Madras High Court
K.Neelamegam vs Durgamoorthi on 16 December, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/12/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU Contempt Petition (MD)No.581 of 2011 and Criminal O.P.(MD)No.15816 of 2011 K.Neelamegam .. Petitioner in both petitions Vs. Durgamoorthi Revenue Divisional Officer, Sivagangai, Sivagangai District. .. Respondent in Cont.P.(MD)No.581/2011 1.The Registrar, Madurai Bench of Madras High Court, Madurai-625 023. 2.The Inspector General of Police, Inspector General of Police Office, Natham Road, Madurai. 3.The Superintendent of Police, O/o Superintendent of Police, Madurai. 4.The Inspector of Police, Othakadai Police Station, Othakadai, Madurai-625 107. 5.Durgamoorthi, Revenue Divisional Officer, Sivagangai, Sivagangai District. .. Respondents in Crl.O.P.(MD)15816/2011 Contempt Petition (MD)No.581 of 2011 has been preferred under Sections 12 and 14 of the Contempt of Courts Act, 1971 to punish the fifth respondent for her deliberate and wilful contempt of court on the face of the High Court and court officers. Crl.O.P.(MD)No.15816 of 2011 has been preferred under Section 482 Cr.P.C to direct the fourth respondent to register the petitioner's complaint dated 15.6.2011 and enquire into the matter. !For Petitioner ... Mr.W.Peter Rameshkumar ^For Respondents ... Mr.D.Sivaraman in Cont.P.(MD)No.581/2011 - - - - :COMMON ORDER
Preamble :
I.Nature of Court proceedings :
An "open court" means a court to which the public have a right to be admitted. This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to spectators. -
- Black's Law Dictionary (6th Edn., 1990, p. 1091)
2.In my considered view an "open court" is a court to which general public has a right to be admitted and access to the court is granted to all the persons desirous of entering the court to observe the conduct of the judicial proceedings....."
- Dr.Justice M.K.Sharma in Mohd. Shahabuddin v. State of Bihar, (2010) 4 SCC 653.
II.What is Contempt :
3.Section 2 of the Contempt of Courts Act, 1971 reads as follows:
2.Definitions.- In this Act, unless the context otherwise requires,-
(a)"contempt of Court" means civil contempt or criminal contempt;
(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;
(c)"criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, 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
(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;"
III.The purpose of contempt power :
4.Proceedings for contempt are initiated in Court for the purpose of protecting either the Court itself or the party concerned and to use it for any other purpose would constitute an abuse of the process of the Court. It is of the utmost importance therefore that before a party can seek protection from the Court it should show that it really needs such protection.
- Rajendra Kumar v. Shafiq Ahmad, AIR 1957 All 37 (J)."
IV.The power of the High Court to punish for contempt :
5.Section 22 of the Contempt of Courts Act says 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. The power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all Courts of Record. The Court of Record has the power of summarily punishing for contempt. Article 215 of the Constitution of India states that every High Court shall be a Court of record and shall have all the powers of such a Court including the power of punish for contempt of itself. ..... the question before us is whether even though the Circular referred to may not come under the definition 'civil contempt' does the act of the fifth respondent in taking the photograph of the proceedings will amount to contempt of Court. As observed by the Supreme Court in Board of Revenue v. U.P., AIR 1981 SC 723 : (1981 Crl LJ 283), "Arts.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. 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. Arts.129 and 215 do not define as to what constitutes contempt of Court. Parliament has, by virtue of the Entries 77 and 14 in List I and List III respectively 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 relation thereto. Indeed, this is what is stated in the preamble of the Act of 1971".
- R.Balakrishna Pillai Vs. K.P.Balachandran and others [2001 Crl.L.J. 846] (Kerala Hct - DB) V.Taking photographs inside the Court Hall is a contempt :
6.The Court halls have a sanctity and symbolise the divinity of justice it seeks to represent. The Court halls cannot be used for any purpose other than the holding of Court proceedings for dispensation of justice. The proceedings in the Court are held in open and the public in general can attend the proceedings unless otherwise directed. But nobody can be permitted to defile the same. The Court proceedings in the High Court or any Court subordinate thereto cannot be video taped, photographed or telecast without taking prior written permission from the High Court.
- Ramakrishna Gowda Vs. Chairman, Zee Television, New Delhi and others [AIR 2000 Karnataka 276 (DB)]
7.A member of the public has no right to take photograph of the proceedings in a Court. The Court hall is a place of sanctity and the proceedings there are under the control of the Presiding Officer. A person may come and watch the proceedings. But further than that he has no right to take photograph or video tape of the proceedings. It is not necessary for us to state that freedom of the Press is not absolute.
8.No person whether he is a member of a Press or otherwise or any member of the public is entitled to take photographs of the proceedings of a Court including subordinate Courts without the permission of the High Court. If any person takes photographs violating the above procedure, that will amount to contempt of Court....
- R.Balakrishna Pillai Vs. K.P.Balachandran and others [2001 Crl.L.J. 846] (Kerala Hct - DB) VI.Using Mobile Phones inside Court Hall is a contempt :
9.It cannot be gainsaid that when any untoward thing takes place in the Court, then, attention of the Judges, so also of the arguing counsel is distracted. When a mobile phone starts ringing in the Court and it goes on ringing continuously, then, person having the phone cannot be exempted, because, his act is causing interference in the hearing of the judicial proceedings, and is obstructing the administration of justice. When the Judges and the lawyers are involved and engrossed in the arguments and the legal niceties, then any disturbance would not be tolerated, because, such interference would be disturbing the smooth process and progress of the judicial proceedings.
9.1.It may be noted that a mobile phone is necessity of the day, but it does not mean that it may ring or may be used at every place. A man must know that where he is going and what would be utility of the mobile phone. When a man enters in the Court, then, he has to maintain the decorum. He cannot be allowed to say that though he carries mobile phone, but he does not know the operations. A person who holds the sword must also know that which side the sharp edge is. One cannot play with these things. Nodoby would be allowed to say that he is entitled to sit leisurely in the Court, make the Court room a phone parlour and use his telephone. Nobody can be allowed to say that as he holds the phone, he would be entitled to use the same at any place. The Courts after all are sacrosanct places. Nobody can be allowed to disturb the Court proceedings. Disturbance and distraction caused to the Judges and the advocate and the proceedings, then, is unpardonable. In our judicial system one cannot think that Court proceedings can be disturbed by anybody.
9.2.We must hold that the ringing of the mobile phone in the Court room is contempt of the lawful authority of every and each Court."
- In Suo Motu Vs. P.C.Pandya [2005 Cri.L.J. 3567] - Gujarat Hct -DB VII.Who can initiate criminal contempt proceedings :
10.Section 15 of the Contempt of Courts Act, 1971 reads as follows:
15.Cognizance of criminal contempt in other cases.-(1)In the case of a criminal contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by -
(a)the Advocate-General, or
(b)any other person, with the consent in writing of the Advocate-General, [or] [(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."
11.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 v. M.S.Mani and Bal Thackrey v. 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.
- in Bijayini Dash v. Loknath Mishra [(2005) 9 SCC 194 - para 2] VIII.How a criminal contempt can be dealt with by the Court ?
12.Section 18 of the Contempt of Courts Act, 1971 reads as follows:
18.Hearing of cases of criminal contempt to be by Benches.-(1)Every case of criminal contempt under section 15 shall be heard and determined by a Bench of not less than two Judges.
13.Rules 3,6 and 8 of the Contempt of Courts (Madras High Court) Rules, 1975 (framed under Articles 215 and 225 of the Constitution read with Section 23 of the Contempt of Courts Act, 1971) reads as follows:
3.Every case initiated for contempt of court under the Contempt of Court Act, 1971 or under any other law, shall be received by the First Assistant Registrar (Original Side) and registered as a contempt case.
6.(1)Every application for contempt of court committed in respect of judgment, decree, direction, order, writ or other process of the High Court shall be accompanied by two additional sets of all the papers n the case for the record of the Court and the required number of copies for service on the alleged contemner.
(2)Every such application shall be posted before the Judge or Judges nominated by the Hon'ble Chief Justice for orders as to whether notice shall issue to the alleged contemner.
(3)Notice of such application, if ordered, requiring the alleged contemner to appear on a date fixed, which shall be not less than four weeks from the date of order or as fixed by the Court, shall be sent out for personal service on the alleged contemner.
(4)No process fee shall be collected for service of process. (5)Every such application, shall on the date fixed, be posted for hearing before such Judges or Judge as the case may be.
8.Where a Judge of the High Court considers that any matter that might have come to his notice in any way requires initiation of proceedings in contempt against any person, the papers relevant thereto together with the direction of the Judge shall be placed before the Chief Justice for consideration as to whether the matter may be forwarded to the Advocate- General."
IX.The role of the complainant in the matter of contempt :
14.It is true that any person may move the High Court for initiating proceedings for criminal contempt by placing the facts constituting the commission of criminal contempt to the notice of the Court. But once those facts are placed before the Court, it becomes a matter between the Court and the contemner. But such person filing an application or petition does not become a complainant or petitioner in the proceeding. His duty ends with the facts being placed before the Court. The Court may in appropriate cases in its discretion require the private party or litigant moving the Court to render assistance during the course of the proceedings. In D.N. Taneja v. Bhajan Lal this Court observed that: (SCC p. 32, para 12) "12. ? A contempt is a matter between the court and the alleged contemner. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the court and the contemner."
Thus the person bringing the facts constituting contempt to the notice of the Court can never be a party to the lis nor can join the proceedings as a petitioner. Similar is the view taken by this Court in State of Maharashtra v. Mahboob S. Allibhoy9.
- Biman Basu v Kallol Guha Thakurta [(2010) 8 SCC 673 - para 25] X.Need to strictly adhere to the law of contempt :
15.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 petitions.
-Bal Thackrey v. Harish Pimpalkhute [(2005) 1 SCC 254 - para 16]
16.While dealing with criminal contempt in terms of Section 2(c) of the Act, strict procedures are to be adhered. In a series of decisions, this Court has held that jurisdiction to initiate proceedings for contempt as also the jurisdiction to punish for contempt are discretionary with the court. Contempt generally and criminal contempt certainly is a matter between the court and the alleged contemnor. No one can compel or demand as of right initiation of proceedings for contempt. The person filing an application or petition before the court does not become a complainant or petitioner in the proceedings. He is just an informer or relator. His duty ends with the facts being brought to the notice of the court. It is thereafter for the court to act on such information or not. (Vide Om Prakash Jaiswal v. D.K. Mittal)
17.Further, Section 15 of the Act as well as the Madras High Court Contempt of Court Rules insist that, particularly, for initiation of criminal contempt, consent of the Advocate General is required. Any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt.
- Muthu Karuppan v. Parithi Ilamvazhuthi [(2011) 5 SCC 496 - paras 45 & 46] (Emphasis added) XI.Backdrop of the present case :
18.On 15.6.2011, the Madurai Bench lawyers were on a Court boycott. Nevertheless the petitioner, a practicing Advocate of this High Court, was present in Court Hall No.4 presided by K.Venkataraman, J. For a change, he was without his robes. He was sitting in the visitors' gallery, perhaps, watching the proceedings as he does not claim in his petition, that he had any matter before that Court. The Revenue Divisional Officer of Sivagangai (Ms.Durgamoorthi), shown as the sole respondent in the contempt petition (fifth respondent in the criminal original petition), was also present in that Court Hall in connection with a writ petition, where she was arraigned as the second respondent in W.P.(MD)No.6115 of 2011 and other cases. A perusal of the Court records including the cause list showed that the said case was listed as item No.11 in Court Hall No.4. The respondent's name do not find a place as process was not completed in serving the respondent. When that writ petition came up on 13.6.2011, the matter was directed to be posted along with other writ petitions on 14.06.2011. On that day, the Special Government Pleader informed that he could not get instructions from the respondents. Hence the matter was posted on 15.6.2011 immediately after the motion cases. Perhaps at the instance of the Special Government Pleader, the second respondent would have come to the Court.
19.It was the version of the petitioner that at about 11.15 a.m., he found the respondent speaking to someone in her mobile phone. He claimed that he took photograph of her talking in her phone through his mobile phone. A copy of the photograph so taken is found enclosed in page No.9 of the typed set. The petitioner also claimed that since the use of mobile phone is strictly prohibited, he requested her to switch off her mobile phone to honour the judicial majesty. But she showed scant respect to the Court. Therefore, he was deeply wounded and suffered mental agony by her disrespect to the Court. He had also caused a notice to her dated 15.6.2011 informing that he had proposed to prosecute her.
20.It is the version of the respondent that she had sent a reply dated 23.6.2011 admitting her presence in the court hall. While she was in the visitors' gallery, her official phone carried by her (kept in a silent mode), got a signal for an incoming call. She found that it was a call from the District Collector. She took her mobile phone and answered the caller in a low voice without hindrance to any one. The entire process ended in two seconds. This incident was magnified to an unimaginable extent. She herself being the Revenue Divisional Officer was aware of the prohibition for the use of mobile phone as similar prohibition is enforced in the office of the District Collector and in her office. She in turn accused the petitioner for using his mobile phone for taking her picture inside the court hall despite similar prohibition. She further stated that it was he who had shown disrespect to the Court and was liable for an action. There was hardly any conversation between her and the petitioner. The threat for prosecuting her was unwarranted and was not made in good taste. She being a Government Officer and a first class Executive Magistrate, the threat received from the petitioner was uncalled for. The petitioner was informed that if he persists on his threat, she will also take an appropriate action.
21.After the reply from the respondent, the petitioner did not take any immediate steps. On the other hand, seven days after the reply, he sent a letter, dated 30.6.2011 addressed to the Registrar (Judicial) of this Court that as he was the competent authority to initiate proceedings against the contemner, he requested him to proceed against the respondent. A copy of the notice to the respondent and a reply received from the respondent was enclosed.
22.On the same day (i.e. on 30.6.2011), the petitioner filed a complaint with the Inspector of Police, Othakadai accusing the respondent that she had used abusive words and threatened him. In the complaint sent to the police station, he requested for an appropriate legal action taken against the respondent. Though the Sub Inspector of Police, Othakadai gave a receipt (CSR No.333/11) for having received the complaint on the same day but did not lodge any FIR against the respondent.
23.Therefore, on 12.9.2011, the petitioner filed a criminal original petition under Section 482 Cr.P.C. seeking for a direction to the Inspector of Police, Othakadai to register his complaint, dated 15.6.2011 and enquire into the matter. On the contrary, on the date indicated by him, there was no complaint with the police station. But the complaint itself even as per the document produced by the petitioner was lodged only on 30.6.2011, whereas the prayer in the petition as well as description of the document in the typed set, the complaint was shown as dated 15.6.2011. He also filed a contempt petition purporting to be under Sections 12 and 14 of the Contempt of Courts Act, 1971 to punish the respondent for her deliberate and wilful contempt of court on the fact of the High Court.
24.In the criminal original petition, the Registry raised an objection as to the locus standi of the petitioner to file the petition and the nature of offence committed by the fifth respondent. Thy also requested to inform the provisions of law. On the return dated 19.09.2011, the petitioner made an endorsement stating that the petitioner was the officer of the Court and he has locus standi. He also stated that an Advocate is an officer of the court and he was threatened with unparliamentary words. Using Cell phone prohibited by this court is contempt on the face of the Court. When they registered a complaint in Y.Othakadai Police Station in Cr.No.318/2011 which was filed against another Advocate, the same principal is applicable to this case also. Offences under Section 506 and 294(a) IPC was committed by the respondent.
25.The Registry was not satisfied with the endorsement and placed the matter before the Court for orders regarding maintainability. M.M.Sundresh, J. directed the registry to number the petition subject to maintainability on 27.09.2011. Then, the criminal original petition purporting to be under Section 482 Cr.P.C. was numbered as Crl.O.P.(MD)No.15816 of 2011. In the contempt petition without any relief, the petitioner impleaded the Registrar (Judicial), Madurai Bench of Madras High Court, the Inspector General of Police, Madurai, the Superintendent of Police, Madurai, the Inspector of Police, Othakadai Police Station as R1 to R4 apart from Ms.Durgamoorthi, Revenue Divisional Officer, Sivagangai (R-5) as the contemnor.
26.The Registry was not satisfied with the maintainability of the contempt petition and informed the court, regarding the petitioner lodging a complaint to the Inspector of Police, Othakadai Police Station and raised a doubt whether any contempt petition can be taken on file on a complaint made by a third person or only by the court on its own motion in view of the alleged action took place inside a court hall. The matter came up before P.Jyothimani, J. An docket order was made on 22.9.2011 stating that "post for maintainability". Even before the Registry can place the matter before the learned Judge on 22.09.2011, the petitioner sent a telegram in the name of the learned Judge on 20.09.2011.The text of the telegram read as follows:
"S.R.No.23023 and 47930/2011 contemnor Durga Murthy and Judicial Registrar belong to same community so he is refusing to number. Copy to CJ and PJMJ and CJI. Contempt in High Court No.7. K.Neelamegam, 46 Law Chamber, High Court, Madurai."
On the telegram being placed before P.Jyothimani, J, he passed the following order on the telegram itself :
"Office to number the Contempt Petition if in order and post before the concerned Judge."
27.On the office note on maintainability, a query was about the Judge who presided Court Hall No.4 was not having roster at Madurai and as to the judge before whom the maintainability issue should be posted. P.Jyothimani, J made an endorsement in the office order on 22.09.2011 to the effect "Post for maintainability".
28.When the matter came up for admission on 23.09.2011, the learned Judge made the following docket order :
"maintained and to be numbered. Post the Contempt Petition on 26.09.2011".
The contempt petition was not listed on that day. But when it came up on 27.09.2011, the learned Judge gave a direction to the registry to delete respondents 1 to 4 from the array of parties in the contempt petition and issued a statutory notice to the respondent, i.e., Ms.Durgamoorthi (who became the sole respondent). Notice was served through the Principal District Judge, Sivagangai on the respondent on 11.10.2011. She was directed to appear before this court on 27.10.2011. The said day was suddenly declared as a holiday for the Court, as it fell next day to Diwali.
29.In the meanwhile, the Registry on 15.11.2011 placed the criminal original petition before the Administrative Judge stating that as to what should be done with the criminal original petition as well the contempt petition. Thereafter, both matters were directed to be tagged together and posted before this court.
30.When the matter came up on 02.12.2011, the sole respondent in the contempt petition Ms.Durgamoorthi appeared before this court and also filed a counter affidavit. Her presence was dispensed with. The counsel for the petitioner after arguing for some time took further adjournment. Hence the matter came to be posted on 09.12.2011. On 09.12.2011, when the matter was called in the morning, there was no representation on the side of the petitioner and it was passed over. Again at 2.15 p.m., it was mentioned that the counsel for the petitioner was away from Madurai. Hence it was directed to be posted on 12.12.2011 as the first item in the list. Again on 12.12.2011, when the matter came up there was no representation on the side of the petitioner. It was informed that lawyers were on boycott on that date. Hence it was directed to be posted on 13.12.2011.
31.On 13.12.2011, the parties were heard and orders were reserved. Thereafter, this court sent for other records relating to the proceedings dated 15.6.2011 conducted in Court Hall No.4 and also other records.
32.In the criminal original petition, the petitioner alleged that he lodged a complaint to the inspector of Police, Othakadai and he was given only an acknowledgement in CSR No.333/2011. Since no action was taken to register the complaint under Sections 506 and 294(b) IPC apart from the offence of public affray and nuisance in the Court hall, the petitioner sent a complaint to the Registrar (Judicial) of this Court (R-1), the Inspector General of Police, South Zone, Madurai and the Superintendent of Police, Madurai. In respect of the contempt, the sole respondent has filed a counter affidavit, denying the allegations made against her and also expressed her utmost respect to the Court proceedings. Due to unavoidable circumstances, she had to answer the call received in her cell phone which did not even last two seconds. Should this court holds her guilty, she tendered her unconditional apology. Further an objection regarding the maintainability of the contempt was also taken.
33.Before dealing with the contempt petition, it must be noted that the petitioner had used all kinds of pressure tactics to have his contempt petition numbered without any prima facie case for initiating contempt or for entertaining the application in the absence of the consent from the Advocate General. The narration of the facts leading to filing of the contempt petition clearly shows that this court had not taken any cognizance of any contempt. It had only entertained the petition at the instance of the petitioner, who sought for an appropriate action against the respondent. Therefore, it is not the case of a suo motu cognizance taken by this court. In the absence of suo motu cognizance of the complaint regarding contempt, entertaining of the contempt petition itself is doubtful especially in the absence of a consent obtained from the Advocate General.
34.The allegation against the respondent was that she had used her cell phone inside the court hall during the course of the court proceedings. First of all, it should examined whether there was any law prohibiting the use of cell phone inside a court hall. For that purpose, the petitioner relied upon a notice put up outside the court hall which reads as follows:
"Cell Phones are not allowed inside the Court Halls".
35.This Court called for records which authorized putting up such notice both inside and outside the court halls. It was informed by the Registry that there was no proceedings either from the Chief Justice or any decision taken in a Full Court meeting. It was told that such notices were put up on the basis of adhoc decisions / directions made by some judges at different times. In such circumstances, it will be too dangerous to punish a person without making a particular action prohibited by law. It will be interesting to note that Justice Douglas of the US Supreme Court opined that the law will fail to meet the requirements of the Due Process Clause if it is so vague and standardless. Dr.Durga Das Basu in his book on "Human Rights in Constitutional Law" at page 408 quotes the following passage :
"....a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular cases. . . Certainly one of the basis purposes of the Due Process Clause has always been to protect a person against having the Government to impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries on understandable meaning with legal standards that Courts must enforce".
36.The author (D.D.Basu) himself had opined as follows :
"A restriction cannot be said to be reasonable if it is so vague or wide as to include within its sweep not only a conduct which the Constitution empowers the State to suppress but also to punish the lawful exercise of a fundamental right guaranteed by the Constitution.
In other words, the Fundamental Right should be left 'breathing space to survive' by defining the restriction 'only with narrow specificity'. So far as penal law is concerned, it is one of the basic principles of Anglo-American jurisprudence that a man can be punished only on a specific charge and that, accordingly, no punishment can be sustained where the terms of the statute which creates the offence are not reasonably certain".
37.But, however what was not prohibited cannot be said to be permitted by court. That was why the Gujarat High Court in P.C.Pandya's case (reported in 2005 Cri.L.J. 3567) found that ringing of mobile phone in Court room is a contempt of lawful authority of the Court. This was on the ground that such conduct causes interference during the hearing of judicial proceedings and was obstructing the administration of justice.
38.Therefore, carrying a mobile phone inside the court hall or keep it in a silent mode or the occasional alerts or looking at the short messages received through mobile phone or forwarding messages in reply without disturbing the court proceedings cannot be said to be an obstructing the course of administration of justice attracting criminal contempt proceedings. In fact, the technology so advanced that it is unthinkable that the counsel can be without the aid of mobile phone. The mobile phone provides multifarious services. Today one can get the cause list sent through SMS on a small fee paid to certain agencies. Software has been developed to have statutory enactments seen from a mobile phone. Counsel can keep in touch with his office or office staff or juniors. A counsel can also get messages from some other court regarding the progress of the case. At times, a message or SOS call from his family or friends or clients. The facilities available in a mobile phone for the counsel will also apply to clients who attend Courts. In Supreme Court from the Court halls, the Court masters contact the registry officials from the intercom even during the middle of court proceedings. Many a times, this court through the services of other side counsels or court masters sent messages to counsels, who are not present at the time of calling their cases and to avoid the cases to go for default. One can multiply the advantage of the facilities which come through advancement of technology. This was not to suggest that they are free to use mobile phone, lest it may hinder or hamper the court proceedings. Ultimately the Judge who conducts the proceedings in a particular court hall will be the ultimate authority to decide the disturbance if any caused due to ringing of mobile phones and if it was so intolerable that only a punishment for contempt alone was the way out.
39.It has been held ever since the decision in (1889) 58 LJQB 490 (C) that a Court's jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. It is not every theoretical tendency that will attract the attention of the Court in its very special jurisdiction; the Court will not exercise its jurisdiction upon a mere question of propriety AIR 1931 Cal 257 at p.258(1), Rizwan-ul-Hasan v. State of U.P., AIR 1953 SC 185(K), In re Subrahmanyam, Editor, Tribune, AIR 1943 Lah 329(L) and Emperor v. Khushal Chand, AIR 1945 Lah 206 (M).
40.As observed by Lord Denning M.R. in R. v. Commissioner of Police of the Metropolis, Ex. Parte Blackburn, 1968 (2) AER 319, "It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise."
41.In Pratap Singh v. Gurbaksh Singh, AIR 1962 Supreme Court 1172 : (1962 (2) Cri LJ 262) it was observed thus: :Even if the action of the officers be considered to be improper, that would not justify holding them guilty of contempt of Court when their action in no way prejudiced that trial of the suit. It is when the departmental action directly affects the course of the judicial proceeding that it can amount to interfering with the course of justice and consequently, to contempt of Court. If it does not do so, there can be no case of contempt of Court".
42.In this case, when the petitioner showed his accusing finger towards the respondent, he had failed to note his other finger pointed out towards him. In this case he can also be proceeded with contempt proceedings for not only using his cell phone for photographing the respondent, who was inside the Court hall, but also for sending a defaming and threatening telegram in the individual name of a judge of this Court for numbering his contempt application and for boycotting the court. It is also surprising to note that he made an endorsement in the court papers that in his capacity as an officer of the court, he had filed the petition. But on the particular day, i.e., on 15.6.2011, he had failed to discharge duties of an officer of the Court by withdrawing himself from attending the Court. That can also constitute a misconduct as per the rules framed by the Bar Council of India under the Advocates Act, 1961.
43.However his failure to obtain the consent of the Advocate General will automatically result in the petition being dismissed. In this context, it is necessary to refer to the judgment of the Supreme Court in Biman Basu Vs. Kallol Guha Thakurta reported in (2010) 8 SCC 673. The following passages found in paragraphs 24, 28,31,34 and 35 may be usefully extracted below:
24........ Be it noted that there is no prayer in the contempt petition filed by the respondents to initiate suo motu proceedings. We are unable to sustain the finding of the High Court in this regard for the same is not supported by any material available on record. The order dated 17-10-2003 and the rule issued in clear and categorical terms reflects that law was set in motion exclusively based on the averments made in the petition and the affidavit of verification filed in support of the petition and the arguments of the counsel. There is nothing on record suggesting that the contents of the petition were treated as information placed before the Court for initiating the contempt proceedings suo motu by the Court. The contents of the petition of the respondents, their affidavit of verification dated 13-10-2003, the exhibits and annexures to the said petition and the arguments of the counsel alone constituted the foundation, based on which the law was set in motion. The petition itself is not styled as any piece of information that was placed before the Court for its consideration.
It is not a case where the High Court refused to entertain the petition and took cognizance on its own motion on the basis of the information supplied to it in the petition. The record does not bear any such proceedings of the Court. Had it been so, the respondents would have been nowhere in the picture.
28.In the case in hand, it is evident from the record, the respondents were continued to be shown as the petitioners in the contempt case before the High Court and participated throughout as if they were prosecuting the appellant. There is no order reflecting that the Court having taken note of the information made before it, initiated suo motu proceedings on the basis of such information furnished and required the respondents only to assist the Court till the disposal of the matter. On the contrary, the respondents are shown as the petitioners in the contempt case before the High Court. It is thus clear, it is the respondents who initiated the proceedings and continued the same but without the written consent of the Advocate General as is required in law. The proceedings, therefore, were clearly not maintainable.
31.In exercise of the powers conferred by Section 23 of the Contempt of Courts Act, 1971 and by Article 215 of the Constitution of India and other enabling powers in that behalf, the High Court of Calcutta made the rules to regulate the proceedings for contempt of itself or of a court subordinate to it under the Act. The rules are known as the Calcutta High Court Contempt of Court Rules, 1975. The Rules, inter alia, provide that proceedings in a criminal contempt may be initiated (a) on its own motion by the High Court under Section 15(1) of the Act; or (b) on a motion founded on a petition presented by the Advocate General under Section 15(1)(a) of the Act; or (c) on a motion founded on a petition presented by any other person with the consent in writing of the Advocate General under Section 15(1)(b) of the Act. Every such petition shall contain full particulars of the material upon which the petition is grounded and the prayer to the petition and distinctly state the particular contumacious conduct alleged for which the rule is prayed for and shall be signed and dated by the petitioner or his duly authorised agent and every such petition shall be verified by the solemn affirmation made by the petitioner or by a person or persons having cognizance of facts stated and shall state clearly whether the statements are based on knowledge, information and belief or on record.
34.In the present case, Petitioner 1 before the High Court is a practising advocate and argued his case in person. So far as Petitioner 2 is concerned, he was represented by more than one lawyer. We have meticulously examined the contempt petition in which there was no prayer for taking suo motu action against the appellants. The proceedings before the High Court were initiated by the respondents by filing contempt petition under Section 15. The petition was vigorously pursued and argued as a private petition. From the material available on record including the impugned judgment, it is impossible to accept the view taken by the High Court that the Court had taken suo motu action. Even in this Court, the respondents entered their appearance through their counsel who did not turn up but elaborate written submissions were submitted by the first respondent.
35.For all the aforesaid reasons, we hold that the petition to take action against the appellant under Section 15 without the written consent of the learned Advocate General was not maintainable in law."
44.Even earlier the Supreme Court in Bal Thackrey v. Harish Pimpalkhute reported in (2005) 1 SCC 254 in paragraphs 14,16,18,22 and 23 held as follows:
"14.The direction issued and procedure laid down in Duda case3 is applicable only to cases that are initiated suo motu by the court when some information is placed before it for suo motu action for contempt of court.
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 petitions. In J.R. Parashar case10 it was observed that the underlying rationale of clauses (a), (b) and (c) of Section 15(1) 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 the court is not troubled with frivolous matters. To similar effect is the decision in S.K. Sarkar case8.
18.The directions in Duda case3 when seen and appreciated in the light of what we have noticed hereinbefore in respect of contempt action and the powers of the Chief Justice, it would be clear that the same prescribe the procedure to be followed by High Courts to ensure smooth working and streamlining of such contempt actions which are intended to be taken up by the Court suo motu on its own motion. These directions have no effect of curtailing or denuding the power of the High Court. It is also to be borne in mind that the frequent use of suo motu power on the basis of information furnished in a contempt petition otherwise incompetent under Section 15 of the Act may render the procedural safeguards of the Advocate General's consent nugatory. We are of the view that the directions given in Duda case3 are legal and valid.
22.A perusal of the record including the notices issued to the appellant shows that the Court had not taken suo motu action against the appellant. In contempt petitions, there was no prayer for taking suo motu action for contempt against the appellant. The specific objection taken that though suo motu action could be taken under Section 15 of the Act on any information or newspaper but not on the basis of those contempt petitions which were filed in regular manner by private parties, was rejected by the High Court observing that being court of record it can evolve its own procedure, which means that the procedure should provide just and fair opportunity to the contemner to defend effectively and that the contemner has not expressed any prejudice or canvassed any grievance that he could not understand the charge involved in the proceeding which he had been called upon to defend. It is, however, not in dispute that the charge against the appellant was not framed.
23.In these matters, the question is not about compliance or non-compliance with the principles of natural justice by granting adequate opportunity to the appellant but is about compliance with the mandatory requirements of Section 15 of the Act. As already noticed the procedure of Section 15 is required to be followed even when petition is filed by a party under Article 215 of the Constitution, though in these matters petitions filed were under Section 15 of the Act. From the material on record, it is not possible to accept the contention of the respondents that the Court had taken suo motu action. Of course, the Court had the power and jurisdiction to initiate contempt proceedings suo motu and for that purpose consent of the Advocate General was not necessary. At the same time, it is also to be borne in mind that the courts normally take suo motu action in rare cases. In the present case, it is evident that the proceedings before the High Court were initiated by the respondents by filing contempt petitions under Section 15. The petitions were vigorously pursued and strenuously argued as private petitions. The same were never treated as suo motu petitions. In absence of compliance with the mandatory requirement of Section 15, the petitions were not maintainable."
45.The Supreme Court further in Bijayini Dash v. Loknath Mishra reported in (2005) 9 SCC 194 in paragraphs 3 and 4 held as follows:
"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."
46.The conduct of the respondent after getting a legal notice from the petitioner in admitting her mistake of using the cell phone though for a brief period and later when the contempt petition was filed her expressing respect for the Court proceedings and tendering an unconditional apology will clearly show that she had never intended to commit any contempt more so, a criminal contempt for tending to obstruct the administration in the course of justice. In view of the above, the contempt petition must necessarily fail. Accordingly, it is liable to be dismissed.
47.The criminal original petition was filed by the petitioner seeking to direct the Inspector of Police, Othakadai to register the complaint of the petitioner, dated 15.6.2011. It is seen from the records that the petitioner did not send any complaint on 15.6.2011, the day on which the alleged incident had taken place. On the other hand, for his complaint dated 30.6.2011, the Station House Officer had given a receipt in the form of a CSR. If the petitioner was so aggrieved, he must have taken further steps in terms of Section 156 of Cr.P.C and not to file a petition under Section 482 of Cr.P.C invoking the extraordinary power of this Court.
48.In this context, it is necessary to refer to a judgment of the Supreme Court in Sakiri Vasu Vs. State of Uttar Pradesh and others reported in (2008) 2 SCC 409 and in paragraph 11, it was observed as follows:
"11. ... if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation."
49.Further, it must also be noted that the alleged offence had taken place inside the Court hall during the court proceedings. The petitioner should have made his complaint to the presiding judge (K.Venkataraman, J.). On the other hand, no such complaint was made till the learned Judge left the Madurai Bench after his roster. He was the ultimate authority to take an action if an offence took place inside his court hall and can issue appropriate orders. On the other hand, after the exchange of letters, the petitioner had chosen to file both petitions only on 12.09.2011. Even when the Registry had doubts about entertainment of the petition, he sent threatening and abusive telegram, so as to make the officers of Registry to succumb to his pressure by numbering his petition. Such an action on the part of the petitioner who claims to be a practicing Advocate is most unwelcome and will not be tolerated by this court should it be repeated. In view of the above, there is no case made out to entertain the petition filed under Section 482 Cr.P.C.
50.In the result, both contempt petition (MD)No.581 of 2011 and Criminal O.P.(MD)No.15816 of 2011 will stand dismissed. However, parties are allowed to bear their own costs.
vvk To
1.The Registrar (Judicial), Madurai Bench of Madras High Court, Madurai-625 023.
2.The Inspector General of Police, Inspector General of Police Office, Natham Road, Madurai.
3.The Superintendent of Police, Natham Road, Madurai.
4.The Inspector of Police, Othakadai Police Station, Othakadai, Madurai-625 107.