Gujarat High Court
Gujarat Operational Creditors ... vs Lakshmi Niwas Mittal on 23 January, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
R/CR.MA/21836/2023 ORDER DATED: 23/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CONTEMPT OF COURT) NO.
21836 of 2023
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GUJARAT OPERATIONAL CREDITORS ASSOCIATION THRO KAMLESH
LUHAR
Versus
LAKSHMI NIWAS MITTAL
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Appearance:
MR.DEEPAK KHOSLA, LD. ADVOCATE for MR.JAYDEEP M
SHUKLA(6974) for the Applicant(s) No. 1,2
MR.MIHIR THAKORE, SENIOR ADVOCATE with MR.MIHIR JOSHI, SENIOR
ADVOCATE with MR.KEYUR GANDHI, ADVOCATE with MR.AALAY SHAH,
ADVOCATE for GANDHI LAW ASSOCIATES for the respondent No.3 & 5
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 23/01/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. The present Criminal Misc. Application (for contempt) has been filed by Gujarat Operational Creditors Association under Section 15 of the Contempt of Court's Act read with Article 215 of the Constitution of India for the following prayers:
"1. Exercising suo motu power under Section 15 of the Contempt of Courts Act (1971) read with Article 215 of the Constitution of India, commit the named offenders to criminal trial for criminal Page 1 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined contempt of Court, try, convict and sentence them to prison, with consecutive sentences being passed for each incident of 'criminal contempt of court' complained of.
2. Make, in exercise of power under Section 357(3) of the CrPC, an order for grant of compensation to the Petitioners' group for the costs, expenses, mental harassment, and injury suffered by them, with be not less than Rs. 10 crores."
2. It is the case of the applicant as factually submitted by Mr.Deepak Khosla learned advocate for the applicant that in the facts of the present case, the respondents have obtained the order from the NCLT on 08.03.2019 by fraud. Factually, it is the case of the applicant that ESSAR Steel India Ltd. ('ESIL' for short) was placed into insolvency resolution by NCLT (Ahmedabad) vide its order dated 02.08.2017. The successful resolution applicant was Arcelor Mittal India Pvt. Ltd. (respondent No.5) who submitted a resolution plan that was approved by the NCLT vide its order dated 08.03.2019. The Page 2 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined order was challenged before the NCLAT which with some modification approved a resolution plan by a judgement dated 04.07.2019. Thereafter the judgment was taken before the Supreme Court and the Supreme Court in its further notification approved the resolution plan vide its judgement dated 15.11.2019. It is the case of the applicant that in terms of the judgement dated 15.11.2019, operational creditors of the ESIL having claimed upto Rs.1 crore were to be paid in full and people having claims above Rs.1 crore would be paid only 20.50% of their total claims. It is the case of the petitioner no.1 that he has been paid 20.50%.
3. Mr.Deepak Khosla learned counsel for the applicant would submit that the applicants are "operational creditors" who have been deprived of their claim to the extent of 79.50% as a result Page 3 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined of the respondents having carried out the entire resolution process by subterfuge and fraud.
4. Mr.Khosla would invite the Court's attention to submit that the entire insolvency resolution process of ESIL is marred by fraud meaning thereby that the order of the NCLT Ahmedabad Bench passed on 08.03.2019 approving the resolution plan furnished by Arcelor Mittal India Pvt. Ltd. is a nullity in law, viod-ab-initio and non-est.
5. It is his case that the respondents arrayed in the application had jointly through their consorted design, the role of each being highlighted in the application, by the resolution process defrauded the banks and therefore caused loss to the public exchequer.
6. Mr.Khosla learned counsel for the applicant Page 4 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined would invite the Court's attention to an intervention application filed by Babu Erectors (P.) Ltd. a vendor of Essar Steel who was originally owed a sum of Rs.6.81 crores by ESIL but was paid only Rs.92.42 lakhs in the application filed before the Supreme Court. Mr.Khosla would submit that the entire modus operandi of how the resolution process, has been carried out by fraud has been highlighted and an attempt is made to expose a fraud which is even larger than the Satyam Scam. Collusive litigations are engineered between the respondents and the resolution plan is a foundation which was constructed in a sandpit of fraud. Arcelor Mittal India Pvt. Ltd. which is a wholly owned subsidiary of a foreign company known as Arcelor Mittal SA (Luxembourg) has obtained ownership and control of Essar Steel with an Insolvency Resolution Plan of Rs.42,000 Page 5 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined crores that was approved by the NCLT by order dated 08.03.2019. By this fraud, it has reaped a wrongful gain of Rs.10,000 crores at the cost of horrendous haircuts suffered by PSU lenders who were custodian of public money. Mr.Khosla would submit that the respondents have garnered a wrongful gain and with the purpose of unearthing this fraud that an intervening application has been filed before the Supreme Court.
7. Mr.Khosla would submit that Babu Erectors (P.) Ltd. who is one of the intervention applicant, has now addressed a communication through E-mail to his office, informing him that it would like to withdraw its case and has requested to stop all legal proceedings against Arcelor Mittal India Pvt. Ltd. This is because of the threat on behalf of the respondent companies to discontinue their Page 6 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined business. Since the applicants have brought to light the fraud, the respondents are catching and throttling such members of the association and intimidating them to discontinue the business which, in the submission of the learned counsel for the applicant, would amount to criminal contempt inasmuch as, such process tantamounts to interfere with or obstruct the administration of justice.
8. Mr.Khosla would take us to the cancellation deed and submit that 14 banks have suffered as a result of this colossal fraud. Respondent no.3- Arcelor Mittal Nippon Steel India Ltd. is using arm twisting tactics to coerce the protesters into submission by threatening all sorts of retaliating action against them including cessation of business if they agitate the issues of past. He would submit that due to such threats and Page 7 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined intimidation, four of the members of the association have exited the association as they are not willing to confront and risk cancellation of their business and suffer a huge risk to their livelihood.
9. Mr.Khosla would submit that it is in these circumstances, to protect their livelihood and the lives of their workers and their children, that the petitioner no.1 has filed the present petition for initiation of proceedings of criminal contempt of the Court.
10.Mr.Khosla would submit that he is conscious of the fact that in accordance with the provisions of Section 15 of the Contempt of Courts Act, consent of the Advocate General has to be obtained but, relying on an order passed by this Court, he would submit that since the Advocate Page 8 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined General appeared on behalf of the respondents, he would be an interested party.
11.The Court therefore, in submission of Mr.Khosla could also take suo-motu cognizance and initiate proceedings under the Contempt of Courts Act. In support of his submissions, Mr.Khosla would rely on the following decisions to submit that by the conduct of the respondents, it is clear that the litigating parties influence their decision to approach the Court of law and therefore they are committing criminal contempt of the Court:
I. In case of Govind Sahai v. State of U.P. reported in AIR 1968 SC 1513 II. In case of High Court Judicature of Bombay v. Manisha Koirala reported in 2003 Cri LJ 1634 III. In case of Hira Lal Dixit v. State of U.P. reported in 1955 1 SCR 677 Page 9 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined IV. In case of J.K. Sharma v. Central Bank of India reported in 1996 Cri LJ 1841 V. In case of Shri K.S. Villasa v. Ladies Corner & Anr. reported in AIR 1999 SC 2140 VI. In case of Nalin Chandra Pal v. Bejoy Ranjan Ganguly reported in AIR 1953 Cal 53 VII. In case of Pratap Singh v. Gurbaksh Singh reported in 1962 AIR 1172 VIII. In case of Ram Autar Shukla V. Arvind Shukla reported in 1995 Supp (2) SCC 130 IX. In case of Re v. Balwan Singh reported in 1996 11 SCC 74 X. In case of Shankar Lal Sharma v.
M.S. Bisht reported in AIR 1956 ALL 160, 1956 CriLJ 195 Page 10 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined
12. He would read out the above judgements and the relevant paragraphs which have been set out in the memo of the application.
13. The gist of his submissions on reading the judgements would be that;
(A) Any conduct which interferes with or prejudices the party litigant during the litigation, is undoubtedly contempt of Court. (B) Any conduct by which course of justice is perverted either by a party or a stranger is a contempt; thus, the news of threats by letter or otherwise to a party while his suit is pending or abusing a party in letters to persons likely to be the witness, is contempt. He would submit therefore the mail addressed by Babu Erectors (P.) Ltd. to him not to pursue the litigation is a direct result of such threat which has the Page 11 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined tendency to interfere with the due course of justice.
(C) That it is not necessary that there should be actual interference with the course of administration of justice but it would be enough if the act itself undermines the confidence of the people in Court.
(D) A threat held out to a person who has approached a Court for redressal of grievances to adduce him to forgo assistance and any threat veiled or apparent amounts to contempt.
14.Mr.Khosla would submit that without prejudice to the action under the Contempt of Courts Act, this Court can and should exercise suo-motu powers also under Article 215 of the Constitution of India. In support of this submission, Mr.Khosla would rely on a decision in the case of Page 12 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined Subramanium Swamy v. Arun Shourie decided on 23.12.2014 in (Contempt Petition) (CRL) No.11 of 1990.
15.Mr.Mihir Thakore learned Senior Advocate appearing for the respondent nos.3 and 5 would draw the Court's attention to Section 15 of the Contempt of Court's Act. He would submit that in accordance with the provisions of Section 15 of the Act, consent in writing of the Advocate General is mandatory, which, in the present case has not been obtained. He would submit that an application by an individual is not maintainable. On the facts as argued by the learned counsel for the applicant, the sum and substance of the application filed indicates that except an E-mail addressed by Babu Erectors (P.) Ltd. to the counsel that he no longer wishes to pursue his intervention application, there is nothing on Page 13 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined record to suggest that such course of action is prompted because of a threat from any of the respondents. Plain and simple that the respondents do not want to do any business with them by itself would not amount to an action tantamounting to interference in the administration of justice.
16. He would submit that even otherwise, it is well settled by the decisions of this Court that suo- motu initiation of contempt and exercise of powers to take cognizance has to be done in the rarest of rare cases. In support of his submissions, Mr.Mihir Thakore would rely on the following decisions and the relevant paragraphs thereunder:
I. In case of Bal Thackery v. Harish Pimpalkhute and others reported in (2005) 1 SCC 254 Page 14 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined II. In case of Bijayni Dash and others v.
Loknath Mishra and others reported in (2005) 9 SCC 194 III. In case of Vilas V. Sanghai v. Sumermal Mishrimal Bafna and Another reported in (2016) 9 SCC 439 IV. In case of S.K.Sarkar, Member, Board Of Revenue, U.P., Lucknow v. Vinay Chandra Misra reported in (1981) 1 SCC 436
17.Mr.Mihir Joshi learned Senior Advocate appearing for the respondents would vehemently object to the insinuations set out during the course of arguments by Mr.Khosla and submit that the application in the present format itself is not maintainable. The present application is a personal application titled as one between an applicant and the respondents and it is not in the Page 15 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined nature of any information based, and therefore a suo-motu cognizance cannot be taken. That, it is well settled that suo-motu cognizance can be taken in the rarest of rare cases and this is one case which is apparently a frivolous application which ought to be dismissed in limine.
18.Mr.Khosla in rejoinder submits that true it is that the applicant association was not registered, however, subsequent to the filing of the petition, it has a CIN number which is incorporated. Distinguishing the judgements cited by Mr.Thakore, Mr.Khosla would submit that it is well settled that in the absence of consent of the Advocate General, suo-motu cognizance can be taken as this is a rarest of rare case which shows that the wealthy and the mighty have acted as king of kings and it is not the law that is king of kings but the respondent no.1 who is a king of Page 16 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined kings especially in the State of Gujarat.
19.Having considered the submissions made by the learned counsel for the respective parties, whether the case is made out to initiate and/or take cognizance based on the facts stated in this application, a criminal contempt against the respondent deserves consideration.
20.The foundation of the applicants to nudge this Court to put into motion the machinery to initiate such action is based on the averments made in the application contending that the respondents are arm-twisting and threatening the members of the association including cessation of business with the respondents if they agitate the issues of the past. That, in the intervention application filed before the Supreme Court, as there was a complete exposure of fraud played by the Arcelor Page 17 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined Mittal Group leading to the insolvency resolution of Essar Steel, the respondents are pressurizing and threatening the directors of Babu Erectors (P.) Ltd. to withdraw the intervention application. A mail addressed to the learned counsel who has argued before us i.e. Mr.Deepak Khosla addressed by Babu Erectors (P.) Ltd. requesting the counsel to stop all legal proceedings is pressed into service to contend that this is nothing but under threat or duress. This, in the submission of the learned counsel would amount to interference in the administration of justice as per the definition of the term "criminal contempt" as defined in Section 2(c) of the Contempt of Courts Act, 1971. Section 2(c) defining the term "criminal contempt' reads as under:
"2.
...
(c) Page 18 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, 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 proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;"
21.The cognizance of criminal contempt is governed by the provisions of Section 15 of the Act. Section 15 of the Act reads as under:
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 to the Advocate-General, [or] Page 19 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined
(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 Official Gazette, specify in this behalf. Page 20 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024
NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined
22.Reading these provisions in tandem together would indicate that first and foremost, there has to be enough material, as so set out by the applicant, to infer interference, obstruction, or tendency to interfere and obstruct the administration of justice in any manner.
23.Reading the E-mail addressed by Babu Erectors (P.) Ltd. and the text of which we quote as under, it cannot be said that the legal proceedings are sought to be withdrawn based on a threat perception. The E-mail reads as under:
"Dear Sir, as already informed, we would like to withdraw our case, as we are continuing an still associated with AMNS. Kindly request you to please stop all the legal proceedings from our side against AMNS.
Kindly acknowledge and confirm the same.
Thanks and Regards Babu Erectors Pvt. Ltd."
24.Except the assertions in the memo of the Page 21 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined application stating that "the insolvency resolution process has been carried out by fraud" or there is a threat and "the petitioner no.1 has filed the present petition for initiation of proceedings for criminal contempt..." "on account of pressurizing, threatening and intimidating tactics indulged in by them to ensure that affected parties do not approach Courts of law... ensuing redressal of their grievances".
25.We have considered the decisions cited by the learned counsel for the applicant. In all such cases, there was direct nexus to suggest that actions taken by the party facing contempt was such which brought the authority and the administration of law into disrespect. In the case of Govind Sahai (supra) there was a pressure put on a party to act in a particular manner with Page 22 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined respect to a pending action. In the case of Manisha Koirala (supra) there was a publication in the newspaper that her counsel had managed to obtaine stay on movies released which compounded the action. In the case of Balwan Singh (supra) there was material on record to suggest that a threat was administered by the Sarpanch.
26.In the facts of the present case, the letter which indicates that Babu Erectors (P.) Ltd. was not willing to proceed with the litigation, has to be read with that part of the sentence in the letter which indicates that they wanted to withdraw from litigation as they were still associated with AMNS.
27.Coming to the provisions of Section 15 of the Act, reading the same makes it abundantly clear that Page 23 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined no action or a motion can be made in case of a criminal contempt without the consent of the Advocate General. In the case of Bijayni Dash (supra), the Supreme Court has held that prior consent in writing for initiation of contempt, prior consent of the Advocate General is mandatory. Paras 2 to 4 of the decision read as under:
"2. Under the Contempt of Courts Act, the petition seeking the punishment for contempt can be invoked by a party only with the prior written consent of the Advocate General of the State u/s. 15 of the said Act. This position in law is now well settled by judgments of this Court in the cases of State of Kerala V/s. M.S.Mani and Bal Thackrey V/s. Harish Pimpalkhute wherein it is held that prior written sanction of the Advocate General u/s. 15 of the Contempt of Courts Act is a mandatory requirement for invoking the contempt jurisdiction of the court by a private party.
3. In the instant appeals, it is not disputed that the complainants before the High Court did not obtain such prior permission from the Advocate General. It is also not disputed that contempt proceedings have not been initiated by the High Court suo motu either under the provisions of the Contempt of Page 24 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined Courts Act or under Art. 215 of the Constitution of India. This is clear from the following facts:
(a) The contempt petitions nowhere state that such a sanction has been obtained by the complainants.
(b) The show-cause notice issued by the High Court though contained an alternate clause as to invoking of suo motu contempt jurisdiction by the High Court, the same has been struck off indicating that the cognizance of contempt complaint was taken at the instance of a private party.
(c) Nowhere in the body of the impugned Judgement the High Court has indicated that it was exercising suo motu jurisdiction in regard to the alleged contempt by the appellants.
4. In the said factual background, and there being no dispute raised from any side that the initiation of contempt was at the instance of the private party and there being no prior consent of the Advocate General, these appeals are liable to be allowed on that sole ground.
28.In the case of Bal Thackery (supra), referring to the decision in the case of P.N.Duda v. P. Shiv Shanker, the Supreme Court considering Article 215 of the Constitution of India and the contempt Page 25 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined of Court's Act opined that three courses of motion are open for initiation of contempt viz. either by the Courts on its own motion or on the motion of any other person with his writing or on the motion of the Attorney General. The whole object of prescribing the procedural mode of taking cognizance in Section 15 is to safeguard the valuable time of the Court being vested by frivolous contempt petition. Paras 6 to 16 of the decision read as under:
"6. For determination of the main issue in these appeals including the aforesaid aspect arising out of Duda case it is necessary to briefly note the object of the power of the court to punish a person for contempt.
7. Every High Court besides powers under the Act has also the power to punish for contempt as provided in Art. 215 of the Constitution of India. Repealing the Contempt of Courts Act, 1952, the Act was enacted, inter alia, providing definition of civil and criminal contempt and also providing for filtering of criminal contempt petitions. The Act lays down "contempt of court" to mean civil contempt or criminal contempt. We are concerned with criminal contempt. "Criminal contempt" is defined in Page 26 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined Sec. 2(c) of the Act. It, inter alia, means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court. The procedure for initiating a proceeding of contempt when it is committed in the face of the Supreme Court or High Courts has been prescribed in Sec. 14 the Act. In the case of criminal contempt, other than a contempt referred to in Sec. 14 the manner of taking cognizance has been provided for in Sec. 15 of the Act. This section, inter alia, provides that action for contempt may be taken on court's 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".
8. The contempt jurisdiction enables the court to ensure proper administration of justice and maintenance of the rule of law. It is meant to ensure that the courts are able to discharge their functions properly, unhampered and unsullied by wanton attacks on the system of administration of justice or on officials who administer it, and to prevent wilful defiance of orders of the court or undertakings given to the court Commr. V/s. Rohtas Singh, 1998 1 SCC 349.
9. In Supreme Court Bar Assn. V/s. Union of India, 1998 4 SCC 409 it was held that:
"The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Page 27 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined courts of law. It is an unusual type of jurisdiction combining 'the jury, the judge and the hangman' and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice."
10. Dealing with the nature and character of the power of the courts to deal with contempt in the case of Pritam Pal V/s. High Court of M.P., 1993 Supp1 SCC 529 this Court observed:
"75. Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a contempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the contemnor to defend himself. But the procedure has now been prescribed by Sec. 15 of the Act in exercise of the powers conferred by Entry 14 List III of the Seventh Schedule of the Constitution. Though the contempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by Page 28 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined appropriate legislature under Entry 77 of List I and Entry 14 of List III in exercise of which Parliament has enacted the Act of 1971, the contempt jurisdiction of the Supreme Court and the High Court is given a constitutional foundation by declaring to be 'courts of record' under Arts. 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment. In fact, Sec. 22 of the Act lays down that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law relating to contempt of courts. It necessarily follows that the constitutional jurisdiction of the Supreme Court and the High Court under Arts. 129 and 215 cannot be curtailed by anything in the Act of 1971."
11. The nature and power of the court in contempt jurisdiction is a relevant factor for determining the correctness of observations made in Duda case. Dealing with the requirement to follow the procedure prescribed by law while exercising powers under Art. 215 of the Constitution to punish for contempt, it was held by this Court in L.P. Misra (Dr.) V/s. State of U.P., 1998 7 SCC 379 that the High Court can invoke powers and jurisdiction vested in it under Art. 215 of the Constitution but such a jurisdiction has to be exercised in Page 29 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined accordance with the procedure prescribed by law. The exercise of jurisdiction under Art. 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. In L.P. Misra case it was observed that the procedure prescribed by the Rules has to be followed even in exercise of jurisdiction under Art. 215 of the Constitution. To the same effect are the observations in Pallav Sheth case.
12. For determination of the issues involved, it would also be useful to note the observations made in the case of S.K. Sarkar, Member, Board of Revenue, U.P. V/s. Vinay Chandra Misra, 1981 1 SCC 436 to the following effect:
"... Sec. 15 does not specify the basis or the source of information on which the High Court can act on its own motion. If the High Court acts on information derived from its own sources, such as from a perusal of the records of a subordinate court or on reading a report in a newspaper or hearing a public speech, without there being any reference from the subordinate court or the Advocate General, it can be said to have taken cognizance on its own motion. But if the High Court is directly moved by a petition by a private person feeling aggrieved, not being the Advocate General, can the High Court refuse to entertain the same on the Page 30 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined ground that it has been made without the consent in writing of the Advocate General- It appears to us that 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."
13. In P.N. Duda case it was held that:
"54. A conjoint perusal of the Act and Rules makes it clear that, so far as this Court is concerned, action for contempt may be taken by the Court on its own motion or on the motion of the Attorney General (or Solicitor General) or of any other person with his consent in writing. There is no difficulty where the Court or the Attorney General choose to move in the matter. But when this is not done and a private person desires that such action should be taken, one of three courses is open to him. He may place the information in his possession before the Court and request the Court to take action he may place the information before the Attorney General and request him to take action; or he may place the information before the Attorney General and request him to permit him to move the Court."
14. The direction issued and procedure laid down in Duda case is applicable only to cases that are initiated suo motu by the Page 31 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined court when some information is placed before it for suo motu action for contempt of court.
15. A useful reference can also be made to some observations made in J.R. Parashar V/s. Prasant Bhushan, 2001 6 SCC 735. In that case noticing R. 3 of the Rules to Regulate Proceedings for the Contempt of the Supreme Court, 1975 which like Sec. 15 of the Act provides that the Court may take action in cases of criminal contempt either
(a) suo motu; or (b) on a petition made by the Attorney General or Solicitor General; or
(c) on a petition made by any person and in the case of a criminal contempt with consent in writing of the Attorney General or the Solicitor General as also R. 5 which provides that only petitions under Rules 3(b) and (c) shall be posted before the Court for preliminary hearing and for orders as to issue of notice, it was observed that the matter could have been listed before the Court by the Registry as a petition for admission only if the Attorney General or Solicitor General had granted the consent. In that case, it was noticed that the Attorney General had specifically declined to deal with the matter and no request had been made to the Solicitor General to give his consent. The inference, therefore, is that the Registry should not have posted the said petition before the Court for preliminary hearing. Dealing with taking of suo motu cognizance in para 28 it was observed as under:
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NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined "28. Of course, this Court could have taken suo motu cognizance had the petitioners prayed for it. They had not.
Even if they had, it is doubtful whether the Court would have acted on the statements of the petitioners had the petitioners been candid enough to have disclosed that the police had refused to take cognizance of their complaint. In any event the power to act suo motu in matters which otherwise require the Attorney General to initiate proceedings or at least give his consent must be exercised rarely. Courts normally reserve this exercise to cases where it either derives information from its own sources, such as from a perusal of the records, or on reading a report in a newspaper or hearing a public speech or a document which would speak for itself. Otherwise sub- sec. (1) of Sec. 15 might be rendered otiose."
16. The whole object of prescribing procedural mode of taking cognizance in Sec. 15 is to safeguard the valuable time of the court from being wasted by frivolous contempt petitions. In J.R. Parashar case it was observed that the underlying rationale of cls. (a), (b) and (c) of Sec. 15(1) appears to be that when the court is not itself directly aware of the contumacious conduct, and the actions are alleged to have taken place outside its precincts, it is necessary to have the allegations screened by the prescribed authorities so that the court is Page 33 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined not troubled with frivolous matters. To similar effect is the decision in S.K. Sarkar case."
29.In the case of V.C. Mishra (supra), the Supreme Court has observed that though Section 15 does not specify the basis or the source of information on which the High Court can act on its own motion, the High Court has to be prima-facie satisfied that the information received is not frivolous. The mode of taking suo-motu cognizance of contempt should be resorted to sparingly.
30.What is therefore apparent from reading all the decisions cited by Mr.Thakore is that in absence of consent of the Advocate General, we may not accept the submission of the learned counsel for the applicant for adjourning the hearing for a week so as to take appropriate consent as filing of such an application itself without such consent Page 34 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined would be against the mandate of Section 15.
31.On the alternative submission of the learned advocate Shri Khosla that suo-motu action be initiated, at the cost of reiteration we may say that no material or information is placed on record for this Court to take into consideration such information to set into motion suo-motu exercise. We are conscious of the fact that the Supreme Court has time and again asserted that contempt jurisdiction enjoyed by the Courts is only for the purpose of upholding the majesty of the judicial system that exists. While exercising this power, the Courts must not be hypersensitive or swung by emotions as learned counsel Mr.Khosla may want us to, but we must act judiciously. It is not a part of a judicial function to be vindictive or allow any personal or other considerations to enter into the discharge Page 35 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined of its functions.
32.In a series of decisions, the Supreme Court has held that the inquiry/contempt proceedings should be initiated by the Court in exceptional circumstances. There must be grounds of a nature higher than mere surmise or suspicion for initiation of such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge. The contempt proceedings being quasi criminal in nature, burden, and standard of proof is same as required in a criminal trial.
33.The question that arises before us is whether this Court can entertain this contempt petition without the consent in writing of the Advocate General. For the same, suo-motu powers can be Page 36 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024 NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined exercised as suggested by the learned counsel for the applicant. However, this is not a case where this Court should resort to invoking such power when especially such power has to be resorted to sparingly on incomplete and vague information. On a mere question of propriety, the Court will not invoke its jurisdiction and exercise discretion as no one can compel or demand as a right, initiation of such contempt proceedings.
34.At the cost of repetition, from the averments made in the application and the bulky record that the learned counsel for the applicant has produced before this Court, we have not been able to arrive at a conclusion for the reasons aforesaid to initiate proceedings by invoking Section 15 of the Contempt of Courts Act and or Article 215 of the Constitution of India. Page 37 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024
NEUTRAL CITATION R/CR.MA/21836/2023 ORDER DATED: 23/01/2024 undefined
35.At the cost of repetition, we may say that in fact, we are convinced that the learned counsel for the applicant by filing this frivolous application has frustrated the whole object of safeguarding the valuable time of this Court.
36.For the reasons aforesaid therefore, the present application is dismissed with cost of Rs.50,000/-. The amount of cost be deposited in the Gujarat State Legal Services Authority and a receipt thereof be produced in the Registry for compliance thereof.
(BIREN VAISHNAV, J) (NISHA M. THAKORE,J) ANKIT SHAH Page 38 of 38 Downloaded on : Tue Jan 23 20:45:01 IST 2024