Kerala High Court
P.Rahim vs M.V.Jayarajan on 12 October, 2010
Equivalent citations: AIR 2011 KERALA 12, (2011) 1 RECCRIR 168 (2010) 4 KER LT 286, (2010) 4 KER LT 286
Author: J.Chelameswar
Bench: J.Chelameswar, A.K.Basheer, K.M.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
UNNUMB.Con.Case(C).No. 19253 of 2010()
1. P.RAHIM
... Petitioner
Vs
1. M.V.JAYARAJAN
... Respondent
For Petitioner :SRI.N.DHARMADAN (SR.)
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice K.M.JOSEPH
Dated :12/10/2010
O R D E R
J.Chelameswar, C.J.,
A.K.Basheer &
K.M.Joseph, JJ.
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Cont. Case (C) No. of 2010
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Dated this the 12th day of October, 2010
ORDER
J.Chelameswar,C.J.
This matter is listed before us pursuant to an order passed by a Division Bench of this Court, to which one of us (J.Chelameswar,C.J.) is a member.
2. The above-mentioned order came to be passed by the Court pursuant to a note made by the Registry dated 2.7.2010 in an un-numbered contempt case. The said contempt case is filed with a prayer as follows:
"The petitioner only begs leave to submit that this is an eminently fit case for proceeding against the 1st respondent under the Contempt of Court Act notwithstanding the absence of Advocate General's consent. In case it is found that consent of the Advocate General is necessary to maintain this petition suo motu contempt action may be initiated against the 1st respondent or permission may be granted to the petitioner for moving for consent of the Advocate General.
The petitioner most respectfully prays that 1st respondent may be punished for the Contempt of Court committed by him by the imposition of imprisonment as provided for under Sec.12 of the Act".
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3. On receipt of the papers, the Registry entertained certain doubts regarding the maintainability of the contempt case. Relevant for the present purpose is -
(i) whether a contempt case such as the one sought to be presented before this Court, which is not either moved by the Advocate General or by a person after duly obtaining consent of the Advocate General can be placed before the High Court on the judicial side or should it be considered by the Chief Justice on the administrative side as opined by a Division Bench of this Court in its order dated 19.02.2007 in an un-numbered Cont.Case (Crl.) of 2007 = 2007 (1) KLT 897 [One Earth One Life v. Sindhu Joy] ;
(ii) whether it is competent for the Chief Justice or a Judge nominated by him thereupon to take a decision whether a contempt case should be registered and placed before the appropriate Bench for preliminary hearing; or
(iii) whether the Chief Justice is required to cause the matter to be placed before the Full Court for its opinion as to whether a suo motu criminal contempt case is to be initiated on the basis of such papers as is opined by another Division Bench of this Court in Suo Motu Contempt [2009 (1) KLT 695].
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4. In the light of the said doubt expressed by the Registry, the Division Bench also noticed that another decision of this Court reported in Sukumaran v. Jacob [1986 KLT 32 (DB)] was also not noticed by the Division Bench in deciding 2009 (1) KLT 695 and, therefore, by the order dated 3.8.2010 thought it fit that the matter be considered by a Full Bench of this Court, to have an authoritative pronouncement.
5. The brief factual background in which all these questions arise is as follows: The petitioner is a lawyer practicing in Thiruvananthapuram Courts in the State of Kerala. One Shri.M.V.Jayarajan, who is a former Member of the Legislative Assembly of Kerala, is alleged to have made certain objectionable speech against a judgment of this Court and a specific attack on two sitting Judges of this Court who authored the said judgment. The alleged speech by the above-mentioned Mr.Jayarajan, it appears, is published in two vernacular dailies, called "Malayala Manorama" and "Mathrubhoomi" dated 27.06.2010. It is also alleged in the petition that the alleged utterances are also telecast through visual media. The Editors of the newspapers and the Companies responsible for the above-mentioned telecast are also sought to be brought in as Cont.Case (C).No. .... of 2010
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respondents to this proceedings. The substance of the above petition is that the utterances made by the above-mentioned Mr.Jayarajan and the publication of the same is "deliberate and wilful interference in the free flow of justice" and constitutes contempt of Court, punishable both under Sections 14 and 15 of the Contempt of Courts Act, 1971 (70 of 1971).
6. Heard the learned Senior Counsel for the petitioner Shri.N.Dharmadan and the learned Advocate General Shri.C.P.Sudhakara Prasad.
7. A number of decisions are referred to by the counsel appearing on either side with a view to assist this Court in arriving at an exact legal position in the background of the current controversy. We shall refer in detail only to some decisions dealing with the history of the law of contempt, nature of the power to punish for contempt under Article 215 and the powers of the Courts of record, etc., which we think are necessary in the context of the question referred to this Full Bench.
8. At the outset, we must mention, the purpose and nature of the contempt jurisdiction was described by the Supreme Court in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] as follows:-
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"The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining 'the jury, the judge and the hangman' and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice".
9. Before we proceed to examine the various authorities, we would like to briefly survey the Constitutional and statutory environment pertaining to the law of contempt.
10. Article 215 declares as follows:
"215. High Courts to be courts of record.- 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".
It can be seen from the above that every High Court shall have power to punish for contempt of itself along with such other powers which are incidental to a court of record. It is beyond the scope of the present inquiry to explore the full amplitude of Article 215 except to take note of Cont.Case (C).No. .... of 2010
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the fact that the said article recognises every High Court in this country to be a court of record and also recognises the authority of each High Court to punish for contempt of Courts. The history and background of the said article is discussed in some detail in Sukhdev Singh v. Teja Singh,C.J. [AIR 1954 SC 186].
11. Article 246 of the Constitution declares that the Parliament and the Legislatures of each of the States in the Union of India shall have the power to make laws with reference to the various fields of legislation indicated in the three Lists contained in the Seventh Schedule to the Constitution. Entry 77* of List I of Seventh Schedule read with Article 246 Clause (1) authorises the Parliament to make laws with regard to the constitution, organisation, jurisdiction and powers of the Supreme Court, including contempt of court of the Supreme Court, etc., while Entry 14** of List -III of the Seventh Schedule read with Article 246 Clause (2) empowers both the Parliament and the
-------------------------------------------------------------------------------- * Entry 77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court. **Entry 14.Contempt of court but not including contempt of the Supreme Court.
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concerned State Legislature to make laws on the topic of contempt of court, other than the contempt of the Supreme Court. Such concurrent power is, of course, subject to Article 254 of the Constitution of India, the details of which are not necessary for the present purpose.
12. In exercise of the powers referable to the above mentioned two Entries, the Parliament made a law - The Contempt of Courts Act, 1971 (70 of 1971). Under the scheme of the said Act, contempt of court is identified as falling into two categories, either "civil" or "criminal" under Section 2(a)*. Both the expressions "civil contempt"
and "criminal contempt" are defined in Section 2(b) and 2(c) as follows:-
"S.2(b) "civil contempt" means wilful disobedience to any judgment, decree, direction order, writ or other process of a court or wilful breach of an undertaking given to a court"; S.2(c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which -
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
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*Sec.2(a) "contempt of court" means civil contempt or criminal contempt".
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(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner".
Section 12 of the Act prescribes the punishment for contempt of court, which authorises the imposition of the punishment of imprisonment for a term upto six months or with fine which may extend to two thousand rupees or with both. Sub-section (2) categorically declares that no Court shall impose a sentence in excess of what is specified in sub-section (1). Such a declaration covers both the categories of contempt - civil and criminal - of any Court. Sub-section (3) further specifies that in the matters of civil contempt, if the Court considers that a fine will not meet the ends of justice and a sentence of imprisonment is necessary, then the Court should direct that the contemnor be detained in civil prison. The relevance of these various limitations will be discussed later in the order.
13. Section 14 prescribes the procedure by which a person committing contempt in the presence or hearing of the Court is to be dealt with. Section 15 deals with the criminal contempt and the mode of taking cognizance of criminal contempt. Section 15 reads as follows:-
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"15. Cognizance of criminal contempt in other cases.- (1) In the case of a criminal contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by -
(a) the Advocate-General, or
(b) any other person, with the consent in writing to the
Advocate-General, or
(c) in relation to the High Court for the Union territory of
Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer.
(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-
General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.
(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.
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;
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(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".
It can be seen from the above that the criminal contempt of the High Court, other than a contempt committed in the presence or hearing of such Court, may be taken cognizance of either on the own motion of such a Court or on a motion made by the Advocate General or any other person, with the consent in writing of the Advocate General. On the other hand, in the case of criminal contempt of a subordinate Court, the same may be taken cognizance of by the High Court either on a reference made to it by the subordinate court or on a motion made by the Advocate General. However, on the question whether the High Court is barred to take cognizance of a contempt of subordinate court, except where the same is brought to the notice of the High Court by authorities of the above mentioned two Articles, the Supreme Court held in Board of Revenue, U.P. v. Vinay Chandra [AIR 1981 SC 723] at para 17 as follows:
"A comparison between the two sub-sections would show that whereas in sub-section (1) one of the three alternative modes for taking cognizance, mentioned is "on its own motion", no such mode is expressly provided in sub-section (2). The only two modes of taking cognizance by Cont.Case (C).No. .... of 2010
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the High Court mentioned in sub-sec.(2) are: (i) On a reference made to it by a subordinate court; or (ii) on a motion made by the Advocate-General, or in relation to a Union Territory by the notified Law Officer. Does the omission in Section 15(2) of the mode of taking suo motu cognizance indicate a legislative intention to debar the High Court from taking cognizance in that mode of any criminal contempt of a subordinate court? If this question is answered in the affirmative, then, such a construction of sub-section (2) will be inconsistent with Section 10 which makes the powers of the High Court to punish for contempt of a subordinate court, co-extensive and congruent with its power to punish for its own contempt, not only in regard to quantum or pre-requisites for punishment, but also in the matter of procedure and practice. Such a construction which will bring Section 15(2) in conflict with Section 10, has to be avoided, and the other interpretation which will be in harmony with Section 10 is to be accepted. Harmoniously construed, sub-section (2) of Section 15 does not deprive the High Court of the power of taking cognizance of criminal contempt of a subordinate court, on its own motion, also. If the intention of the Legislature was to take away the power of the High Court to take suo motu cognizance of such contempt, there was no difficulty in saying so in unequivocal language, or by w2ording the sub-section in a negative form. We have, therefore, no hesitation in holding in agreement with the High Court, that sub-section (2) of Section 15, properly construed, does not restrict the power of the High Court to take cognizance of and punish contempt of a subordinate court, on its own motion".
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14. Earlier, a Division Bench of this Court had occasion to examine the question as to the appropriate procedure to be followed in a petition disclosing allegations of criminal contempt, but filed without obtaining the consent of the Advocate General. In an un-numbered criminal contempt case of 2007 [2007 (1) KLT 897], this Court, by its order dated 19.02.2007, opined that:
"Such a petition going by the principle laid down by the Apex Court in Bal Thackrey's case cannot be entertained. Further the principle laid down by the Delhi High Court in Anil Kumar Gupta's case which was approved by the Apex Court in Duda's case has to be followed in this case. We make it clear that the Registry has to take note of in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Art.215 of the Constitution, where the informant is not one of the persons named in S.15 of the Contempt of Court Act it should not be styled as a petition and should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice on the administrative side and 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, shall direct that the said information be placed for preliminary hearing".
So, it can be seen from the above extract that such petitions, praying for initiation of proceedings for criminal contempt by persons other than the Cont.Case (C).No. .... of 2010
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persons specified in Section 15 of the Contempt of Courts Act, shall be treated as information falling within the scope of Rule 7 of the Contempt of Courts (High Court of Kerala) Rules and are required to be placed before the Chief Justice on the Administrative side. The Chief Justice or the Judge nominated by the Chief Justice, on an examination of such information considers it expedient or proper to take action, he shall direct that the information be placed for preliminary hearing. However, another Division Bench of this Court by its decision dated 19.01.2009 in C.C.(Crl.).No.1 of 2009 [2009 (1) KLT 695] held as follows:-
"But, the Rules framed by the High Court under the Contempt of Courts Act say that any information regarding commission of contempt for initiation of suo motu proceedings should be placed before the Chief Justice on the administrative side. The Chief Justice may decide himself whether it is expedient or proper to take action under the Act and direct the said information be placed for preliminary hearing. This can be done by the Judge designated by the Chief Justice for the said purpose also. It is a decision on the administrative side. As per our Rules, once such a decision is taken, the matter should go directly to the Bench authorised to hear contempt matters as per the roster. But, in the light of the provisions of S.15 of the Act, the matter has to be placed before the Full Court and if only the Full Court decides to take action, the matter can be placed before the Bench for hearing. When the High Court is empowered to do something as per the Constitution Cont.Case (C).No. .... of 2010
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or any other Act, if it is an administrative function (meaning some function other than judicial function), it has to be done by the Full Court. If it is a judicial function, it has to be done by the appropriate Bench, as provided in the Kerala High Court Act or under the relevant enactment. The decision of this Court to place the contempt matter before the Bench for hearing, is one, which should be taken by the Full Court, as S.15 of the Act authorises only the High Court and not the Chief Justice to take action".
It was a case where suo motu proceedings were initiated for criminal contempt on the basis of an opinion of a Judge designated by the Chief Justice of this Court. Such proceedings came to be initiated against an editorial in a news paper brought to the notice of the then Acting Chief Justice on the Administrative side.
15. It is obvious from the above two extracts that there is a clear conflict of opinion between the two Division Benches with regard to the procedure that required to be followed in the matter of initiation of suo motu criminal contempt proceedings when the same is moved by a person other than the Advocate General without obtaining the consent of the Advocate General. Hence the present reference.
16. We may also at the outset record that the order dated 19.02.2007 [2007 (1) KLT 897] of a Division Bench of this Court referred to supra does not appear to have been brought to the notice of Cont.Case (C).No. .... of 2010
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the later Division Bench. Apart from that, another Division Bench of this Court in a case reported in 1986 KLT 32 had already rejected a submission that initiation of suo motu contempt proceedings must be by the Full Court consisting of all the Judges of the High Court, as the power to punish for contempt is vested in the High Court, but not either in the Chief Justice or some of the Judges of the High Court and a Division Bench is not empowered to take a suo motu action for contempt. At para 5 of the said judgment, the Division Bench held as follows:-
"We do not see any substance in this contention. S.3 of the Kerala High Court Act (Act 5 of 1959) enumerates the powers of the High Court that can be exercised by a single Judge. The powers of the High Court to be exercised by a Division Bench are mentioned in S.4 and all powers not expressly enumerated are to be exercised by a Division Bench, as provided for in sub-section (7) extracted below:
"All matters not expressly provided for in this Act or in any other law for the time being in force".
What the Act as its preamble states is "to make provision regulating the business and the exercise of powers of the High Court of the State of Kerala". How the powers of the High Court are to be exercised is thus regulated by Statute. S.18 of the Contempt of Courts Act enacts that "every case of criminal contempt under S.15 shall be heard and determined by a Cont.Case (C).No. .... of 2010
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bench of not less than two Judges". There is thus express provision in the Contempt of Courts Act empowering a bench of two Judges to take action for Contempt of court. There cannot be any doubt that the action to be taken for contempt under S.15 of the Contempt of Courts Act is a judicial act, the powers in respect of which are to be exercised in accordance with the statutory provisions contained in S.4 of the Kerala High Court Act and S.18 of the Contempt of Courts Act. These statutory provisions are not in conflict with Article 215 of the Constitution in as much as Article 215 doe3s not prescribe the mode of exercising the power vested in the High Court to punish for contempt of itself. There is no statutory provision regulating the consultation or recommendation referred to in Article 233 of the Constitution, and such consultation or recommendation can only be of the High Court consisting of all the Judges of the High Court. The analogy sought to be drawn is therefore without substance and we overrule the objection to jurisdiction raised by the respondents".
But, unfortunately, it appears that the said judgment was also not brought to the notice of the Division Bench which decided C.C.(Crl.). No.1 of 2009 [2009 (1) KLT 695] supra.
17. The learned counsel for the petitioner Shri.Dharmadan argued that the power of the High Court to punish for contempt of the High Court is a plenary power obtaining under Article 215 of the Constitution of India and the same cannot be curtailed either by a Cont.Case (C).No. .... of 2010
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statute or statutory rules. The intention of the Constitution makers is to appropriately strengthen the hands of the High Court by investing it with the authority to punish persons committing acts of contempt for upholding the rule of law and protecting the dignity of the Court. The learned counsel relied on a large number of decisions in this regard.
18. On the other hand, the learned Advocate General submitted that the authority of this Court to punish a person for acts of contempt is conferred by Article 215 of the Constitution. Though it cannot be taken away by a legislation, such authority of this Court can be regulated by an appropriate law - the Contempt of Courts Act and the Rules framed thereunder are such laws. He, therefore, submitted that the Court is bound by the procedure prescribed under the Contempt of Courts Act and the Rules framed thereunder or any other law touching the subject. The learned Advocate General submitted that the above mentioned position is too well established by catena of decisions of the Supreme Court and it is too late in the day to argue that the High Court under Article 215 is vested with unbridled power. In support of his submissions, the learned Advocate General placed reliance upon the decisions of the Supreme Court in Pallav Sheth v. Custodian [(2001) 7 SCC 549], Bal Thackrey v. Harish Pimpalkhute Cont.Case (C).No. .... of 2010
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[(2005) 1 SCC 254], Pritam Pal v. High Court of M.P. [1993 Supp (1) SCC 529] and L.P.Misra v. State of U.P. [(1998) 7 SCC 379].
19. In Pallav Sheth's case (supra), the Supreme Court examined a number of earlier decisions rendered by it, which dealt with the nature of the power of the Supreme Court and the High Court under Article 129 and 215 respectively of the Constitution, and held at paras 30 and 31 as follows:-
"30. There can be no doubt that both this Court and High Courts are courts of record and the Constitution has given them the powers to punish for contempt. The decisions of this Court clearly show that this power cannot be abrogated or stultified. But if the power under Article 129 and Article 215 is absolute, can there by any legislation indicating the manner and to the extent that the power can be exercised? If there is any provision of the law which stultifies or abrogates the power under Article 129 and/or Article 215, there can be little doubt that such law would not be regarded as having been validly enacted. It, however, appears to us that providing for the quantum of punishment or what may or may not be regarded as acts of contempt or even providing for a period of limitation for initiating proceedings for contempt cannot be taken to be a provision which abrogates or stultifies the contempt jurisdiction under Article 129 or Article 215 of the Constitution.
31. This Court has always frowned upon the grant or existence of absolute or unbridled power. Just as power or jurisdiction under Article 226 has to be exercised in accordance Cont.Case (C).No. .... of 2010
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with law, if any, enacted by the legislature, it would stand to reason that the power under Article 129 and/or Article 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously". In substance, Pallav Sheth's case (supra) establishes the principle that the power of the High Courts to punish for contempt, either for itself or of the Courts subordinate to it, though cannot be taken away, can be regulated by an appropriate law. It also establishes the principle that such a law can provide for inter alia the definition of contempt, the procedure that is to be followed for punishing a contemnor and the period of limitation for taking cognizance of the acts of contempt of Court, etc.
20. Section 15 of the Contempt of Courts Act regulates the mode of taking cognizance by the High Court of any criminal contempt. The Section in so far as it pertains to the High Court provides that a High Court can take cognizance of a criminal contempt either on its own motion or on a motion made by the Advocate General or any other person with the written consent of the Advocate General.
21. Section 23 of the Contempt of Courts Act authorises (the Supreme Court and) the High Courts to make rules providing for any Cont.Case (C).No. .... of 2010
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matter relating to the procedure of such a Court. In exercise of the powers conferred under Articles 215 and 225 of the Constitution and Section 23 of the Contempt of Courts Act, 1971, and all other powers enabling in that behalf, to regulate the proceedings for contempt of itself or of a Court subordinate to it, the High Court of Kerala made Rules, called "the Contempt of Courts (High Court of Kerala) Rules, which were published in the Kerala Gazette, Extraordinary, dated 4.10.1988. Rule 3 thereof reads as follows:
"3. Receipt of proceedings etc.-- Every petition/ proceeding for initiating action for contempt shall be received in the Registry of the High Court and registered as "Contempt of Court Case"".
The said rule does not make any distinction between "civil" and "criminal" contempts with regard to the format of the petition to be presented to the Court. Rule 4 deals with the parties to the proceedings. Rule 5 prescribes as to what should be the content of the petition presented under Rule 3. Sub-rule (c) requires the petitioner to specify whether the alleged contempt is either civil or criminal in nature.
22. A person seeking to initiate a criminal contempt proceeding is not only required to present an appropriate petition under Rule 3 after complying with the stipulations made under Rules 4, 5 and Cont.Case (C).No. .... of 2010
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5A of the Rules, but must also obtain the consent of the Advocate General in writing under Section 15 of the Act for initiating such proceeding.
23. Rule 7 deals with initiation of suo motu proceedings of contempt on information. It reads as follows:
"7. Initiation of suo motu proceedings, on information.-- (i) Any information other than a petition under Rule 3 or reference 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".
It can be seen from the above Rule that the rule prescribes that any information (obviously regarding the commission of contempt by any person) received by the High Court, except by way of a petition Cont.Case (C).No. .... of 2010
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contemplated under Rule 3, is required to be placed before the Chief Justice in the first instance on the Administrative side. Such information may be examined either by the Chief Justice or by a Judge designated by him to take an administrative decision whether it is expedient or proper to take action under the Act on the basis of the said information. Such a decision making process requires consideration of various factors, like the basic trustworthiness of the information, a prima facie satisfaction that the allegations, if proved, constitute contempt of the Court and whether it is expedient or proper to take action for contempt having regard to the facts and circumstances of the case. The decision on the question of expediency or propriety, in our opinion, depends greatly on the facts and circumstances of each and every case. We do not propose to examine the complete scope of enquiry in this regard in the present proceedings. After the above mentioned examination if the Chief Justice or the Judge designated by the Chief Justice considers it necessary to take action, then suo motu contempt proceedings of Court are to be initiated. Upon such a consideration if it is found expedient or proper to take action under the Act, the Chief Justice is required to direct the information to be placed for preliminary hearing. On the other hand, sub-rule (ii) speaks of action under the Act, thereby meaning Cont.Case (C).No. .... of 2010
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action both under "civil" and "criminal" contempt.
24. Neither Section 15 of the Contempt of Courts Act nor Rule 7 referred to above specify the source of information on which the High Court can act on its own motion. The various sources from which the High Court can gather such information were discussed in S.K.Sarkar, Member, Board of Revenue, U.P. v. Vinay Chandra Misra [(1981) 1 SCC 436]. At page 443 para 19, the Supreme Court held as follows:-
"... 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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It can be seen from the above extract that the various sources from which the High Court can derive the information forming the basis for initiation of contempt proceedings are - (i) the records of the subordinate courts, (ii) newspaper reports or (iii) some other mode of communication, like public speech, etc. The above mentioned sources are only illustrative, but not exhaustive. Incidentally, the Supreme Court also considered the situation where any individual other than the Advocate General moves a petition for initiating action for criminal contempt without obtaining written consent of the Advocate General. It is opined that the High Court has a discretion either to act upon such information or refuse to take cognizance suo motu on the basis of such information. It is the last mentioned category of information which fell time and again for the consideration of the Supreme Court in the context of the question as to the appropriate procedure to be followed in such a case.
25. In Anil Kumar Gupta v. Suba Rao [ILR (1974) 1 Del.1], the Delhi High Court had an occasion to deal with the issue. The Delhi High Court issued directions as follows:-
"The office is to take note that in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Cont.Case (C).No. .... of 2010
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Constitution, where the information is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice for orders in chambers and the Chief Justice may decide either by himself or in consultation with the other Judges of the Court whether to take any cognizance of the information".
The said directions were quoted with approval by the Supreme Court in a subsequent decision in P.N.Duda v. P.Shiv Shanker [(1988) 3 SCC 167]. At page 201, para 54, the Supreme Court held as follows:-
"The direction given by the Delhi High Court sets out the proper procedure in such cases and may be adopted, at least in future, as a practice direction or as a rule, by this Court and other High Courts".
The correctness of the decision of the Supreme Court in P.N.Duda's case (supra) was doubted subsequently in Bal Thackrey's case by a Division Bench of the Supreme Court and referred the matter to a three Judge Bench. Dealing with the said decision, the three Judge Bench in Bal Thackrey v. Harish Pimpalkhute [(2005) 1 SCC 254] held at para 18:
"........ the directions given in Duda case are legal and valid".
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It further directed at para 26 as follows:-
"Before parting, it is necessary to direct framing of necessary rule or practice direction by the High Courts in terms of Duda case. Accordingly, we direct the Registrar General to send a copy of this judgment to the Registrars General of the High Courts so that wherever rule and/or practice direction on the lines suggested in Duda case has not been framed, the High Courts may now frame the same at their earliest convenience".
On the facts of the case, the Supreme Court held that the criminal contempt proceedings initiated against the appellant before the Supreme Court (Bal Thackrey) could not be treated as proceedings initiated suo motu by the Bombay High Court, but by a private party without obtaining the written consent of the Advocate General. Therefore, it was held that the proceedings were not maintainable.
26. From the conclusion reached by the Supreme Court in Bal Thackrey's case (supra), it is suggested by the learned Advocate General that a petition, such as the one on hand without obtaining written consent of the Advocate General, cannot constitute the information forming the basis for initiation of contempt proceedings by this Court.
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27. We regret our inability to agree with the submission made by the learned Advocate General. Though a cursory reading of the judgment of the Supreme Court gives such impression as suggested by the Advocate General, a more closer scrutiny of the judgment reveals that the ratio of the decision is not as is sought to be projected by the learned Advocate General.
28. At para 2* of the judgment, the Supreme Court identified the issue whether the criminal contempt proceedings initiated against the appellant were to be construed as proceedings initiated suo motu by the Court or by the respondents. The Court at para 5 took note of the specific contentions that the papers presented before the High Court (by the respondents in the appeal) were not placed before the Chief Justice of the Bombay High Court and, therefore, there was a failure to comply with the directions given earlier by the Supreme Court in P.N.Duda's case (supra) and, consequently, cannot be described as proceedings initiated suo motu by the High Court. Though the Supreme Court did not
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2. The main issue for determination in these appeals is whether contempt proceedings were initiated against the appellant suo motu by the court or by the respondents. First we may note the background under which these matters were referred to a larger Bench.
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record any finding of fact, whether the papers presented seeking initiation of criminal contempt proceedings were placed before the Chief Justice on the Administrative side or not, at para 24, the Supreme Court held as follows:-
"As a result of the aforesaid view, it is unnecessary to examine in the present case, the effect of non-compliance with the directions issued in Duda case by placing the informative papers before the Chief Justice of the High Court".
Therefore, in our view, Bal Thackrey's case (supra) cannot be treated to be an authority for the proposition that a petition filed by a person other than the Advocate General without obtaining the written consent of the Advocate General can never constitute information forming the basis for initiation of criminal contempt proceedings.
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 Cont.Case (C).No. .... of 2010
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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. Section 23** of the Act authorises the
------------------------------------------------------------------------------------- * AIR 1966 SC 1987 - Chandra Mohan v. State of U.P. AIR 1974 SC 710 - Baradakanta v. Registrar, Orissa H.C. AIR 1986 SC 1814 - Tej Pal Singh v. State of U.P. ** "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 other law relating to contempt of courts". Cont.Case (C).No. .... of 2010
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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 Cont.Case (C).No. .... of 2010
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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 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 Cont.Case (C).No. .... of 2010
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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 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 Cont.Case (C).No. .... of 2010
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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 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 Cont.Case (C).No. .... of 2010
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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.
For all the above mentioned reasons, we direct the Registry to place the petition before the Chief Justice for appropriate further action in the administrative side in the light of this order.
Sd/-
J.Chelameswar, Chief Justice Sd/-
A.K.Basheer, Judge Sd/-
K.M.Joseph,
vku/- Judge