29 November 2004
Supreme Court


Case number: Crl.A. No.-000149-000150 / 1997
Diary number: 2987 / 1997



CASE NO.: Appeal (crl.)  149-150 of 1997

PETITIONER: Bal Thackrey

RESPONDENT: Harish Pimpalkhute & Ors.

DATE OF JUDGMENT: 29/11/2004

BENCH: Y.K. Sabharwal, D.M. Dharmadhikari & Tarun Chatterjee


[With Crl.A.No.168 of 1997 & Crl.A.No.169 of 1997]                                          Y.K.Sabharwal, J.

       Action for contempt is divisible into two categories, namely, that  initiated suo motu by the Court and that instituted otherwise than on the  court’s own motion.  The mode of initiation in each case would necessarily  be different.  While in the case of suo motu proceedings, it is the Court  itself which must initiate by issuing a notice, in the other cases initiation  can only be by a party filing an application.  [Pallav Sheth v. Custodian  and Others (2001) 7 SCC 549].   The main issue for determination in these appeals is whether  contempt proceedings were initiated against the appellant suo motu by the  court or by respondents.  First we may note the background under which  these matters were referred to a larger Bench.         Delhi High Court in the case of Anil Kumar Gupta v. K.Suba Rao &  Anr. [ILR (1974) 1 Del.1]  issued following directions :

"The office is to take note that in future if any  information is lodged even in the form of a petition  inviting this Court to take action under the  Contempt of Courts Act or Article 215 of the  Constitution, where the informant is not one of the  persons named in Section 15 of the said Act, it  should not be styled as a petition and should not  be placed for admission on the judicial side. Such  a petition should be placed before the Chief  Justice for orders in Chambers and the Chief  Justice may decide either by himself or in  consultation with the other judges of the Court  whether to take any cognizance of the  information."

       In P.N.Duda v. P.Shiv Shanker & Ors. [(1988) 3 SCC 167] this  Court approving the aforesaid observation of Delhi High Court directed as  under: "...the direction given by the Delhi High Court sets  out the proper procedure in such cases and may  be adopted, at least in future, as a practice  direction or as a rule, by this Court and other High  Courts."

       Challenging the conviction of the appellant for offence under Section  15 of the Contempt of Courts Act, 1971 (for short ’the Act’) it was, inter  alia, contended that the directions in P.N.Duda’s case (supra) were not  followed by the High Court inasmuch as the informative papers styled as  contempt petitions were not placed before the Chief Justice of the High



Court for suo motu action and, therefore, the exercise was uncalled for and  beyond legal sanctity.  This aspect assumed significant importance  because admittedly the contempt petitions were filed in the High Court  without the consent of the Advocate-General and, therefore, not competent  except when the court finds that the contempt action was taken by the  court on its own motion.  The two-judge bench hearing the appeals  expressed the view that the aforesaid directions approved by this Court in  P.N.Duda’s case are of far-reaching consequences.  The Bench observed  that the power under Section 15 of the Act to punish contemners for  contempt rests with the court and in Duda’s case, they seem to have been  denuded to rest with the Chief Justice on the administrative side.   Expressing doubts about the correctness of the observations made in  Duda’s case, and observing that the same require reconsideration, these  appeals were directed to be referred for decision by a larger Bench.  Under  this background, these matters have been placed before us.         For determination of the main issue in these appeals including the  aforesaid aspect arising out of Duda’s case, it is necessary to briefly note  the object of the power of the Court to punish a person for contempt.                          Every High Court besides powers under the Act has also the power  to punish for contempt as provided in Article 215 of the Constitution of  India.  Repealing the Contempt of Courts Act, 1952, the Act was enacted,  inter alia, providing definition of civil and criminal contempt and also  providing for filtering of criminal contempt petitions. The Act laws down  ’contempt of court’ to mean civil contempt or criminal contempt.  We are  concerned with criminal contempt.  ’Criminal contempt’ is defined in  Section 2(c) of the Act.  It, inter alia, means 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  scandalizes or tends to scandalize, or lowers or tends to lower the  authority of, any court.  The procedure for initiating a proceeding of  contempt when it is committed in the face of the Supreme Court or High  Court has been prescribed in Section 14 of the Act.  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 action for contempt may be taken on  court’s own motion or on a motion made by\027         (a)     the Advocate-General, or (b)     any other person, with the consent in  writing of the Advocate-General.

       The contempt jurisdiction enables the Court to ensure proper  administration of justice and maintenance of the rule of law.  It is meant to  ensure that the courts are able to discharge their functions properly,  unhampered and unsullied by wanton attacks on the system of  administration of justice or on officials who administer it, and to prevent  willful defiance of orders of the court or undertakings given to the court  [Commissioner, Agra v. Rohtas Singh (1998) 1 SCC 349].         In Supreme Court Bar Association v. Union of India & Anr.  [(1998) 4 SCC 409] it was held that "The purpose of contempt jurisdiction  is to uphold the majesty and dignity of the courts of law. It is an unusual  type of jurisdiction combining "the jury, the judge and the hangman" and it  is so because the court is not adjudicating upon any claim between  litigating parties. This jurisdiction is not exercised to protect the dignity of  an individual judge but to protect the administration of justice from being  maligned. In the general interest of the community it is imperative that the  authority of courts should not be imperiled and there should be no  unjustifiable interference in the administration of justice."         Dealing with the nature and character of the power of the courts to  deal with contempt in the case of Pritam Pal, v. High Court of Madhya  Pradesh, Jabalpur Through Registrar, [(1993) Supp. (1) SCC 529], this  Court observed : "15. Prior to the Contempt of Courts Act, 1971, it  was held that the High Court has inherent power  to deal with a contempt of itself summarily and to  adopt its own procedure, provided that it gives a



fair and reasonable opportunity to the contemnor  to defend himself. But the procedure has now  been prescribed by Section 15 of the Act in  exercise of the powers conferred by Entry 14, List  III of the Seventh Schedule of the Constitution.  Though the contempt jurisdiction of the Supreme  Court and the High Court can be regulated by  legislation by appropriate legislature under Entry  77 of List I and Entry 14 of List III in exercise of  which the Parliament has enacted the Act of  1971, the contempt jurisdiction of the Supreme  Court and the High Court is given a constitutional  foundation by declaring to be ’Courts of Record’  under Articles 129 and 215 of the Constitution  and, therefore, the inherent power of the  Supreme Court and the High Court cannot be  taken away by any legislation short of  constitutional amendment. In fact, Section 22 of  the Act lays down that the provisions of this Act  shall be in addition to and not in derogation of the  provisions of any other law relating to contempt of  courts. It necessarily follows that the  constitutional jurisdiction of the Supreme Court  and the High Court under Articles 129 and 215  cannot be curtailed by anything in the Act of  1971"

       The nature and power of the Court in contempt jurisdiction is a   relevant factor for determining the correctness of observations made in  Duda’s case (supra).  Dealing with the requirement to follow the  procedure prescribed by law while exercising powers under Article 215 of  the Constitution to punish for contempt, it was held by this Court in Dr. L.P.  Misra  v. State of U.P. [(1998) 7 SCC 379] that the High Court can invoke  powers and jurisdiction vested in it under Article 215 of the Constitution of  India but such a jurisdiction has to be exercised in accordance with the  procedure prescribed by law.  The exercise of jurisdiction under Article 215  of the Constitution is also governed by laws and the rules subject to the  limitation that if such laws/rules stultify or abrogate the constitutional power  then such laws/rules would not be valid.   In L.P.Misra’s case (supra) it  was observed that the procedure prescribed by the Rules has to be  followed even in exercise of jurisdiction under Article 215 of the  Constitution.  To the same effect are the observations in Pallav Sheth’s  case (supra).         For determination of the issues involved, it would also be useful to  note the observations made in the case of S.K.Sarkar, Member, Board of  Revenue, U.P., Lucknow v. Vinay Chandra Misra, [(1981) 1 SCC 436]  to the following effect: "Section 15 does not specify the basis or the  source of information on which the High Court  can act on its own motion. 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 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."

       In P.N.Duda’s case (supra), it was held that :- "54. A conjoint perusal of the Act and rules makes  it clear 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. There is no  difficulty where the Court or the Attorney General  chooses 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 information in his  possession before the court and request the court  to take action (vide C. K. Daphtary v. O. P.  Gupta and Sarkar v. Misra); 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 to the court."

       The direction issued and procedure laid down in Duda’s case is  applicable only to cases that are initiated suo motu by the Court when  some information is placed before it for suo motu action for contempt of  court.         A useful reference can also be made to some observations made in  J.R.Parashar, Advocate, and Others v. Prasant Bhushan, Advocate  and Others [(2001) 6 SCC 735].  In that case noticing the Rule 3 of the  Rules to regulate proceedings for contempt of the Supreme Court, 1975  which like Section 15 of the Act provides that the Court may take action in  cases of criminal contempt either (a) suo motu; or (b) on a petition made  by Attorney-General or Solicitor-General, or (c) on a petition made by any  person and in the case of a criminal contempt with consent in writing of the  Attorney-General or the Solicitor-General as also Rule 5 which provides  that only petitions under Rules 3(b) and (c) shall be posted before the  Court for preliminary hearing and for orders as to issue of notice, it was  observed that the matter could have been listed before the Court by the  Registry as a petition for admission only if the Attorney-General or  Solicitor-General had granted the consent.  In that case, it was noticed that  the Attorney-General had specifically declined to deal with the matter and  no request had been made to the Solicitor-General to give his consent.   The inference, therefore, is that the Registry should not have posted the  said petition before the Court for preliminary hearing.  Dealing with taking  of suo motu cognizance in para 28  it was observed  as under:-

"Of course, this Court could have taken suo motu  cognizance had the petitioners prayed for it.   They had not.  Even if they had, it is doubtful  whether the Court would have acted on the  statements of the petitioners had the petitioners  been candid enough to have disclosed that the  police had refused to take cognizance of their  complaint.  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 or a document which would speak  for itself.  Otherwise sub-section (1) of Section 15  might be rendered otiose"



                The whole object of prescribing procedural mode of taking  cognizance in Section 15 is to safeguard the valuable time of the court  from being wasted by frivolous contempt petition.  In J.R. Parashar’s case  (supra) it was observed that underlying rational of clauses (a), (b) and (c)  of Section 15 appears to be that when the court is not itself directly aware  of the contumacious conduct, and the actions are alleged to have taken  place outside its precincts, it is necessary to have the allegations screened  by the prescribed authorities so that Court is not troubled with the frivolous  matters.  To the similar effect is the decision in S.R.Sarkar’s case (supra). In the light of the aforesaid, the procedure laid and directions issued  in Duda’s case are required to be appreciated also keeping in view the  additional factor of the Chief Justice being the master of the roster.     In  State of Rajasthan v. Prakash Chand and Others [ (1998) 1 SCC 1]  it  was held that it is the prerogative of the Chief Justice of the High Court to  distribute business of the High Court both judicial and administrative.  He  alone has the right and power to decide how the Benches of the High  Court are to be constituted; which Judge is to sit alone and which cases he  can and is required to hear as also to which Judges shall constitute a  Division Bench and what work those Benches shall do.   The directions in Duda’s 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  Advocate-General’s consent nugatory.  We are of the view that the  directions given in Duda’s case are legal and valid.         Now, the question is whether in these matters the High Court  initiated contempt action on its own motion or on motions made by the  respondents.  It is not in dispute that the two contempt petitions (Contempt  Petition No.12 and Contempt Petition No.13 of 1996) were filed in the High  Court against the appellant under Section 15 of the Act for having  committed contempt of court as postulated under Section 2(c) of the Act  for having made a public speech.  According to the petitions, the appellant  scandalised the court or at least the offending speech had the tendency to  scandalise or lower the authority of the Court.  The contempt petitions  were filed without obtaining the consent of the Advocate-General.  In one  of the petitions consent had not even been sought for and besides the  prayer for holding the appellant guilty of contempt, further prayers were  also made for suitable inquiry being made in the allegations made by the  appellant in the speech and for issue of directions to him to appear before  Court and reveal the truth and for prosecuting him.  The applicant before  the High Court, it seems clear from the averments made in the contempt  petition was in an opposite political camp.  The petition was based on  utterances made by appellant in public meetings held on 21st October,  1996.  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.  [State of Kerala v. M.S.Mani and Others   [(2001) 8 SCC 82].  In Contempt Petition No.12 an application dated 22nd October, 1996  was submitted to the Advocate-General along with proposed contempt  petition stating that the applicant wanted to file petition by 2nd December,  1996 and, therefore, the permission may be granted before that date and  further stating that if no answer is received from the Advocate-General it  would be presumed that permission has been granted and the applicant  will proceed with the intended contempt proceedings.  Such a course is not  permissible under Section 15 of the Act.  There is no question of any



presumption.  In fact, Contempt Petition No.12 was filed on 2nd December,  without the consent of the Advocate-General.  It further appears that the  application seeking permission of the Advocate-General was received by  him on 26th November, 1996.  It also appears that the Advocate-General  appeared before the Court on 3rd February, 1997 and stated that he can  decide the question of consent within a reasonable time.  The impugned  judgment holding appellant guilty of contempt and inflicting simple  imprisonment for a period of one week and fine of Rs.2000/- was passed  on 7th February, 1997.   A perusal of record including the notices issued to the appellant  shows that the Court had not taken suo motu action against the appellant.   In contempt petitions, there was no prayer for taking suo motu action for  contempt against the appellant. The specific objection taken that though   suo motu action could be taken under Section 15 of the Act on any  information or newspaper but not on the basis of those contempt petitions  which were filed in regular manner by private parties, was rejected by the  High Court observing that being Court of Record it can evolve its own  procedure, which means that the procedure should provide just and fair  opportunity to the contemner to defend effectively  and that the contemner  has not expressed any prejudice or canvassed any grievance that he could  not understand the charge involved in the proceeding which he had been  called upon to defend.  It is, however, not in dispute that the charge  against the appellant was not framed.   In these matters, the question is not about compliance or non- compliance of the principles of natural justice by granting adequate  opportunity to the appellant but is about compliance of the mandatory  requirements of Section 15 of the Act.  As already noticed the procedure of  Section 15 is required to be followed even when petition is filed by a party  under Article 215 of the Constitution, though in these matters petitions filed  were under Section 15 of the Act.  From the material on record, it is not  possible to accept the contention of the respondents that the Court had  taken suo motu action.   Of course, the Court had the power and  jurisdiction to initiate contempt proceedings suo motu and for that purpose  consent of the Advocate-General was not necessary.  At the same time, it  is also to be borne in mind that the Courts normally take suo motu action in  rare cases.  In the present case, it is evident that the proceedings before  the High Court were initiated by the respondents by filing contempt  petitions under Section 15.  The petitions were vigorously pursued and  strenuously argued as private petitions.  The same were never treated as  suo motu petitions.  In absence of compliance of mandatory requirement of  Section 15, the petitions were not maintainable.   As a result of aforesaid view, it is unnecessary to examine in the  present case, the effect of non-compliance of the directions issued in  Duda’s case by placing the informative papers before the Chief Justice of  the High Court.         For the foregoing reasons we set aside the impugned judgment and  allow the appeals.  Fine, if deposited by the appellant shall be refunded to  him.         Before parting, it is necessary to direct framing of necessary rule or  practice direction by the High Courts in terms of Duda’s case.   Accordingly, we direct Registrar-General to send a copy of this judgment to  the Registrar-Generals of the High Courts so that wherever rule and/or  practice direction on the line suggested in Duda’s case has not been  framed, the High Courts may now frame the same at their earliest  convenience.