Kerala High Court
V.Sivankutty vs K.C.Joseph on 25 July, 2015
Bench: Thottathil B.Radhakrishnan, Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937
Cont.Cas.(Crl.).No. 192 of 2016 (S)
------------------------------------
PETITIONER(S):
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V.SIVANKUTTY, AGED 60 YEARS,
MEMBER OF THE LEGISLATIVE ASSEMBLY,
S/O. M.VASUDEVAN PILLAI, MULLAKKAL HOUSE,
SUBASH NAGAR, PERUNTHANNI, THIRUVANANTHAPURAM.
BY ADVS.SRI.C.P.UDAYABHANU
SRI.R.MANOJ
RESPONDENT(S):
--------------
K.C.JOSEPH, AGED 79 YEARS,
S/O. K.M.CHACKO, PRESENTLY WORKING AS MINISTER FOR
PLANNING AND CULTURE,
STATE OF KERALA AND RESIDING AT KOWDIAR HOUSE,
VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN-695 001.
BY ADV. SRI.S.SREEKUMAR (SR.)
BY ADV. SRI.P.MARTIN JOSE
BY ADV. SRI.P.PRIJITH
BY ADV. SRI.THOMAS P.KURUVILLA
THIS CONTEMPT OF CASE (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 11-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Cont.Cas.(Crl.).No. 192 of 2016
APPENDIX
PETITIONER'S ANNEXURES
ANNEXURE A1 : COPY OF DIGITAL PAPER OF MATHRUBHUMI DATED
25.07.2015.
ANNEXURE A2 : TRANSLATION OF ANNEXURE A1.
ANNEXURE A2 : COPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENT
BEFORE THE ADVOCATE GENERAL, STATE OF KERALA IN SANCTION PETITION
NO.5/2015 DATED 31.01.2016.
(PRODUCED ALONG WITH REPLY AFFIDAVIT SUBMITTED BY THE PETITIONER,
DATED 29.02.2016)
THE FOLLOWING DOCUMENTS ARE PRODUCED BY THE PETITIONER ALONG WITH
I.A.NO.154 OF 2016:
ANNEXURE-A1 : COPY OF APOLOGY TENDERED BY THE RESPONDENT AS
PUBLISHED IN THE HINDU DAILY DATED 10.03.2016.
ANNEXURE-A2 : COPY OF INFORMATION SUBMITTED UNDER RULE 7 OF THE
CONTEMPT OF COURT (HIGH COURT OF KERALA) RULES, 1988 BY THE SECRETARY
OF THE ALL INDIA LAWYERS UNION TO THE HONOURABLE CHIEF JUTICE OF THE
HIGH COURT OF KERALA DATED 12.02.2016.
RESPONDENT'S ANNEXURES
NIL
//TRUE COPY//
PA TO JUDGE.
jg-29/12
'C.R.'
THOTTATHIL B.RADHAKRISHNAN &
SUNIL THOMAS, JJ.
....................................................................
COC (Crl.) No.192 of 2016
....................................................................
Dated this the 11th day of March, 2016.
J U D G M E N T
Thottathil B.Radhakrishnan, J.
1. This contempt of court case is registered and taken cognizance of, on the allegation that the respondent has committed criminal contempt as defined under Section 2(c)(i) of the Contempt of Courts Act, 1971, for short, `the Act'.
2.Consent of the Advocate General was not sought for by the petitioner before instituting the application which has generated these proceedings. Opportunity was given to the petitioner to obtain it. Because the proceedings before the Advocate General was apparently getting delayed, at least to some extent, for whatsoever be the reason therefor; and because this Court was cognizant of the fact that very many of the allegations and averments in this case involve statements touching the performance of the office of the Advocate General as well; it was decided that it is appropriate to look into the matter for suo motu COC(Crl.)192/16 -2- action, notwithstanding that the consent of the Advocate General was not available, though applied for by the petitioner. Accordingly, cognizance was taken and notice was issued to the respondent.
3.Attributes made against the respondent, beyond any shadow of doubt, fall within the ambit of the aforenoted provision relating to criminal contempt. There is no doubt about that. Hence, the inescapable consequence is that the respondent is liable to be punished under Section 12 of the Act, unless otherwise ordered by this Court.
4.On 16.02.2016, the date fixed for appearance, the respondent filed an affidavit sworn to on 13.02.2016 along with an application for adjournment and for exemption from personal appearance on that date. Though the matter stood adjourned with exemption from personal appearance for that day, the question of acceptability of the respondent's affidavit was considered and the following order was issued on that day:
COC(Crl.)192/16 -3- "1. When this matter is taken up today, Adv.P.Martin Jose is submitted to have entered appearance on behalf of the respondent contemnor. We have heard the submissions made by Senior Advocate Sri.S.Sreekumar on his behalf.
We have also heard Adv.C.P.Udayabhanu on behalf of the petitioner. We have also heard the learned amicus curiae, Sri.P.B.Krishnan.
2. The matter is posted today for personal appearance of the respondent. I.A.No.90 of 2016 is filed supported with an affidavit of the respondent Sri.K.C.Joseph who says that, being a Minister of the State, he has to attend the Kerala Legislative Assembly, which is in session. It is also stated that he is unable to leavecommitments, the assembly proceedings in view of his officialhas, including as Minister. He therefore, expressed his inability to appear before this Court today and has stated that he may be permitted to appear on any day after 25.02.2016, that is after the current session of the assembly. He has also stated in that affidavit that he has filed yet another affidavit before this Court tendering unconditional apology.
3. to theHaving above, requestbestowed absence of the respondent our anxious consideration in the backdrop of the facts noted we condone the on 16.02.2016 and direct that the matter may be listed at 3.30 p.m. on 01.03.2016 for the respondent to personally appear. The learned counsel appearing for him takes notice of such posting of this case.
We record the submission of the learned counsel appearing for the petitioner that the stage of trial not having commenced, he ought to have an opportunity to answer the affidavit stated to have been sworn to on 13.02.2016 and filed by COC(Crl.)192/16 -4- the respondent. The learned counsel appearing for the respondent will serve a copy of that affidavit on the learned counsel appearing for the petitioner today itself. The learned amicus curiae will also look into the affidavit sworn to by the respondent, which according to the respondent contains contempt committed by him.apologyhave gone his unconditional for the through that affidavit but wouldWedefer further examination of that affidavit, awaiting appearance of the respondent in person.
Post at 3.30 p.m. on 01.03.2016."
5.The impact that the facebook post made by the respondent had made on the judiciary as a whole and on a particular Judge personally, is nothing but slur. It is scandalous. It is clearly one that falls within the term 'criminal contempt' as defined in Section 2(c) of the Act, inasmuch as it is a publication which scandalizes and lowers the authority of this Court and, in particular, the Judge concerned. The scandalous remarks so made were in relation to a particular judicial proceeding as well. Hence, the publication of such material on the facebook, not only tends to interfere and obstruct the administration of justice but has also, definitely, interfered and obstructed the administration of justice in multifarious manners. There is no room for any doubt on that. COC(Crl.)192/16 -5- Therefore, we hold that the impugned publication by the respondent in his facebook page is an act which amounts to criminal contempt as defined in the Act.
6.As already noted, on the first date fixed for appearance, the respondent had tendered an affidavit sworn to by him on 13.02.2016, which, according to him, contains his unconditional apology for what he has done. Question then arose as to whether that could be accepted as an apology in terms of the provisions of the Act and the Contempt of Courts (High Court of Kerala) Rules, for short, 'the Rules'. A further opportunity was taken by the respondent and an additional affidavit sworn to by him on 26.02.2016 was placed on record. The further materials placed on record show that the respondent had put a post in his facebook page expressing his regret and the fact that he had tendered apology for the publication of the incriminating material. Here, we may also note that immediately following the publication of the incriminating post, there appears to have been some opposition in the public domain and the respondent had withdrawn the incriminating material. The learned Senior COC(Crl.)192/16 -6- Advocate appearing for the respondent brought to our notice that the print media had also widely reported the fact that the respondent had put his second facebook post whereby the regret and repentance expressed by him has been brought to the notice of those who would have seen the first facebook post which is the incriminating material for the purpose of this case.
7.The question for determination is as to whether the aforenoted two affidavits of the respondent, taken together, deserve acceptance as apology, sufficient enough to treat that he has purged himself of the contempt of court committed by him and thereby, to have the proceedings against him dropped. On this issue, we heard the learned Senior counsel for the respondent and the learned amicus curiae. We also permitted the petitioner to place submissions on his behalf through his learned counsel; though having taken cognizance, the matter is entirely one as between the court and the contemnor and the acceptance of the affidavit by the court does not depend upon the volition of opinion of the petitioner who ignited the proceedings as his role is limited to putting the process on roll.
COC(Crl.)192/16 -7-
8.Section 12 of the Act prescribes punishment for contempt of court. The proviso to sub-section (1) of Section 12 enjoins that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Immediately we have looked at Rule 14 of the Rules, which deals with hearing of the case and trial. It is classified into five components. Of them, the opening component in clause (a) of Rule 14 is that the Court may proceed to pass such orders as it deems fit, if the respondent has tendered an unconditional apology, after admitting that he has committed the contempt. The other clauses of that Rule take care of what would happen if there is no admission by the respondent that he has committed contempt. The specific insistence made on behalf of the petitioner is that the two affidavits of the respondent have been made without the respondent's admission that he has committed contempt. We caution ourselves that the Rules are framed in terms of the authorisation as per the primary legislative provision, which is Section 23 of the Act and also with reference to the powers under Articles 215 and 225 of the Constitution of India. COC(Crl.)192/16 -8- We have, therefore, to make a meaningful approach of interpretation of Rule 14 of the Rules and Section 12 of the Act, which, as already noted, has a proviso to sub-section (1), which authorises the court to discharge the accused or to remit the punishment awarded on apology being made to the satisfaction of the court. Obviously therefore, the authority of the court to accept an apology, if it is to its satisfaction; spreads till, or even after, the imposition of sentence, even in a criminal contempt case, which is tried and has ended up in conviction. Within the sweep of that provision, apology could be tendered when one repents even during the sufferance of the sentence. This is the statutory play of the parameters of the proviso to Section 12(1) of the Act.
9.But here, the apology is not something which is to be accepted as if it is one tendered for the mere asking or merely as a sham and make believe. The explanation occurring after sub-section (1) of Section 12 clearly says that while an apology shall not be rejected merely on the ground that it is qualified or conditional, it has to be considered if the accused makes it bona fide. Therefore, the COC(Crl.)192/16 -9- crux and cream of every apology that is tendered to purge oneself of contempt of court and to seek even discharge or punishment even in cases where the case has been put to trial is to demonstrate to the satisfaction of the court that the linen the contemnor made dirty has been washed and cleansed to the extent that the court is satisfied that the slur and the dirt is removed and the magnificent edifice of justice will stand glowing with all its vigour unscamped by any dirty etchings attempted by the contemnor.
10.With the aforesaid in view, the learned amicus curiae is justified in submitting that what is now required is for the court to make a balanced appreciation of both the affidavits to find for itself whether its conscience would be satisfied that the contemnor has purged himself of the contempt that he has committed. The question whether he admits of having committed contempt is also a matter which could be in the realm of the expressive usage of the language in which the affidavits of apology are couched. On a reading of the affidavit sworn to by the respondent contemnor on 13.02.2016 and the additional affidavit sworn to by him on COC(Crl.)192/16 -10- 26.02.2016, as a whole, and in particular, the respective third paragraphs of both those affidavits, we are satisfied that the contemnor stands before us even today admitting the wrong committed by him and expressing his regret and repentance for the same. The respondent, going by the materials on record, is 68 years old. He is deeply involved in political activities touching the life of the people of Kerala. He is stated to be a member of the Bar. He is, as of now, a Minister in the State Cabinet. Though we have to necessarily impute him with a high level of responsibility as a person of the masses, we have also to note that the wrong committed by him was not an abrupt activity; a momentary one because the process of uploading a post in the facebook though could be triggered by emotions need not conclude merely on emotions, particularly when it comes from responsible elder citizenry. We say this more importantly because, to like or dislike the facebook post is also something which is a matter of daily occurrence and the coming generations of citizens, particularly citizens throughout the Universe not merely Indian citizens have to get good guidance from the elders of the society.
COC(Crl.)192/16 -11-
11.On a complete consideration of the entire conspectus of the facts of the case and the contents of the affidavits of the respondent, we are persuaded to hope that in future conduct, the respondent will necessarily dissuade himself from repeating such instances. Taking that also into consideration, we take a lenient view and accept his apology as a bona fide unconditional apology rendered after admitting the level of contempt that he has committed. Further proceedings in this case are, therefore, dropped. Before parting, we place on record the abundant efforts taken and the submissions made, by Adv.P.B.Krishnan, who placed before us different facets and ramifications of the factual situations as well as the legal issues and maintained a very balanced presentation expected of an amicus curiae.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) (SUNIL THOMAS, JUDGE) jg-11/3