Madras High Court
R.Gandhi vs Rupert J.Barnabas on 11 September, 2006
Author: M. Karpagavinayagam
Bench: M.Karpagavinayagam, K.N.Basha
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 11/09/2006 *CORAM THE HON'BLE MR.JUSTICE M.KARPAGAVINAYAGAM AND THE HON'BLE MR.JUSTICE K.N.BASHA +Sub Appl. No.121 of 2005 #Dr.T.Mathu xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx $N.K.Jinnah xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx !FOR PETITIONER : R.Gandhi ^FOR RESPONDENT : Rupert J.Barnabas :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11 - 09 - 2006 CORAM:
THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM AND THE HONOURABLE MR.JUSTICE K.N. BASHA SUO MOTU CONTEMPT PETITION No.129 of 2001 AND SUB APPLICATION No.121 OF 2005 Suo Motu Contempt proceedings initiated as per the order of this Court dated 22.2.2001 and made in Crl.O.P.Nos.12121 and 12122 of 1999.
Sub Application No.121/2005:
Dr.T.Mathu ..Petitioner/Third Party Vs. 1. N.K.Jinnah 2. J.Nizar ..Respondents/Contemners
To permit the petitioner for being mentioned in the above Suo Motu Contempt Petition No.129 of 2001.
For Petitioner : Mr.R. Gandhi, S.C. for Mr.E.J.Ayyappan For Respondents : Mr.Rupert J.Barnabas Amicus Curiae : Mr.M.Jegadeesan and Mr.N.R.Chandran, Advocate General Mr.P.Kumaresan, Addl.P.P. for Public Prosecutor O R D E R M. KARPAGAVINAYAGAM, J.
N.K.Jinnah and K.Nizar, the father and son respectively were found guilty in the suo motu contempt proceedings already initiated. Instead of imposing sentence of imprisonment, as requested and undertaken by them, they were directed to pay costs of Rs.50,000/- each by means of Demand Draft to the Prime Minister's Gujarat Earthquake Relief Fund and thereafter, they should intimate to the trial Court the same and file xerox copy of the said Demand Drafts before the said Court. Accordingly, they filed memo before the trial Court along with the xerox copies of the Demand Drafts stating that the Demand Drafts had been sent to the Prime Minister's Relief fund. But, actually, they did not send the same, on the other hand, they cancelled the Demand Drafts and encashed the amount and realised for themselves. This is brought to the notice of this Court in the sub application by the third party in the main Suo Motu Contempt Petition. On entertaining the said application, notice was sent to the contemners as well as to the learned Advocate General. This is subject-matter of the present proceedings.
2. The relevant facts are as follows :
"(a) Two private complaints were filed against N.K.Jinnah and K.Nizar, who are the father and son, for an offence under Section 138 of the Negotiable Instruments Act before the X Metropolitan Magistrate Court, Egmore, Chennai.
(b) Challenging the said proceedings, both the contemners filed two petitions in Crl.O.P.Nos.12121 and 12122 of 1999, seeking for quashing of those proceedings.
(c) Finding that the contemners have abused the process of the Court by filing applications after applications and obtaining interim orders, stalling the criminal proceedings, without disclosing the correct particulars, the learned single Judge of this Court initiated contempt proceedings in Suo Motu Contempt Petition No.129 of 2001 and issued notice to the contemners.
(d) After receipt of the notice, both the contemners appeared before the Court. They filed affidavits, tendering unconditional apology and pleading for mercy, with a request that they can be directed to pay costs or compensation for good cause, instead of sending them to prison. They also gave an undertaking that they would not stall the proceedings any more at any cost and would co-operate with the trial.
(e) Accordingly, by the order dated 09.04.2001, the learned single Judge (one of us) found both the contemners guilty of contempt and, as requested, directed them to pay costs of Rs.50,000/- each, totally Rs.1.00 lakh, to the Prime Minister's Relief Fund, within a period of one month from the date of the order. The learned single Judge further directed that the xerox copies of the Demand Drafts should be filed along with the memo before the trial Court within the time stipulated, in proof of having sent the Demand Drafts to the Prime Minister's Relief Fund. The quashing proceedings were also dismissed, by recording the undertaking that they would not stall the proceedings before the trial Court in the future.
(f) On 09.05.2001 i.e., the last date of the time stipulated, both the contemners filed xerox copies of the Demand Drafts before the trial Court, along with a memo, to show that the Demand Drafts have already been sent to the Prime Minister's Relief Fund and as such, the order passed by this High Court on 09.04.2001 has been complied with. The same was recorded by the trial Court. Thereafter, the contemners, instead of sending the Demand Drafts to the Prime Minister's Relief fund, clandestinely, cancelled the same on 11.05.2001 and 02.08.2001 and encashed for themselves.
(g) One Mathu, a third party, one of the partners of the concern, in which the contemners are the other partners, lodged a complaint with the police in the year 2002 against the contemners for various offences alleging that they have swindled the huge amount. In the said complaint, which was registered by the Crime Branch Police as F.I.R.717 of 2002, the said Mathu incidentally mentioned the High Court's order, directing the contemners to send the Demand Drafts to the Prime Minister's Relief Fund; but they did not comply with the same and, instead, they got the Demand Drafts encashed, in violation of the Court's order.
(h) The said F.I.R. was sought to be quashed and the investigation was also sought to be quashed by the present contemners, by filing a petition in Crl.O.P.No.6775 of 2003 in the High Court.
(i) At that stage, the said Mathu came to know about the filing of the false memo before the trial Court that the Demand drafts, as per the High Court's order, have been sent to the Prime Minister's Relief Fund. Therefore, he filed a copy application for a copy of the memo and the Demand Drafts on 09.03.2005 before the trial Court and obtained the same.
(j) On noticing that a fraud had been committed on the trial Court as well as on the High Court, the said Mathu approached this Court to file this Sub Application No.121 of 2005, to bring to the notice of this Court that the order passed in Suo Motu Contempt Petition No.129 of 2001 has not been complied with and, on the other hand, a false memo has been filed before the trial Court as if the High Court's order has been complied with.
(k) Thereupon, the sub application was entertained and notice was ordered on 01.04.2005, by reopening the Suo Motu Contempt Petition No.129 of 2001."
3. On receipt of the notice, the contemners engaged the counsel Mr.Jegadeesan and appeared before this Court. On behalf of them, it was represented that subsequently, they took Demand Drafts for Rs.1.00 lakh and sent the same to the Prime Minister's Relief Fund. They wanted time to file an affidavit to that effect. Accordingly, time was granted. On 27.08.2005, on behalf of both the contemners, namely, father and son, an affidavit was filed, admitting the allegation that they did not pay the amount on or before 09.05.2001, as they were not able to pay the same within that date, due to financial constraint and, subsequently, after notice, they took Demand Drafts and sent the same to the Prime Minister's Relief Fund on 14.06.2005; as such, the order has been subsequently complied with and, hence, they may be pardoned for the delayed payment and their unconditional apology be accepted.
4. Since it was noticed that it was not only a delayed payment, but also filing a false statement before the trial Court on 09.05.2001 to the effect that the Demand Drafts had already been sent and the copies of the Demand Drafts were filed as if they were sent, the learned single Judge wanted to enquire as to why such a false statement was made before the trial Court and also as to the delayed payment, that too subsequent to the notice of the reopening of the contempt proceedings, and thought it fit to appoint Advocate General, to assist the Court by the order dated 1.10.2005.
5. Since it was brought to the notice of the learned single Judge that in the complaint given by Mathu in 2002, there is a reference about the fraud committed by both the contemners by not sending the Demand Drafts, the learned single Judge directed the Registry to place the papers before the Hon'ble the Chief Justice to post along with Suo Motu Contempt Petition, by referring to a Division Bench. Accordingly, on 03.10.2005, the Hon'ble the Chief Justice ordered both the matters to be posted before this Division Bench. Therefore, this matter has come up before this Division Bench.
6. In the meantime, another Senior Counsel Mrs.Nalini Chidambaram was engaged on behalf of the respondents/contemners. She appeared and requested to give permission to file an additional counter. Accordingly, time was granted. Subsequently, that counsel also was changed. Ultimately, the contemners engaged the present counsel Mr.Rupert J.Barnabas.
7. When the matter came up for hearing, the learned counsel Mr.Rupert J.Barnabas, who has now been engaged, raised various points questioning the jurisdiction of the Court, to enquire into the matter, through the additional counter. Following are the points :
(1) Under Section 20 of the Contempt of Courts Act, the proceedings have to be initiated within a period of one year from the date on which the alleged contempt is committed. The final order had been passed on 09.04.2001 in the Suo Motu Contempt Petition No.129 of 2001. Now, the third party has filed Sub Application No.121 of 2005 only on 17.03.2005 for initiating the contempt proceedings i.e., after a lapse of nearly five years. Hence, this Court has no jurisdiction to proceed further as it is barred by limitation.
(2) When the information is given to the High Court by a third party regarding contempt, the Registry of the High Court, as per Rule 8 of the Rules to Regulate Proceedings for Contempt of Subordinate Courts and of High Courts, which have been formulated by the High Court under Section 23 of the Contempt of Courts Act, should not have straightaway numbered the petition and, on the other hand, it should have placed the papers before the Hon'ble Judge concerned, who, in turn, will place the matter before the Hon'ble the Chief Justice for orders to decide as to whether to forward the same to Advocate General to take cognizance or not, since the said issue is liable to be decided by the Advocate General as to whether there is a prima facie case made out or the same has been made with an ulterior motive. This mandatory procedure of referring the matter to Advocate General is contemplated under Section 15 of the Contempt of Courts Act, 1971. Admittedly, this procedure has not been followed. Hence, the sub application is not maintainable in law.
(3) The informant's averments in his affidavit dated 17.03.2005, making some allegations against the contemners, are reckless and false. The sweeping and irresponsible allegation was made with the sole aim of prejudicing the mind of the Hon'ble Court and thereby achieving the object of convicting the contemners. Therefore, the informant has to be subjected to examination in chief and cross, to test his veracity, and the contempt proceedings should be proceeded in accordance with Section 17 (5) of the Contempt of Courts Act.
(4) The Hon'ble the Chief Justice had allocated judicial work to this Hon'ble Court to deal with the subject of contempt proceedings alone. The power of suo motu to take up the petition for quashing in Crl.O.P.No.6775 of 2003 for final disposal along with the contempt petition is not within the jurisdiction of this Court. Further, Crl.O.P.No.6775 of 2003 is not connected to the contempt petition, since it is a separate cause of action that arose between the informant and the contemners. Admittedly, the informant is not a party to the contempt petition and, hence, the criminal original petition cannot be clubbed with the contempt petition for final disposal.
8. The learned Advocate General would make the following submissions with reference to the above points urged by the counsel for contemners:
"(A) With regard to the first point, Section 20 of the Contempt of Courts Act will not apply to the facts of the present case in Suo Motu Contempt Petition No.129 of 2001. The Court gave a direction to the contemners to send Rs.50,000/- each as costs to the Prime Minister's Relief Fund through Demand Drafts. Admittedly, the direction has not been obeyed. On the other hand, false statement has been made by the contemners by filing a memo before X Metropolitan Magistrate Court as if the amount was sent for Prime Minister's Relief Fund in compliance of the direction of this Court dated 09.04.2001. This was brought to the notice of this Court on 17.03.2005 in the sub application by a third party. Only thereafter, the amount was actually paid on 14.06.2005. Failure to pay the amount would constitute a continuing offence and, therefore, the question of limitation under Section 20 of the Act cannot be pleaded. Every day of non-compliance of the order would amount to continued contempt. This is not an initiation of new proceedings and it is only a continuation of the earlier proceedings. Hence, the question of limitation does not arise in this case.
(B) With regard to the second point, namely, failure to obtain consent of the Advocate General under Section 15 of the Act and the failure to follow the rules, the plea that the sub application is not maintainable is untenable, since these proceedings have been initiated only suo motu i.e., on its own motion by the High Court in Suo Motu Contempt Petition No.129 of 2001, the main proceedings. Section 15 of the Act and other rules would apply, only when the High Court takes action on the motion of any other person, with the consent of the Advocate General. The present main Contempt Petition No.129 of 2001 is itself suo motu and entertaining the sub application is a continuation to Suo Motu Contempt Petition No.129 of 2001. Already, cognizance has been taken under Section 15 of the Act on suo motu action; therefore, no consent from Advocate General is necessary in respect of Sub Application and, hence, this contention is not tenable.
(C) In respect of the next point relating to the transfer of petition for quashing, it is the prerogative power of the Chief Justice to allocate work to other Judges. In this case, there is an order dated 03.10.2005 of the Hon'ble the Chief Justice, directing the Registry to post the petition for quashing along with the contempt petition and, therefore, clubbing together two cases cannot be objected."
9. On the basis of the respective contentions, we have heard the learned counsel for the parties.
10. Mr.Jegadeesan, who was earlier engaged by the contemners through whom the first affidavit has been filed, tendering unconditional apology, has been asked to assist the Court for producing the judgments on this point, both for and against. Accordingly, he has made his written submissions as Amicus Curiae and produced the judgments relating to this issue.
11. On behalf of third party, who has filed sub application, Mr.R.Gandhi, learned Senior Counsel, is also heard at length.
12. We have given our careful consideration to the rival contentions.
13. Before dealing with the question, it would be better to refer to some of the relevant facts, to understand the core of the question:
(1) The contemners, father and son, accused in two private complaints, filed for the offence under Section 138 of the Negotiable Instruments Act, filed several petitions before trial Court, Sessions Court and High Court and obtained interim stay orders periodically and succeeded in stalling the proceedings from the year 1995 to 2001. Ultimately, the learned single Judge dismissed the two Criminal Original Petition Nos.12121 and 12122 of 1999 and initiated suo motu contempt proceedings, since there was a prima facie case for holding that both the contemners abused the process of the Court and thereby interfered with the administration of justice by this Court. Ultimately, the contemners filed an affidavit, tendering unconditional apology and expressing their willingness to pay any costs or compensation for good cause and also giving an undertaking that they would not stall the proceedings in future at any cost and they would co-operate with the trial.
(2) Accordingly, by the order dated 09.04.2001, they were found guilty of contempt and instead of sending them to prison, they were directed to pay costs of Rs.50,000/- each by means of Demand Draft to be sent to the Prime Minister's Relief Fund, within one month from the date of the order.
(3) In compliance of the above order, the contemners filed a memo before the trial Court on 09.05.2001, stating that as per the High Court's order dated 09.04.2001, the Demand Drafts were sent to the Prime Minister's Relief Fund and xerox copies of the same have been enclosed along with the memo. This was accepted by the X Metropolitan Magistrate Court. But, actually, the Demand Drafts were not sent to the Prime Minister's Relief Fund. On the other hand, the said Demand Drafts were cancelled on 11.05.2001 and 02.08.2001 respectively, and the amounts of those Demand Drafts were encashed by the contemners themselves. This was brought to the notice of the Court by the third party, namely, Mathu, the applicant in the sub application, filed on 17.03.2005, intimating to this Court that a fraud has been committed by the contemners on the trial Court and the orders of this High Court have been blatantly violated.
(4) On the basis of the said sub application, suo motu contempt proceedings were reopened and notice was ordered on 01.04.2005 in the sub application. On receipt of the same, both the contemners filed an affidavit on 27.08.2005 before this Court, admitting that the orders passed on 09.04.2001 have not been complied with, due to financial constraints, and, after receipt of the notice, they sent the Demand Drafts to the Prime Minister's Relief Fund for the said amount on 14.06.2005, and also tendering unconditional apology for the delayed payment. The fact that Demand Drafts have not been sent to the Prime Minister's Relief Fund as per the orders of this Court and false memo had been filed before the trial Court and the Demand Drafts had been cancelled and encashed by them for themselves has not been denied in the said affidavit. Therefore, the learned single Judge issued notice to the Advocate General, to assist the Court, to decide the issue relating to the conduct of the parties, for having not complied with the orders and filing a false memo before the trial Court. The learned single Judge also directed the Registry, by the order dated 01.10.2005, to place the papers before the Hon'ble the Chief Justice, to post the matter before a Division Bench. Thereafter, on 03.10.2005, the Hon'ble the Chief Justice directed the Registry to post both the contempt petition and the petition for quashing before this Division Bench.
14. The above facts, which have not been seriously disputed, would indicate the following: (i) the orders passed on 09.04.2001 have not been complied with; (ii) the contemners have not chosen to approach this Court immediately after expiry of the period, seeking for extension; (iii) the contemners filed a false memo on 9.5.2001 before the trial Court, as if the Demand Drafts have been sent to the Prime Minister's Relief Fund, even though the same were not sent; (iv) those drafts were subsequently cancelled and encashed for themselves; (v) only after issuance of notice on 01.04.2005 in the sub application filed by a third party on 17.03.2005, the contemners have chosen to send the Demand Drafts on 14.06.2005 and (vi) the contemners having accepted the same, tendered unconditional apology for their act through the affidavit.
15. But now, Mr.Rupert J.Barnabas, the new counsel engaged by the contemners has raised fresh questions before this Court, which we shall deal with one by one.
16. The first question relates to the limitation, as provided under Section 20 of the Contempt of Courts Act. Section 20 reads as follows:
"20. Limitation for actions for contempt.- No Court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
17. As per the above provision, the limitation prescribed under the Act for initiating the contempt proceeding is one year from the date on which the contempt is alleged to have been committed. In other words, the question of limitation, as prescribed under Section 20 of the Contempt of Courts Act, will arise only when the contempt proceedings are initiated.
18. In this case, the contempt proceedings are initiated in Suo Motu Contempt Petition No.129 of 2001 on 22.2.2001. Ultimately, on the plea of guilt, the learned single Judge by the order dated 9.4.2001 found the contemners guilty and instead of sending them to prison, as requested by them, imposed costs of Rs.50,000/- each, to be paid to the Prime Minister's Relief Fund, within one month i.e., on or before 09.05.2001. So, the offence, which has been proved by the order dated 09.04.2001, continues till the amount is paid. Admittedly, they accepted through the affidavit dated 27.8.2005 that they did not send the Demand Drafts to the Prime Minister's Relief Fund as per the orders of this Court and the amount has been paid by the contemners only on 14.06.2005, that too after receipt of the notice by this Court on 01.04.2005, after reopening of the main Suo Motu Contempt Petition No.129 of 2001. So, failure to pay the amount will constitute the continuing offence. Every day of non-compliance of the order dated 09.04.2001 will amount to contempt and every day of non-compliance will provide a cause of action. Admittedly, the contemners paid the costs only on 14.06.2005. This has been admitted by them in the affidavit, filed on 27.08.2005 tendering unconditional apology, for the violation of the order and for having made the delayed payment.
19. Mere filing of sub application would not be construed to be a petition, seeking punishment of the contemners for contempt. It only amounts to furnishing the information, to enable this Court, to enquire into the main Suo Motu Contempt Petition No.129 of 2001 as to whether the order of this Court dated 09.04.2001 has been complied with or not. Therefore, this Court is of the view that Section 20 of the Contempt of Courts Act would not apply to the facts of the present case.
20. In this context, it would be worthwhile to refer to the arguments advanced by the learned Advocate General as well as Mr.Jegadeesan, Amicus Curiae, with reference to the special powers conferred on the High Court, under Article 215 of the Constitution of India.
21. The Advocate General would cite two authorities, namely, 1989 L.W.(Crl.) 237 (ABDUL HAMEED T.M.A. v. S.RADHAKRISHNAN) and 1996 Writ L.R.57 (RAJENDRAN & OTHERS/CONTEMNERS/RESPONDENTS/POLICEOFFICERS/ADVOCATES OF SAIDAPET BAR) and refer to the observation that Article 215 of the Constitution gives the power to High Court, which is a Court of Record, to punish for contempt and the same is inherent and it cannot be controlled by the powers of the Legislature through some other procedure.
22. Dealing with the same point, Mr.Jegadeesan, Amicus Curiae, would cite three decisions, namely, (i) AIR 1992 SUPREME COURT 904 (PRITAM PAL v. HIGH COURT OF MADHYA PRADESH); (ii) 1972 (1) SUPREME COURT CASES 651 (R.L. KAPUR v. STATE OF MADRAS) and 1995 CRL.L.J.3830 (A.MAYILSWAMI v. STATE OF KERALA).
23. Mr.Rupert J.Barnabas, learned counsel appearing for the contemners, also would cite AIR 2001 SUPREME COURT 2763 (PALLAV SHETH v. CUSTODIAN AND OTHERS), relating to the powers under Article 215.
24. At this stage, it would be better to refer to the relevant observations made in some of the important judgments relating to the above question:
(i) In AIR 1992 SUPREME COURT 904 (PRITAM PAL v. HIGH COURT OF MADHYA PRADESH), the Supreme Court would observe as follows:
"The position of law is that the power conferred upon the Supreme Court and the High Court, being Courts of Record under Articles 129 and 215 of the Constitution respectively is an inherent power and that the jurisdiction vested is a special one not derived from any other statute but derived only from Articles 129 and 215 of the Constitution of India (See D.N.Taneja v. Bhajan Lal, (1988) 3 SCC 26) and therefore the constitutionally vested right cannot be either abridged by any legislation or abrogated or cut down. Nor can they be controlled or limited by any statute or by any provision of the Code of Criminal Procedure or any Rules. The caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly, that the procedure to be followed should be fair and that the contemner should be made aware of the charge against him and given a reasonable opportunity to defend himself."
(ii) In 1995 CRI.L.J.3830 (A.MAYILSWAMI v. STATE OF KERALA), the Full Bench of Kerala High Court would hold thus:
"As every High Court has power to determine questions about its own jurisdiction and it has inherent power to punish for its contempt summarily period of limitation in S.20 of the Contempt of Courts Act has no application to contempt proceedings initiated in the High Court on its own motion or on complaint regarding contempt of the High Court. As the power conferred on the High Court under Art.215 of the Constitution of India is absolute and unfettered, it cannot be said that the time limit specified in S.20 would apply and the proceeding before this Court is barred by limitation."
(iii) In 1989 L.W.(CRL.) 237 (ABDUL HAMEED T.M.A. v. S.RADHAKRISHNAN), this Court has observed as under:
"The Law of Limitation is partly substantive and partly procedural. Basically, the principle of limitation has no place in the law of contempt. ..... To say that S.20 of the Act does not abrogate the power under Art.215 of the Constitution of India, either wholly or partially and that the powers can be exercised in all their amplitude within the period of one year specified in the Section is really a contradiction in terms and an incongruity in itself. It should not be forgotten that the law of contempt is for the purpose of preserving the purity and efficacy of the judicial process and no man should be allowed to snap his fingers at the system of justice by cleverly keeping out of its reach for a particular period of time. It should be realised by one and all in the society that no one who interferes or obstructs the due process of law and administration of justice is beyond the reach of the contempt power of the High Court irrespective of passage of time. "
(iv) In AIR 2001 SUPREME COURT 2763 (PALLAV SHETH v. CUSTODIAN AND OTHERS), it is held as follows:
"An interpretation of Section 20, which would render the constitutional power of the Courts nugatory in taking action for contempt even in cases of gross contempt, successfully hidden for a period of one year by practising fraud by the contemner, would render Section 20 as liable to be regarded as being in conflict with Art.129 and/or Art.215. Such a rigid interpretation must, therefore, be avoided."
25. In the very same decision, the Supreme Court would observe that congnizance of a criminal contempt under Section 15 would be at the time of initiation of the main proceedings for contempt and not for the subsequent action thereon of the refusal to comply with the orders. The relevant observation is this:
"The beginning of the action prescribed for taking cognizance of criminal contempt under Section 15 would be initiating the proceedings for contempt and the subsequent action taken thereon of refusal or issuance of a notice or punishment thereafter are only steps following or succeeding to such initiation."
26. The above decisions would make it clear that Section 20, providing for limitation under the Contempt of Courts Act, would not apply to the High Court, which is invested with the powers under Article 215 of the Constitution and even otherwise the same would apply only to the initiation of the main proceedings and not to the subsequent proceedings on the sub application, on coming to know that the orders in the main application have not been complied with. Therefore, on both these aspects, the contention of the contemners, with reference to the jurisdiction, would fail.
27. The second contention is that the sub application is not maintainable without the consent of the Advocate General and this is a violation of Rule 8 of the Rules to Regulate Proceedings for Contempt of Subordinate Courts and of High courts and Section 15 of the Contempt of Courts Act.
28. Let us now see Rule 8 of the Rules to Regulate Proceedings for Contempt of Subordinate Courts and of the High courts, which contemplates as follows :
"Where a Judge of the High Court considers that any matter that might have come to his notice in any 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."
29. Section 15 of the Contempt of Courts Act would provide as follows :
"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;
(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."
30. On the basis of the above Rule and Section, it is contended that the matter ought to have been forwarded to the Advocate General and his consent obtained.
31. This contention has no basis, in view of the fact that already, this Court took suo motu action in Suo Motu Contempt Petition No.129 of 2001, by the order dated 22.02.2001 on its own, as provided under Section 15 of the Act, and, as such, the contempt proceedings in Sub Application No.121 of 2005 do not require consent of the Advocate General and the sub application has not been filed, requesting for taking contempt action. On the other hand, it is only an information furnished to this Court, to show that the order passed in the Contempt Petition has not been complied with by the contemners.
32. Section 15 of the Act applies only in respect of initiating or taking cognizance of main contempt petition and not in respect of sub application in the main petition.
33. As indicated above, already, suo motu proceedings have been initiated; the contemners pleaded guilty before this Court with reference to the contempt; on the basis of the materials and also on their plea, they were found guilty of contempt and directed to pay costs to the Prime Minister's Relief Fund. Now, in this Sub Application, it is brought to the notice of this Court by the third party that the said order has not been complied with. Therefore, this Court was constrained to reopen the said main contempt petition and enquire into the matter as to whether the order has been complied with and, if not, under what circumstances, it has not been complied with.
34. Once cognizance has been taken by the Court under Section 15, no further consent from the Advocate General is necessary in respect of each sub application, merely because the sub application has been filed by a third party. If such an argument is accepted, then, each sub-application requires consent of the Advocate General, which would lead to illogical situation, where the consent of the Advocate General would become necessary whenever the interlocutory or sub application is filed in the same proceedings.
35. In this context, it would be worthwhile to refer to the observations made by the Supreme Court. Following are the relevant decisions :
(i) In 1999 CRI.L.J.2421 (ERAPPA v. CHANNABASAPPA),a Division Bench of the Karnataka High Court, following the Supreme Court decisions, would observe as follows :
"In view of the rulings (AIR 1971 SUPREME COURT 1132 and AIR 1972 SUPREME COURT 858), we are convinced that when there is contempt of this Court itself by a party who is guilty of an offence of criminal contempt within the meaning of Article 215 of the Constitution of India either by suppression of facts or by making false statement to obtain a favourable order or for that matter when guilty of the abuse of process of law within the meaning of Section 2 (c) of the Act, there is no necessity for a party to obtain the consent of the Advocate General for initiating the proceedings for contempt of this Court and all that what a party has to do in such situation is to bring to the notice of this Court such an act of omission or commission on the part of the contemner resulting in the contempt of this Court itself and this Court being a Court of record, it is very much available for this Court to initiate contempt proceedings suo motu and as such, in our considered view, the question of obtaining a consent of the Advocate General as contemplated under Section 15 (1) of the Act is not necessary. Hence, we hold that the consent of the Advocate General for maintaining contempt petition in the facts and circumstances of the case as put up before us, is not necessary. "
(ii) In 2005 SUPREME COURT CASES (CRI.) 307 (BAL THACKERY v. HARISH PIMPALKHUTE AND OTHERS), the Supreme Court would hold as follows :
"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."
36. The above decisions would show that the prior consent of the Advocate General is mandatory only when the proceedings were initiated at the instance of a private party and the consent is unnecessary when the suo motu action has been taken by the High Court, which is vested with the power under Article 215 of the Constitution. Hence, this contention also would fail.
37. The third contention would be with reference to the procedure under Section 17 (5) of the Contempt of Courts Act, subjecting the informant to examination in chief and cross, to test his veracity.
38. It is true that this informant in Sub Application No.121 of 2005, while furnishing the particulars of non-compliance of the orders of this Court, has levelled so many allegations against the contemners. Those allegations are denied in the counter affidavit filed by the contemners. However, it is to be stated that the probe into those allegations and the roving enquiry into the truth or otherwise of those allegations are totally irrelevant and unnecessary, as, in this case, we are mainly concerned with the question as to whether the order passed on 09.04.2001 has been complied with or the contempt has been continued to be committed by the contemners. Therefore, we make it clear that we do not want to refer to or consider those allegations, which may or may not be true, as, in our opinion, those things need not be considered in this petition. Hence, the question of subjecting the informant to examination with reference to the other allegations would not arise. On the other hand, the contemners themselves admitted in their first affidavit that they filed a memo containing false information and subsequently, they have corrected themselves by making payment of costs to the Prime Minister's Relief Fund and as such, they may be pardoned. Therefore, this point also is liable to be rejected.
39. The fourth point is with reference to the clubbing of the contempt application and the quashing application.
40. Even the counsel for the contemners would admit that the Chief Justice is vested with the prerogative powers of allocation of matters to the Judges as laid down by the Supreme Court in 1998(1) S.C.C. 1 (STATE OF RAJASTHAN v. PRAKASH CHAND AND OTHERS) . In this case, there is an order of the Hon'ble the Chief Justice dated 03.10.2005, directing the Registry to post the contempt petition along with the petition for quashing. Therefore, there is no embargo for this Court to deal with both the matters. However, this Court directed the Registry to get the orders of the Hon'ble the Chief Justice to post the petition for quashing along with the contempt proceedings, in order to verify whether in the complaint, which has been registered as F.I.R.No.717 of 2002, the informant has mentioned about the encashment of Demand Drafts, the xerox copies of which were filed before the X Metropolitan Magistrate Court on 09.05.2001 without sending the same to the Prime Minister's Relief Fund. Only for verification, the petition for quashing was also directed to be posted along with the contempt petition and the same was clubbed. On verification, it is clear that the above fact of the fraud committed by the contemners have been clearly mentioned in the complaint. This would indicate that even when the contemners filed petitions for quashing in the year 1999 in Crl.O.P.Nos.12121 and 12122 of 1999, they knew well about these allegations of having filed a false memo before Court and of having encashed the Demand Drafts, intended to be sent to the Prime Minister's Relief Fund.
41. Now, it is noticed that the contemners had not cared to send the amount at least immediately thereafter and, on the other hand, only after issuance of notice by this Court in Sub Application No.121 of 2005, they chose to pay the amount only on 14.06.2005. However, this Court is not inclined to go into the merits of the petitions for quashing and, instead, we direct the Registry to delink the Criminal Original Petitions and post before the Judge concerned, who deals with the same.
42. At the end, learned counsel for the contemners would cite AIR 1954 SUPREME COURT 186 (SUKHDEV SINGH v. HON'BLE CHIEF JUSTICE S.TEJA SINGH AND THE HON'BLE JUDGES OF PEPSU HIGH COURT AT PATIALA), in order to make a request to transfer the matter to some other Bench, since there are some averments in para 9 of the additional affidavit filed by the private party, making allegations against the contemners, as if they made a personal attack on one of the Judges of this Bench. The relevant portion of the observation in the said decision is as follows :
"We consider it desirable on general principles of justice that a judge who has been personally attacked should not as far as possible hear a contempt matter which, to that extent, concerns him personally. It is otherwise when the attack is not directed against him personally. We do not lay down any general rule because there may be cases where that is impossible, as for example in a court where there is only one judge or two and both are attacked. Other cases may also arise where it is more convenient and proper for the judge to deal with the matter himself, as for example in a contempt ' in facie curiae'.
All we can say is that this must be left to the good sense of the judges themselves who, we are confident, will comfort themselves with that dispassionate dignity and decorum which befits their high office and will bear in mind the oft quoted maxim that justice must not only be done but must be seen to be done by all concerned and most particularly by an accused person who should always be given, as far as that is humanly possible, a feeling of confidence that he will receive a fair, just and impartial trial by judges who have no personal interest or concern in his case."
43. This submission also has no basis, as the para 9 of the affidavit, filed by the private party, namely, the informant, has not indicated that any such personal attack was made by the contemners against one of the Judges of this Division Bench. However, in the written submissions, filed by the contemners, they would state that in view of the observation made by the Supreme Court that it is up to the Judges to decide for themselves whether to hear or not, this Court, if so desires, may be pleased to decide for itself and render justice. Ultimately, the contemners have not seriously objected to this Division Bench, in hearing the matter. Further, the Hon'ble the Chief Justice specifically passed an order on 03.10.2005 that this matter be heard and decided by this Division Bench.
44. This Bench does not shirk its responsibility of hearing the matter, merely because there is some reference about the name of one of the Judges in the affidavit filed by the informant, as if some statement has been made by the contemners about the orders passed by the said Judge.
45. As indicated above, even assuming that such an alleged statement has been made by the contemners, as found in the affidavit filed by the informer, the same would not indicate that any attack was made by the contemners against one of the Judges of this Division Bench. Therefore, there is no grievance for this Bench against any one of the parties.
46. Let us now see the conduct of the contemners.
47. As indicated above, two private complaints were filed against the contemners, who are the father and son, for the offence under Section 138 of the Negotiable Instruments Act in the year 1995. Both of them filed two applications for discharge before the trial Court on 29.03.1996. The same were dismissed on 04.07.1997. Challenging the same, the contemners filed revision petitions before the High Court in Crl.R.C.Nos.564 and 565 of 1997. Ultimately, the same were dismissed on 22.09.1997. Even thereafter, the contemners were not ready for facing prosecution. On the other hand, they filed fresh petitions before the trial Court in M.P.Nos.675 and 676 of 1998 questioning the maintainability of the complaints. The trial Court after hearing the parties, dismissed the petitions on 25.05.1998. Challenging the same, the contemners approached Sessions Court and filed two revision petitions in Crl.R.C.Nos.93 and 94 of 1998. The Sessions Court, on hearing the parties, by the order dated 21.10.1998 passed a detailed order dismissing the same. Thereupon, the contemners filed petitions before the High Court under Section 482 Cr.P.C. on 12.11.1998 for quashing the orders passed by the Sessions Court.
48. When the matter came up for final disposal before the learned single Judge on 07.02.2001, the contemners tried to withdraw the petitions. On being pointed out that several applications have been filed in several forums, thereby stalling the proceedings continuously, this Court did not give permission for withdrawal. The matter was adjourned for hearing. Thereupon, the matter was heard fully. Ultimately, the petitions for quashing were dismissed on 09.04.2001 and the trial Court was directed to go on with the trial and dispose of the matter without any delay.
49. In the said order, the learned single Judge pointed out various factors which indicate that the contemners have suppressed vital facts before every forum regarding the disposal of earlier applications and also the modus operandi adopted by the contemners to stall the proceedings from 1995 to 2001. The learned single Judge also found that the conduct of the contemners in filing application after application before the Sessions Court and the High Court in order to stall the trial and obtaining orders of stay by suppressing the facts would amount to interference with the administration of justice.
50. On the basis of those findings, the learned single Judge initiated suo motu proceedings against the contemners, who admitted their guilt through the affidavit and requested the learned single Judge to impose costs to be paid for the good cause, instead of sending them to prison. Accordingly, by the order dated 9.4.2001, after finding them guilty of contempt, they were directed to pay Rs.50,000/- each, to be paid to the Prime Minister's Relief Fund, within one month. They were further directed to file a memo before the trial Court along with the xerox copies copies of the demand drafts which were sent to the Prime Minister's Relief Fund within one month.
51. Accordingly, on 09.05.2001, the contemners filed a memo before the trial Court along with the xerox copies of the Demand Drafts, as if the original Demand Drafts had already been sent to the Prime Minister's Relief Fund. The said memo stating that in compliance of the order of the High Court, the Demand Drafts were sent to the Prime Minister's Relief Fund, was recorded by the trial Court. As a matter of fact, the Demand Drafts were not at all sent earlier, on the other hand, the original Demand Drafts were available with them. Those Demand Drafts were subsequently cancelled and the amounts were encashed for themselves. As such, when they filed the memo before the trial Court along with the xerox copies of the Demand Drafts, they knew well that the Demand Drafts were not sent. Further, instead of sending the Demand Drafts to the Prime Minister's Relief Fund at least after filing the memo, they cancelled the same knowing fully well that they are violating the orders of the High Court.
52. When this was brought to the notice of this Court through the sub application filed by a third party, notice was sent to the contemners and filing a false memo before the Court. They appeared before this Court on 27.08.2005 through the counsel Mr.Jegadeesan. They filed an affidavit admitting their act of having not sent the Demand Drafts within the time and informed the learned single Judge that they have remitted the costs of Rs.50,000/- each only on 14.06.2005. They also tendered unconditional apology.
53. When the matter was taken up by the Division Bench on the orders of the Hon'ble the Chief Justice, a new counsel has been engaged by the contemners and additional counter affidavit has been filed raising the point of jurisdiction.
54. As discussed in the earlier paragraphs, the question relating to the jurisdiction has already been decided by this Court. As such, this Court has no bar to take up the matter and conduct enquiry with regard to the allegation.
55. As indicated above, the offence of contempt is a continuing offence which has been admitted through the affidavit filed by the contemners dated 27.8.2005 through the erstwhile counsel.
56. The above fact situation would clearly indicate that the contemners would prepare to go to any extent of filing a false memo before the trial Court and filing an affidavit of false undertaking before this Court. Having filed an affidavit through the erstwhile counsel on 27.8.2005 admitting their guilt and having realised the grave blunder they committed, they sent costs of Rs.50,000/- each to rectify the mistake. They also tendered unconditional apology for the same.
57. Having taken up that stand, now the new counsel has been engaged to raise the point that this Court has no jurisdiction to enquire into the matter. This is unfortunate. This is nothing but a challenge against the majesty of law. As correctly pointed out by the learned Advocate General, this Court is not helpless. This Court is clothed with powers of putting down this sort of act of grave contempt, by invoking the powers both under the Contempt of Courts Act and also under Article 215 of the Constitution of India.
58. Therefore, we find the contemners guilty for having committed contempt by not complying with the orders passed by this Court on 9.4.2001 and also for filing a false memo before the trial Court stating that already the Demand Drafts were sent, even though the Demand Drafts were cancelled and encashed for themselves. So, the contemners are to be suitably punished for the same. Accordingly, they are sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.1,000/- each, in default, to undergo one month simple imprisonment.
59. With the above observation, the suo motu contempt petition and the sub application are disposed of.
mam [PRV/7846] fdf