Kerala High Court · 2007

Con. Case (Crl) 2/20061K.S. RADHAKRISHNAN, Ag. C.J. & ANTONY DOMINIC, J.-----------------------------------------------------------------------------------Contempt Case (Criminal) No. 2 of 2006-----------------------------------------------------------------------------------Dated: 19th February 2007.JUDGMENT Radhakrishnan, Ag. C.J. This contempt of court proceedings have been initiated by theMunsiff-Magistrate, Perinthalmanna on a complaint filed on 17.06.2005by an advocate commissioner appointed in I.A. 486 of 2005 in O.S. No 25of 2005 alleging that on 17.05.2005 the contemner had entered his officeand threatened him with dire consequences if an adverse report is givenagainst the defendant in the suit, the father-in-law of the contemner.Further it was alleged that the contemner had caught hold of the collar ofthe shirt of the Advocate Commissioner and had caused extensive damageto the office of Advocate Commissioner. It was alleged that thecontemner had torn off the commission warrant and the draft report andother files of the Commissioner. The complaint was forwarded to the SubInspector of Police, Perintalmanna under Section 156 (3) of the Code ofCriminal Procedure and he was directed to register a crime which wasinvestigated and a final report for offences punishable under Sections 341, Con. Case (Crl) 2/20062353, 452, 427 and 506(ii) I.P.C was filed. Later C.C. No 694 of 2005 foroffences punishable under Sections 341, 353, 452, 427 and 506 (ii) I.P.Cwas registered. 2. Learned Munsiff-Magistrate took the view that the conduct ofthe contemner was something that would prejudice or tend to prejudice orinterfere with the due course of the judicial proceedings. In an enquiryconducted by him the learned Munsiff-Magistrate had examined fourwitnesses and a prima facie case was found against the alleged contemnerand therefore made a reference to this court under Section 15 of the Actread with Rule 8 of the Rules for proceeding against the contemner inaccordance with law. This court issued notice to the contemner who hadentered appearance and filed a reply statement denying the allegations andhad also referred to the complaint filed by him stating that the AdvocateCommissioner had on 17.06.2005 demanded illegal gratification. 3. Counsel appearing for the contemner Sri Babu Karukapadathsubmitted that the reference made by the learned Munsiff-Magistrate is notlegally sustainable since proceedings were initiated on a reference underSection 15 (2) of the Act read with Rule 8 of the Rules without notice to thecontemner and alternatively contended that if fresh proceedings are to beinitiated it will be hit by Section 20 of the Contempt of Courts Act. When Con. Case (Crl) 2/20063the matter came up for hearing, this court appointed advocate Sri P.N.Ravindran as Amicus Curiae to assist the court. We heard learned counselfor the alleged contemner and also Shri P.N. Ravindran. 4. A Division Bench of this court in Bar Council of Kerala v. Saju(2001 (1) KLT 341) examined the question as to whether it is necessary forthe Subordinate Court to issue notice to the alleged contemner beforemaking a reference to this court under Section 15 of the Contempt of CourtAct. This court in that case held as follows: “Rule 8 of the Contempt of Courts (High Court of Kerala) Rulesunder the Contempt of Courts Act, 1971 provides for the procedureto be followed before a reference is made by the Subordinate Courtunder Section 15 of the Contempt of the Contempt of Courts Act.Rule 8 mandates that before making a reference under Section 15 ofthe Act, the subordinate Court may hold such inquiry as it deems fitinto the circumstances leading to the reference. It also provides thatsuch reference shall contain, (a) the name and address of the personalleged to have committed the contempt, (b) the facts constitutingthe alleged contempt, (c) the circumstances leading to the reference,(d) all the relevant records, and (e) draft charges. The above would make it clear that before making a reference,the Subordinate Court itself has to conduct an enquiry and only afterit is satisfied that there is a case made out for reference to this court,it can make the reference. While making the reference, apart fromthe other documents and details referred in R. 8 (ii), even the draftcharges are to be framed and sent along with the reference by theSubordinate Court. For conducting an enquiry, necessarily, theSubordinate Court has to issue notice to the alleged condemner. It isopen to the Subordinate Court to take the statements of thecomplainants and the alleged condemners in the course of the Con. Case (Crl) 2/20064enquiry contemplated under R. 8 (i).”The above decision was referred to by a learned single judge of this court inJomon Puthenpurackal v. Judicial First Class Magistrate -III (2004 (1) KLT720). However, the learned judge took the view that Rule 8 of theContempt of Courts (High Court of Kerala) Rules says that before making areference under section 15 of the Act, the Subordinate Court may hold suchinquiry as it deems fit into the circumstances leading to the reference andthat the issue has to be decided by the Subordinate Court and that itselfwould indicate that in all cases notice need not be issued to the condemnerbefore taking a decision as to what has to be done with the petition filed forinitiating contempt. 5. Indisputably no notice was issued to the alleged contemner at anystage before reference was made by the learned Munsiff-Magistrate underSection 15 of the Act read with Rule 8 of the Rules and therefore, thequestion to be decided is whether, before making a reference, notice has tobe issued to the contemner or not. We are in full agreement with thereasoning of the Division Bench in Saju's case, supra that whileconducting an enquiry, necessarily the Subordinate Court has to issue noticeto the alleged contemner. It is open to the Subordinate Court to take the Con. Case (Crl) 2/20065statements of the complainants and the alleged contemner in the course ofthe enquiry. Rule 8 makes it clear that before making a reference underSection 15 of the Act, the Subordinate Court may hold such inquiry as itdeems fit into the circumstances leading to the reference. For conductingthe enquiry, necessarily the Subordinate Court has to issue notice and nonissue of notice to the contemner would vitiate the reference made by thelearned Munsiff-Magistrate. We therefore find ourselves unable to acceptthe reasoning of the learned single judge in Jomon Puthenpurackal's case. 6. Counsel appearing for the contemner raised a contention that theincident leading to the contempt occurred on 17.05.2005 and as theproceedings and the order of reference is bad in law and if an enquiry is tobe held with notice to the alleged contemner the same would be hit bySection 20 of the Act, which says that no court shall initiate anyproceedings for contempt either on its own motion or otherwise after theexpiry of a period of one year from the date on which the contempt isalleged to have been committed. The scope of Section 20 of the Contemptof Courts Act, 1971 came up for consideration before the apex court inPallav Sheth v. Custodian (2001 (7) SCC 549). After referring to theearlier decision in Om Prakash Jaiswal v. D.K. Mittal (2000 (3) SCC 171),the apex court held as follows: Con. Case (Crl) 2/20066“The decision in Om Prakash Jaiswal case to the effectthat initiation of proceedings under Section 20 can only be said tohave occurred when the court formed the prima facie opinion thatcontempt has been committed and issued notice to the contemner toshow cause why it should not be punished, is taking too narrow aview of Section 20 which does not seem to be warranted and is notonly going to cause hardship but would perpetuate injustice. Aprovision like Section has to be interpreted having regard to therealities of the situation. ....... ...... ......... .................. If theinterpretation of Section 20 put in Om Prakash Jaiswal case iscorrect, it would mean that notwithstanding both the subordinatecourt and the High Court being prima facie satisfied that contempthas been committed the High Court would become powerless to takeany action. On the other hand, if the filing of an application beforethe subordinate court or the High Court, making of a reference by asubordinate court on its own motion or the filing of an applicationbefore an Advocate General for permission to initiate contemptproceedings is regarded as initiation by the court for the purposes ofSection 20, then such an interpretation would not impinge on orstultify the power of the High Court to punish for contempt whichpower, de hors the Contempt of Courts Act, 1971 is enshrined inArticle 215 of the Constitution. Such an interpretation of Section 20would harmonise that section with the powers of the courts to punishfor contempt which is recognised by the Constitution.” The above dictum laid down by the apex court would show that the filingof the application before subordinate court or the High Court, making areference by a subordinate court on its own motion or the filing anapplication before an Advocate General for permission to initiate contemptof court proceedings has to be regarded as initiation by the court, for thepurpose of Section 20 of the Contempt of Courts Act. So far as the present Con. Case (Crl) 2/20067case is concerned, the incident occurred on 17.05.2005 and theCommissioner filed a private complaint on 17.06.2005 before the Munsiff-Magistrate, and hence a valid initiation for the purpose of the Section 20 ofthe Act. Hence the proceedings are not hit by Section 20 of the Act. Wehave however found that no notice was issued to the contemner beforemaking the reference and hence the matter has to go back to the Munsiff-Magistrate for giving notice to the contemner and decide the question ofreference afresh under Section 15 of the Contempt of Court Act read withRule 8 of the Rules. The contempt case is disposed of as above. Sd/-K.S. RADHAKRISHNANAg. Chief Justice Sd/-ANTONY DOMINIC Judge 19/02/2007en/ [true copy]