5 vs Unknown on 30 January, 2020

[Cites 18, Cited by 0]

Kerala High Court

5 vs Unknown on 30 January, 2020

Learned counsel appearing for the alleged contemnor has relinquished his Vakalath and alleged contemnor appears in person. Alleged contemnor/ party in person has filed I.A.No.4 of 2020 for a direction to drop the entire proceedings against him. In the supporting affidavit, at paragraph Nos.2 to 7, he has averred as hereunder:

"2. I prepared this Affidavit to drop the entire proceedings in CC No:3/2019 because Grave Violation of section 15 of the Contempt of Courts Act 1971 read with Rule 7 of the contempt of Court C High Court of Kerala Rules 1988 has occurred in this case.

3. 2009 (1) KLT 695 "Contempt of Courts Act 1971. Section 15 SuoMotu action for criminal contempt has to be taken only after placing the matter before the full court and full court decides to take action. After such decision, matter should be placed before bench as per roster. Contempt of Courts (High Court of Kerala) Rules 1988 Rule-7."

"Held- Section 15 would show that the action for criminal contempt has to be taken on the motion of High court and Cont. Case (Crl.)No.3 of 2019-S -:2:- not on the motion of the Chief Justice or the Judge designated by him. When a decision is to be taken by the High Court it means The Full Court Consisting of The Chief Justice and all other Judges"

4. In CC No.3/2019, there is no full court decision under section 15(1) of the Contempt of Courts Act 1971.

5. In CC No. 3/2019, there is no preliminary hearing conducted under Rule 7 of the contempt of courts (High Court of Kerala) Rules 1988.

6. Annexure A - Page 9 to 13, in Page 11 is Registrar General's note.

In page 13 as, "X Approved, Chief Justice sd-21.8.2019" is seen.

7. CC No: 3/2019 now became unconstitutional."

2. Further, inviting the attention of this Court to a decision of a Division Bench of this Court in suo motu C.C. (Crl.)No.1 of 2009 reported in 2009 (1) KLT 695, alleged contemnor submitted that as per Section 15(1) of the Contempt of Courts Act, 1971, read with Rules 7 and 9 of Contempt of Courts (High Court of Kerala) Rules framed by this Court, a Full Court Reference is required before initiating suo motu contempt and in the absence of the above, decision taken by the Hon'ble Chief Justice on the basis of a complaint written by a former Judge of this Court, Hon'ble Mr.Justice B.Kemal Pasha, is not a correct approach.

3. Party in person further submitted that as per Section 2(d) of the Code Of Criminal Procedure, 1973, "complaint" means any allegation made Cont. Case (Crl.)No.3 of 2019-S -:3:- orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. According to the party in person, a complaint ought to have been preferred to the concerned Magistrate and that suo motu contempt proceedings cannot be initiated.

4. Alleged contemnor has also filed I.A.No.3 of 2020 for a direction to conduct the trial including recording the evidence in the contempt case in the open court. In the supporting affidavit, he has averred as hereunder:

"3. On 20.1.2020, this court announced in Open Court that in CC No:3/2019 that the examination of witnesses will be conducted in the CHAMBER of the Judges.

4. I cannot agree with this. First of all there is no provision in the Contempt of Courts Act 1971 or High Court Rules under the Contempt of Courts Act or any precedent still now adopted by any other High Courts in India or Apex Court decision in this matter.

5. I received the witness list. Witness is the retired Judge of High Court of Kerala. He has no special status which are enjoyed by the President. Republic of India or the Governor, States in India.

9. My counsel Shri. Shajin S.Hameed is too young and having very good future in Law Section. I don't want to spoil his good future. So, I personally decided to step into CC 3/2019 and conduct the case in Person.

10. So, I will examine the witnesses in CC 3/2019. For the last 20 years I knew this retired Judge from while he was as the Additional District Judge of Trivandrum in the year 1999 onwards. Cont. Case (Crl.)No.3 of 2019-S -:4:-

11. After the retirement, this Judge has criticized the verdict of Honourable Justice Mr.Arun Mizre in Maradu flat case, Honourable Chief Justice Mr.Antony Dominic of High Court of Kerala and every day this retired Judge is criticizing the verdicts of Apex Court and so, I will produce 18 video CD and exhibit it in CC 3/2019. For that I choose Open Court examination in CC. 3/2019.

12. For a fair, unbiased trial, CC 3/2019 case is to be tried in Open Court. Otherwise Fair trial will not occur, I fear.

13. If examination is in CHAMBER, I fear that Justice will be denied to me.

14. Now Iam an Accused in CC No.3/2019. This is not a Rape case of Posco Case.

15. Court may treat this retired Judge just like any other witness in other cases.

16. Hence I pray that the witnesses in CC No.3/2019 may be examined in Open Court to meet the ends of Justice."

5. Inviting the attention of this Court to a Full Bench judgment of this Court in Rahim P. v. M.V. Jayarajan and Others reported in 2010 (4) KHC 263, Mr.P.N.Sukumaran, learned Prosecutor, submitted that decision relied on by the party in person/alleged contemnor has been overruled and therefore the submission is not tenable. Insofar as the prayer made in I.A.No.3 of 2020 is concerned, learned Prosecutor submitted that whether the witness has to be examined in open court or in Chamber is purely the discretion of this Court.

Cont. Case (Crl.)No.3 of 2019-S -:5:-

6. Heard the party in person and the learned Prosecutor.

7. As rightly contended by the learned Prosecutor, decision relied on by the alleged contemnor has been overruled by a Hon'ble Full Bench of this Court in Rahim P. v. M.V. Jayarajan and Others (supra), wherein at paragraphs 29 and 30, Full Bench held thus:

"29. Under Section 15 of the Act, initiation of criminal contempt proceedings in an appropriate case is permissible for the High Court on its own motion. It necessarily requires some information on the basis of which the High Court can take cognizance of the criminal contempt. High Court, as an institution, necessarily has to act through some human agency. No doubt, in the context of Articles 233 and 235 the expression "High Court" was interpreted* to mean the Chief Justice and all the companion Judges collectively, but such an interpretation need not govern the expression wherever it occurs either in the Constitution or under any other law. For example, the expression "High Court" occurring under Article 226 if given the same interpretation, would render the jurisdiction wholly unworkable and purposeless apart from the established convention that such interpretation was neither attempted nor given to the said expression under Article 226.

30. We assume for the sake of argument that such an interpretation is called for in the context of Section 15 of the Contempt of Courts Act. We have already noticed from the ratio of Pallav Sheth's case (supra) that the authority of the High Court to punish for contempt of Court can be regulated by law. S.23 ['23. Power of Supreme Court and High Courts to make rules.-- The Supreme Court or, as the case may be, Cont. Case (Crl.)No.3 of 2019-S -:6:- any High Court, may make rules, not inconsistent with the provisions of the Act, providing for any other law relating to contempt of Courts'.] of the Act authorises the High Court to make rules providing for any matter relating to its procedure. Rule 7 of the Contempt of Courts (High Court of Kerala) Rules is a rule framed collectively by all the Judges of the Court authorising either the Chief Justice or a Judge of this Court designated by the Chief Justice to examine the information and take a decision whether suo motu criminal contempt proceedings are required to be initiated. Article 225 expressly contemplates making of the rules by the High Court for the purposes mentioned in the Article. Article 235 was interpreted by the Supreme Court to have such a power by necessary implication to make rules for the administrative purposes, i.e. control of the subordinate judiciary. It was held so in State of U.P. v. Batuk Deo Pati Tripathi, (1978) 2 SCC 102 at para 10 as follows:-

"Article 225, it is true, preserves inter alia the pre-Constitution powers of existing High Courts to frame rules and it may be assumed for purposes of argument, an assumption which is largely borne out by provisions of the laws mentioned in the preceding paragraph, that the High Court of Allahabad did not, prior to the enactment of the Constitution, possess the power to frame rules authorising a Judge or a Committee of Judges of the High Court to act on behalf of the Court. But Article 225 is not the sole repository of the High Courts' power to frame rules. The relevant part of Article 235 of the Constitution provides that the control over District Courts and courts subordinate thereto shall be vested in the High Court. Since Article 216 provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to Cont. Case (Crl.)No.3 of 2019-S -:7:- appoint, Article 235 has to be construed to mean that the control over District Courts and courts subordinate thereto is vested in the entire body of Judges who together constitute the High Court and not in the Chief Justice as representing the High Court or an Administrative Judge or a smaller body of Judges acting as an Administrative Committee. But though the control over subordinate courts is vested institutionally in the High Courts by Article 235, it does not follow that the High Courts have no power to prescribe the manner in which that control may in practice be exercised. In fact, the very circumstance that the power of control, which comprehends matters of a wide- ranging variety, vests in the entire body of Judges makes it imperative that rules must be framed to make the exercise of control feasible, convenient and effective. The seeds of the jurisdiction to frame rules regulating the manner in which the control over subordinate courts is to be exercised are thus to be found in the very nature of the power and in the fact that the power vests in the entire body of Judges. The High Court has, therefore, the power under Article 235 itself to frame rules for regulating the manner in which the control vested in it may be exercised. The power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. It is an incident of the power itself and indeed, without it, the exercise of the power may in practice be fraught with difficulties which will frustrate, rather than further, the object of the power. It is undoubtedly true that the rules framed for prescribing the manner in which a power may be exercised have to be truly regulatory in character".

Rules framed under Article 225 authorising the manner in which the sittings of the Court are to be regulated by the Chief Justice are held Cont. Case (Crl.)No.3 of 2019-S -:8:- not to be inconsistent with the power of the High Court under Article 215 of the Constitution - Vide High Court of Judicature at Allahabad v. Raj Kishore Yadav [(1997) 3 SCC 11] and at para 11, it was held as follows:-

"In the light of the aforesaid parameters of the powers of the High Court as a superior court of record it is difficult to appreciate how the Full Court of the Allahabad High Court by framing the impugned Rule had enacted a provision which fell foul on the touchstone of Article 215 of the Constitution. The High Court as an institution has the seisin of the relevant record pertaining to all the cases tried before it. Record cannot be said to be in the custody of the author of the order giving rise to contempt proceedings. The cases may be pending or might have been disposed of. Civil contempt might be alleged in connection with interim orders in pending matters and can also be alleged in connection with final orders in matters which are already disposed of. The record of such matters would be available in the High Court. All that the impugned Rule has done is to entitle the Chief Justice to assign the work of hearing civil contempt matters to one of the Judges. Such an exercise, as seen above, is perfectly legal and valid in the light of the constitutional scheme".

The question before the Supreme Court was whether a rule framed by the High Court authorising the Chief Justice of the High Court to assign the hearing of a contempt case to a Judge other than the one whose order was alleged to have had been wilfully disobeyed was violative of Article 215. The Supreme Court held such Rule valid. If framing of such a rule regulating the conduct of a judicial proceeding by a Judge or a Bench according to the direction of the Chief Justice is Cont. Case (Crl.)No.3 of 2019-S -:9:- permissible, it is difficult to understand as to how the decision - whether to initiate criminal contempt proceedings suo motu or not - must necessarily go before a Full Court, but not by the Chief Justice on the Administrative side under Rule 7 of the Contempt of Courts (High Court of Kerala) Rules, which enables the Chief Justice to take an administrative decision. To ignore the mandate of Rule 7 and insist that every individual case be placed before the Full Court, in our opinion, would not only be against the letter of the rule validly made, but also would unduly hamper the work of this Court. We, therefore, see no reason to place such a construction on the expression "High Court" occurring under Section 15 of the Contempt of Courts as was done by the Division Bench in 2009 (1) KLT 695. Therefore, we are of the opinion that the decision in 2009 (1) KLT 695 does not lay down the correct position of law and hence overruled."

8. As regards the contention that a complaint ought to have been filed as per the provisions of the Code of Criminal Procedure and that, suo motu contempt cannot be taken, we deem it fit to consider the following statutory provisions.

Section 15 of the Contempt of Courts Act, 1971 states that:

"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 or, Cont. Case (Crl.)No.3 of 2019-S -:10:-

(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 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."

Section 15 of the Contempt of Courts Act, 1971, makes it clear that in the case of a criminal contempt, other than contempt referred to in Section 14, the Supreme Court and the High Court may take action on its own motion, and therefore the contention to the contra is untenable. Cont. Case (Crl.)No.3 of 2019-S -:11:- Section 23 of the Contempt of Courts Act, 1971 states that:

"23. Power of Supreme Court and High Courts to make rules.-- The Supreme Court or, as the case may be, any High Court, may make rules, not inconsistent with the provisions of the Act, providing for any matter relating to its procedure."

Rule 6 of the Contempt of Courts (High Court of Kerala) Rules framed under the Contempt of Courts Act, 1971 states that:

"6. Taking cognizance.-- Every proceeding for contempt shall be dealt with by a Bench of not less than two Judges:

Provided that a proceeding under Section 14 of the Act shall be dealt with by the Judge or Judges, in whose presence or hearing the offence is alleged to have been committed and in accordance with the provisions thereof:

Provided further that where civil contempt is alleged in respect of the judgment, decree, direction, order, writ or other process of a Single Judge, the matter shall be posted before that Judge who shall hold the preliminary enquiry in the matter. The Judge, if satisfied that no prima facie case has been made out, or it is not expedient to proceed with the matter, may dismiss the petition. If a prima facie case is made out and unconditional apology is not tendered by the respondent and accepted by the Court, the Judge may direct that the matter be posted before the Bench dealing with contempt matters:

Provided that where the Judge concerned is not available, the Chief Justice may direct the application be posted before some Cont. Case (Crl.)No.3 of 2019-S -:12:- other Judge for orders."

9. In exercise of the powers conferred under Articles 215 and 225 of the Constitution of India, Section 23 of the Contempt of Courts Act and all other powers enabling in this behalf to regulate the proceedings of contempt of itself or of a court subordinate to it, High Court of Kerala makes the following Rules:

"7. Initiation of suo motu proceedings, on information.-- (i) Any information other than a petition under Rule 3 or reference or any petition for initiation of criminal contempt other than those mentioned in Section 15 of the Contempt of Courts Act shall, in the first instance, be placed before the Chief Justice on the Administrative side.

(ii) If the Chief Justice, or such other Judge as may be designated by him for the purpose, considers it expedient or proper to take action under the Act, he shall direct that the said information be placed for preliminary hearing:

Provided that if action for Contempt of Court is directed to be taken by any Judge or Judges in any proceedings before the High Court, the same shall be placed before the appropriate Bench.

(iii) When suo motu action is taken by the High Court, the statement of facts constituting the alleged contempt and the copy of the draft charges shall be prepared and signed by the Registrar."

"21. Application of the High Court Rules.-- In matters not specifically provided for in these rules, the procedure prescribed in the Rules of the High Court, 1971, as amended from time to time, Cont. Case (Crl.)No.3 of 2019-S -:13:- shall mutatis mutandis apply to the proceedings under these rules."

10. Kerala High Court Act is an Act to make provision regulating the business and the exercise of the powers of the High Court of the State of Kerala. Chapter XII of the Rules of the High Court of Kerala, 1971 deals with Contempt proceedings. Rule 164 of the Rules of the High Court of Kerala deals with preliminary procedure. Rule 165 speaks about application for punishment for contempt. Statutory provisions referred to supra, make it clear that High Court is empowered to initiate suo motu contempt proceedings. Contention of the party in person that a complaint under the provisions of the Code of Criminal Procedure, has to be preferred is rejected.

11. Finding prima facie and following the procedure contemplated under the Rules framed under the Contempt of Courts Act, 1971, charges have been framed and served on the party in person/alleged contemnor. List of witnesses has been furnished to the alleged contemnor along with an affidavit of the complainant.

12. In the supporting affidavit, party in person has referred to certain decisions to support his contention that there is no contempt. Merits of the contentions and reliance placed on the decisions can be considered only after examination of the witness and analysis of the evidence and decisions. At this juncture, suo motu proceedings initiated by this Court, cannot be said to Cont. Case (Crl.)No.3 of 2019-S -:14:- be unconstitutional warranting dropping of the proceedings. In the light of the statutory provisions and discussion, I.A.No.4 of 2020 filed to drop the proceedings is dismissed.

13. Insofar as I.A.No.3 of 2020 is concerned, material considered by the then Hon'ble Chief Justice for initiating suo motu action inter alia reads thus:

"True translation of the communication sent by a person named Santy George may kindly be seen at pages 59-61, flag 'E'. The communication is per se offensive and contemptuous, falling in the definition of Section 2(c) of the Contempt of Courts Act, 1971.

The documents sent along with the communication suggest that the said Santy George was the Counsel for the accused in SC 974/2006 of the Additional Sessions Court (Adhoc - II), Thiruvananthapuram. From the order of Shri Justice B. Kemal Pasha (Rtd.) put up at pages 33 c.f. onwards, it seems that the accused in the case had made a disclosure to the Prosecutor Shri M.Nizarudeen that an amount of Rs.25,000/- was collected from him by his Counsel on the pretext of giving to the Prosecutor as bribe. This disclosure was allegedly made when the accused was convicted by the court. Provoked by this disclosure, the said Nizarudeen moved the Sessions Court, which forwarded the complaint to the Vigilance Court, on the basis of which a quick verification was done and finally, a crime was registered. Against the said order Advocate Santy George moved the High Court with Crl. M.C.1429/2014 for quashing the FIR. After hearing both sides, by detailed order, Shri Justice Kemal Pasha dismissed the petition. From the copy of order of the Vigilance Court Cont. Case (Crl.)No.3 of 2019-S -:15:- put up at pages 27-29 c.f., it appears that thereafter, on completion of investigation, Vigilance filed a final report dropping further action and that report has become final. Petitioner Santy George has also made mention about the murder case of one Shuhaib. It seems that Shri Justice Kemal Pasha had directed to refer the investigation to the CBI, which was reversed by a Division Bench of this Court recently. This communication was sent thereafter, enclosing a copy of judgment in Criminal Appeal 1402/2013 of this Court, order of the Vigilance Court in V.C.4/2016/SRT and also the copy of the order of Shri Justice Kemal Pasha in Crl M.C. 1429/2014.

A cursory reading of the communication received by Shri Justice Kemal Pasha indicates that the contents are highly offensive and abusive. It scandalizes and lowers the authority of the Court. Even if the Judge is retired from service, it is a matter interfering with the due course of judicial proceedings. In a case reported In Re S.K. Sundaram (2001 (1) KLT 585 (SC)) where a telegram was sent to the Chief Justice of India hurling threats at him, it was held that it amounts to publication. Here, the said Santy George has sent a communication to the former Judge abusing him with offensive language. It seems that the matter is per se contemptuous, requiring to take suo motu cognizance under Section 15 of the Contempt of Courts Act, 1971.

It may be considered whether suo motu action be taken. Subject to the orders above, a Contempt of Court (Criminal) case may be registered suo motu and the case may be posted for preliminary hearing as provided in Rule 7 of the Rules under the Contempt of Courts Act, 1971."

Cont. Case (Crl.)No.3 of 2019-S -:16:-

14. We have also gone through the contents of the letter dated 3.8.2019 addressed by the alleged contemnor to the former Judge of this Court. It is the discretion of the court to examine the witness either in open court or in Chambers. Having regard to the contents of the letter, examination of the witness in open court is not desirable. There is no basis for the apprehension of the alleged contemnor/party in person. For the reasons stated supra, I.A.No.3 of 2020 is dismissed.

As per the procedure contemplated under Rule 6 of the Contempt of Courts (High Court of Kerala) Rules, Registry is directed to issue summons to the witness for his appearance on 18.2.2020 at 2.30 p.m. in Chambers. Party in person is directed to appear at 2.30 p.m. on that day in Chambers.

Sd/-

S.Manikumar, Chief Justice Sd/-

Shaji P.Chaly, Judge vpv Cont. Case (Crl.)No.3 of 2019-S -:17:- IN THE HIGH COURT OF KERALA AT ERNAKULAM Present:

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY Thursday,the 30th day of January 2020/10th Magha, 1941 Cont.CasE.(Crl.) No.3/2019 PETITIONER SUO MOTU X RESPONDENT SANTY GEORGE, AGED 58 YEARS, (FATHER'S NAME NOT KNOWN) ADVOCATE, AMERICAN IINSTITUTE BUILDING,VANCHIYOOR.P.O, THIRUVANANTHAPURAM, KERALA PIN 695 035.

Contempt Of Case (criminal) praying inter alia that in the circumstances stated in the affidavit filed along with the Cont.Cas.(Crl.) the High Court be pleased to.

This petition coming on for orders upon perusing the petition and the affidavit filed in support of Cont.Cas. (Crl.) and upon hearing the arguments of M/S SUO MOTU, Advocate for the petitioner and the PUBLIC PROSECUTOR for the respondent, the court passed the following:

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