REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 607 OF 2005

BIMAN BASU … APPELLANT

VERSUS

KALLOL GUHA THAKURTA & ANR. … RESPONDENTS

JUDGMENT

B. SUDERSHAN REDDY, J.

1. This  appeal  preferred  under  Section  19(1)  of  the  

Contempt  of  Courts  Act,  1971  is  directed  against  the  

judgment  dated 31st March,  2005 of  the  High Court  of  

Calcutta  in  C.P.A.N.  No.  1535  of  2003  whereby  the  

appellant  has  been  held  to  have  committed  criminal  

contempt as defined in Section 2(c) of the Contempt of  

Courts  Act,  1971  and  sentenced  to  undergo  simple  

imprisonment for a period of three days and to pay a fine  

of Rs.10,000/-.

2. The origin of the proceedings is traceable to an incident  

that had taken place on 24th September, 2003 when some  

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of the Judges of the Calcutta High Court while on their  

way to the High Court were ‘detained’ by a police officer  

so as to allow a procession of adivasis to pass by who  

were  out  to  press  their  demand  for  recognition  of  

Shanthali  as  one of  the  Scheduled  language  under  the  

Constitution of India. Justice Amitava Lala of that Court  

felt the procession caused enormous disruption not only  

to the “official business of the Court” but also “the people  

at  large”.  The  learned  Judge  issued  suo-motu  rule  of  

contempt  upon Deputy Commissioner  of  Police  (Traffic)  

and  other  police  officers.  As  is  evident  from the  order  

dated  29th September,  2003,  the  learned  Judge  felt  

humiliated  as  the  police  officers  refused  to  make  

necessary arrangements for the free movement of his car  

so that he could reach the Court on time.  The learned  

Judge was of the opinion that the “Court does not mean  

Court room but movement of the Judge even outside, at  

least  when  he  is  moving  to  discharge  his  official  

functions”.  It  is  under  those  circumstances  that  the  

learned Judge thought it fit that it was high time to issue  

suo-motu rule  of  contempt upon the appropriate  public  

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authorities to show cause. The learned Judge in the said  

contempt proceedings initiated by him suo-motu issued as  

many  as  twelve  directions/guidelines  with  respect  to  

traffic regulations and holding of processions/meetings in  

the city of Kolkata. We wish to say no more on this aspect  

of the matter since the directions so issued by the learned  

Judge are stated to be under the consideration in appeal  

before a Division Bench of the High Court.

3. The appellant herein is alleged to have not only criticized  

the  order  but  also  made  certain  adverse  comments  

against  the  Judge  who  passed  the  said  order.  These  

comments were widely reported and published in various  

newspapers on 5.10.2003. In the meanwhile, a Division  

Bench of the Calcutta High Court stayed all the directions  

issued by the learned Single  Judge on 29th September,  

2003  in  the  contempt  proceedings  concerning  the  

regulation of traffic and processions/public meetings. The  

respondents in this appeal moved a contempt petition in  

the High Court  on 13th October,  2003 with a prayer  to  

initiate  appropriate  contempt  proceedings  against  the  

appellant  for  making  deliberate  and  willful  derogatory,  

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defamatory and filthy statements against Justice Amitava  

Lala which were widely published in the newspapers and  

electronic  media.  In  their  petition,  the  respondents  

pleaded  that  the  derogatory,  defamatory  and  

contumacious  statements  and  remarks  made  by  the  

appellant constitute a straight and direct attack upon a  

sitting  High  Court  Judge  and  the  same  has  not  only  

lowered the dignity of  the sitting High Court Judge but  

also  total  judicial  system  of  the  country.  They  have  

accordingly  prayed  to  initiate  contempt  proceedings  

against  the  appellants  “under  Sections  2(a),  2(b),  2(c)  

and 2(d) or any other applicable Sections of the Contempt  

of Courts Act, 1971 and to put him behind the bars and  

also to saddle him with fine…”. They have also prayed for  

award of costs and other incidental charges in connection  

with the contempt application. The contempt petition was  

duly supported by an affidavit as required and solemnly  

affirmed  by  the  first  respondent.  In  the  affidavit,  it  is  

specifically  stated  that  the  statements,  comments  and  

averments made in paragraph Nos. 1 to 4, 6 and 8 are  

true to his knowledge.

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4. A Division Bench of the Calcutta High Court vide its order  

dated 17th October, 2003 passed the following order:

“Heard.

After hearing Mr. Ali, learned counsel moving this  petition  and  perusing  the  issue  of  Bartaman  dated 5th October, 2003, we are of the view that  a Rule be issued. Rule is made returnable on 7th  

of November, 2003.

This  Court,  however,  makes  it  clear  that  the  records  of  this  case  may be  placed  before  the  Hon’ble the Chief Justice for assignment of this  rule  for  hearing  before  any  Bench  that  the  Hon’ble  the  Chief  Justice  may  think  fit  and  proper”.

5. This  order  was followed by rule  requiring the appellant  

herein to show cause why he should not be committed to  

prison  or  otherwise  penalized  or  dealt  with  for  making  

“deliberate and willful derogatory, defamatory and filthy  

statements against a sitting Judge of this Court Hon’ble  

Justice  Amitava  Lala,  as  well  making  such  derogatory,  

defamatory  and  filthy  languages  (sic)  remarks  and  

statements in   front (sic) of the Press, Electronic Media  

and  open  meeting  regarding  the  order  dated  29th  

September,  2003 passed by Justice  Amitava Lala.”  The  

appellant  was  required  to  be  personally  present  on  7th  

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November,  2003  before  the  Court.  The  appellant  was  

accordingly  served  with  the  contempt  petition  together  

with all annexures and enclosures including the affidavit  

of the first respondent filed in support of the contempt  

petition.  

6. The  appellant  accordingly  appeared  before  the  Court  

along with his counsel on 7th November, 2003 and filed a  

brief affidavit in opposition inter alia stating that he has  

got great respect to the dignity and majesty of the Court  

and that he has never meant to show any disrespect  to  

the High Court or  to any of the Judges of the Court and  

that  if  his  act  or  conduct  reflected  any  disrespect,  the  

same was inadvertent and unintentional.  He accordingly  

expressed his regret for such “unintentional  error”.  The  

appellant  also raised the issue of  maintainability of  the  

contempt  petition  since  the motion was moved without  

the consent in writing of the Advocate General. The Court  

vide its order dated 7th November, 2003 expressly kept  

open  the  question  of  maintainability  of  the  petition.  

Thereafter,  various  TV  news  channels  and  editors  of  

newspapers  were  added  as  parties  to  the  contempt  

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proceedings.  The  High  Court  after  hearing  the  parties  

passed the impugned judgment. Hence this appeal.

7. We have heard Shri  K.K.  Venugopal  and Dr.  Shri  Rajiv  

Dhawan,  learned  senior  counsel  for  the  appellant  and  

none appeared on behalf of the respondents.  We have,  

however, considered the written submissions of the first  

respondent  which  were  filed  into  the  Court  after  

completion of the hearing of the matter.  

8. The Division Bench judgment has been divided into mainly  

five  parts  viz.,  (i)  maintainability  (ii)  free  speech  and  

contempt  (iii)  standard  of  proof  (iv)  fair  comment  and  

contempt (v) evidence in the present case. The finding of  

the  Division  Bench  on  the  maintainability  is  that  the  

contempt petition was maintainable  as suo-motu action  

has  been  taken  by  the  Court  to  initiate  contempt  

proceedings. Since the whole question centers around the  

maintainability of the application, it may be necessary to  

notice the view taken by the High Court in its own words:

“In the instant case, having regard to the nature  of the complaint made in the petition along with  the newspaper reports which were also referred to  in the High Court’s order dated 17th October, 2003  while issuing the Rule coupled with the fact that  

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one  of  the  petitioners  was  an  Advocate  of  this  Court and the petition contained an averment to  take action  suo-motu,  this  Court  records  that  it  took the action suo-motu. Therefore, the objection  about the maintainability of the proceedings is not  sustainable”.

9. The  main  issue  that  arises  for  our  consideration  and  

determination  in  this  appeal  is  whether  contempt  

proceedings were initiated against the appellant suo-motu  

by the Court  or  by  the  respondents?  The  Contempt  of  

Courts Act, 1971 as enacted by the Parliament is an Act  

to  define  and  limit  the  powers  of  certain  Courts  in  

punishing for the contempt of Courts and to regulate their  

procedure in relation thereto. The Statement of Objects  

and Reasons clearly explains the reasons as to how it was  

felt that the existing law relating to contempt of Courts  

was  somewhat  uncertain,  undefined  and unsatisfactory.  

The jurisdiction to punish for contempt touches upon two  

important fundamental rights of the citizen, namely, the  

right  to  personal  liberty  and  the  right  to  freedom  of  

expression.  It  was,  therefore,  considered  advisable  to  

have the entire law on the subject scrutinized by a Special  

Committee. Accordingly, a Committee was set up in 1961  

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under the Chairmanship of late Shri H.N. Sanyal, the then  

Additional  Solicitor  General.  The  Committee  made  a  

comprehensive  examination  of  the  law  and  problems  

relating to contempt of Court in the light of the position  

obtaining  in  our  own  country  and  various  foreign  

countries.  The  recommendations  which  the  Committee  

made took note of the importance given to freedom of  

speech  in  the  Constitution  and  of  the  need  for  

safeguarding  the  status  and  dignity  of  Courts  and  

interests  of  administration  of  justice.  The  

recommendations of the Committee have been generally  

accepted  by  Government  after  considering  the  views  

expressed  on  those  recommendations  by  the  State  

Governments, the Supreme Court and the High Courts.

10.The Act,  inter alia,  defines criminal  contempt and also  

provides for the procedure of taking cognizance thereof.  

The  Act  defines  that  “Contempt  of  Court  means  Civil  

contempt or Criminal contempt”. In the present case, we  

are  concerned  with  the  criminal  contempt.  Criminal  

contempt is defined in Section 2(c) of the Contempt of  

Courts Act, 1971 and it says, “criminal contempt means  

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the publication (whether by words, spoken or written, or  

by signs, or by visible representation, or otherwise) of any  

matter or the doing of any other act whatsoever which (i)  

scandalizes or tends to scandalize, or lowers or tends to  

lower  the  authority  of  any  Court;  or  (ii)  prejudices,  or  

interferes or tends to interfere with the due course of any  

judicial proceeding; or (iii) interferes or tends to interfere  

with or obstructs or tends to obstruct the administration  

of justice in any other manner”. In the case of criminal  

contempt, other than a contempt referred to in Section  

14, the manner of taking cognizance has been provided  

for  in  Section  15  of  the  Act.  This  Section,  inter  alia,  

provides that the action for contempt may be taken by  

the Supreme Court or the High Court 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.

11.The question that arises in the present case is whether  

the High Court can entertain a contempt petition filed by a  

private  person  without  the  consent  in  writing  of  the  

Advocate General? For determination of this issue, it will  

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be  relevant  to  note  the  observations  of  the  Sanyal  

Committee,  whose  recommendations  were  taken  into  

consideration  for  enacting  the  Act.  The  Committee  

observed:

“In  the  case  of  criminal  contempt,  not  being  contempt committed in the face of the Court, we  are of the opinion that it would lighten the burden  of the court, without in any way interfering with  the  sanctity  of  the  administration  of  justice,  if  action is taken on a motion by some other agency.  Such a course of action would give considerable  assurance to the individual charged and the public  at large. Indeed, some High Courts have already  made rules  for  the association of  the Advocate- General in some categories of cases at least. . .the  Advocate-General may, also, move the court not  only on his own motion but also at the instance of  the court concerned. . . .”

12.In S.K. Sarkar, Member, Board of Revenue, U.P. Vs.  

Vinay Chandra Misra1 this Court, approvingly  referred  

to the recommendations of the Committee and observed:

“If  the  High  Court  acts  on  information  derived  from its own sources, such as from a perusal of  the records of a subordinate court or on reading a  report in a newspaper or hearing a public speech,  without  there  being  any  reference  from  the  subordinate court or the Advocate-General, it can  be  said  to  have  taken  cognizance  on  its  own  

1 (1981) 1 SCC 436

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motion. But if the High Court is directly moved by  a petition by a private person feeling aggrieved,  not  being  the  Advocate-General,  can  the  High  Court refuse to entertain the same on the ground  that  it  has  been  made  without  the  consent  in  writing of the Advocate-General? It appears to us  that  the High Court,  has,  in such a situation,  a  discretion to refuse to entertain the petition, or to  take cognizance on its own motion on the basis of  the information supplied to it  in that petition. If  the petitioner is a responsible member of the legal  profession, it may act suo motu, more so, if the  petitioner-advocate, as in the instant case, prays  that  the  court  should  act  suo  motu.  The  whole  object  of  prescribing  these  procedural  modes  of  taking  cognizance  in  Section  15 is  to  safeguard  the  valuable  time  of  the  High  Court  or  the  Supreme  Court  from  being  wasted  by  frivolous  complaints of contempt of court.  If the High Court  is  prima  facie  satisfied  that  the  information  received  by  it  regarding  the  commission  of  contempt of a subordinate court is not frivolous,  and the contempt alleged is not merely technical  or trivial,  it may, in its discretion, act suo motu  and  commence  the  proceedings  against  the  contemner.  However,  this  mode  of  taking  suo  motu  cognizance  of  contempt  of  a  subordinate  court, should be resorted to sparingly where the  contempt  concerned  is  of  a  grave  and  serious  nature. Frequent use of this suo motu power on  the  information  furnished  by  an  incompetent  petition, may render these procedural safeguards  provided in sub-section (2), otiose. In such cases,  the High Court may be well advised to avail of the  advice  and  assistance  of  the  Advocate-General  before initiating proceedings”.

13.In State of Kerala Vs. M.S. Mani2 this Court held:

2 (2001) 8 SCC 82

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“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 and 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 get 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”.

14.In  M.S.  Mani  (supra),  the  consent  of  the  learned  

Attorney General was obtained after filing of the contempt  

petition. This Court held that the motion to take action  

against the respondents therein was not made with the  

consent  of  the  learned  Attorney  General  or  Solicitor  

General  and  therefore  is  incompetent.  This  Court  

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observed: “Subsequent obtaining of the consent,  in our  

view, does not cure the initial defect so as to convert the  

incompetent motion into a maintainable petition”.

15.In P.N. Duda Vs. P. Shiv Shankar3 this Court observed  

that in terms of Section 15(1) and Rule 3(c), a petition for  

contempt  will  not  be  maintainable  by  a  private  person  

without the written consent of the Attorney General or the  

Solicitor  General.  One cannot get over the objection to  

the  maintainability  of  a  petition  without  such  consent  

merely by the device of adding the Attorney General and  

Solicitor  General  as  respondents  to  the  petition.  In  

Paragraph 54 of the Judgment, it is explained that so far  

as this Court is concerned, action for contempt may be  

taken by the court on its own motion or on the motion of  

the  Attorney-General  (or  Solicitor-General)  or  of  any  

other  person  with  his  consent  in  writing.  This  Court  

further observed:

“There  is  no  difficulty  where  the  court  or  the  Attorney-General  choose to move in the matter.  But when this is not done and a private person  desires that such action should be taken, one of  three courses is open to him. He may place the  

3 (1988) 3 SCC 167

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information in his possession before the court and  request  the  court  to  take  action:  (vide  C.K.  Daphtary v.  O.P.  Gupta,  (1971)  1  SCC  626  and  Sarkar v.  Misra,  (1981) 1 SCC 436); he  may  place  the  information  before  the  Attorney- General and request him to take action; or he may  place the information before the Attorney-General  and request him to permit him to move the court.  In the present case, the petitioner alleges that he  has failed in the latter two courses — this will be  considered  a  little  later  — and  has  moved  this  “petition” praying that this Court should take suo  motu  action.  The  “petition”  at  this  stage,  constitutes  nothing more than a mode of  laying  the relevant information before the court for such  action  as  the  court  may  deem  fit  and  no  proceedings can commence until  and unless  the  court  considers  the  information  before  it  and  decides to initiate proceedings. Rules 3 and 4 of  the Supreme Court (Contempt of Court) Rules also  envisage  a  petition  only  where  the  Attorney- General  or  any  other  person,  with  his  written  consent, moves the court”.

16.In  Bal Thackrey Vs. Harish Pimpalkhute4 this Court  

held:

“It is well settled that the requirement of obtaining  consent  in  writing  of  the  Advocate  General  for  making  motion  by  any  person  is  mandatory.  A  motion under  Section  15 not  in  conformity  with  the  requirements  of  that  section  is  not  maintainable”.

17.It  is  settled  law  that  the  High  Courts  even  while  

exercising  their  powers  under  Article  215  of  the  

4 (2005) 1 SCC 254

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Constitution  to  punish  for  contempt,  the  procedure  

prescribed by law is  required to be followed (See  L.P.  

Misra  (Dr.)  Vs.  State  of  U.P.5,  Pallav  Sheth  Vs.  

Custodian6). The High Court in the present case relied on  

the  decision  of  this  Court  in  C.K.  Daphtary  Vs.  O.P.  

Gupta7 wherein this Court overruled the objection raised  

on  behalf  of  the  alleged  contemnor  that  the  contempt  

petition filed in the Supreme Court without the consent of  

the Attorney General was not maintainable. The decision  

was rendered prior to the Act coming into force.  There  

was  no  provision  of  law  at  the  relevant  time  which  

prevented the Courts from entertaining a petition filed by  

interested  persons  even  without  the  prior  consent  in  

writing of the Attorney General or the Advocate General,  

as the case may be.

18.The High Court in the present case rested its conclusion  

relying  on  averments  made in  the petition  stating  that  

“even a suo motu contempt proceedings may be initiated”  

at the instance of the petitioners “on going through the  

5 (1998) 7 SCC 379 6 (2001) 7 SCC 549 7 (1971) 1 SCC 626

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newspapers”. Be it noted that there is no prayer in the  

contempt petition filed by the respondents to initiate suo  

motu proceedings. We are unable to sustain the finding of  

the  High  Court  in  this  regard  for  the  same  is  not  

supported by any material available on record. The order  

dated 17th October, 2003 and the Rule issued in clear and  

categorical  terms  reflects  that  law  was  set  in  motion  

exclusively based on the averments made in the petition  

and  the  affidavit  of  verification  filed  in  support  of  the  

petition  and  the  arguments  of  the  counsel.   There  is  

nothing  on  record  suggesting  that  the  contents  of  the  

petition  were  treated  as  information  placed  before  the  

Court for initiating the contempt proceedings suo motu by  

the Court. The contents of the petition of the respondents,  

their affidavit of verification dated 13th October, 2003, the  

exhibits  and  annexures  to  the  said  petition  and  the  

arguments  of  the  counsel  alone  constituted  the  

foundation, based on which the law was set in motion.  

The petition itself is not styled as any piece of information  

that was placed before the court for its consideration.  It  

is not a case where the High Court refused to entertain  

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the petition and took cognizance on its own motion on the  

basis of the information supplied to it in the petition.  The  

record does not bear any such proceedings of the Court.  

Had  it  been  so,  the  respondents  would  have  been  

nowhere in the picture.  It  is true that any person may  

move the High Court for initiating proceedings for criminal  

contempt by placing the facts constituting the commission  

of criminal contempt to the notice of the Court. But once  

those  facts  are  placed  before  the  Court,  it  becomes  a  

matter between the Court and the contemnor. But such  

person filing an application or petition does not become a  

complainant or petitioner in the proceeding. His duty ends  

with the facts being placed before the Court. The Court  

may  in  appropriate  cases  in  its  discretion  require  the  

private  party  or  litigant  moving  the  Court  to  render  

assistance during the course of the proceedings. In D.N.  

Taneja  Vs.  Bhajan  Lal8 this  Court  observed  that  “a  

contempt is a matter between the Court and the alleged  

contemnor. Any person who moves the machinery of the  

Court for contempt only brings to the notice of the court  

8 (1988) 3 SCC 26

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certain  facts  constituting  contempt  of  Court.  After  

furnishing such information he may still assist the Court,  

but it must always be borne in mind that in a contempt  

proceeding there are only two parties, namely, the Court  

and the contemnor”. Thus the person bringing the facts  

constituting contempt to the notice of the Court can never  

be a party to the lis nor can join the proceedings as a  

petitioner. Similar is the view taken by this Court in State  

of Maharashtra Vs. Mahboob S. Allibhoy & Anr.9.

19.In  Om Prakash Jaiswal Vs. D.K. Mittal & Anr.10 this  

Court held that the jurisdiction to initiate proceedings for  

contempt as also the jurisdiction to punish for contempt in  

spite of a case of contempt  having been made out are  

both  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.  

Certain principles have emerged. It is further observed :  

“Source of initiation of contempt proceedings may be suo  

9 (1996) 4 SCC 411 10 (2000) 3 SCC 171

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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 or a litigant may also invite the attention of  

the Court to such facts as 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 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 to  

act though the private party or litigant moving the  

Court may at the discretion of the Court continue to  

render  its  assistance  during  the  course  of  

proceedings. (emphasis supplied)

20.In the case in hand, it is evident from the record, the  

respondents  were  continued  to  be  shown  as  the  

petitioners  in the contempt case before the High Court  

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and participated throughout as if they were prosecuting  

the appellant. There is no order reflecting that the Court  

having  taken  note  of  the  information  made  before  it,  

initiated  suo  motu  proceedings  on  the  basis  of  such  

information furnished and required the respondents only  

to assist the Court till the disposal of the matter. On the  

contrary, respondents are shown as the petitioners in the  

contempt case before the High Court. It is thus clear, it is  

the  respondents  who  initiated  the  proceedings  and  

continued the same but without the written consent of the  

Advocate General as is required in law. The proceedings,  

therefore, were clearly not maintainable.

21.In what manner the suo motu power may be exercised in  

appropriate  cases  is  dealt  with  by  this  Court  in  J.R.  

Parashar V. Prasant Bhushan11 in which it is observed:

“In  any  event  the  power  to  act  suo  motu  in  matters  which  otherwise  require  the  Attorney- General to initiate proceedings or at least give his  consent must be exercised rarely. Courts normally  reserve  this  exercise  to  cases  where  it  either  derives information from its own sources, such as  from a  perusal  of  the  records,  or  on  reading  a  report in a newspaper or hearing a public speech  

11 (2001) 6 SCC 735

21

or  a  document  which  would  speak  for  itself.  Otherwise sub-section (1) of Section 15 might be  rendered otiose.”

22.While dealing with the importance of the procedure for  

taking  cognizance  of  criminal  contempt  other  than  a  

contempt referred to in Section 14 of the Act, this Court  

in Bal Thackrey (supra)  observed:  

“The directions in Duda case when seen and  appreciated  in  the  light  of  what  we  have  noticed hereinbefore in respect of contempt  action and the powers of the Chief Justice, it  would be clear that the same prescribe the  procedure to be followed by High Courts to  ensure smooth working and streamlining of  such contempt actions which are intended to  be taken up by the Court  suo motu on its  own motion. These directions have no effect  of  curtailing  or  denuding  the  power  of  the  High Court. It is also to be borne in mind that  the frequent use of suo motu power on the  basis of information furnished in a contempt  petition otherwise incompetent under Section  15  of  the  Act  may  render  the  procedural  safeguards of the Advocate General’s consent  nugatory.  We  are  of  the  view  that  the  directions given in  Duda case are legal and  valid.”

23.In exercise of the powers conferred by Section 23 of the  

Contempt of Courts Act, 1971 and by Article 215 of the  

Constitution of India and other enabling powers in that  

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behalf,  the  High  Court  of  Calcutta  made  the  rules  to  

regulate  the proceedings  for  contempt  of  itself  or  of  a  

Court  subordinate  to  it  under  the  Act.  The  rules  are  

known as Calcutta High Court Contempt of Court Rules,  

1975. The rules, inter alia, provide that proceedings in a  

criminal contempt may be initiated (a) on its own motion  

by the High Court under Section 15(1) of the Act; or (b)  

on  a  motion  founded  on  a  petition  presented  by  the  

Advocate General under Section 15(a) of the Act; or (c)  

on a motion founded on a petition presented by any other  

person  with  the  consent  in  writing  of  the  Advocate  

General  under  Section  15(1)(b)  of  the  Act.  Every  such  

petition shall contain full particulars of the material upon  

which  the  petition  is  grounded  and  the  prayer  to  the  

petition and distinctly  state the particular  contumacious  

conduct alleged for which the rule is prayed for and shall  

be  signed  and  dated  by  the  petitioner  or  his  duly  

authorized agent and every such petition shall be verified  

by the solemn affirmation made by the petitioner or by a  

person or persons having cognizance of facts stated and  

shall state clearly whether the statements are based on  

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knowledge, information and belief or on record. Rule 19 of  

the rules enables the Court either to issue Rule Nisi  or  

summarily  reject  the  petition  or  make  such  order  

thereupon as thought fit and the Rule Nisi shall be drawn  

up as far as may be in the model  form in Form No.1,  

Appendix  I.  Rule  20  provides  that  where  the  Rule  is  

issued by the Court  on its own motion or on a motion  

made by the Advocate General under Section 15, the Rule  

Nisi  shall  be drawn up, as far as may be in the model  

Form  No.  2,  Appendix  I.  It  is  fairly  well  settled  that  

Schedules, Forms and Appendix form part of the statutes  

and or the rules as the case may be.

24.In the present case, Rule Nisi has been issued under the  

orders of the High Court in Form No. 1 and not in Form  

No.2. Had it been a proceeding initiated by the Court on  

its own motion, the Rule Nisi would have been issued in  

the model Form No.2, Apendix I. It is clearly evident from  

the record that the Court did not set the law in motion on  

its own accord. In the present case, the petitioner No.1  

before the High Court is a practicing advocate and argued  

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his case in person. Sofaras petitioner No.2 is concerned,  

he was represented by more than one lawyer. We have  

meticulously  examined  the  contempt  petition  in  which  

there was no prayer for taking suo motu action against  

the  appellants.  The  proceedings  before  the  High  Court  

were  initiated  by  the  respondents  by  filing  contempt  

petition  under  Section  15.  The  petition  was  vigorously  

pursued and argued as private petition. From the material  

available on record including the impugned judgment, it is  

impossible  to accept  the view taken by the High Court  

that the Court had taken suo motu action. Even in this  

Court, the respondents entered their appearance through  

their counsel who did not turn up but elaborate written  

submissions were submitted by the first respondent.  

25.For all the aforesaid reasons, we hold that the petition to  

take  action  against  the  appellant  under  Section  15  

without  the  written  consent  of  the  learned  Advocate  

General was not maintainable in law.

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26.For  the  view  we  have  taken  as  regards  the  

maintainability of the petition itself, we are not required  

to go into the merits of the case.

27.The  impugned  judgment  is  accordingly  set  aside.  The  

appeal is allowed.

…………………………………………J.

(B. SUDERSHAN REDDY)

………………………………………..J.

(SURINDER SINGH NIJJAR)

NEW DELHI,

AUGUST 25, 2010.

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