Smt. Lakshmi Janardhan W/O. C.R. Janardhan and Vs. Smt. N.S. Vinutha W/O. N.D. Murallidhar and - Court Judgment

Excerpt:
- [ k.n. keshavanarayana, j.] indian electricity act, 1910 - sections 39 and 44 - offences under - tampering electric meter - complaint - charges - order of acquittal on technical grounds -finding of the trial judge that the prosecution launched on the basis of the complaint lodged by p.w.4 who was not an authorised person in terms of section 50 of the act -scope of section 50 of the act - held, the prosecution launched on the basis of the complaint lodged by the official of the electricity board, who was working in the vigilance squad and who detected theft of electrical energy, was in fact a prosecution launched at the instance of the state or electricity board. - the prosecution launched at the instance of any official of the electricity board who detected the theft of electrical energy was in reality a prosecution launched at the instance of the electric supply company within the meaning of section 50 of the act - further held, in the case on hand also, p.w.4 is an employee of the k.p.t.c.l. working as an assistant executive engineer in the vigilance squad. - the prosecution launched on the basis of the complaint lodged by p.w.4 was in reality a prosecution launched at the instance of the k.p.t.c.l. therefore, the prosecution launched in this case was at the instance of one of the persons named in section 50 of the act, as such, it was competent. - under these circumstances, the court below is not justified in holding that the prosecution was not competent, therefore, the acquittal recorded on that basis is illegal and is liable to be set aside. - on facts, held, the learned trial judge accepted the evidence of p.w.s 1 to 4 and the finding recorded is justified - there are no grounds to differ from the said finding. in fact, the respondent/accused has not questioned the correctness of the said finding. - since the amendment of section 39 was subsequent to the detection of the offence in this case and also subsequent to filing of the charge sheet, the amended section cannot be applied to the case on hand. under these circumstances, the respondent/accused is required to be sentenced in terms of the unlamented section 39 of the act. - sentence is modified in terms unlamented section 39 of the act - indian electricity act, 1910 - section 50 - the phrase "at the instance" referred in the provision - discussed. (paras 12,13,14,15,16,18,19) criminal appeal is allowed.ordera.n. venugopala gowda, j.1. this motion by the complainant against the accused is for taking action for criminal contempt of the proceedings of this court and also a subordinate court.2. material allegations made in the motion are that, accused along with his wife instituted against the 2nd complainant, o.s. 2377/1993 on the file of the city civil court, bangalore which suit was dismissed in respect of a portion of the suit property by a decree dated 11.12.2003. accused along with his wife filed rfa 146/2004, which was dismissed as not pressed, by an order dated 20.04.2006. during the pendency of said appeal, accused filed o.s. 4196/2005 on 4.6.2005 on the file of the city civil court, bangalore, in respect of the same suit property, as in o.s. 2377/93, against the 1st complainant. in the said suit, an i.a. under order 39 rules 1 and 2 cpc was filed and an exparte order of temporary injunction was obtained on 08.06.05, by concealing the fact about the judgment and decree dated 11.12.2003 passed in o.s. 2377/93 and the pendency of rfa 146/2004 and also by misleading the court by stating in para 8 of the plaint that 'there is no pendency of any legal proceedings and litigation either in past and in present concerning any part of the subject matter of this suit in any court with the knowledge of the plaintiff'. the filing of o.s.4196/2005 was not brought to the notice of this court during the pendency of rfa 146/2004. only after disposal of rfa 146/2004 by an order dated 20.04.2006, the fact of grant of said exparte temporary injunction order came to the knowledge of the complainant on 16.05.2006.3. notice of the motion was ordered to the accused who entered appearance through counsel. accused filed objection statement contending that, during the pendency of rfa 146/2004, tenant had handed over key of the premises to 2nd complainant, who was a party in the rfa, had attempted to meddle with the portion of the property and hence, he filed a complaint on 19.5.2005. there was a status quo order passed in rfa 146/2004 on 6.6.2005. 1st complainant was not a party in the rfa and she tried to interfere with the possession and as such, he filed o.s. 4196/2005, in which, an order of temporary injunction was passed on 8.6.2005. since summons was not served on complainant no. 1, paper publication was taken. it was also stated that, he had filed w.p. 7791/2006 against bangalore mahanagara palike to consider a complaint filed before assistant revenue officer and the said petition was dismissed with liberty to pursue the remedy either before the authority or in the civil court. 2nd complainant is a party and there is an interim order of status quo granted in rfa and accused had specifically instructed his advocate to file a suit against complainant no. 1, stating the pendency of appeal in this court and his advocate might have stated in the pleading in para 8 of the plaint, which is normally written by an advocate and that he had no knowledge of the same.4. respondent filed an application for dismissal of the motion as not maintainable on the ground that, it has been filed beyond the period of one year. by an order dated 10.8.2006, it was held that, petition is within time and the said application was rejected. appeal filed their against by the accused, was dismissed as withdrawn by an order of apex court dated 11.09.2006. on 8.12.2006, an order was passed holding that, charge is required to be framed against the accused. said order was questioned in appeal by the accused on the ground that, when the contempt petition was filed, complainant had not filed the consent in writing of the advocate-general as envisaged in section 15(1)(b) of the contempt of courts act, 1971 ('the act' for short) and that the consent of the advocate-general was obtained and produced only on 19.6.2006, though the petition was filed on 9.6.2006. two contentions appear to have been raised in the apex court with regard to the maintainability of contempt petition. the first one is, with regard to the bar of limitation under section 20 of the act, which had stood over-ruled by an order of this court dated 10.8.2006, which attained finality with the withdrawal of the appeal on 11.09.2006 filed their against. the second one is, with regard to the maintainability of the contempt petition, in the absence of consent in writing of the advocate-general, as on the date of filing of the petition. apex court, by an order dated 31.03.2009, has not accepted the plea with regard to bar of limitation. however, noticing that, complainants did not obtain the consent of the advocate-general in writing and whether the same should have been filed along with the complaint, is a matter to be agitated by the accused before this court, granting liberty to raise the objection to maintainability and all other objections, the appeal was disposed of, without expressing any opinion on the merits, by an order dated 31.03.2009.5. smt. b.v. vidyulatha, learned advocate for the complainants, has filed memorandum of facts on 31.08.2006, in which it has been stated that, after preparing the contempt petition, one set of the petition copy along with all the annexures were presented in the receiving section of the office of the learned advocate-general on 09.06.2006, for the purpose of obtaining consent of the advocate-general and it was told by the official that, papers are to be filed in the registry of the high court and number must be obtained and only thereafter, the papers could be received. immediately, petition was filed in the registry, which was numbered. again petition was sought to be presented, which was refused to be received, on account of hand written requisition. thereafter, typed requisition was prepared and submitted to the receiving section of the office of the advocate-general on 12.06.2006. registry raised objections regarding non-production of the consent of the advocate-general and 3 weeks' time was granted to do the needful. advocate-general gave his consent on 19.06.2006 and the same was produced before the registry and thus, complying with the office objection on 21.06.2006. thereafter, contempt petition was listed before the bench on 22.06.2006 for preliminary hearing and notice to the accused was ordered.6. sri g.r. mohan, learned advocate appearing for the accused invited our attention to section 15 of the act and contended that, the motion made being one made under section 15(1)(b) of the act, should have accompanied with the consent in writing of the advocate-general, which was not the fact and hence, the motion is not maintainable. it was contended that, the issue of non-maintainability of motion goes to the root of the matter and hence, may be decided as a preliminary issue.7. sri t.r. subbanna, learned senior advocate appearing for the complainants, on the other hand, after inviting out attention to the written arguments filed in the matter, contended that, the consent contemplated by sub-section (1) of section 15 of the act was obtained on 19.06.06 and was filed in the registry on 21.06.06 and thereafter, the court took cognizance of the complaint on 22.06.06 and therefore, the motion is maintainable. he contended that, what is required in the context of section 15 of the act is 'at the time when the motion is being initially examined i.e., when the court takes cognizance of the matter', the consent of the advocate-general must be available on record and the fact being that, on the date cognizance was taken and notice was ordered to be issued to the accused, consent of the advocate-general was available on record and thus, there is compliance with the statutory requirement, learned counsel made certain submissions as to what is meant by 'taking cognizance'. he cited certain decisions with regard to the scope and meaning of 'taking cognizance'. learned counsel contended that, in the context of section 15 of the act, it is not necessary that, the consent should be filed along with the motion, when presented in the registry of the court and what is required is that, consent should be available on record when the bench takes cognizance of the motion. even otherwise, in view of the circumstances stated in the memorandum of facts filed by the learned advocate for the complainants, the court should not view the matter too technically and the delay in obtaining and producing the consent of the learned advocate-general, may be condoned.8. the plea goes to the root of the matter and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact. hence, it is necessary to decide the issue of maintainability of the motion, in the light of the liberty reserved to the accused, by the apex court vide order dated 31.03.09.9. the rival stands need consideration on the core issue 'whether the contempt petition is not maintainable for want of written consent of the advocate-general as contemplated under section 15(1)(b) of the contempt of courts act, 1971?'10. to answer the issue, it is necessary to notice the relevant provisions of the act and rules. section 15 of the act 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) * * *(2) * * *(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) * * *(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) * * *(underlining is by us)section 23 empowers the court to make rules not inconsistent with the provisions of the act, providing for any matter relating to the procedure. in exercise of the power conferred under article 215 of the constitution of india and section 23 of the act and all other powers enabling in that behalf, this court has framed 'the high court of karnataka (contempt of court proceedings) rules, 1991' ('the rules' for short). rule 3 is regarding form of motion. rule 5 is with regard to contents of petition, the relevant portion of which reads as follows:5. contents of petition: (i) the petition shall set out the following particulars:(a) to (d) & (ii) to (iv): * * * *(v) in the case of criminal contempt of the high court other than a contempt referred to in section 14 of the act, the complainant shall state whether he has obtained the consent, of the advocate-general and if so, produce the same.nothing shall preclude the high court from taking action suo-motu on the basis of the information disclosed.(underlining is by us)rule 6 is regarding taking cognizance. rule 8 is regarding preliminary hearing and notice and it reads as follows:8. preliminary hearing and notice:(i) every petition or reference shall be posted for preliminary hearing before the appropriate bench.(ii)(a) the court, if satisfied that a prima facie case has been made out may direct issue of notice to the accused: otherwise it shall dismiss the petition or reject the reference.(b) the notice shall be in form no. 1 and shall be accompanied by a copy of the petition or reference or information, and annexures if any thereto.rule 10 is regarding hearing of cases and trial. the relevant portion thereof reads as follows:10. hearing of cases and trial:(i) the accused may file his reply duly supported by an affidavit on or before the first date of hearing or within such extended lime as may be granted by the court.(ii) upon consideration of the reply filed by the accused and after hearing the parties, the court may drop the proceeding and discharge the accused.(underlining is by us)11. from clause (b) of sub-section (1) of section 15 of the act, it is apparent that, a motion made by any person other than the advocate-general, must be with the prior consent in writing of the advocate-general. the form of motion, parties to proceedings and contents of petition, shall be in terms of rules 3, 4 & 5 of the rules. this motion has not been made by the advocate-general as contemplated under section 15(1)(a) of the act nor is a suomotu action by this court as contemplated under section 15(1)(c) of the act. this motion is by the parties and hence, falls under section 15(1)(b) of the act which contemplates a special procedure prescribed therein i.e., with the consent in writing of the advocate general. hence, the procedure stipulated under the provision i.e., section 15(1)(b) is mandatory. procedure mandated by the statute act/rules, cannot be dispensed with. indisputably, the motion as on the date it was filed i.e., 09.06.2006, was not accompanied with the consent in writing of the advocate-general.12. in the case of l.p. misra (dr.) v. state of u.p. : (1998) 7 scc 379, dealing with the requirement to follow the procedure prescribed by law while exercising the power under article 215 of the constitution to punish for contempt, it has been held that, the high court can invoke powers and jurisdiction vested in it under article 215 of the constitution, but, such a jurisdiction has to be exercised in accordance with the procedure prescribed by law. noticing the fact that while passing the order of punishment, the high court had not followed the procedure prescribed by law, the impugned order was held unsustainable and was set aside.13. in the case of state of kerala v. m.s. mani and ors. : (2001) 8 scc 82, a contempt petition was filed on 17.05.99. notice of the petition was issued on 19.08.99. a preliminary objection was raised by the respondent contending that, the contempt petition was not maintainable, as consent of the advocate-general under section 15 of the act was not obtained before filing of the contempt petition. the consent contemplated under section 15(1)(b) of the act was obtained on 11.05.2000 and it was submitted that, there is compliance of the requirement under section 15. while examining the issue concerning the maintainability of the petition, noticing that, the motion to take action against respondents under section 15 was not made with the consent of the learned attorney general or solicitor general and that, subsequent obtaining of the consent does not cure the initial defect so as to convert an incompetent motion into a maintainable petition, it has been held as follows:6. the requirement of consent of the advocate-general/attorney-general/solicitor-general where any person other than the said law officers makes motion in the case of a criminal contempt in a high court or supreme court as the case may be is not a mere formality; it has a salutary purpose. the said law officers being the highest law officers at the level of the state/centre as also the officers of the courts are vitally interested in the purity of the administration of justice arid in preserving the dignity of the courts. they are expected to examine whether the averments in the proposed motion of a criminal contempt are made vindicating public interest or personal vendetta and accord or decline consent postulated in the said provision. further, cases found to be vexatious, malicious or motivated by personal vendetta and not in public interest will gel filtered at that level. if a motion of criminal contempt in the high court/supreme court is not accompanied by the written consent of the aforementioned law officers, the very purpose of the requirement of prior consent will be frustrated. for a valid motion compliance with the requirements of section 15 of the act is mandatory. a motion under section 15 not in conformity with the provisions of section 15 is not maintainable.(emphasis supplied by us)14. in the case of ratan chandra sharma and anr. v. kum. sheetal sharma and ors. : 2002 (5) kar.l.j. 365, consent of advocate-general at the time of filing the contempt petition had not been obtained. an objection was raised to the effect that, section 15 of the act is mandatory and non-production of the consent of the advocate-general is fatal and that consent obtained from the advocate-general, subsequently, during the proceedings, is not contemplated under section 15 of the act and hence, the petition is liable to be rejected. it was noticed that, contempt petition had been filed on 7.7.2000 office had raised objection at the preliminary stage of filing the petition i.e., the consent of advocate-general having not been filed. consent was subsequently obtained and produced and it was stated that, the office objection stood complied with. considering a question, whether the contempt petition is not maintainable for want of consent of advocate-general as contemplated under section 15 of the act, following the ratio of the decision in the case of state of kerala v. m.s. mani (supra), it was held as follows:we have no hesitation therefore, to hold that this contempt petition fails for want of consent of advocate-general in writing as contemplated under section 15 of the contempt of courts act. 1971.15. in the case of bal thackrey v. harish pimpalkhute and ors. : (2005) 1 scc 254, the facts were that two contempt petitions under section 15 of the act were filed against appellant - bal thackrey, for having, committed contempt of court in terms of section 2(c) of the act, by making a public speech. petitioner in one of the contempt petitions had submitted an application dated 22.10.96 to the advocate-general seeking requisite permission by 02.12.96 and further stating that, in case of not receiving an answer, he would presume that permission had been granted and would proceed with the contempt proceedings. accordingly, contempt petition was filed on 02.12.96 without the consent of the advocate-general. the high court, while rejecting the contention that, suo-motu action under section 15 of the act could not be taken on petitions filed by way of regular motion by private parties, held that, accused bal thackrey, guilty of contempt and inflicted the punishment, which order was challenged in the apex court. primary contention urged for consideration was that, in the absence of compliance of mandatory requirement of section 15, the petitions were not maintainable. after examining the scope of article 215 of the constitution and section 15 of the act, it has been held that, 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. it was further held that, the procedure of section 15 is required to be followed even when a petition is filed by a party under article 215 of the constitution. noticing the absence of the compliance with the mandatory requirement of section 15, the petitions were held as not maintainable.16. section 15(1)(b) and rule 5(v) have prescribed distinct procedure for the person making a complaint of criminal contempt as defined under section 2(c) of the act. when the procedure has been stipulated both under the statute and also in the rules made under the power conferred on the court, both under article 215 of the constitution of india and section 23 of the act, the court cannot take cognizance, if the procedure prescribed has not been followed. a contempt of court is an offence of a criminal character. hence, the proceedings initiated, cannot be de hors the provisions of the act and rules. if the procedure prescribed is not followed, the resultant position would be illegal. punishment, if any, can be imposed only in a legally initiated and conducted proceeding and not otherwise.17. in the instant case, this petition was filed on 9.6.06. the consent of the advocate-general was obtained on 19.06.06 and was filed in the registry on 21.06.06. notice of the motion in form 1 was ordered to the accused on 22.06.06 and hence, sri t.r. subbanna, contended that, the requirement of section 15 stands complied with. the fact remains that, the motion to take action against the accused under section 15 read with rule 5 was not accompanied with the consent of the learned advocate-general on the date it was filed and therefore, is not competent. subsequent obtaining of the consent i.e. on 19.6.2006, does not cure the initial defect, so as to convert the incompetent motion, into a maintainable petition. hence, the contention of the learned senior counsel for the complainants being opposed to the law declared by the apex court and this court, in the decisions noticed supra, is unacceptable and hence, rejected.18. in the above view of the matter, it is unnecessary to refer to the decisions cited before us by the learned senior counsel appearing for the complainants, since, we have taken the view, with reference to the relevant provisions of the act and the rules, set out supra.in view of the foregoing discussion, we hold that this motion is not maintainable and as a result, we drop the contempt proceedings and discharge the notice of contempt issued to the accused.

Judgment:
ORDER

A.N. Venugopala Gowda, J.

1. This motion by the complainant against the accused is for taking action for criminal contempt of the proceedings of this Court and also a subordinate Court.

2. Material allegations made in the motion are that, accused along with his wife instituted against the 2nd complainant, O.S. 2377/1993 on the file of the City Civil Court, Bangalore which suit was dismissed in respect of a portion of the suit property by a decree dated 11.12.2003. Accused along with his wife filed RFA 146/2004, which was dismissed as not pressed, by an order dated 20.04.2006. During the pendency of said appeal, accused filed O.S. 4196/2005 on 4.6.2005 on the file of the City Civil Court, Bangalore, in respect of the same suit property, as in O.S. 2377/93, against the 1st complainant. In the said suit, an I.A. under Order 39 Rules 1 and 2 CPC was filed and an exparte order of temporary injunction was obtained on 08.06.05, by concealing the fact about the judgment and decree dated 11.12.2003 passed in O.S. 2377/93 and the pendency of RFA 146/2004 and also by misleading the Court by stating in para 8 of the plaint that 'there is no pendency of any legal proceedings and litigation either in past and in present concerning any part of the subject matter of this suit in any Court with the knowledge of the plaintiff'. The filing of O.S.4196/2005 was not brought to the notice of this Court during the pendency of RFA 146/2004. Only after disposal of RFA 146/2004 by an order dated 20.04.2006, the fact of grant of said exparte temporary injunction order came to the knowledge of the complainant on 16.05.2006.

3. Notice of the motion was ordered to the accused who entered appearance through counsel. Accused filed objection statement contending that, during the pendency of RFA 146/2004, tenant had handed over key of the premises to 2nd complainant, who was a party in the RFA, had attempted to meddle with the portion of the property and hence, he filed a complaint on 19.5.2005. There was a status quo order passed in RFA 146/2004 on 6.6.2005. 1st complainant was not a party in the RFA and she tried to interfere with the possession and as such, he filed O.S. 4196/2005, in which, an order of temporary injunction was passed on 8.6.2005. Since summons was not served on complainant No. 1, paper publication was taken. It was also stated that, he had filed W.P. 7791/2006 against Bangalore Mahanagara Palike to consider a complaint filed before Assistant Revenue Officer and the said petition was dismissed with liberty to pursue the remedy either before the authority or in the Civil Court. 2nd complainant is a party and there is an interim order of status quo granted in RFA and accused had specifically instructed his advocate to file a suit against complainant No. 1, stating the pendency of appeal in this Court and his Advocate might have stated in the pleading in para 8 of the plaint, which is normally written by an Advocate and that he had no knowledge of the same.

4. Respondent filed an application for dismissal of the motion as not maintainable on the ground that, it has been filed beyond the period of one year. By an order dated 10.8.2006, it was held that, petition is within time and the said application was rejected. Appeal filed their against by the accused, was dismissed as withdrawn by an order of Apex Court dated 11.09.2006. On 8.12.2006, an order was passed holding that, charge is required to be framed against the accused. Said order was questioned in appeal by the accused on the ground that, when the contempt petition was filed, complainant had not filed the consent in writing of the Advocate-General as envisaged in Section 15(1)(b) of the Contempt of Courts Act, 1971 ('the Act' for short) and that the consent of the Advocate-General was obtained and produced only on 19.6.2006, though the petition was filed on 9.6.2006. Two contentions appear to have been raised in the Apex Court with regard to the maintainability of contempt petition. The first one is, with regard to the bar of limitation under Section 20 of the Act, which had stood over-ruled by an order of this Court dated 10.8.2006, which attained finality with the withdrawal of the appeal on 11.09.2006 filed their against. The second one is, with regard to the maintainability of the contempt petition, in the absence of consent in writing of the Advocate-General, as on the date of filing of the petition. Apex Court, by an order dated 31.03.2009, has not accepted the plea with regard to bar of limitation. However, noticing that, complainants did not obtain the consent of the Advocate-General in writing and whether the same should have been filed along with the complaint, is a matter to be agitated by the accused before this Court, granting liberty to raise the objection to maintainability and all other objections, the appeal was disposed of, without expressing any opinion on the merits, by an order dated 31.03.2009.

5. Smt. B.V. Vidyulatha, learned Advocate for the complainants, has filed memorandum of facts on 31.08.2006, in which it has been stated that, after preparing the contempt petition, one set of the petition copy along with all the annexures were presented in the receiving section of the Office of the learned Advocate-General on 09.06.2006, for the purpose of obtaining consent of the Advocate-General and it was told by the official that, papers are to be filed in the Registry of the High Court and number must be obtained and only thereafter, the papers could be received. Immediately, petition was filed in the Registry, which was numbered. Again petition was sought to be presented, which was refused to be received, on account of hand written requisition. Thereafter, typed requisition was prepared and submitted to the receiving section of the Office of the Advocate-General on 12.06.2006. Registry raised objections regarding non-production of the consent of the Advocate-General and 3 weeks' time was granted to do the needful. Advocate-General gave his consent on 19.06.2006 and the same was produced before the Registry and thus, complying with the office objection on 21.06.2006. Thereafter, contempt petition was listed before the Bench on 22.06.2006 for preliminary hearing and notice to the accused was ordered.

6. Sri G.R. Mohan, learned advocate appearing for the accused invited our attention to Section 15 of the Act and contended that, the motion made being one made under Section 15(1)(b) of the Act, should have accompanied with the consent in writing of the Advocate-General, which was not the fact and hence, the motion is not maintainable. It was contended that, the Issue of non-maintainability of motion goes to the root of the matter and hence, may be decided as a preliminary issue.

7. Sri T.R. Subbanna, learned Senior Advocate appearing for the complainants, on the other hand, after inviting out attention to the written arguments filed in the matter, contended that, the consent contemplated by Sub-Section (1) of Section 15 of the Act was obtained on 19.06.06 and was filed in the Registry on 21.06.06 and thereafter, the Court took cognizance of the complaint on 22.06.06 and therefore, the motion is maintainable. He contended that, what is required in the context of Section 15 of the Act is 'at the time when the motion is being initially examined i.e., when the Court takes cognizance of the matter', the consent of the Advocate-General must be available on record and the fact being that, on the date cognizance was taken and notice was ordered to be issued to the accused, consent of the Advocate-General was available on record and thus, there is compliance with the statutory requirement, Learned Counsel made certain submissions as to what is meant by 'taking cognizance'. He cited certain decisions with regard to the scope and meaning of 'taking cognizance'. Learned Counsel contended that, in the context of Section 15 of the Act, it is not necessary that, the consent should be filed along with the motion, when presented in the Registry of the Court and what is required is that, consent should be available on record when the Bench takes cognizance of the motion. Even otherwise, in view of the circumstances stated in the memorandum of facts filed by the learned advocate for the complainants, the Court should not view the matter too technically and the delay in obtaining and producing the consent of the learned Advocate-General, may be condoned.

8. The plea goes to the root of the matter and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact. Hence, it is necessary to decide the issue of maintainability of the motion, in the light of the liberty reserved to the accused, by the Apex Court vide order dated 31.03.09.

9. The rival stands need consideration on the core issue 'whether the contempt petition is not maintainable for want of written consent of the Advocate-General as contemplated under Section 15(1)(b) of the Contempt of Courts Act, 1971?'

10. To answer the issue, it is necessary to notice the relevant provisions of the Act and Rules. Section 15 of the Act 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) * * *

(2) * * *

(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) * * *

(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) * * *

(underlining is by us)

Section 23 empowers the Court to make rules not inconsistent with the provisions of the Act, providing for any matter relating to the procedure. In exercise of the power conferred under Article 215 of the Constitution of India and Section 23 of the Act and all other powers enabling in that behalf, this Court has framed 'The High Court of Karnataka (Contempt of Court Proceedings) Rules, 1991' ('the Rules' for short). Rule 3 is regarding form of motion. Rule 5 is with regard to contents of petition, the relevant portion of which reads as follows:

5. Contents of petition: (i) The petition shall set out the following particulars:

(a) to (d) & (ii) to (iv): * * * *

(v) In the case of criminal contempt of the High Court other than a contempt referred to in Section 14 of the Act, the complainant shall state whether he has obtained the consent, of the Advocate-General and if so, produce the same.

Nothing shall preclude the High Court from taking action suo-motu on the basis of the information disclosed.

(underlining is by us)

Rule 6 is regarding taking cognizance. Rule 8 is regarding preliminary hearing and notice and it reads as follows:

8. Preliminary Hearing and notice:

(i) Every petition or reference shall be posted for preliminary hearing before the appropriate Bench.

(ii)(a) The Court, if satisfied that a prima facie case has been made out may direct issue of notice to the accused: otherwise it shall dismiss the petition or reject the reference.

(b) The notice shall be in Form No. 1 and shall be accompanied by a copy of the petition or reference or information, and annexures if any thereto.

Rule 10 is regarding hearing of cases and trial. The relevant portion thereof reads as follows:

10. Hearing of Cases and Trial:

(i) The accused may file his reply duly supported by an affidavit on or before the first date of hearing or within such extended lime as may be granted by the Court.

(ii) Upon consideration of the reply filed by the accused and after hearing the parties, the Court may drop the proceeding and discharge the accused.

(underlining is by us)

11. From Clause (b) of Sub-Section (1) of Section 15 of the Act, it is apparent that, a motion made by any person other than the Advocate-General, must be with the prior consent in writing of the Advocate-General. The form of motion, parties to proceedings and contents of petition, shall be in terms of Rules 3, 4 & 5 of the Rules. This motion has not been made by the Advocate-General as contemplated under Section 15(1)(a) of the Act nor is a suomotu action by this Court as contemplated under Section 15(1)(c) of the Act. This motion is by the parties and hence, falls under Section 15(1)(b) of the Act which contemplates a special procedure prescribed therein i.e., with the consent in writing of the Advocate General. Hence, the procedure stipulated under the provision i.e., Section 15(1)(b) is mandatory. Procedure mandated by the statute Act/Rules, cannot be dispensed with. Indisputably, the motion as on the date it was filed i.e., 09.06.2006, was not accompanied with the consent in writing of the Advocate-General.

12. In the case of L.P. Misra (Dr.) v. State of U.P. : (1998) 7 SCC 379, dealing with the requirement to follow the procedure prescribed by law while exercising the power under Article 215 of the Constitution to punish for contempt, it has been held that, the High Court can invoke powers and jurisdiction vested in it under Article 215 of the Constitution, but, such a jurisdiction has to be exercised in accordance with the procedure prescribed by law. Noticing the fact that while passing the order of punishment, the High Court had not followed the procedure prescribed by law, the impugned order was held unsustainable and was set aside.

13. In the case of State of Kerala v. M.S. Mani and Ors. : (2001) 8 SCC 82, a contempt petition was filed on 17.05.99. Notice of the petition was issued on 19.08.99. A preliminary objection was raised by the respondent contending that, the contempt petition was not maintainable, as consent of the Advocate-General under Section 15 of the Act was not obtained before filing of the contempt petition. The consent contemplated under Section 15(1)(b) of the Act was obtained on 11.05.2000 and it was submitted that, there is compliance of the requirement under Section 15. While examining the issue concerning the maintainability of the petition, noticing that, the motion to take action against respondents under Section 15 was not made with the consent of the learned Attorney General or Solicitor General and that, subsequent obtaining of the consent does not cure the initial defect so as to convert an incompetent motion into a maintainable petition, it has been held as follows:

6. The requirement of consent of the Advocate-General/Attorney-General/Solicitor-General where any person other than the said law officers makes motion in the case of a criminal contempt in a High Court or Supreme Court as the case may be is not a mere formality; it has a salutary purpose. The said law officers being the highest law officers at the level of the State/Centre as also the officers of the courts are vitally interested in the purity of the administration of justice arid in preserving the dignity of the courts. They are expected to examine whether the averments in the proposed motion of a criminal contempt are made vindicating public interest or personal vendetta and accord or decline consent postulated in the said provision. Further, cases found to be vexatious, malicious or motivated by personal vendetta and not in public interest will gel filtered at that level. If a motion of criminal contempt in the High Court/Supreme Court is not accompanied by the written consent of the aforementioned law officers, the very purpose of the requirement of prior consent will be frustrated. For a valid motion compliance with the requirements of Section 15 of the Act is mandatory. A motion under Section 15 not in conformity with the provisions of Section 15 is not maintainable.

(Emphasis supplied by us)

14. In the case of Ratan Chandra Sharma and Anr. v. Kum. Sheetal Sharma and Ors. : 2002 (5) Kar.L.J. 365, consent of Advocate-General at the time of filing the contempt petition had not been obtained. An objection was raised to the effect that, Section 15 of the Act is mandatory and non-production of the consent of the Advocate-General is fatal and that consent obtained from the Advocate-General, subsequently, during the proceedings, is not contemplated under Section 15 of the Act and hence, the petition is liable to be rejected. It was noticed that, contempt petition had been filed on 7.7.2000 office had raised objection at the preliminary stage of filing the petition i.e., the consent of Advocate-General having not been filed. Consent was subsequently obtained and produced and it was stated that, the office objection stood complied with. Considering a question, whether the contempt petition is not maintainable for want of consent of Advocate-General as contemplated under Section 15 of the Act, following the ratio of the decision in the case of State of Kerala v. M.S. Mani (supra), it was held as follows:

We have no hesitation therefore, to hold that this contempt petition fails for want of consent of Advocate-General in writing as contemplated under Section 15 of the Contempt of Courts Act. 1971.15. In the case of Bal Thackrey v. Harish Pimpalkhute and Ors. : (2005) 1 SCC 254, the facts were that two contempt petitions under Section 15 of the Act were filed against appellant - Bal Thackrey, for having, committed contempt of Court in terms of Section 2(c) of the Act, by making a public speech. Petitioner in one of the contempt petitions had submitted an application dated 22.10.96 to the Advocate-General seeking requisite permission by 02.12.96 and further stating that, in case of not receiving an answer, he would presume that permission had been granted and would proceed with the contempt proceedings. Accordingly, contempt petition was filed on 02.12.96 without the consent of the Advocate-General. The High Court, while rejecting the contention that, suo-motu action under Section 15 of the Act could not be taken on petitions filed by way of regular motion by private parties, held that, accused Bal Thackrey, guilty of contempt and inflicted the punishment, which order was challenged in the Apex Court. Primary contention urged for consideration was that, in the absence of compliance of mandatory requirement of Section 15, the petitions were not maintainable. After examining the scope of Article 215 of the Constitution and Section 15 of the Act, it has been held that, 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. It was further held that, the procedure of Section 15 is required to be followed even when a petition is filed by a party under Article 215 of the Constitution. Noticing the absence of the compliance with the mandatory requirement of Section 15, the petitions were held as not maintainable.

16. Section 15(1)(b) and Rule 5(v) have prescribed distinct procedure for the person making a complaint of criminal contempt as defined under Section 2(c) of the Act. When the procedure has been stipulated both under the statute and also in the Rules made under the power conferred on the Court, both under Article 215 of the Constitution of India and Section 23 of the Act, the Court cannot take cognizance, if the procedure prescribed has not been followed. A contempt of Court is an offence of a criminal character. Hence, the proceedings initiated, cannot be de hors the provisions of the Act and Rules. If the procedure prescribed is not followed, the resultant position would be illegal. Punishment, if any, can be imposed only in a legally initiated and conducted proceeding and not otherwise.

17. In the instant case, this petition was filed on 9.6.06. The consent of the Advocate-General was obtained on 19.06.06 and was filed in the Registry on 21.06.06. Notice of the motion in Form 1 was ordered to the accused on 22.06.06 and hence, Sri T.R. Subbanna, contended that, the requirement of Section 15 stands complied with. The fact remains that, the motion to take action against the accused under Section 15 read with Rule 5 was not accompanied with the consent of the learned Advocate-General on the date it was filed and therefore, is not competent. Subsequent obtaining of the consent i.e. on 19.6.2006, does not cure the initial defect, so as to convert the incompetent motion, into a maintainable petition. Hence, the contention of the learned Senior Counsel for the complainants being opposed to the law declared by the Apex Court and this Court, in the decisions noticed supra, is unacceptable and hence, rejected.

18. In the above view of the matter, it is unnecessary to refer to the decisions cited before us by the learned Senior Counsel appearing for the complainants, since, we have taken the view, with reference to the relevant provisions of the Act and the Rules, set out supra.

In view of the foregoing discussion, we hold that this motion is not maintainable and as a result, we drop the contempt proceedings and discharge the notice of contempt issued to the accused.