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2017 DIGILAW 555 (GAU)

Siddeque Ahmed v. Shah Syed A. Rahman

2017-05-09

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT : Ujjal Bhuyan, J. Heard Dr. B Ahmed, learned counsel for the petitioners and Mr. SC Biswas, learned counsel for the respondent. 2. Three petitioners have joined together and have filed this petition under sections 15/16 of the Contempt of Courts Act, 1971, read with Article 215 of the Constitution of India for initiating criminal contempt proceeding against the respondent for alleged violation of the orders passed by this Court in Crl. Revision Petition No.80/2015. 3. Criminal Revision Petition No.80/2015 (Siddeque Ahmed v. State of Assam) was filed pursuant to orders passed in GR Case No.81/2011 by the Addl. Chief Judicial Magistrate, Karimganj (respondent). Be it stated that GR Case No.81/2011 corresponds to Nilambazar PS Case No.5/2011, registered under sections 147/148/149/323/326/307/379 IPC. 4. Since the criminal proceeding is still pending at the trial stage, we refrain from discussing and making any observation in so far orders passed in the said case are concerned as well as in the related criminal revision petition; which we also feel is not necessary having regard to the scope and ambit of the instant petition, namely, initiation of criminal contempt proceeding against the respondent. Suffice it to say at this stage, allegation of the petitioners is that respondent as a sub-ordinate Judicial Officer has violated the orders of this Court in a manner not only causing serious prejudice to the petitioners but also bringing the judiciary as an institution into disrespect. 5. Upon notice issued by this Court, respondent has entered appearance and has filed affidavit-in-opposition denying the allegations made. In-reply, petitioners have filed re-joinder affidavit. 6. As noticed above at the outset, this is primarily a petition under sections 15/16 of the Contempt of Courts Act, 1971. We find from the record of the case that learned counsel appearing on behalf of the petitioners had submitted a petition before the learned Advocate General, Assam on 23.06.2015 seeking his consent in writing for filing this petition. Learned Advocate General, Assam by his letter dated 30.07.2015 submitted an "opinion" to the learned counsel for the petitioners regarding filing of contempt petition against the respondent. After going through various orders passed by the High Court and by the Addl. Learned Advocate General, Assam by his letter dated 30.07.2015 submitted an "opinion" to the learned counsel for the petitioners regarding filing of contempt petition against the respondent. After going through various orders passed by the High Court and by the Addl. Chief Judicial Magistrate, Karimganj (respondent), learned Advocate General, Assam finally observed/opined as under: - "As it is a matter of criminal contempt levelled against a Judicial Officer, I deem it proper to leave the matter to the wisdom of the Hon'ble High Court." 7. In the course of hearing on 04.04.2017, the following order was passed: - "After hearing learned counsel for the petitioner, we find that petitioner seeks initiation of a criminal contempt proceeding against the sole respondent, who is a serving judicial officer. We also find from the record, the note of the then learned Advocate General dated 30.07.2015, wherein he stated as follows:- "As it is a matter of criminal contempt levelled against a judicial officer, I deem it proper to leave the matter to the wisdom of the Hon'ble High Court." Section 15 of the Contempt of Courts' Act, 1971, deals with cognizance of criminal contempt other than a contempt referred to in Section 14. Section 14 deals with contempt committed in the face of the Supreme Court or a High Court, which is not the case here. In respect of Section 15, the Supreme Court or the High Court may take action on its own motion, again which is not the case here, or on motion made by the Advocate General or any other person, with the consent in writing of the Advocate General. Here Advocate General has not made the motion. It is the petitioners who have made the motion with the consent in writing of the Advocate General. From the note of the Advocate General dated 30.07.2015, whereby he has left it to the wisdom of the High Court, question which arises for consideration is whether such a note can be treated or construed as a consent in writing of the Advocate General for initiation of a criminal contempt proceeding under Section 15 of the Contempt of Courts' Act, 1971? Learned counsel for the petitioner seeks time to examine this aspect of the matter." 8. As per section 2(a) of the Contempt of Courts Act, 1971 ("1971 Act" hereafter), "contempt of court" means civil contempt or criminal contempt. Learned counsel for the petitioner seeks time to examine this aspect of the matter." 8. As per section 2(a) of the Contempt of Courts Act, 1971 ("1971 Act" hereafter), "contempt of court" means civil contempt or criminal contempt. Section 2(c), defines "criminal contempt" to mean the publication, whether by words, spoken or written, or by signs, or by visible representation, or otherwise of any matter or doing of any other act whatsoever which. (i) scandalizes or tends to scandalize, 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 proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. 9. As already discussed in the order dated 04.04.2017, section 14 deals with a situation where contempt is committed in the face of the Supreme Court or of a High Court. However, in a case of criminal contempt other than a contempt under section 14 referred to above, section 15 comes into play. It says that 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 of the Advocate General. 10. In the light of the aforesaid provision, when we look at the "opinion" of the learned Advocate General, as extracted above, question which arises for consideration is whether such an opinion or observation can be construed as a consent in writing of the learned Advocate General for initiation of a criminal contempt proceeding under section 15 of the 1971 Act. 11. Be it stated that in this case, the High Court has not taken action on its own motion i.e., suo-moto; neither any motion has been made by the Advocate General. Motion has been made by the petitioners, who can be termed as "any other person" as appearing in Clause (b) of Sub-section (1) of Section 15. If it is "any other person", the motion has to be made with the consent in writing of the Advocate General. 12. Though a proceeding for contempt is neither civil nor criminal as is ordinarily understood, its jurisdiction being sui generis, the consequence of application of the 1971 Act may result in punishment of the contemnor as provided under the said Act. 12. Though a proceeding for contempt is neither civil nor criminal as is ordinarily understood, its jurisdiction being sui generis, the consequence of application of the 1971 Act may result in punishment of the contemnor as provided under the said Act. As such, it is essential that the procedure prescribed under the 1971 Act has to be strictly complied with; otherwise also, it is a well recognised principle of law evolved by the Courts that when a thing is required to be done in a particular mode or manner, it has to be done in that mode or manner and any other method is necessarily forbidden. 13. Section 15(1)(b) of the 1971 Act has consciously limited the power of a private individual to initiate a legal action in the Supreme Court or in the High Court for criminal contempt. The object appears to be to curb filing of vexatious petitions in the garb of upholding the majesty and dignity of the Court. A person cannot be said to have an unfettered right to move for criminal contempt of another person because it is essentially between the Court and the contemnor; it is not adversarial in nature. In that sense, it is not a lis between two contesting parties. 14. Thus requirement of consent in writing of the Advocate General where "any other person" moves the motion is not an empty formality. It has a salutary purpose. Advocate General is expected to apply his mind and examine the motion before him with a degree of detachment expected of a man of his knowledge and standing, holding a high constitutional office and in the process filter out vexatious, malicious and motivated petitions, thereby ensuring that High Court is not flooded with frivolous motions. He is expected to exercise his discretion in a reasonable manner and in accordance with the policy underlying Section 15(1)(b) of the 1971 Act. 15. Therefore, the important role assigned to the Advocate General under the scheme of Section 15(1)(b) of the 1971 Act cannot be lightly brushed aside. 16. This is the only mode provided to a private person i.e., "any other person" to initiate criminal contempt action. For a valid motion, compliance with the requirement of Section 15(1)(b) of the 1971 Act is mandatory. 16. This is the only mode provided to a private person i.e., "any other person" to initiate criminal contempt action. For a valid motion, compliance with the requirement of Section 15(1)(b) of the 1971 Act is mandatory. A motion at the instance of "any other person" without the written consent of the Advocate General would not be in accordance with the requirement of Section 15(1)(b) of the 1971 Act and hence, not maintainable. 17. Having regard to the nature of contempt proceeding, as discussed above, it is essential that the Advocate General has to give his consent in writing. Consent, as is ordinarily understood, means to agree and in the context of Section 15, it would mean an agreement with the petitioner to move the motion of criminal contempt. 18. Black's Law Dictionary, 6th Edition, defines consent as under:- "A concurrence of wills. Voluntarily yielding the will to the proposition of another. Agreement; approval; permission; the act or result of coming into harmony or accord. Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side. It means voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another..........." 19. Thus, the consent has to be specific inasmuch as it must disclose agreement with the proposal of the petitioner who seeks to make the motion. 20. In the light of the above, when we look at the "opinion" of the learned Advocate General, as extracted above, we are of the considered view that the same cannot be construed to be a consent in writing agreeing with the petitioners to move a motion for initiating criminal contempt proceeding against the respondent under section 15. 21. Consequently, in the absence of consent in writing of the learned Advocate General, this petition is not maintainable. 22. Before parting with the record, we once again make it clear that we have deliberately refrained ourselves from expressing any view either on the pending criminal trial or on the orders passed by the respondent. 23. In the light of the above, we decline to entertain this petition, which is accordingly dismissed.