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2012 DIGILAW 927 (MAD)

S Balamurugan v. Senthi Maran Inspector Of Police

2012-02-21

S.PALANIVELU

body2012
JUDGMENT ( 1. ) THE following are the allegations contained in the Affidavit filed along with the Contempt Petition: The Petitioner laid a Complaint with First Respondent-Police and since there was no response, he filed a Private Complaint before the Judicial Magistrate No.IV, Trichy and in pursuance of the orders of the Judicial Magistrate No.IV, First Respondent-Police registered a case in Cr. No.997 of 2009 on 15.7.2009 under Sections 294(b), 441, 341, 426, 143, 147, 141(iv) (v) and 506(i) r/w 149, IPC. As the First Respondent did not take any steps except registering the case, the Petitioner filed Crl.O.P. No. 10013 of 2010 before this Court for direction to the Respondent to file final report and on 31.8.2010, this Court passed an order directing the First Respondent to file final report within 4 weeks from the date of receipt of the order. The order copy was communicated to the First Respondent on 8.9.2010. Even afterwards the First Respondent did not show any inclination to investigate the matter. Hence, the Petitioner sent a notice on 20.10.2010 to the First Respondent and the same was received by him on 22.10.2010. Since he has not complied with the order of this Court in letter and spirit, his conduct is deliberate and wilful disobedience warranting initiation of Contempt proceedings against him under Section 11 of the Contempt of Courts Act, 1971. ( 2. ) THE following are the contentions raised in the Counter Affidavit filed by the First Respondent: During relevant point of time one Smt. Nagavalli was working as Sub-Inspector of Police, Woraiyur (Crime) Police Station, who is investigation officer in this case, in addition to the Law and Order branch of the Woraiyur Police Station. She was keeping the CD file of this case for more than one year. On 1.10.2010, he personally wrote a notice to the said Smt. Nagavalli e pay personal attention in this matter. She did not serve RCS Notice to the Complainant nor sent the final report to the Judicial Magistrate No.IV Court, Trichy, keeping CD file with herself. Only on 30.10.2010, the order of the Court was communicated to this Respondent. On 4.9.2009 the said Nagavalli referred the case as 'Mistake of Fact' and she was keeping the CD file without serving RCS Notice to the Complainant. Hence, she alone has disobeyed the order of this Court. Only on 30.10.2010, the order of the Court was communicated to this Respondent. On 4.9.2009 the said Nagavalli referred the case as 'Mistake of Fact' and she was keeping the CD file without serving RCS Notice to the Complainant. Hence, she alone has disobeyed the order of this Court. On 15.7.2010 this Respondent joined as Inspector of Police, Woraiyur Police Station. He issued Memo on 31.1.2011 to her to comply with the order of this Court. Then he collected the CD file from her and personally served the RCS Notice to the Complainant through H.C. No.2527 and submitted the Final Report to the Judicial Magistrate No.IV Court, Trichy, and obtained RCS No.5 of 2011. He has not violated the order of this Court and hence, the Petition may be dismissed. ( 3. ) THE allegations available in the Counter Affidavit of Second Respondent are as under: Since this Respondent found after investigation that the matter involved is purely a Civil dispute, she referred the case as Mistake of Fact on ( 4. ) 9.2009. SHE handed over the charge of Sub-Inspector of Police Law and Order to her successor and got relieved on 17.8.2009. So she has no knowledge about the further progress in this case and RCS Notice has to be served only by the present Sub-Inspector of Police Law and Order, Woraiyur Police station. The Inspector of Police has to give direction to the present Sub-Inspector of Police then and there. SHE has not violated the order of the Court and there is no deliberate disobedience on her part in complying with the Court Order. Hence, the Petition may be dismissed. 4. The Petitioner has filed a reply Affidavit controverting the averments contained in the Counter Affidavits filed by both Respondents. It is stated therein that all the averments in the Counter Affidavits are false and even though the final report is dated 4.9.2009, it was filed on 3.2.2011 before the Judicial Magistrate No.IV, Trichy. Hence, it cannot be pleaded that the Respondents are innocents who have not violated the order of this Court. Even as per the reports under the RTI Act it is seen that the investigation was pending till September 2010. ( 5. ) POINT for consideration: Whether the Petition to initiate Contempt proceedings against the Respondents is maintainable in the absence of consent of Advocate General of Tamil Nadu? ( 6. Even as per the reports under the RTI Act it is seen that the investigation was pending till September 2010. ( 5. ) POINT for consideration: Whether the Petition to initiate Contempt proceedings against the Respondents is maintainable in the absence of consent of Advocate General of Tamil Nadu? ( 6. ) WITHOUT going into and dealing with the merits of the matter it is quite appropriate to ascertain first whether the present Petition to initiate Contempt proceedings is legally maintainable. Section 15 of the Contempt of Courts Act contemplates cognizance of Criminal contempt. When a Criminal contempt is sought to be initiated other than the one stipulated under Section 14 of the Act, the Supreme Court or the High Court may take action on its own motion or on a motion made by the Advocate General or any other person with the consent in writing to the Advocate General. As per this provision, the Contempt Petition should follow the consent of the Advocate General which should be obtained after addressing him in writing for the purpose of filing a Petition for Criminal contempt. Section 14 of the Act deals with the procedure where the contempt is in the face of the Supreme Court or a High Court. It is contemplated therein that when it is alleged or appears to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody and at any time before rising of the Court, on the same day or as early as possible thereafter. ( 7. ) WITH reference to the contempt referred to in Section 14 any other Criminal Complaint is sought to be proceeded with, the consent of the Advocate General is sine qua non. Section 15 of the Act reads thus: "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. (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." ( 8. ) WHEN the Contempt Petition is filed in the absence of the consent of the Advocate General, it is not maintainable. The Honourable Supreme Court has dealt with the proposition of law in this regard in its decision in Muthu Karuppan, Commissioner of Police, Chennai versus Parithi Ilamvazhuthi and another, 2011 (5) SCC 496 , cited by Mr. S. Sureshkumar appearing for the First Respondent. The operative portions of the judgment go as follows: "45. We have already pointed out that while dealing with Criminal contempt in terms of Section 2(c) of the Act, strict procedures are to be adhered. In a series of decisions, this Court has held that jurisdiction to initiate proceedings for contempt as also the jurisdiction to punish for contempt are discretionary with the Court. Contempt generally and Criminal contempt certainly is a matter between the Court and the alleged contemnor. No one can compel or demand as of right initiation of proceedings for contempt. The 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. [Vide OmPrakash Jaiswai versus D.K. Mittal, 2000 (3) SCC [71]. 46. Further Section 15 of the Act as well as the Madras High Court Contempt of Court Rules insist that, particularly, for initiation of Criminal contempt, consent of the Advocate General is required. Any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fetal to the proceedings taken to initiate action for contempt." ( 9. ) SECTION 2(c) of the Act defines Criminal contempt. Any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fetal to the proceedings taken to initiate action for contempt." ( 9. ) SECTION 2(c) of the Act defines Criminal contempt. The Apex Court has also referred to earlier decisions of this Court wherein it was held that if the consent of the Advocate General was obtained subsequently even then it would not cure the legal defect. Following is the relevant passage: "21. In State of Kerala versus M.S. Marti, 2001 (8) SCC 82 : 2001 SCC (Cri.) 1412, this Court held that the requirement of obtaining prior consent of the Advocate General in writing for initiating proceedings of Criminal contempt is mandatory and failure to obtain prior consent would render the motion non-maintainable. In case, a party obtains consent subsequent to filing of the Petition, it would not cure the initial defect and thus, the Petition would not become maintainable. In Bal Thackrey versus Harish Pimpalkhute, AIR 2005 SC 396 : 2005 (1) SCC 254 : 2005 SCC (Cri) 307, this Court held that in absence of the consent of the Advocate General in respect of a Criminal contempt filed by a party under Section 15 of the Act, taking suo motu action for contempt without a prayer, was not maintainable." ( 10. ) IN Amicus Curiae versusPrashant Bushan, 2010 (7) SCC 592 : 2010 (3) SCC (Cri) 464, the Supreme Court has considered the earlier judgments and that in a rare case, even if the cognizance is deemed to have been taken in terms of Rule 3(c) of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, without the consent of the Attorney General or the Solicitor General, the proceedings must be held to be maintainable in view of the fact that the issues involved in the proceedings had far reaching greater ramifications and impact on the administration of justice and on the justice delivery system and the credibility of the Court in the eyes of general public. This is with regard to the suo motu Contempt proceedings to be taken by the Supreme Court in terms of the Rule 3(c) to regulate proceedings for Contempt of Supreme Court, 1975. But here this is the Petition for taking contempt action against the party. The pre-condition of getting consent from the Advocate General is a statutory requirement. This is with regard to the suo motu Contempt proceedings to be taken by the Supreme Court in terms of the Rule 3(c) to regulate proceedings for Contempt of Supreme Court, 1975. But here this is the Petition for taking contempt action against the party. The pre-condition of getting consent from the Advocate General is a statutory requirement. ( 11. ) RULE 8 of the Madras High Court Rules on Contempt is as follows: "8. Where a Judge of the High Court considers that any matter that might have come to his notice in any way requires initiation of proceedings in contempt against any person, the papers relevant thereto together with the direction of the Judge shall be placed before the Chief Justice for consideration as to whether the matter may be forwarded to the Advocate General." ( 12. ) THERE is a vast difference between the proceedings taken by the High Court as per the above said Rule and the Contempt Petition filed by a party to the proceedings before the Court. When a party to the case seeks contempt action against the opposite party he has to comply with the statutory requirements as contained in Section 15 of the Act. ( 13. ) IN the present case on hand concededly no request in writing was placed before the Advocate General and no consent was obtained from him. Since this, is a Criminal contempt, without the consent of the Advocate General the Petition is not maintainable. This point is answered in the negative. In the result, the Contempt Petition is dismissed as not maintainable.