Full Judgment
1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Contempt Criminal No :
10. Of 2012 In Reference V/s Shri Vijay Dubey and Others Present : Hon’ble Shri Justice Rajendra Menon. Hon’ble Smt. Justice Vimla Jain. ---------------------------------------------------------------------------------------------- Smt. Nirmala Nayak, learned Government Advocate, for the State. Shri A.M. Trivedi, learned Senior Advocate, Shri Rameshwar Nikhra, learned Senior Advocate with Shri Parag S. Chaturvedi, Shri A. Shukla and Shri Ranveer Singh, counsel for the non-applicants. Ms. Madhu Kushwaha, Shri Gopal Kacholiya, Shri Kapil Birthare, Shri Kaushlendra Vajpayee and Shri Vijay Dubey, contemners present in person. ---------------------------------------------------------------------------------------------- ORDER
12.8.2013 This reference under Section 15(2) of the Contempt of Courts Act, 1971 is initiated against the non-applicants on the basis of a communication dated 24.8.2012, received from the District and Sessions Judge, Indore.
2. On 22.8.2012, the District and Session Judge, Indore forwarded a letter, addressed to the Registrar General of the High Court, signed by most of the Judicial Officers working in the establishment of District and Sessions Court, Indore, making a protest with regard to certain acts said to have been committed by the non-applicants and various other advocates betwee”
17. 08.2012 to 21.08.2012. It was stated that, against a particular lady, Additional District Judge, certain complaints were made and on the ground that complaints are not being acted upon, a call for boycott of court was given by the bar association and on that basis it was alleged that certain incident took place where in the act of non-applicants was amounting to contempt of court. Based on the communication made by the judges, so also by concerned lady, Additional District Judge, two letters were sent by the District and Sessions Judge, Indore to the Registrar General of High Court on 24.8.2012. Both these letters were received by the registry and a note-sheet was prepared by the Registrar (Judicial) on 18.9.2012, indicating that the incident indicated in the communication received amounts to criminal contempt, as contemplated under Section 2(c)(ii) of the Contempt of Courts Act, and recommendation was made to initiate criminal contempt against non- applicants. The matter was accepted by the Principal Registrar-Judicial on 24.9.2012 and after concurrence of Hon'ble the then Acting Chief Justice, the proceedings have initiated.
3. On notice being issued, non-applicants have appeared and each has filed a separate reply, by denying the allegation levelled against them and also indicating that they will never think of indulging in such an act.
4. Be that as it may be. For the present, as certain legal question with regard to maintainability of this reference is raised by Shri A.M. Trivedi, learned Senior Advocate, we do not deem it appropriate to go into merits of the case or its correctness”
5. Shri A.M. Trivedi, learned Senior Advocate invites our attention to provision of Section 15(2) of the Contempt of Courts Act and the rules framed i.e. the M.P. High Court Rules, 1980 for the purpose of initiating action for contempt and argued that if criminal contempt is to be initiated with regard to contempt committed in the subordinate court, action can be taken only after following the requirement of statutory rules framed. He referred to rule 5(a) & (b) of the High Court of Madhya Pradesh (Contempt of Court Proceedings) Rules, 1980 and argues that the rules mandate that, before a reference is registered and action is taken, a preliminary enquiry has to be conducted by issuing a show-cause notice accompanied by copies of relevant documents, if any, to the contemner, their reply is to be received and thereafter a preliminary report has to be prepared, indicating that contempt appears to have been committed. It is based on such a preliminary enquiry that contempt can be initiated under section 15(2) of the Act and as the aforesaid mandatory requirement is not complied with, Shri A.M. Trivedi, learned Senior Advocate submits that initiation of the proceedings itself is unsustainable and on this count alone the reference be quashed. He invited our attention to the principle laid down by the supreme Court in the case of Muthu Karuppan, Commissioner of Police, Chennai Vs. Parithi Ilamvazhuthi & Another 2011(5) SCC 496.para 45 & 46 thereof and submits that as mandatory requirement has not been complied with, the reference is not maintainable.
6. Even though Smt. Nirmala Nayak, learned Government Advocate for the State refutes the aforesaid, but on consideration of the rival 4 contention we find some substance and force in the objection raised by Shri A.M.Trivedi, learned Senior Advocate.
7. A perusal of material available on record goes to show that two complaints were received by the District and Sessions Judge, Indore, they were dated 22.8.2012 and 24.8.2012, respectively. One was by certain judges working under the jurisdiction and control of the learned District and Sessions Judge, Indore and another was by the Lady Additional District Judge, against whom the Bar Association has certain grievance.
8. Be that as it may be. After receiving both the complaints the District and Sessions Judge forwarded both the complaints to the Registrar General of High Court vide its communication dated 24.8.2012 and based on the same the contempt proceedings have been initiated, on the ground that, the material available on perusal of the communication made by the District and Sessions Judge goes to show that the act complaint of therein amounts to criminal contempt is denied in Section 2(ii).
9. So far as initiating criminal contempt and the procedure for doing so is concerned, Section 15 of the Contempt of Courts Act mandates that, 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 specify. In the present case, the contempt is initiated at the instance of subordinate court by the High Court. However, the Contempt of Courts Act further stipulates that the procedure for initiating action for contempt shall be laid 5 down in rules to be framed by the concerned High Court, i.e. Section 23 of the Contempt of Courts Act. By virtue of powers conferred on the High Court under Section 23 of the Contempt of Courts Act read with requirement of Article 223 of the Constitution, the High Court of Madhya Pradesh (Contempt of Court Proceedings) Rules, 1980 has been formulated and Rule 5 for registration of Criminal Contempt under Section 15(2) reads as under :
“5. (a) Reference under Section 15(2) of the Act may be made by the Subordinate Courts either suo motu or on an application received by it. (b) Before making a reference the subordinate Court shall hold a preliminary enquiry by issuing a show cause notice accompanied by copies of relevant documents, if any, to the contemner and after receiving the reply, if any, of the show cause notice the subordinate Court shall write a concise reasoned order of reference indicating why contempt appears to have been committed.”
. (Emphasis Supplied) 10. A perusal of aforesaid rule goes to show that reference under Section 15(2) of the Contempt of Courts Act may be made by the Subordinate Court either suo motu or on an application received by it. However, sub rule (b) of rule 5 mandates that before a reference is made, the subordinate court is required to hold a preliminary enquiry by issuing a show-cause notice accompanied by copies of relevant documents, if any, to the contemner and after receiving the reply, if any to the show-cause notice the subordinate court is required to write a concise reasoned order of reference indicating as to why contempt appears to have been committed. It is only after following the mandate of sub rule (b) of Rule 5, that a reference can be made by the 6 subordinate court to the High-court and if the case in hand is taken note of, it would be seen that subordinate court, the learned District and Sessions Judge, Indore received two complaints, as indicated hereinabove, on 22.8.2012 and without conducting any enquiry, preliminary in nature, after issuing show- cause notice and without preparing any reasoned order, as required under sub- rule (b), reproduced hereinabove, forwarded the entire matter to the High Court and the High Court initiated proceedings in violation of statutory requirement. It is, therefore, a case where the reference has been registered and action initiated against the non-applicants without following the mandatory requirement of rule 5(b) of the High Court of Madhya Pradesh (Contempt of Court Proceedings) Rules, 1980.
11. In the case of Muthu Karuppan (supra) relied upon by Shri A.M. Trivedi, leanred Senior Advocate, it has been clearly laid down by the Supreme Court that while dealing with criminal contempt in terms of Section 2(c) of the Act, strict procedures are to be adhered. In para 45 and 46, the matter has been so dealt with by the Supreme Court :
“45. We have already pointed out that 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. 7 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.
46. 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.”
. (Emphasis Supplied) 12. If the procedure followed in the present case, as indicated hereinabove, and the principles as laid down by the Supreme Court in the case of Muthu Karuppan (supra) is taken note of, it is a case where without adhering to the requirement of statutory rules, the reference has been initiated and once statutory provisions, mandatory in nature is violated, in the matter of registration of a criminal contempt, we have no hesitation in holding that the contempt cannot be proceeded with. Once the requirement of a statutory provision is shown to be violated and when mandatory provisions are not adhered to before initiating the proceeding, the proceeding has to be quashed, as it stands vitiated due to breach of statutory requirement. That being the legal position and when for initiating proceedings against the non-applicants, requirement of statutory rules have not been followed, we have no other option, but to quash the proceedings, accordingly we upheld the objection raised by the non-applicants and hold that as contempt proceedings has been initiated without following the mandatory requirement, they are discharged and proceedings are dropped”
13. In this regard we may also refer to another judgment of the Supreme Court in the case of Bal Thackrey Vs. Haris Pimpakhute, 2005(1) SCC 254.that was the case where the requirement of Section 15(1)(b), with regard to consent of the Advocate General, was not complied with and the Supreme Court held that if such a mandatory requirement is not complied with, the contempt proceedings have to be quashed.
14. Keeping in view the aforesaid legal principles laid down by the Supreme Court, we do not deem it appropriate to proceed further with the matter, accordingly the non-applicants are discharged from the proceedings and the contempt proceedings stands dismissed. (RAJENDRA MENON) (SMT. VIMLA JAIN) JUDGE JUDGE ss/-