Madras High Court
S.Mukanchand Bothra vs Vairamuthu Ramaswamy on 22 January, 2016
Author: R.Sudhakar
Bench: R.Sudhakar, P.N.Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 22-01-2016 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR AND THE HONOURABLE MR. JUSTICE P.N.PRAKASH CONTEMPT PETITION NO. 2486 OF 2015 S.Mukanchand Bothra .. Petitioner - Vs - Vairamuthu Ramaswamy .. Respondent Contempt Petition filed under Sections 10 & 12 of the Contempt of Courts Act to take action on its own motion against the respondent for having committed criminal contempt under Section 15 (1) of the Contempt of Courts Act. For Petitioner : Mr. S.Mukanchand Bothra, Party-in-Person For Respondent : Mr.A.L.Somayaji, AG Mr. R.Krishnamurthy, SC, for M/s.C.Uma & N.R.R. Arun Natarajan Reserved On Pronounced On 08-01-2016 22-01-2016 ORDER
R.SUDHAKAR, J.
This petition has been filed by the petitioner, party-in-person, praying this Court to take action on its own motion against the respondent for having committed criminal contempt under Section 15 (1) of the Contempt of Courts Act.
2. The petitioner, a film financier by profession, has filed this contempt petition stating that the respondent/contemnor has committed criminal contempt as defined under Section 2 (c) of the Contempt of Courts Act, 1971 and, therefore, pleaded that this Court should, of its own motion, take action against the respondent for the act of criminal contempt, by way of his speech, which, according to the petitioner, scandalizes or tends to scandalize or lowers or tends to lower the authority of any court or prejudices or interferes or tends to interfere with the due course of any judicial proceedings or interferes or tends to interfere with or tends to obstruct the administration of justice in the eyes of the public.
3. The cause for this complaint by the petitioner is that on 12.9.2015 in a function organised to commomerate the birth centenary of Hon'ble Mr. Justice P.S.Kailasam, held at Vidyodaya Auditorium, T.Nagar, Chennai, which function was organised for the release of commemoration stamp in honour of Late Justice P.S.Kailasam, the respondent was one of the guests and he was called upon to address the gathering in the presence of the Hon'ble Chief Justice of the Madras High Court. The other persons, who were present on the dais were one Mr.Sivaji Rao Gaikwad @ Rajinikanth, Mr.Nallikuppusamy Chettiar, Mr.P.Chidambaram, former Finance Minister of India and Hon'ble Mr. Justice P.R.Gokulakrishnan, Chief Justice (Retd.), Gujarat High Court. The respondent, it appears, has made a speech in Tamil, which for the sake of better clarity, is extracted hereinbelow :-
rK:fj;jpd; Kf;fpa Kf';fs;. ePjpaurh;fs;. ehd; ghh;j;J tpaf;fpwth;fs;. gHf Koahjth;fs;. ,g;nghJ kl;Lnk mwpKfkhdth;fs; gyngh; ,';fpUf;fpwPh;fs;/ rK:fj;ij ePjpj;Jiw ftdpj;Jf;bfhz;oUg;gJ nghynt ePjpj;Jiwia rK:fk; ftdpj;Jf; bfhz;oUf;fpwJ vd;gij kwe;JtplhjPh;fs;/ kpf Kf;fpakhff; ftdpj;Jf; bfhz;oUf;fpwJ rK:fk;/ ePjpj;JiwapDila epfH;fhyj;ijg; gw;wp ek;Kila ePjpaurh; nfhFyfpUc;&zd; ,jaj;jpd; xU gFjp bte;J brhy;yptpl;Lg; nghdhnu mjw;F kUe;J nghl ntz;oa fhyfl;lj;jpy; ehkpUf;fpnwhk;/ cah;e;jthfs;. tz';fj; jf;fth;fs;. fz;Qqf;Fj; bjhpe;j flt[s;fshfg; gy ePjpaurh;fs; thH;e;jhh;fs;. thH;e;Jbfhz;Lk; ,Uf;fpwhh;fs;/ mth;fSf;bfy;yhk; vd; tzf;fk;/ Mdhy; eh';fs; nfs;tpg;gLfpw rpy bra;jpfs; v';fis mr;RWj;Jfpd;wd/ ehl;oy; ehd;F Jiwfs; kl;Lk; fyg;glkpy;yhky; ,Ue;jhy; me;j rK:fk; epiy bgWk;/ ePjpj;Jiw. fhty; Jiw. fy;tpj; Jiw. kUj;Jtj;Jiw ,e;j ehd;F JiwfspYk; fs';fk;. fiw Vw;glhjtiuf;Fk; ,e;j rK:fj;jpy; ek;gpf;if ,Uf;Fk;/ rpy ePjpgjpfs; ,Uf;fpwhh;fshk;/ bkhj;jj;Jf;F uhkd;. uhkhtjhukhf thH;fpwhh;fs;/ fpl;nl nghdhy; beUg;g[/ beUg;ghf thH;fpwhh;fs;/ mtiug; gw;wp xd;W brhd;dhy; brhy;fpw eh vhpe;J tpLk; vd;W brhy;fpwhh;fs;/ ,e;j neh;ikia mth;fs; fl;of; fhf;fpwhh;fs; Xa;t[ bgWtjw;F MWkhjk; Kd;g[ tiuf;Fk;/ Xa;t[ bgWtjw;F MWkhjj;jpw;F Kd;g[ xl;Lbkhj;jkhfr; nrh;j;J itj;jpUf;fpw neh;ik xU ehs; tpw;fg;gl;lhy; ,e;j njrk; vd;dthFk;> re;njfg;glKoahj jsj;ijj; jahhpj;Jf; bfhz;L re;njfj;jpw;F mg;ghw;gl;l jtWfisr; bra;Jtpl;Lg; nghfpwth;fis ehk; vd;d brhy;yp miHg;gJ> ePjpj; Jiwia rK:fk; fz;fhzpj;Jf; bfhz;oUf;fpwJ/ ePjpaurh; gp/v!;/ifyhrk; mth;fspd; epidt[fs; ekf;Fj; Jizahfl;Lk;/ me;jg; bgUkfdpd; neh;ik ePjpj;Jiwf;F Kj;jpiuahfl;Lk;/ mtUila gz;ghLk; ekf;Fj; JizahapUf;fl;Lk;/
4. The translated version of the above speech of the respondent, for better appreciation of the case, is also extracted hereunder :-
The important faces in the society, Judges, whom I look at in awe, one cannot interact with them, I have just been introduced to them, many such people are here.
We should not gorget that just as judiciary is watching the society, society is watching the judiciary. Society is keenly watching. The current plight of the judiciary was pointed out by Justice Gokulakrishnan with a wounded heart. We live at a time when we have to apply a balm to that.
Great men, people who have to be saluted, many judges were like living gods, many live today. My salutation to them. However some of the information that we hear are causing apprehension.
If 4 departments of the country are not polluted the society will survive. Judiciary, Police, Education and Health. If there is no taint or stain in these four departments, there will be confidence in the society.
There are some judges, completely like Raman, they live like Rama Avatar. Approach them, they are like fire. They say that if any remark is made about him, our tongue will be singed. They maintain this integrity until 6 months before their retirement. If, 6 months before retirement, one day they sell their integrity accumulated over the years what will happen to this country?
What shall we call persons who after having built an unblemished base commit mistakes beyond suspicion? Society is watching the judiciary.
Let the memories of Justice P.S.Kailasam be our guide. Let the integrity of the great man be the hall mark of the judiciary. Let his character be our guide.
5. The petitioner contends that the speech by the respondent caused a stir and flutter among the public and the same has created a doubt on the integrity and purity of the Judges in the eyes of the public. It also destroys the faith of the public on the judicial system with specific reference to lack of integrity of Judges, at the eve of their retirement. Such a statement, made by the respondent, in public, undermines the confidence reposed by the public on the judiciary. It also caused a slur on the Judges, and brought down the dignity of the Court. It is, therefore, a contemptuous act, for which the respondent should be proceeded in terms of Section 2 (c) of the Contempt of Courts Act.
6. When this petition was filed, the Registry raised an objection as to how the petition is maintainable in terms of Section 15 of the Contempt of Courts Act, without the permission of the learned Advocate General. The petitioner-in-person, re-presented the petition on 25.9.15 with an endorsement that the Hon'ble High Court has suo motu powers to take action on its own motion and requested to post the case for orders.
7. Accordingly, an office note dated 7.10.15 was submitted by the Registry requesting the Court for orders as to whether the matter can be listed before the Court for 'Maintainability. On 12.10.15, the Division Bench consisting of S.K.Agnihotri and K.K.Sasidharan, JJ., directed the matter to be listed under the head of 'Maintainability'. Thereafter, the said Bench, on 13.10.15, passed the following order in Contempt Petition DSR No.38386 of 2015 :-
The Registry is directed to number the contempt petition, subject to maintainability.
8. Thereafter, the same Bench, on 28.10.15, passed the following order :-
The petitioner-in-person, stating to be a law abiding citizen concerned with the dignity and decorum of the Court, has come up with this contempt petition alleging that the alleged contemner, viz., Vairamuthu Ramaswamy, in a speech, has made certain scandalous remarks to the extent that the Judges fail to maintain integrity for last six months prior to their retirement. The petitioner's averment in the affidavit to that effect reads as under :-
x x x x x x It is only if the four departments function without any bad remarks that the country can flourish. They are Judiciary, Police, Education and Health. So long there is no black mark in these departments the society will have confidence. There are certain Judges who are like Lord Rama. They are like fire. They live like fire. If somebody speaks ill of them their tongue will get burnt. They maintain this integrity till six months of retirement. If that integrity maintained all the time till six months prior to the retirement is sold, what will happen to the country. If they create a base which cannot be doubted and commit mistakes which are beyond doubt what we can call to shut it. The Judiciary is being watched by the society. Issue statutory notice. Let notice be issued to the learned Advocate General.
9. Thereafter, the matter was listed before this Bench on 25.11.15, on which date the respondent appeared before this Court and his presence for the future hearings was dispensed with. This Bench entertained a doubt as to whether it should go before the same Bench, which issued the notice. Thereafter, as per the directions of the Hon'ble Chief Justice dated 30.11.15, it was directed to be placed before this Bench. Accordingly, the matter was listed on 11.12.15 before this Bench.
10. In view of the earlier orders passed by the previous Bench issuing statutory notice to the contemnor and also directing issuance of notice to the learned Advocate General, we thought it fit to request the learned Advocate General, to whom notice was issued, to address the Court. Learned Advocate General sought time to give his response and at his request, by order dated 21.12.15, the matter was adjourned to 6.1.16.
11. On 6.1.16, learned Advocate General placed before the Court the decision of the Hon'ble Supreme Court in Pritam Pal Vs High Court of Madhya Pradesh (1993 Supp. (1) SCC 529). Learned Advocate General stated that if it is a case of suo motu contempt by the Court, the consent of the Advocate General was not necessary. He referred to the following portions of the order of the Hon'ble Supreme Court in Pritam Pal's case (supra) :-
13. As rightly pointed out by the High Court, these contentions in our opinion do not merit any consideration since every High Court which is a Court of Record is vested with `all powers' of such Court including the power to punish for contempt of itself and has inherent jurisdiction and inalienable right to uphold its dignity and authority.
14. Whilst Article 129 deals with the power of the Supreme Court as Court of Record, Article 215 which is analogous to Article 129 speaks of the power of the High Court in that respect.
15. 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 contemner to defend himself. But the procedure has now been prescribed by Section 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 appropriate Legislature under Entry 77 of List I and Entry 14 of List III in exercise of which the Parliament has enacted the Act 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 Articles 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, Section 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 Articles 129 and 215 cannot be curtailed by anything in the Act of 1971. The above position of law has been well settled by this Court in Sukhdev Singh Sodhi v. The Chief Justice and Judges and Judges of the PEPSU High Court, [1954] SCR 454 holding thus:
"In any case, so far as contempt of a High Court itself is concerned, as distinct from one of a subordinate Court, the Constitution vests these rights in every High Court, so no Act of a legislature could take away that jurisdiction and confer it afresh by virtue of its own authority."
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24. From the above judicial pronouncements of this Court, it is manifestly clear that the power of the Supreme Court and the High Court being the Courts of Record as embodied under Articles 129 and 215 respectively cannot be restricted and trammelled by any ordinary legislation including the provisions of the Contempt of Courts Act and their inherent power is elastic, unfettered and not subjected to any limit. It would be appropriate, in this connection, to refer certain English authorities dealing with the power of the superior Courts as Courts of Record.
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31. It is an outstanding characteristic of the law of contempt both in England and Scotland that it makes use of a particular and summary procedure which is unknown to any other branch of those countries. In England, this summary procedure began to be adopted by the common law Courts inspite of trial by jury and that the trial by jury for contempt has steadily declined and has now fallen entirely into disuse. In other words, consequent upon the use of the summary procedure in England, a person alleged to be in contempt does not enjoy the benefit of some of the safeguards of the ordinary criminal law such as those provided by the Judges' Rules in England and Wales and the right to trial by jury.
32. Rule 42 of the Federal Rules of Criminal Procedure of United States reads that ``A criminal contempt may be punished summarily if the Judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court."
33. In Ex parte Terry, 128 U.S. 289, 307, 9 S.Ct. 77, 80 (1888) and in Matsusow v. United States, 229 F.2d 335, 339 (5th Cir. 1956), it has been ruled that "If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned at the discretion of the judges, without any further proof or examination."
34. In the Contempt of Court by Oswald, the following passage relating to the summary power of punishment is found:
"The summary power of punishment for contempt has been conferred on the courts to keep a blaze of glory around them, to deter people from attempting to render them contemptible in the eyes of the public. These powers are necessary to keep the course of justice free, as it is of great importance to society."
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41. The position of law that emerges from the above decisions is that the power conferred upon the Supreme Court and the High Court, being Courts of Record under Articles 129 and 215 of the Constitution respectively is an inherent power and that the jurisdiction vested is a special one not derived from any other statute but derived only from Articles 129 and 215 of the Constitution of India (See D.N. Taneja v. Bhajan Lal, (1988) 3 SCC 26) and therefore the constitutionally vested right cannot be either abridged by any legislation or abrogated or cut down. Nor can they be controlled or limited by any statute or by any provision of the Code of Criminal Procedure or any Rules. The caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly, that the procedure to be followed should be fair and that the contemner should be made aware of the charge against him and given a reasonable opportunity to defend himself.
12. Learned Advocate General submitted that since the consent of the Advocate General was not obtained before filing of the contempt petition, it should be deemed that the Court had taken suo motu proceedings.
13. On the contrary, Mr. R.Krishnamurthy, learned senior counsel appearing for the contemnor, while relying upon the judgment in Pritam Pal's case (supra) also placed reliance on the following decisions :-
(i) S.K.Sarkar, Member, Board of Revenue, U.P. - Vs Vinay Chandra Misra - 1981 (1) SCC 436;
(ii) J.P.Parashar, Advocate & Ors. - Vs Prasant Bhushan, Advocate & Ors. - 2001 (6) SCC 735;
(iii) Bal Thackrey Vs Harish Pimpalkhute & Ors. - 2005 (1) SCC 254; and
(iv) Bijayini Dash & Ors. - Vs Loknath Mishra & Ors. - 2005 (9) SCC 194.
14. According to the learned senior counsel appearing for the respondent, it was primarily submitted that the respondent has great respect for the Court and that his speech was not intended to scandalize or lower the authority of any court or to prejudice or interfere with due course of any judicial proceedings or interfere and obstruct the administration of justice and that he is a law abiding citizen and he has absolutely no intention to malign the judiciary or the Judges. Affidavit dated 12.12.2015 has been filed by the respondent in which it is stated as hereunder :-
The respondent submits that he has not committed any act of contempt, much less criminal contempt within the meaning of Sec. 2 (c) of the Contempt of Courts Act, 1971. He has filed a detailed counter affidavit explaining that his speech at the centenary celebrations of Late Justice P.S.Kailasam cannot by any stretch of imagination be construed as scandalizing or tending to scandalize or lowers or tends to lower the authority of any court or prejudices or interferes or tends to interfere with due course of any judicial proceedings or interferes or tends to interfere with or tends to obstruct the administration of justice in any other manner amounting to criminal contempt within the meaning of Section 2 (c) of the Contempt of Courts Act, 1971. Nevertheless, in deference to the fact that this Hon'ble Court has found it appropriate to issue notice and if this Hon'ble Court considers that by delivering the speech at the centenary celebrations of Late Justice P.s.Kailasam the respondent is guilty of criminal contempt the respondent tenders an apology for any unintended hurt that his words may have caused and which may be regarded as amounting to contempt of Court. The apology being tendered is genuine, bonafide and in good faith, since it is the respondent's firm belief that, above all, the majesty of this Hon'ble Court should be upheld.
15. Before adverting to the issue on hand, it would be useful to have an insight on the law laid down by the Supreme Court in matters relating to criminal contempt of Court in the following decisions relied on by the learned senior counsel for the respondent.
(a) In Pritam Pal Vs State of Madhya Pradesh (1993 Supp. (1) SCC 529), the inherent powers of the High Court to initiate contempt has been dealt with in detail, the relevant portions of which have already been extracted above.
(b) In S.K.Sarkar, Member, Board of Revenue, U.P., Lucknow Vs Vinay Chandra Misra (1981 (1) SCC 436), the discretionary power of the High Court to take suo motu contempt proceedings in the absence of the consent of the Advocate General has been dealt with. The Supreme Court held as under :-
14. Article 215 of the Constitution provides : "Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself." Entry 14 of List III of the Seventh Schedule is to this effect : "Contempt of Court, but not including contempt of the Supreme Court." A provision analogous to Article 215 is Article 129 which preserves to the Supreme Court all the powers of a Court of Record including the power to punish for contempt of itself. Entry 77 of List I of the Seventh Schedule is relatable to Article 129.
15. Articles 129 and 215 preserve all the powers of the Supreme Court and the High Court, respectively, as a Court of Record which include the power to punish the contempt of itself. As pointed out by this Court in Mohd. Ikram Hussain v. The State of U.P., there are no curbs on the power of the High Court to punish for contempt of itself except those contained in the Contempt of Courts Act. Articles 129 and 215 do not define as to what constitutes contempt of court. Parliament has, by virtue of the aforesaid Entries in List I and List III of the Seventh Schedule, power to define and limit the powers of the courts in punishing contempt of court and to regulate their procedure in relating thereto. Indeed, this is what is stated in the Preamble of the Act of 1971.
16. Section 2(c) of the Act defines `criminal contempt". Section 9 emphasises that "nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not be so punishable apart from this Act". Section 10 runs as under -
"Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself."
Then, there is a proviso which is not material for our purpose. The provision in Section 10 is but a replica of Section 3 of the 1952 Act. The phrase "courts subordinate to it" used in Section 10 is wide enough to include all courts which are judicially subordinate to the High Court, even though administrative control over them under Article 235 of the Constitution does not vest in the High Court. Under Article 227 of the Constitution the High Court has the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The Court of Revenue Board, therefore, in the instant case, is a court "subordinate to the High Court" within the contemplation of Section 10 of the Act.
17. Section 14 provides for the procedure where contempt is committed in the face of the Supreme Court or a High Court. Section 15 is very material for our purpose. It provides in regard to cognizance of `criminal contempt' in cases other than those falling under Section 14. The material portion of Section 15 reads thus :
"(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.
(c) In J.R.Parashar, Advocate & Ors. - Vs Prasant Bhushan, Advocate & Ord. (2001 (6) SCC 735), the Supreme Court dealt with the principles on the law of contempt vis-a-vis the power of the Courts to initiate contempt proceedings. The Supreme Court held as under :-
As far as the procedure is concerned at this stage we note only those principles which are relevant for a decision on the issues involved in this case and start with the initiation of proceedings. Sections 14 and 15 of the 1971 Act both deal with the procedure for taking cognizance in cases of criminal contempt. In cases where the contempt is in the face of the Supreme Court or High Court, the Court acts suo motu. In cases of criminal contempt other than a contempt referred to in Section 14, the Supreme Court or the High Court may under Section 15(1) 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, (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.
* * * * * * * * Explanation - In this section,the expression Advocate-General means,-
(a) In relation to the Supreme Court, the Attorney General or the Solicitor General:
21. The underlying rationale of clauses (a), (b) and (c) 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 presence, it is necessary to have the allegations screened by the prescribed authorities so that the Court is not troubled with frivolous matters. The Sanyal Committee which had been set up in 1961 to consider and suggest reforms to the existing law of contempt and whose recommendations formed the basis for the present Act, explained the need for this screening:
In the case of criminal contempt, not being contempt committed in the face of the Court, we are of the opinion that it would lighten the burden of the court, without in any way interfering with the sanctity of the administration of justice, if action is taken on a motion by some other agency. Such a course of action would give considerable assurance to the individual charged and the public at large.
(d) In Bal Thackrey Vs Harish Pimpalkhute & Ors. (2005 (1) SCC 254), the Supreme Court held as under :-
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., Lucknow v. Vinay Chandra Misra, [(1981) 1 SCC 436] to the following effect:
"Section 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 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."
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16. The whole object of prescribing procedural mode of taking cognizance in Section 15 is to safeguard the valuable time of the court from being wasted by frivolous contempt petition. In J.R. Parashar's case (supra) it was observed that underlying rational of clauses (a), (b) and (c) of Section 15 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 Court is not troubled with the frivolous matters. To the similar effect is the decision in S.R.Sarkar's case (supra).
(e) In Bijayini Dash & Ors. - Vs Loknath Mishra & Ors. (2005 (9) SCC 194), the Supreme Court, following its earlier decisions in State of Kerala Vs M.S.Mani (2001 (8) SCC 82) and Bal Thackrey's case (supra), held 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 under Section 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 Vs M.S. Mani and Bal Thackrey Vs Harish Pimpalkhute wherein it is held that prior written sanction of the Advocate General under Section 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 courts Act or under Article 215 of the Constitution. 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 judgment 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.
16. Keeping the above well settled principles and the law laid down by the Supreme Court on the subject of criminal contempt in mind, this Court proceeds to analyse the issue.
17. At the threshold this Court does not want to dwell into the nature of speech made by the respondent or the imputations that is sought to be attributed to the said speech. This Court is primarily concerned with the issue as to the maintainability of the contempt petition. Learned senior counsel for the contemnor drew the attention of this Court to the order dated 13.10.2015, and the subsequent order dated 28.10.2015, whereby this Court ordered issuance of notice to the Advocate General. In fine, the learned senior counsel submitted that the Court did not initiate suo motu proceedings against the contemnor, which is evident from the issuance of notice to the Advocate General, the petition filed without the consent of the Advocate General is not maintainable.
18. Heard the learned Advocate General, Mr.R.Krishnamurthy, learned senior counsel appearing for the contemnor and the petitioner/party-in-person and perused the materials available on record.
19. The inherent powers of the High Court to deal with contempt by itself has been time and again emphasised in all the decisions stated above and that such power is not restricted by any ordinary legislation, including Contempt of Courts Act and the Code of Criminal Procedure. All that the decisions of the Supreme Court reiterate is that the procedure followed in exercise of this power, which is summary in nature, should be fair and should afford reasonable opportunity to the contemnor to defend himself. In the present case, the petitioner has not obtained the consent of the Advocate General to initiate criminal contempt against the respondent, but has requested the Court to initiate the contempt on its own motion.
20. The point that arises for consideration in the present contempt petition is :-
Whether the present proceeding is initiated as contempt proceeding under Section 15 of the Contempt of Courts Act at the instance of the petitioner or in exercise of suo motu powers of the High Court under Article 215 of the Constitution of India?
21. Mr.R.Krishnamurthy, learned senior counsel appearing for the respondent was at pains to point out that the notice was issued as a notice in the Contempt Petition No.2486 of 2015 at the behest of the petitioner, a private individual. It is further submitted by the learned senior counsel for the respondent that the notice, that was received by the respondent, does not state that it is a Suo motu contempt petition. It is therefore the submission of the learned senior counsel that the contempt notice having been issued at the behest of any other person as defined under Section 15 (1) (b) of the Contempt of Courts Act, the law requires the consent of the Advocate General as a condition precedent, and in the absence of such consent, the contempt petition itself is not maintainable. The above plea is sought to be emphasized by the decisions of the Hon'ble Supreme Court in Bal Thackrey's case & Bijayini Dash's case (supra).
22. Keeping the above submissions advanced by the learned senior counsel for the contemnor in mind, a perusal of the orders passed by this Court on 13.10.15 would indicate that the contempt was directed to be numbered subject to maintainability, which clearly means that there was an element of doubt as to whether the contempt petition itself is maintainable or not. Therefore, the Court, of its own motion, had not taken the petition as a suo motu proceedings. In such view of the matter, the record of proceedings of this Court reveals that, vide order dated 28.10.15, when statutory notice was issued to the contemnor, notice was also directed to be issued to the learned Advocate General, which clearly portrays the mind of the Court as to the necessity of the consent of the Advocate General.
23. A reading of the orders dated 13.10.15 and 28.10.15, passed by this Court makes it clear that the Court was not exercising suo motu powers to entertain the petition. When the Court has not initiated suo motu proceeding and the same being substantiated by the record of proceedings, necessarily this Court has to hold that the proceeding is initiated at the behest of any other person as defined under Section 15 (1) (b) of the Contempt of Courts Act. In such view of the matter, the consent of the learned Advocate General becomes mandatory as has been held by the Supreme Court in Bal Thackrey's case & Bijayini Dash's case (supra).
24. Since the Court has not taken suo motu proceedings and in the absence of consent of the Advocate General, which is a condition precedent for entertaining such a petition, as has been held by the Supreme Court in a catena of decisions, we have no hesitation in holding that the contempt petition is not maintainable.
25. Even assuming that, in the absence of consent of the learned Advocate General, statutory notice was issued and, therefore, the petition will automatically take the colour of suo motu proceedings, this Court has gone through the speech of the respondent and the affidavits dated 12.11.2015 filed by him, the relevant portion of which has already been extracted above. We find that the speech is a general statement made by the respondent and by no means could it be termed that the same was intended to malign a particular individual or institution, viz., the Judges or the Judiciary, but only an expression of the view that the society is watching the Judiciary, the watch-dog of the democratic system, with great respect and reverence and that it will hold the scales of justice aloft.
26. Further, as noted above, the respondent has clearly stated that he has absolute respect for the Judiciary and an apology has also been tendered by the respondent for the unintended hurt that his words may have caused, which shows that he has no disrespect for the institution as such and he holds the institution in high respect. The said apology is also taken on record.
27. The contempt petition stands dismissed with the sagely remarks of the Supreme Court in In re Anil Panjwani (2003 AIR SCW 2809) :-
The dignity of the ocean lies not in its fury capable of causing destruction, but in its vast expanse and depth with enormous tolerance. (R.S.J.) (P.N.P.J.) 22-01-2016 Index : Yes / No Internet : Yes / No GLN R.SUDHAKAR, J.
AND P.N.PRAKASH, J.
GLN Pre-Delivery Order in CONT. PTN. NO.2486 OF 2015 Delivered on 22-01-2016 SUB APPLN. NO. 919 OF 2015 IN CONT. PTN. NO.2486 OF 2015 R.SUDHAKAR, J.
AND P.N.PRAKASH, J.
This application has been filed by the petitioner/party-in-person to implead in the above contempt petition No.2486 of 2015 in order to punish the respondent u/s 2 (c) of the Contempt of Courts Act, 1971.
Though this application has been filed with the above stated prayer, this Court is not inclined to entertain this petition, as this Court has decided the main petition itself, viz., Contempt Petition No.2486/2015, filed by the petitioner and has held that the said petition is not maintainable.
In such view of the matter, this application for impleadment is accordingly dismissed.
(R.S.J.) (P.N.P.J.)
-01-2016
GLN