Karnataka High Court
Smt Lakshmi Janardhan W/O C R Janardhan vs Smt N S Vinutha W/O N D Murallidhar on 8 January, 2010
Bench: Manjula Chellur, A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8"' DAY OF JANUARY, 20;0§f;_E~~..VV --
PRESENT T
THE HON'BLE MRS. JUSTICE.JM.A_N4}ULAV'C'H:E'LLU'R4_"A.V
AND 1 1'
THE HONBLE MR. JUSTICE A.N.\}'EE\i'UGOPA.~LA'.'C§_C§W'DA'
ccc(c:RL.)d§V';'--1o/2ddys_E*-fl 'E
BETWEEN:
1. Smt. Lakshmi Janardhvan,
Aged 46 years,.__ . _ -
W/0. C.R.;jarTa.ardhah, 4'
Bath are-dgsed:r3.g at 'No.47/.2--A, 13"' Cross,
8""rMa:ln', Malée'3yh'waran§',-- ' '
Bangaiore -' 56CJ:'0O3..,_ "
* _ " _ A' , ..COMPi_AINANTS
(BY S.r,i. T.R".S_ubbanna, Senior Counsef for M/s. S. ivan &
~" v Si\af'a":'«:As;s§)ci,ya tes, "A d--vs; ',
Sm"t';EN.S.§Ai'nr;:a:tha, aged about 44 years,
W/0.. N,._i)'.:\/araifidhar,
Deaetedyade order dated 22.6.2006.
:~?_"*SrE["N.D.MuraiEdhar, aged about 46 years,
' . 'S/G.--.Doraiswamy Iyengar.
Bath are residing at No.2/1, Poojari Layout,
ix)
Kasaba Hobli, Bangaiore North Taluk,
Bangaiore -- 560 094.
. .A'C,C.i,i SE D
(By Sri.G.R.lViohan, Adv.,)
This C.C.C.(CriminaE) is fiied under Articxie.2i.5Vofiti1e_« V' i.
Constitution of India R/W Sec.11_a.nd 15_--'R/W--i.2{C)i of. the "
contempt of Courts act, 1971 praying. that th'is.VVi:ionfVbie
Court may be pleased to initiate Cirimjihaii CCmt'ernpt a"g--ai'ii.st
the respondents and to ,.punish..At--he reS'.porid"ents'Minx,
accordance with law. _ . V This C.C.C.(Criminal) 42"h,a'yi,ng "iLi.i.$.:e%.r'i vfireserved, VENUGOPALA GOWDA:,.Jx. made 'the fo!Iowingi""
'A .;o P. pér2;' This m_otib:n,.1' by "the: coimpiiain--ant...against the accused
-is- --for " 'con'tem'pt" "of" the"
proce;édi'nVg"s a subordinate Court.
2. Materihai*.'.a"ii.e_gwa4tions made in the motion are that}; ac~cusec:i"'alorig_with his wife instituted against the .2 05.2377/1993 on the file of the City Civii H Cou,rt,VV'Ba.h«ga'i,ore which suit was dismissed in respect of a portiori'----Vof'the suit property by a decree dated 11.12.2003. Accuseyd aiong with his wife fiied RFA 146/2004, which was xdiiisrniissed as not pressed, by an order dated 20.04.2006. 2' "fiuring the pendency of said appeal, accused iiied OS. \> / Ca) 4196/2005 on 4.6.2005 on the file of the City Civil Court, Bangalore, in respect of the same suit property, 2377/93, against the 1" compiainant. In I.A. under Order 39 Ruies 1 and_2.,,CPC V exparte order of temporary inj0nct:;'0n:'vxiéssh 08.06.05, by concealing the:_fa.c.t apout anduhy' decree dated 11.12.2003 pa$_s__Ceid..:j'r~;'..Q.S...23077/93 and the pendency of RFA 146;'.:51'O04--.Lai:jd_ misieading the Court by stating. in pa2'*'a"»8.f0F:'.that "there is no pendency o,fprecee.t;'i'.fiige litigation either in past ahof ir'i...Vpré.$eht part of the subject matter of with the knowledge of the piaintirrrfi.thefiirarmddr':0--._é.C21196/2005 was not brought to theygnotice of Court during the pendency of RFA Vf14f;/200:1.flaoniy after dispose! of RFA 146/2004 by an dvateo v;"§.:'01'04.2006, the fact of grant of said exparte terf':---poreryvinjunction order came to the knowledge of the coernplamfiant on 16.05.2006.
\ fl
3. Notice of the motion was ordered to the accused who entered appearance through counsel. Accused filed objection statement contending that, during the peri'd.ency of RFA 146/2004, tenant had handed over premises to 2"" complainant, who was a party._:in{t':hel' had attempted to meddle with theM"po'rtiorr ofyt.hel«.pro'perty:
and hence, he filed a complaint g"Th'ere4\'w.as*-,V a status quo order passed it 15' compiainant was n.o*t~..a partv arid' she tried to interfere with the polsws-essliont fsuch, he flied 0.8.4196/20Q5;:..:lrr'--which,€ o«rder_'-oVf_._temporary injunction was passed on-"V85;20'GS:'vv---_Sih-ce summons was not served on compiaginant'Pilo';"3;; .pVa"p.e4r publication was taken. It was aisyojpstated rr:iai'," he: had filed W.P.7791/2006 against Bwa_gngai'oreMahanagara Paiike to consider a complaint filed Revenue Officer and the said petition was disi*niss.ed'v'Jiiith liberty to pursue the remedy either before V. the__ authority or in the Civil Court. 2'" compiairaant is a 'pa"'ri;v and there is an interim order of status quo granted in it -*'-'RFA and accused had specificaliy instructed his advocate to E. (s file a suit against complainant No.1, stating the pendency of appeal in this Court and his Advocate might havef:'s_tatVed in the pleading in para 8 of the plaint, written by an Advocate and that _he_had=_-n'o"'k.n'_owl'ed_ge not' the same.
4. Respondent filed 'avnrappiicatiioin'-for dllisrniwssal of V the motion as not mai"nt_aina~b'l'e the._Agroun'd' that, it has been flied beyond the one" By an order dated 10.8.2:OG'5:,':'i.t was held '<th'ati,'-vD_.€_§tT,ition is within time and the _sa§'d_':gapp_i'_ici3,t_itin}.wiasV,'::.,rej~ecte.d,..A.p.peal filed their - againstby acc:E~ised',~.w-as di_'s'missed as withdrawn by an order arwpex Cohort,da_te-dip',i..1,09.20G6. on 8.12.2006, an order was"passed-V._hoiding that, charge is required to be frained,against"t'h'e----accused. Said order was questioned in 'aVp'peal"v._bgy';'t»h:e----_accused on the ground that, when the co.nt'e'mpt'.pie'ti.tion was filed, complainant had not filed the conslentitn writing of the Advocate~»C3eneraE as envisaged in V' 'v~,l_"S,ilSi{_1)(b) of the Contempt of Courts Act, 1971 ('the Act' for short) and that the consent of the Advocate~Generai ls.
/' Advocate'-G'e.nera_!:, 6 was obtained and produced oniy on 19.6.2006, though the petition was fiied on 9.6.2006. Two contentions apb'e_ai<_to have been raised in the Apex Court with maintainabiiity of contempt Qetition. __"i"he_--f'irs't".:o_r1e'"iws,'with"
regard to the bar of iimitation under had stood over~ru|ed by din"--.ozrder"v.o'f thisT,:"ACo'u«.rtH,iiiatedui"
10.8.2006, which attained with .the_:wAithidrawai of the appeal on ajgainst. The second one is, with regard toiuthe. the contempt petition, in. writing of the oii.imgoiti.e petition'.
Apex dated 31.03.2009, has not acceptedggthieg piearg'w'i'th,"'Vregard to bar of Eimétation. Hoywgfeveir, not'ici,_ngV' that, complainants did not obtain the the Advocate~<3enerai in writing and whether have been féied along with the compiaint, is a'--rha.t:ter"to be agitated by the accused before this Court,
6. gra_.ntin'g'.iiberty to raise the objection to maintainabiiity "aVn'd°"aii other objections, the appeai was disposed of, K /' / __ _co_bse_nt of A,£&'d,\«'0<5&3.té.:.C§.e!'?.r5F83- without expressing any opinion on the merits, by ah o_rder dated 31.03.2009.
5. Smt. B.V. Vidyulatha, learned complainants, has filed memorandum""'o.f'f'.,facts' on'*~ 31.08.2006, in which it has Zibeen,«,étate.d-.'it-hiatg--.__a'f7t,er_ preparing the contempt petition, oneset brine,Vpefltitionptr. copy along with all the annei4('Lir:es.,,were"presented in the receiving section oft-hue" Officer.of~--..the'«|earned Advocate- Generai on 09.._O6.200--6,:h_for-. of obtaining officiai"t'ha*t,,.,ipapefrs' airepto be"'fi'ied in the Registry of the High :CoL}r_t Vmust be obtained and only thereafter,"-«..th'e,papersVc'ou|d be received. Immediately, pe_t_i'tion_,A,:vx-as fi'ied'v---i-h«"the Registry, which was numbered. ' Agiaien"»p:eti,tio:n'~.was sought to be presented, which was reftised t'o'j__.be received, on account of hand written recguisition, Thereafter, typed requisition was prepared A and'-..submitted to the receiving section of the Office of the it;,dvocate--Generai on 12.06.2006. Registry raised k ./ ,..~ ":§'fn'i:r'it was told by .th.e .
9
7. Sri T.R. Subbanna, learned Senior Advocate appearing for the complainants, on the other havnd._,_ka_fter inviting out attention to the written argument_sff'i-led. matter, contended that, the consent conte_m.p.l_a~te'd'l~l.:bv. ., Section (1) of 315 of the Act wjias o,b,tained4_on, and was filed in the Registry _on 2'1'L-0.6'-06 anvtiig.there'after,:"'i. the Court took cognizance comlpi-aiflnt"on:¥,22.06.06 and therefore, the motion isdm:aAintainla--hle. He contended that, what is required iVn_th_e of the Act is "at the time ;wi'ien"théi\ rr>,ot'i'on"i,:s:' 'liieing: initially examined 'i.'e'.', nwnhen of the matter", the consent of lithe,.Advocate:_§5enera| must be available on record and the 'fact"h'ein"g-thalt, on the date cognizance was taken' and noti-c,e"w'as 'ordered to be issued to the accused, it"consent"'loF:"th_e Advocate--General was available on record Vtt:.e're is compliance with the statutory reg'u_irem'ent.}* Learned counsel made certain submissions .'""«._V""a_s,to uw.ii"at is meant by "taking cognizance". He cited A ilk-':e'rta.in decisions with regard to the scope and meaning of _,,'_'tai<ing cognizance". Learned counsel contended that, in Q /C» the context of 315 of the Act, it is not necessary that, the consent shouid be fiied along with the FflOtiO.f}~,_::"X{\th~€3fn presented in the Registry of the Court and . is that, consent shouid be avaEia_b.E.e,__C>n re'co"r'c:i'_';v'JiiVti'en.th.e Bench takes cognizance of the mo~tion'_;'i ~EiEven_ oth'erwi"se.,"i'?i.n view of the circumstances stated in"the cmen1Ao.r'a-n.dVti.n1 of,"
facts filed by the iearned ad\_/QVVC:Bt_€"~f_or t.he«.com_fiIainants, the Court should not \?ie'wAt'hLe?.;.n3a'tte;' technicaliy and the deiay in obtairiingi"'a'r"id.fprogiiicirig: consent of the iearned Advoi:.até;f§3_er1re:raIf may be 'condoned. th_e""root of the matter and is based 'a.drr1itte'ci'j_ah'd.._:ijn.controverted facts and does not require further Aimrestigation into a question of fact. Heti$ce,:,_'~it is Aneceissaryvto decide the issue of maintainabiiity the tight of the liberty reserved to the Apex Court vide order dated 31.83.09.
#9.. 1' The rivai stands need consideration on the core C' "whether the contempt petition is not maintainable .,_.for want of written consent of the Advocate--GeneraI as 't / r y contemplated under S.15(1)(b) of the Contempt of Courts Act, 1 971 ?"
10. the relevant provisions of the Ac';__an(:_i mess.' ofsthe"
To answer the issue, it is necessity 't'o7.i'{"z~0fti';:e'~-- Act reads as fo|fows:-
" 15. Cognizance of crih_1inal coftvrentpt ovtherVpr.ses.~ 2 L {1} so {VE.1}V "., in the case of a c1'9irI§'ir;2'1_1 cofiiexsipi. o:;her than a (:omen1p"t~._ 1-ef'e1"féCi S6:'ci'i'()1"1'V 14, the Suprtzme Céoort '&H'~."-V Court". mav take on Vmoi,'iofi"'.of'"o.t1':a motion made otilei' pelson. with the consent in "a%i='i.1.i::c,:; o£T_fr'1e Advocate--Genera1, or i5verj{k'vn--1o"i.ioI1 or I'€f€I'€I1C€f made under {his *.usS'€fi-'SL101? shah specify the colltempt. of which the }'..1AV(.§1".§-3!'{)I1 Charged is alleged to be guilty. Ii2x§ja1a112.1i.i()11.-- In this section. the expression ;fAdvoc21t,e--GeneraI' means.--
' {:1} =1: #1 fit 9 [b] in relation to the i--Iigh Court. the Advocate» Ger1e1'aE of the State or any of the States' for W'hi("h the High Court has been est21'r)Iishet';':___ EC) :5: as: =i== K K {underlining i.;§'byf;;~;Si " V 8.23 empowers the Court" to rra'a';<--e.1:j~..rii'ies'--_not inconsistent with the provisions of t;!fee,,AC't,.1p.ro-viding 'f«3r any matter relating to the .p'ro.g;edure, ' In exierpisye oil' the,i> power conferred under ArticIezi"2.tS.,,of th'ei.:Consti§tution of India and S.23 of the'Ae'r and at:.1oth'er"powers enabling in that behalf, this Courts-whats '1"-rame.d"."i"hle 'High Court of Karnataka €f_Zourt4Vi3.roeee'd"ings) Rules, 1991' ('the i3;_uie_s' is regarding form of motion.
R. 5 is w-Ether reg'ar'd,to,."eontents of petition, the reievant portion of whi"ci*i.__reads: as foIiows:--
_Co.ntents of petition: (i) The petition shall set out . " Vtollowimz partieu1a1'S:w {ea} i.t3'ri(a;ri'& in} to (iv): * * * * 4' "iii the ease of criminal contempt of the Hifl Court other tthan a Contempt referred to in 814 of the !-\('.E''. the <1:ompEair1ar1t shall state whether he has obtained the consent of the Advocatew Genera} and it SO. produce the same.
(ii) Upon ("?C)I1Sid€I"c11,iO1'E of the repiv filed by the accused and ttftei" heaz'im': the parties. the Court may dz1op'»t1he aaroceedintz and distfihame the accused."
(U nd erl i-ni ng ~
11. From cieuse (b) of se; b-siettaferg(1)-
the Act,' it is apparent that, a n10tio'nA.rnade pe':rAs"onV"¢ other than the Advocate--Genei'ra:i';' must'~he"'w-itiifthe prior consent in writing of Ad_\?.ocate.--_GeeiiteraI. "'i"hAe form of motion, parties to procHe_e'd.in§'sV and*...Vcontents of petition, shaii be in t§.érrn;;s:r:"of i2u:esi~':3,'°4'est-s__r,er the Ruies. This contetnvplavtiedflinduitéri the Act nor is a suo- motu action as contemplated under S.1S_{--1)(c) aof._the.'iAct';-- this motion is by the parties and ""«.tsner;.¢§,,i»tai:a.g uihd'e'r'i S.15(1)(b) of the Act which
-..conterm:p»!..at'e%s*ie..a_j..special procedure prescribed therein i.e., with the.':c:on:sent in writing of the Advocate General. V'~».Hence,..V__the procedure stipuiated under the provision i.e., V"'V'.AAS».1.Sft'1)(b) is mandatory. ?rocedure mandated by the .Vd"'-.;n_sitatute -- Act / Ruies, cannot be dispensed with, t / 2' 38.99.
Indisputably, the motion as on the date it was fiied i.e., 09.06.2006, was not accompanied with the writing of the Advocate--Genera|.
12. In the case of LP. MIS'RA={DFi&.) U.P., (1998) 7 scc 379, dealingiA:'with_iV_t'he re._dui»re.rne.n*t.,it'o._ foilow the procedure prescribe.d"b.y law 'while :'efe><VerVciVs'inVg the' power under Article 2.1.5 of,th'e-.Const.i.tution"toV-punish for contempt, it has been he!.d'ths-at,' :the:C_._ourt can invoke powers and vested-.:in~~».ii"ta.tiridei'JArtide 215 of the
- -Cons-tit-uti-on', -"i3t;t}'-='s?i.;_ch'=a;~iiurisdicti.-ion. has to -be exercised -in- accor{iVance\.,,/iri.t_vh pfr'oc;edure"Vp'rescribed by iaw. Noticing the fact. that order of punishment, the High.Courtvhed».n'.oti'o|V|'o'wed the procedure prescribed by |a'w_,.':'t|?;A<--:i impugniectorder was held unsustainabie and was S-?fa.séitire'.t .
. case of STATE OF KERALA i/s. M.S. MAM Aivo. EJTHERS, (2001) 8 scc 32, a contempt petition was fiied on 17.05.99. Notice of the petition was issued on A preliminary objection was raised by the it / V .
$6 respondent contending that, the contempt petition was not maintainabie, as consent of the Advocate~Generai.__iJ'n_der 8.15 of the Act was not obtained before _ contempt petition. The consent contem,_o:i':ate'd:::
S.1S(1)(b) of the Act was obtained was submitted that, there is.co_mpiiAa'n_ce of ije,cg_oireTmeii1t:"'s. under S.15. While examininiji'ww..thie_ isslJ'e _ucoVhce'r;ning the maintainability of the',oetitio_ifil, nlotijcintythat, the motion to take action against reso_ond.ent_s was not made with the cos_iseij:t:.'of"-_the""Aiea'r!{I:e'ei"-Attorney General or Hsouiicitournnnldleneirai "subseq"uent obtaining of the consefit does,not"-dire"thVe---~i.nitiai defect so as to convert an incompetent motio"r;.,'int'o.»i.a maintainabie petition, it has been 'held as roiiows:-
requirement of consent of the Advocate- ' i'G,en,ei'3tl",v'.At£.omey~General/Solieit:or~Genei'al where any persoi*i_ otliei' than the said law ofl'ice1's makes motion 4' i:ei'gtl'i.e'e£1se of a (Ti'iI}}E£'I£1l Cornempt. in a High Court or S'u--§31*eme Court. as the ease rnay be. is not a mere A--..:,fOri11e11ii.y: it has a salutary purpose. The said law offitreis being the highest law officers at the level of the State/Ce.mre as also the of'l'ieers of the courts are 's u ..r [9 were that two contempt petitions under 8.15 of the Act were filed against appellant -- Ba! Thackrey, f.o'r.i:'h.av«i,ng committed contempt of Court in terms of by making a public speech. P_et.iti_oner'Min""--o'i':e'."'04f}',the' contempt petitions had submitted 22.10.96 to the Advocate}-Qenelraii seelkving.f--req-'uisite~rt permission by 02.12.96 and f,Li.rVti=..er=s_vtating'th_at,_,:in case of not receiving an Va'hswer*,g {he presume that permission hadbeen ,g'ra'n-teriV'an'd__y.'.riu.ld7proceed with the contempt Acc.ord«-inigiy, contempt petition was 'filed "th.eHVcdnsent of the Advocate-
General. __ while rejecting the contention that, suoamotu 'actior. S.1S of the Act could not be taken "on petit'ions1filerJ by way of regular motion by private "V"paVrltiesE,"'l:'held that, accused ------ Ba! Thackrey, guilty of I'~cohteim-p't~«.,Vah.cl'infiicted the punishment, which order was cha«l.ieng'ed,li'nA the Apex Court. Primary contention urged forgconsideration was that, in the absence of compliance of sp'-.ma.nsiatory requirement of 8.15, the petitions were not .,,_maintainable. After examining the scope of Articie 215 of K /11 20 the Constitution and S.15 of the Act, it has been held that, the question is not about compliance or non compliance with the principles of natural justice by granting adequate opportunity to the appellant but is about compliance with the mandatory requirements of 8.15 of the Actv.~~._j:'Ii.l;:°wxas further held that, the procedure of 8.15 is followed even when a petition i.s,,,,fi,l_ed b'y'"a~--.:;jigrtyVéiindier". Article 215 of the Constitution. Nvoyticijngi.the.absence,"iof."t??1e compliance with the mandatory reduirementAo.f'v«S..,1*3, thetl' petitions were held asnot ma_i_ntaina.ble. have prescribed distinct procedt-=.rei.for-the':_jperso'n..in-iaking a complaint of criminal conternptl4a~sciefined*i_uVn'der S.2(c) of the Act. When the proc'ed,_u.:revl,.has beerrstipulated both under the statute and also made under the power conferred on the Court, under Article 215 of the Constitution of India and of the Act, the Court cannot take cognizance, if theftirocedure prescribed has not been followed. A A contempt of Court is an offence of a criminal character. L __,Z ,I Hence, the proceedings initiated, cannot be de hors the provisions of the Act and Rules. If the prescribed is not foilowed, the resultant posi.tionv.viioa'l'dt:.i§e illegal. Punishment, if any, can»..»b.e4 im'pos1ecifDniy.'_ji,n legaliy initiated and conducted otherwise.
17. In the instanpt ca'se,':t-hi_s.:petition filed on 9.6.06. The consent .:'«.ri.\xoI';;ia_t'e-General was obtained on the Registry on .2_1.06._O.6.. §'.!\'l.o:t-icedoi-.t-h-e"ii'ifeiotioh- ii.-5 -mm 1"was'ord'er'e'd to" n the acctiisediigfn 2:2'.fV.'O5:'QOf3;"andtwhence, Sri T.R. Subbanna, contended" that, Vltiiieireiqpiiarement of S15 stands complied with. _The fact" rer':iai'nsV""that, the motion to take action Aacciise'd'*"'uVnder 315 read with R. 5 was not 'acco'm_p'a.n'iie,d* the consent of the learned Advocate« General _on'i:'i.th:e date it was filed and therefore, is not '~._'compe~ten;t. Subsequent obtaining of the consent i.e. on A does not cure the initial defect, so as to convert the incompetent motion, into a maintainable k If 9-' '7") petition. Hence, the contention of the learne.:l.._>Senior Counsel for the complainants being opposed noticed supra, is unacceptable an-d~ h.ence, rejected; declared by the Apex Court and this Court,
18. In the above _vlewé*golf'-- the,.»"'v'i'T,lAx3l,t.F_,ér,ii unnecessary to refer to the us by the learned Senior Couri's'e.i,_ ap'tpeaVArl':n.gjforthe cornplainants, since, we have taken, _.-l.,,,4;'it'l*:i..'jdfigference to the relevant proyvis'i:onj's ofizbtheltct avri:d":the'..i*-tules, set out supra. we "h old' that this motion"i's" as a result, we drop the contenriiptl' discharge the notice of contemptisrsued. accused.
sa/3, Judge it