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1. The question raised in this proceeding filed invoking Article 215 of the Constitution of India and Sections 10, 12 and 15 of the Contempt of Courts Act, 1971 is whether this proceeding is maintainable at the instance of the petitioner on the ground that what is alleged is a criminal contempt of the subordinate Court and the sanction sought for by the petitioner before the Advocate General under Section 15 of the Contempt of Courts Act, 1971 read with Section 10 thereof was refused by the Advocate General. The Registry returned the papers to the petitioner by seeking a clarification whether the contempt of Court case is maintainable in view of the dismissal of the petition for sanction by the learned Advocate General. Counsel for the petitioner represented the petition with the endorsement that the sanction of the Advocate General was not necessary in the light of the decision of the Division Bench in Guruvayur Devaswom Managing Committee v. Pritish Nandi, (O.P. No. 7352 of 1985 (Contempt)). Counsel also stated that if that explanation was not acceptable the matter may be sent to the Court for decision. The Deputy Registrar noticing that this was a petition under Section 15 of the Contempt of Courts Act, 1971 and further noticing that in view of the decision in Nagappan v. Mani, (1995) 2 Ker LT 347 : 1996 Cri LJ 134 initiation of criminal contempt under Section 15 of the Contempt of Courts Act, 1971 by any person without the written consent of the Advocate General was not entertainable, posted the matter before the Court. Since the question involved was one in which there were apparently conflicting observations in two Division Bench decisions of this Court, this Court also heard, even at this stage, counsel for the respondent. Since the submissions were based on binding decisions of the Supreme Court not referred to by the Division Bench in Nagappan v. Mani, (1995) 2 Ker LT 347 : 1996 Cri LJ 134, it was felt unnecessary to refer the matter to a Full Bench to resolve the conflict.

3. In the case on hand, contempt alleged is that of a subordinate Court. The claim is that by publication of a pamphlet marked Annexure-A, the first respondent had attempted to prejudice the due course of a judicial proceeding and this amounts to criminal contempt within the meaning of the Act. On this basis, instead of making a request to the concerned subordinate Court to make a reference for action under the Act, the petitioner moved the Advocate General by invoking Section 15 of the Contempt of Courts Act. Under Section 15(2) of the Act, High Court may take action on a criminal contempt of a subordinate Court either on a motion made by the Advocate General or on a reference made to it by the Subordinate Court. Section 15(2) of the Act does not contemplate the moving of an application by a litigant or any other person competent, before the Advocate General regarding criminal contempt of a subordinate Court. But Section 15(1) of the Act which is in general terms provides that in the case of a criminal contempt, High Court may take action either on a motion by the Advocate General or on a motion by any other person with the consent in writing of the Advocate General. The Advocate General, in the case on hand, after a reference to the materials, took the view that the publication of the pamphlet did not amount to contempt of Court and sanction to initiate contempt proceedings in the High Court was liable to be declined. The petition filed by the petitioner was thus dismissed. It is thereafter that the petitioner has filed this contempt of Court case not only by invoking Section 15 of the Contempt of Courts Act, 1971 but also by invoking Article 215 of the Constitution.

It is true that even in a case where suo motu action for contempt is not taken, and where the Advocate General had declined to give his consent, this Court, when properly alerted, can consider action under the Act against the offending publications. However, the fact that the Advocate General had not considered it fit to give his consent would weigh with this Court as one of the aspects to be adverted to, in embarking upon an enquiry whether the statements complained of constitute contempt.

8. It has also been laid down by the Supreme Court in Delhi Judicial Service Association case (1991) 4 SCC 406 : 1991 Cri LJ 3086 that Section 15 of the Contempt of Courts Act prescribes the modes for taking cognizance of criminal contempt by the High Court and by the Supreme Court. It is not a substantive provision conferring power on the High Court and the Supreme Court for taking action for contempt of its subordinate Courts. The whole object of prescribing procedural modes of taking cognizance under Section 15 of the Act is to safeguard the valuable time of the High Court and the Supreme Court being wasted by frivolous complaints of contempt of Court. Section 15(2) of the Act does not restrict the power of the High Court to take cognizance of the contempt of itself or of a subordinate Court, on its own motion although apparently, the Section does not say so. It can thus be seen that the Advocate General moved for sanction, is not taking a decision on whether contempt of Court has been committed, but only considers whether sanction ought to be given on the materials placed before him. But certainly, it is a procedural safeguard to weed out frivolous or unnecessary motions being made before the Court for initiation of contempt action. In that context, when the Court is moved after sanction is refused by the Advocate General, the Court has necessarily to keep that fact in mind before deciding to initiate suo motu action for contempt of Court. As observed by the Division Bench in the Guruvayur Devaswom case referred to earlier, the view of the Advocate General in that context, is entitled to weight and due consideration. But that is different from saying that the Court cannot initiate action merely on the ground that the Advocate General has not granted the consent sought for in a given case.

11. It is in this context that one has to consider the decision in Nagappan v. Mani, (1995) 2 Ker LT 347 : 1996 Cri LJ 134. In that decision, the Division Bench did not refer to any of the decisions referred to earlier. It referred only to the decision in State of Mizoram v. Biakchawna, (1995) 1 SCC 156 : 1995 AIR SCW 1497 wherein the Supreme Court held that when a statute indicated that the action to be taken was to be done in a particular manner, it must be done in that manner and in no other way. According to the Division Bench, from a reading of Section 15(1) of the Contempt of Courts Act, it can be discerned that consent in writing of the Advocate General was the sine qua non for initiation of criminal contempt before the High Court by any person other than the Advocate General. Initiation of criminal contempt by any person without the written consent of the Advocate General, cannot be entertained on the ground that sufficient information with regard to the contempt has been laid by him before the High Court and it is for the High Court to take action thereon. A person cannot circumvent the provisions contained in Section 15(1) of the Act and seek initiation of contempt action by the High Court on the plea that he had invited the High Court's attention to the contempt action. With respect, it may be noted that Article 215 of the Constitution of India and the decisions rendered by the Supreme Court on the scope of the power saved by that Article of the Constitution, were not brought to the notice of the Court and apparently the jurisdiction of the Court was not sought to be invoked for initiation of action suo motu. Apparently, only Section 15(1) of the Contempts of Court Act was sought to be invoked and it is in that context that the Division Bench is seen to have made the above observations. But with respect, it appears to us that even on the scope of the invocation of power under Section 15(1) of the Contempt of Court Act, the authorities having a bearing on the question, were not brought to the notice of the Court. Senior Counsel of the petitioner appears to be justified in submitting that the decision in Nagappan v. Mani 1996 Cri LJ 134 (Kerala) must be considered to be one rendered per incuriam. With respect, in the light of the decisions of the Supreme Court referred to, the said decision cannot also be considered to be laying down the correct law. As we noticed earlier, since the relevant decisions of the Supreme Court were not brought to the notice of the Court in that case, we do not think it necessary to refer this case for decision by a Full Bench even though the decision in Nagappan v. Mani was rendered by another Division Bench of this Court.