The High Court dismissed a criminal contempt petition as not maintainable because it was filed by a private party without the mandatory written consent of the Advocate General under Section 15 of the Contempt of Courts Act, 1971.
Contempt notice discharged and petition dismissed as not maintainable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010166172018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Cont.Cas.(Crl.) 1/2018
1:SHRI PRAN BORA
S/O- LT PRABHAT CH. BORA, R/O- KRINE VISTA APARTMENT, FLAT NO 2B, ANANDA NAGAR, BYE LANE NO 3, G.S.ROAD, GHY
VERSUS
1:SRI AMINUL ISLAM
MLA, R/O- PARMAIBHETI VILLAGE, PO DAGAON, PS JURIA, DISTNAGAON, ASSAM- 782001
Advocate for the Petitioner : MR. M K CHOUDHURY
Advocate for the Respondent : MR. A K TALUKDAR
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R (ORAL)
04.02.2020
( Manojit Bhuyan, J )
The present contempt petition, registered as a criminal contempt case, comes with a prayer for punishing the sole respondent under the provisions of the Contempt of Courts Act, 1971 for making deliberate, willful and disparaging remarks, calculated to interfere with the due course of justice and against the functioning of this Court. Reference in this regard is made to the news item
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dated 12.07.2018 in “Axomia Pratidin” which mentions about a press conference in which the sole respondent, while holding office as a Member of the Legislative Assembly (MLA) made utterances against a sitting Judge of this Court with regard to the manner in passing verdicts in matters relating to foreigners’ cases.
2. Mr. M.K. Choudhury, learned senior counsel representing the petitioner, submits that the publication disclosing the utterances and remarks made by the sole respondent, ex-facie, is a personal attack and vilification directed against the Judge, thus, tending to create an apprehension in the minds of the people regarding the integrity, ability and fairness of the Judge. It is submitted that by attacking the integrity and reputation of the Judge, this hallowed institution is sought to be made the ultimate victim. The utterances, as contended, are not within the realm of constructive criticism and even after making such irresponsible and scurrilous statements, no remorse is demonstrated, far from tendering apology before this Court.
3. Mr. S.N. Sarma, learned senior counsel representing the sole respondent, have raised a preliminary objection as to the maintainability of the petition in the present form. It is seen from the affidavit-in-opposition dated 29.05.2019 that besides questioning the locus standi of the petitioner to file the contempt petition, the issue with regard to the said contempt petition having been filed in total disregard to the provisions of section 15(1)(b) of the Contempt of Courts Act, 1971 has been taken up. It is also submitted that as on date the contempt petition is hit by section 20 of the Contempt of Courts Act, 1971, inasmuch as, no proceedings of contempt was initiated by this Court within the period of 1 (one) year from the date on which contempt is alleged to have been committed.
4. As the preliminary objection on the maintainability of the contempt petition with due regard to the requirement for making motion, as envisaged under section 15 of the Contempt of Courts Act, 1971, in our considered opinion, goes to the root of the matter, the same is taken up for consideration at the outset. Merit of the case will stand for consideration depending upon the answer that may be made by this Court on the preliminary issue. For ready reference, the relevant portion of section 15 as well as section 20 of the aforesaid Act of 1971 are reproduced hereunder :
“ 15 . Cognizance of Criminal Contempt in the 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 –
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(a) 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.]
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.”
5. Mr. Choudhury opens by saying that neither section 15(1)(b) nor section 20 of the Contempt of Courts Act, 1971 restrict the plenary powers of the High Court under Article 215 of the Constitution of India. Reliance is placed in S.N. Nagaraja Rao vs. Chikkachennappa and Ors. of the High Court of Karnataka, reported in 1981 (1) KarLJ 201, for the proposition that section 15(1), which provides for the consent of the Advocate General, cannot be construed as mandatory as because the power of the High Court to punish for criminal contempt of itself is conferred on it by Article 215 of the Constitution without any restriction. Reliance is also placed in Om Prakash Jaiswal vs. D.K. Mittal and Another, reported in (2000) 3 SCC 171, particularly to paragraph 17, to say that contempt generally and criminal contempt certainly is a matter between the Court and the alleged contemnor. The source of initiation of contempt proceedings may be suo motu, on a reference being made by the Advocate General or any other person with the consent in writing of the Advocate General or on reference made by a subordinate court in case of criminal contempt. A private party may also bring to the attention of the court to such facts that may persuade the court in initiating proceedings for contempt. However, such person filing an application or petition before the court does not become a complainant or petitioner in the proceedings. He is regarded as an informer or relator and his duty ends with the facts being brought to the notice of the court. It is thereafter for the court to act or not to act on such information though the private party moving the court may at the discretion of the court continue to render its assistance during the course of proceedings. Mr. Choudhury, thus, contends that the disparaging remarks and utterances made by the sole respondent affecting the purity of the justice administration system as well as the attack on the integrity, judicial competence and impartiality of a Judge of this Court having been brought to notice, it is now for the Court to act or not to act on such information and that in taking cognizance neither section 15 nor section 20 of the Act of 1971 would affect or restrict the power of the High Court. It is submitted that there can be no dispute with the proposition that whoever intends to tarnish the image of the judiciary should not be allowed to go
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unpunished.
6. Per contra, Mr. Sarma submits that under the Contempt of Courts Act, 1971, the petition seeking punishment for contempt can be invoked by a party only with the written consent of the Advocate General of the State, as prescribed under section 15 of the said Act. It is stated that law in this regard is well settled by a plethora of judgments rendered by the Supreme Court, particularly in (i) Bijayini Dash & Ors. vs. Loknath Mishra & Ors. reported in (2005) 9 SCC 194; (ii) Bal Thackrey vs. Harish Pimpalkhute & Ors. reported in (2005) 1 SCC 254 and (iii) State of Kerala vs. M.S. Mani & Ors. reported in (2001) 8 SCC 82. Reference is also made to a Division Bench judgment of this Court in Motilal Roy vs. Jagadish Sharma & another, reported in 2003 (1) GLR 271.
7. Drawing our attention to the contempt petition, Mr. Sarma submits that there is not a whisper with regard to consent being obtained from the Advocate General in terms of section 15(1)(b) of the Act of 1971. It is also submitted that the written consent of the Advocate General, Assam was not annexed to the contempt petition, far from any statement being made therein and the written consent was introduced only after affidavit-in-opposition was filed by the sole respondent. Further, despite making application, registered as Application No.465732 dated 12.09.2019, for certified copy of the consent letter and other connected documents in the case records, the sole respondent was not issued with the consent letter and on further requests to the Registry was apprised of the endorsement dated 23.09.2019 of the Administrative Officer (Judl.), Gauhati High Court on the application for certified copy showing to the effect that the certified copy sought for is not part of the High Court record and so it cannot be issued by the Copying Section. In support, reference is made to the additional affidavit filed by the sole respondent on 24.09.2019 and to the endorsement at Annexure-A thereof.
8. Relying on the case laws above and in the factual background of the case that the initiation of contempt is at the instance of the private party, Mr. Sarma contends that there being no prior consent of the Advocate General, the present contempt petition is liable to be dismissed on this ground alone. It is his further contention that it is well too settled in law that the requirement of obtaining consent in writing of the Advocate General for making motion by any person is mandatory and a motion under section 15 which is not in conformity with the requirement of that section is not maintainable. It is argued that the requirement of consent of the Advocate General, where any person other than the
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Advocate General makes motion in the case of a criminal contempt in the High Court, is not a mere formality but has a salutary purpose, in that, the Advocate General is expected to examine whether the averments in the proposed motion of a criminal contempt are made in public interest or for personal vendetta and, thereafter, accord or decline consent as postulated in section 15(1)(b). It is stated that the same view was reiterated by the Division Bench of this Court in Motilal Roy (supra).
9. Further contention of Mr. Sarma is that until this date, which is well beyond the period of 1 (one) year from the date on which contempt is alleged to have been committed, no contempt proceeding has been initiated by this Court. As such, initiation of proceeding on this date would be hit by the provisions under section 20 of the Contempt of Courts Act, 1971, which provides for limitation for actions for contempt. In this regard reliance is placed in Om Prakash Jaiswal (supra), particularly to paragraph 15 thereof, for the proposition that mere filing of a petition for initiating proceedings for contempt does not amount to initiation of the proceedings by the Court. In all cases, whether the Court employs an expression such as “admit”, “rule”, “issue notice” or “issue notice to show cause why proceedings for contempt be not initiated”, it does not amount to initiating proceedings for contempt as the Court until then is yet to be satisfied if a case for initiating proceedings for contempt was made out, which satisfaction can be derived only after the Court calls upon the opposite party to admit or deny the allegations made. Further, it is only when the Court has reached an opinion that a prima facie case for initiating proceedings for contempt is made out and the respondent or the alleged contemnor should be called upon to show-cause why he should not be punished, only then the Court can be said to have initiated proceedings for contempt. Also, such initiation of proceedings for contempt based on application of mind by the Court to the facts of the case and materials before it must take place within the period prescribed under section 20, failing which the jurisdiction to initiate any proceedings for contempt is lost.
10. We have given our anxious consideration on the facts appearing and points of law urged by either parties. A perusal of the case laws placed by Mr. Sarma appears to answer favourably the preliminary objection so raised. A perusal of the available materials shows that this Court has not taken suo moto action against the respondent. Neither there is any prayer for taking suo moto action in the present case. The primary question is about compliance with the mandatory requirement of section 15(1)(b) of the Act of 1971. There is no dispute that for making motion on the criminal contempt the consent in writing of the Advocate General was not part of the case records. As held in Bal Thackrey (supra), the procedure of section 15 of the Act is required to be followed even when
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petition is filed by a party under Article 215 of the Constitution. Although the Court has the power and jurisdiction to initiate contempt proceedings suo moto, for which consent of the Advocate General is not necessary, however, it must be borne in mind that if proceedings before the High Court are initiated by filing contempt petition by recourse to section 15(1)(b) of the Act of 1971, the absence of compliance with the mandatory requirement of section 15 would go to the root of the matter and the petition has to be regarded as not maintainable. This is precisely what has happened in the present contempt petition. There can be no debate that nowhere in the contempt petition any statement has been made of consent having been obtained from the Advocate General, Assam. The note of the Administrative Officer (Judl.), Gauhati High Court, also makes mention that the consent letter of the Advocate General is not part of the case records. This being the admitted position and there being no dispute that the initiation of contempt is at the instance of a private party and there being no prior consent of the Advocate General, Assam for making motion, which is a mandatory requirement, the present petition cannot be entertained and, thus, not maintainable. We hold that a motion under section 15 of the Contempt of Courts Act, 1971, which is not in conformity with the requirements of that section, is not maintainable. As a necessary corollary, we have no option but to discharge the contempt notice and dismiss the present contempt petition as not maintainable. Having held thus, we do not find it necessary to deal with the submissions on merits as well as the arguments on section 20 of the Contempt of Courts Act, 1971. No cost.
JUDGE JUDGE
Comparing Assistant
Shri Pran Bora
Sri Aminul Islam
Manojit Bhuyan
Parthivjyoti Saikia
As recorded by the court registry
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