Delhi High Court
Madan Mohan Sethi vs Nirmal Sham Kumari on 19 January, 2011
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed, Manmohan Singh
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 19.01.2011
+ CONT. CAS. (CRL) 19/1995 & CRL.M.A. 13058/2010
MADAN MOHAN SETHI ..... Petitioner
Versus
NIRMAL SHAM KUMARI ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr P.S. Bindra.
.
For the Respondent : Mr Rajiv Vig.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH
1. Whether Reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
BADAR DURREZ AHMED, J (ORAL)
1. As noted in the order dated 02.08.2010, the plea raised on behalf of the alleged contemnor is that this criminal contempt petition is not maintainable at the instance of the petitioner, inasmuch as the consent of the Law Officer as required under Section 15 of The Contempt of Courts Act, 1971 has not been taken. An additional plea was also taken by the alleged contemnor that the present petition is not maintainable because the petitioner CONT. CASE. (CRL) 19/1995 Page No.1 of 7 had a specific remedy under Order 39 Rule 2A of the Code of Civil Procedure, 1908 which the petitioner had already availed.
2. We have heard counsel for the parties on the issue of maintainability of this petition. Section 15 of The Contempt of Courts Act, 1971 (hereinafter referred to as the said 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
(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."
3. In the present case Section 15(1)(c) would be applicable and, therefore the proceedings for criminal contempt must be initiated either on a motion made by a Law Officer as notified in the official gazette or by any CONT. CASE. (CRL) 19/1995 Page No.2 of 7 other person but with the consent in writing of such Law Officer. In view of the aforesaid provision, the petitioner had moved an application before the Standing Counsel for the Government of Delhi for grant of permission to initiate criminal contempt proceedings against the respondents herein. The said application was made on 24.07.1995 and on the very same application the Standing Counsel (Criminal), Delhi High Court, after noting that that law of contempt should not be used to settle civil disputes between the parties was of the view that his consent was not necessary. It is obvious that the said Law Officer did not give his consent in writing to the contempt petition which was sought to be initiated by the petitioner.
4. Thereafter the petitioner filed the present petition praying, inter alia, that :-
1. The contemnors be proceeded against for committing criminal contempt of the court and be punished in accordance with law ;
2. The contemnors be directed to purge the contempt and vacate the possession of the ground floor of the premises bearing No. 18, Sunder Nagar, New Delhi.
5. The key issue which arises for consideration is whether the present petition at the instance of the petitioner is maintainable or not. The provisions of Section 15 of the said Act are clear that criminal contempt proceedings may be initiated either suo motu by the High Court or at the instance of the appropriate Law Officer or by any other person with the consent in writing of such Law Officer. The present proceedings have not been initiated on a motion by the Law Officer. Nor did the Law Officer in CONT. CASE. (CRL) 19/1995 Page No.3 of 7 question grant his consent in writing for the initiation of criminal contempt proceedings against the respondents. Thus, in view of Section 15(1)(c) of the said Act, the present petition would not be maintainable. This is also clear from the decision of the Supreme Court in the case of Biman Basu v. Kallol Guha Thakurta and Another : AIR 2010 SC 3328, wherein the Supreme Court also noted its earlier decision in the case of Bal Thackrey v. Harish Pimpalkhute : (2005) 1 SCC 254 wherein the Supreme Court held as under:
"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 under Section 15 not in conformity with the requirements of that section is not maintainable".
6. Faced with this situation the learned counsel for the petitioner took the plea that as the matter had been placed before this court and because this court had issued notice to the respondents, it can be construed as if the court had initiated the proceedings on its own motion and in such an eventuality there is no requirement of any consent of any Law Officer. We find that this aspect of the matter has also been dealt with by the Supreme Court in Biman Basu (supra). There also the main issue which arose for consideration was whether contempt proceedings had been initiated against the appellant therein suo motu by the High Court or had such proceedings been initiated by the respondents. The Supreme Court while considering the said issue observed as under:
"18. The High Court in the present case rested its conclusion relying on averments made in the petition stating that "even a suo motu contempt proceedings may be initiated" at the instance of the CONT. CASE. (CRL) 19/1995 Page No.4 of 7 petitioners "on going through the newspapers". Be it noted that there is no prayer in the contempt petition filed by the respondents to initiate suo motu proceedings. We are unable to sustain the finding of the High Court in this regard for the same is not supported by any material available on record. The order dated 17th October, 2003 and the Rule issued in clear and categorical terms reflects that law was set in motion exclusively based on the averments made in the petition and the affidavit of verification filed in support of the petition and the arguments of the counsel. There is nothing on record suggesting that the contents of the petition were treated as information placed before the Court for initiating the contempt proceedings suo motu by the Court. The contents of the petition of the respondents, their affidavit of verification dated 13th October, 2003, the exhibits and annexures to the said petition and the arguments of the counsel alone constituted the foundation, based on which the law was set in motion. The petition itself is not styled as any piece of information that was placed before the court for its consideration. It is not a case where the High Court refused to entertain the petition and took cognizance on its own motion on the basis of the information supplied to it in the petition. The record does not bear any such proceedings of the Court. Had it been so, the respondents would have been nowhere in the picture. It is true that any person may move the High Court for initiating proceedings for criminal contempt by placing the facts constituting the commission of criminal contempt to the notice of the Court. But once those facts are placed before the Court, it becomes a matter between the Court and the contemnor. But such person filing an application or petition does not become a complainant or petitioner in the proceeding. His duty ends with the facts being placed before the Court. The Court may in appropriate cases in its discretion require the private party or litigant moving the Court to render assistance during the course of the proceedings. In D.N. Taneja v. Bhajan Lal this Court observed that "a contempt is a matter between the Court and the alleged contemnor. Any person who moves the machinery of the Court for contempt only brings to the notice of the court certain facts constituting CONT. CASE. (CRL) 19/1995 Page No.5 of 7 contempt of Court. After furnishing such information he may still assist the Court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the Court and the contemnor". Thus the person bringing the facts constituting contempt to the notice of the Court can never be a party to the lis nor can join the proceedings as a petitioner. Similar is the view taken by this Court in State of Maharashtra v. Mahboob S. Allibhoy and Anr."
7. Thereafter the Supreme Court concluded that it was the respondents in that case who had initiated the proceedings and had continued the same but without the written consent of the Advocate General as was required in law and, therefore, the proceedings were clearly not maintainable.
8. A similar situation has arisen in the present case. We have already referred to the prayer made in the petition and that, in itself, makes it clear that it is the petitioner who has initiated or sought to initiate the criminal contempt proceedings against the respondents. There is also no indication that the petition is in the form of information placed before the Court with the request that the Court may take up criminal contempt proceedings suo motu. The present proceedings cannot be regarded as a suo motu proceedings. That being so, the petition would have been maintainable only if it had been initiated by the concerned Law Officer or if the petitioner had obtained the consent in writing of the Law Officer, which is admittedly not the case. Consequently, the present petition is not maintainable and is liable to be dismissed.
9. In view of the foregoing we need not examine the second issue pertaining to the availment of the remedy under Order 39 Rule 2A CPC. We are also not inclined to proceed any further with Criminal M.A. No. CONT. CASE. (CRL) 19/1995 Page No.6 of 7 13058/2010. Consequently, the present petition as well as the said application stands dismissed.
BADAR DURREZ AHMED, J MANMOHAN SINGH, J JANUARY 19, 2011 dp CONT. CASE. (CRL) 19/1995 Page No.7 of 7