify in this behalf. 14. As per Clause (b) of sub-section (1) of Section 15 of the Act 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 any other person, with a written consent of the Advocate General. The petitioner made an application under Section 15(1)(b) of the Act, seeking consent of the Advocate General to initiate criminal contempt proceedings against the respondent Nos. 2 and 3. The High Court of Karnataka, in the exercise of powers conferred under Article 215 of the Constitution of India and Section 23 of the Act, and all other powers enabling in that behalf, to regulate the proceedings for contempt of itself or of a Court subordinate to it has made rules viz., the High Court of Karnataka (Contempt of Court Proceedings) Rules 1981 (in short, ‘the Contempt Rules’). As per Clause (v) of Rule 5 of the Contempt Rules, the complainant shall state whether he has obtained the consent of the Advocate General and if so, produce the same. It further says that nothing shall preclude the High Court from taking action suo-motu on the basis of the information disclosed. As per Clause (v) of Rule 5 of the Contempt Rules, the complainant shall state whether he has obtained the consent of the Advocate General and if so, produce the same. It further says that nothing shall preclude the High Court from taking action suo-motu on the basis of the information disclosed. Under Section 15(1) of the Act, it is for the competent Court to take action for contempt of Court not only on a motion being made by the Advocate General, but also on a motion made by any person with or without the consent in writing of the Advocate General. In the decision rendered by the Apex Court in S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow Vs. Vinay Chandra Misra ( AIR 1981 SC 723 ), it has been held that if the High Court is directly moved by a petition by a private person aggrieved (not being the Advocate-General), the High Court has, in such a situation, a discretion to refuse to entertain the petition, or to take cognizance on its own motion on the basis of the information supplied to it in that petition (vide para-18 of the judgment). The above ruling of the Apex Court has been followed by the respondent No.1/Advocate General. 15. Form the above, it is crystal clear that obtaining consent of the Advocate General to initiate criminal contempt proceedings is not mandatory and there is no illegality or infirmity in the impugned order. 16. In the result, the Petition fails and the same is hereby dismissed. The parties are directed to bear their own costs. High Court Govt. Pleader is granted three weeks time to file memo appearance for the respondent No. 1.