IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR CONTEMPT No. 2251 of 2005 In SPECIAL CIVIL APPLICATION No. 4685 of 2004 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== =============== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================== =============== SUO MOTU - Applicant(s) Versus NANDLAL THAKKAR,ADVOCATE - Opponent(s) ========================================== =============== Appearance :
SUO MOTU for Applicant(s) : 1,MR SHALIN N MEHTA for Applicant(s) : 1, MS KAVITA B GAJJAR for Opponent(s) : 1, ========================================== =============== HONOURABLE THE ACTING CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :20/01/2012 CAV JUDGMENT (Per : HONOURABLE MR JUSTICE J.B.PARDIWALA) The present application under the Contempt of Courts Act, 1971 has been taken out by the High Court suo-motu pursuant to the order passed by learned Single Judge (Coram: Kalpesh Jhaveri, J.) on September 29, 2005, in Special Civil Application No. 4685 of 2004.
I. Genesis of this suo motu proceeding:
The respondent herein i.e. alleged contemner is a practicing Advocate in the High Court of Gujarat. Record reveals that on September 29, 2005, respondent was arguing his matter being SCA No. 4685 of 2004 before our learned brother Judge Hon'ble Mr. Justice K.S. Jhaveri. During the course of hearing a heated exchange of words between respondent contemner and the learned Single Judge ensued which culminated in an oral order dated 29.09.2005, wherein the learned Single Judge observed as under:
“6.0 During the course of hearing, on certain queries pertaining to the subject matter being put to Mr. Thakkar, he stated that the Court is hearing the matter with pre- determined mind and if the Court is pre-determined about the matter, he would not proceed further with his arguments.
7.0 It is to be noted that the matter was being heard for final disposal and learned counsel for the respondents were not yet heard. The Court, therefore, informed Mr.
Thakkar that he may not make any such derogatory remarks which are not expected from an Advocate. However, Mr. Thakkar continued his accusations. Therefore, this Court informed Mr. Thakkar that if he continues his accusations, the Court will record the same, and as he continued his accusations, this Court directed the Private Secretary to record the exact words being uttered by Mr. Thakkar, which were recorded by the Private Secretary in open court in presence of Mr. Thakkar. Mr. Thakkar stated as under:
“This is not the manner to conduct a matter. You have pre determined in your mind that you will dismiss all my matters. This is because when you were practicing as an Advocate you had personal grudge against me. I know that since you had rivalry with me while you were practicing as an Advocate, you have predetermined in your mind that you will dismiss all my matters. What do you think about yourself ".
8.0 In view of the aforesaid remarks made by Mr. Thakkar, this Court observed that if he continues such remarks, the Court will be constrained to refer the matter to Bar Council for appropriate action and may also refer the matter for action under the Contempt of Courts Act. However, Mr. Thakkar responded to that by stating that he is least concerned if any action is initiated against him, and further stated as under:
“If you want to put me behind the bars you are free to do so. I am not afraid about it. You can do whatever you want. What do you think about yourself. I know you very well since you were an Advocate. I am not worried at all. I am not a layman that you may impose yourself on me. I am a Senior Advocate and I am not frightened with your threats. What do you think that no one is aware about what you are doing and how you are conducting the matters? Every one knows how you are conducting the matters.”
9.0 Being an Officer of the Court, such remarks were not warranted on the part of Mr. Nandlal Thakkar during the course of hearing of the matter. I am of the view that apart from abusing, Mr. Thakkar has insulted the Court and attributed dishonesty on the part of this Court in the conduct of the cases. His utterances that? What do you think that no one is aware about what you are doing and how you are conducting the matters imply that this Court is not fairly and impartially conducting the matters. It was noticed that he has no regrets for his utterances and he was defiant throughout, challenging the Court to send him to jail. His statements are disparaging in character and derogatory to a Judge's dignity, and go further than insult and amount to scandalization of the Court.
10.0 Rule 2 of The Bar Council of India Rules stipulates that an advocate shall maintain towards the courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
10.1 Rule 9 of the Rules reads as under:
“9. An advocate should not act or plead in any manner in which he is himself pecunarily interested.
Illustration:
I. He should not act in a bankruptcy petition when he himself is also a creditor of the bankrupt.
II. He should not accept a brief from a company of which he is Director.”
11.0 In paragraph 1(a) of the Affidavit in reply it has been pointed out that Mr. Nandlal Thakkar is a Director of the petitioner Company. It also appears from the affidavit in reply that he has tried to delay the court proceedings.
12.0 In view of the decisions in the case of M.B. Sanghi Vs. High Court of Punjab & Haryana, reported in AIR 1991 SC 1834 (paragraphs 2, 11,12), in the case of Mohd. Zahir Khan Vs. Vijai Singh, reported in AIR 1992 SC 642 (paras 5 and 6), in the case of In Re: Vinay Chandra Mishra, reported in (1995) 2 SCC 584 (paragraphs 38 & 43), in the case of U.P. Sales Tax Service Assn. Vs. Taxation Bar Association, reported in (1995) 5 SCC 716 (para 11), in the case of Ajay Kumar Pandey, Advocate, In Re: reported in (1998) 7 SCC 248 (paras 32 and 34), in the case of Radha Mohan Lal Vs. Rajasthan High Court, reported in (2003) 3 SCC 427, I am of the view that the act of Mr. Nandlal Thakkar amounts to Contempt of Court.
13.0 The Registry is directed to place this matter before appropriate Court for initiating proceedings under the Contempt of Courts Act against Mr. Nandlal Thakkar.
13.1 The matter shall also be referred to Bar Council of Gujarat for appropriate action for professional misconduct.
14.0 In view of the above development this matter may be placed before any other Court for early final hearing as directed by the Division Bench in the order dated 8.4.2005 in LPA No.1914/2004.”
II. The facts leading upto issuance of notice dated 30.11.2005 in the suo motu proceeding:
Pursuant to the oral order dated 29.09.2005 passed by the learned Single Judge in Special Civil Application No.4685/04, the High Court registry placed the papers of the said petition before Hon’ble the Chief Justice for appropriate orders.
On 13.10.2005, Hon’ble the Chief Justice directed the High Court registry to place the suo motu contempt proceedings being Misc. Civil Application No.2251/05, before the same court, i.e., before the learned Single Judge who passed the oral order dated 29.09.2005 in Special Civil Application No.4685/04.
On 18.10.2005, when this suo motu proceeding, Misc. Civil Application No.2251/05, appeared before the learned Single Judge, the following order was passed –
“In view of the statement made by the learned advocate, it will not be appropriate for this Court to take up this matter. Matter to be listed before the court taking up the contempt matters.”
After this order, the High Court registry placed this suo motu proceeding before the Division Bench comprising of Hon’ble Mr. Justice M.S. Shah & Hon’ble Mr Justice S.D. Dave (as their Lordships then were). On 30.11.2005, the said Division Bench passed the following order: – “Notice returnable on 20th December, 2005.”
Admittedly, no notice in Form I as required by Rule 13 of the Contempt of Courts (Gujarat High Court) Rules, 1984 was issued to the opponent. A specimen of Form I is extracted below:-
FORM I Notice to a person charged with contempt of Court (See Rule 12) Miscellaneous Civil/Criminal Application No. of (For contempt) [Under the Contempt of Courts Act, 1971 (No.70 of 1971)] District:
… Petitioner (Advocate Mr ) vs.
To Whereas … Respondents(s) It has been brought to the notice of upon reading the petition of the Reported to this Court that you have been petitioner presented to guilty of the contempt of Court for having (herein, briefly state the nature of the Contempt) and whereas this Court having on …….day of ……19……. ordered Notice/Rule to issue to show cause why you should not be committed to prison or otherwise penalized or dealt with for your above contumacious conduct, notice is hereby given calling upon you to appear in person (or by an advocate duly authorized and instructed, if the Court has so ordered) before this Court on ……. Day of ……. 19……at 11.00 a.m. or on any subsequent day which to this Court may seem convenient, to show cause why you should not be committed to prison or otherwise penalized or dealt with for the acts or conduct stated above, and that you shall continue to attend the Court on all days thereafter to which case against you stands adjourned and until the final orders are passed on the charge against you.
Witness Esquire, Chief Justice at Ahmedabad Aforesaid, this ……….day of One Thousand Nine Hundred and Eighty ………….
By the Court Seal of the High Court Deputy Registrar This day of …..19…..
High Court of Gujarat Ahmedabad – 380 009 A.H. THAKAR July 24, 1986 Joint Registrar
III. Contentions on behalf of the respondent alleged contemner:-
(1) The main bone of contention as raised by the respondent is that having regard to the tenor of the order passed by the learned Single Judge dated September 29, 2005, the learned Single Judge came to the conclusion that the respondent is guilty of contempt, and though learned Single Judge may not have said so in so many words but impliedly learned Single Judge tried to convey that the contempt was in the face of the High Court. It is submitted that if that is so then the learned Single Judge ought to have proceeded to issue notice on the very same day and should have followed the procedure as laid down under Section 14, clause (1) of the Contempt of Courts Act, 1971 (for short "the Act").
(2) Respondent further submitted that if the Court did not proceed in the manner prescribed under Section 14 of the Act, procedure prescribed in Section 15 of the Act could not be availed of. The sum and substance of the submission is that Sections 14 and 15 of the Act contemplate two entirely different types of contempt with mutually exclusive procedure. Two different procedures have been prescribed for conduct amounting to contempt indulged in two broadly different circumstances. When the offending conduct has been indulged in the presence or hearing of the High Court, the Court will follow the procedure prescribed in Section 14 of the Act, whereas in all other cases, that is to say when offending conduct was resorted to at places outside the premises or hearing of the High Court, the procedure prescribed by Section 15 of the Act is to be followed. It is vehemently contended that Section 14 occurs first and Section 15 coming subsequently expressly mentions "In cases of criminal contempt, other than criminal contempt referred to in Section 14". It is submitted that Section 15 thus, excludes from its ambit the cases covered by Section14.
In order to fortify the above referred contention, respondent has relied on a Division Bench ruling of Calcutta High Court in the case of Smt. Manisha Mukherjee Vs. Asoke Chatterjee, reported in 1985 CRI.L.J. 1224.
(3) The second limb of contention of respondent is that he never sought transfer either orally or in writing of the suo-motu proceedings from the Court of the learned Single Judge to the Court which issued notice on 30th Novembr, 2005. Thus, when no transfer of the suo-motu proceedings was sought by the respondent, the High Court Registry had no jurisdiction to place the matter before the Division Bench or any other Bench.
It is vehemently contended that assuming for the moment that the contempt which is alleged is not a contempt under Section 14 of the Act, but is a criminal contempt of the Court under Section 15 of the Act, even then the proceedings deserve to be dropped as there is a clear violation of Section 15, Clause (3) of the Act, and Rule 13 of the Contempt of Courts (Gujarat High Court) Rules, 1984. It is submitted that Section 15(3) of the Act states that "every motion or reference made under this Section shall specify the contempt of which the person is alleged to be guilty". Rule 13 says that “every notice issued by the High Court shall be drawn as far as may be, in the model form, Form No. I, annexed to this rules”. Clause (b) of Rule 13 says that “every such notice shall be accompanied by a copy of petition, motion or reference made under Rules 4(a), 4(b), 4(c), 5(b), 5 (c), 5(d) and 5(e) as the case may be, with copies of its annexures, if any”. It is submitted that in the present case, neither notice in Form No.1 was issued to the respondent, nor did the suo-motu proceedings specify the contempt of which the respondent charged was alleged to be guilty.
To fortify this contention, respondent has relied on the ruling of the Supreme Court in the case of Muthu Karuppan Vs. Parithi Ilamvashuthi & anr. reported in AIR 2011 SC 1645 and judgment delivered in the case of Anup Bhushan Vohra Vs. Registrar General, High Court of Judicature at Calcutta in Criminal Appeal No. 339 of 2007 arising from common judgment and order dated 2nd March, 2007 passed by the Division Bench of the High Court of Judicature at Calcutta in suo-moto contempt motion in Criminal Contempt Petition No. 1 of 2007 with CRR No. 187 of 2007. He has relied upon the decision in the case of Anup Bhushan Vohra (supra) to fortify the contention that any deviation from the prescribed Rules should not be accepted or taken lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt.,
(4) He also contended that the alleged contempt is said to have been committed on 29th September, 2005 and though notice was issued by the Division Bench of this Court on 30th November, 2005, the suo-motu proceedings initiated against the respondent is time barred and not within the period of limitation as prescribed under Section 20 of the Act. It is submitted that by merely issuing a notice within a period of 2 months from the date of the alleged contempt, it cannot be said that the Court initiated proceedings of contempt on its own motion, as by merely issuing a notice and that too not in the form I as prescribed under Rule 1, it cannot be said that High Court took cognizance suo-motu of the alleged contempt within a period of one year from the date on which the contempt is alleged to have been committed. In short, the contention is that almost six years have elapsed but even as on today the suo-motu proceedings are at the stage of notice and nothing beyond the notice.
IV. Contentions canvassed by Amicus appearing for the High Court of Gujarat:
(1) Learned counsel Mr. Shalin N. Mehta, appearing as Amicus for the High Court vehemently submitted that the learned Single Judge did charge the respondent with contempt which can be seen from the following observations of the learned Single Judge in the oral order dated 29.09.2005 passed in Special Civil Application No.4685/04. Paras 9 and 12 of the oral order dated 29.09.2005 are reproduced hereinafter:
“9.0 Being an Officer of the Court, such remarks were not warranted on the part of Mr. Nandlal Thakkar during the course of hearing of the matter. I am of the view that apart from abusing, Mr. Thakkar has insulted the Court and attributed dishonesty on the part of this Court in the conduct of the cases. His utterances that? What do you think that no one is aware about what you are doing and how you are conducting the matters imply that this Court is not fairly and impartially conducting the matters. It was noticed that he has no regrets for his utterances and he was defiant throughout, challenging the Court to send him to jail. His statements are disparaging in character and derogatory to a Judge's dignity, and go further than insult and amount to scandalization of the Court.”
“12.0 In view of the decisions in the case of M.B. Sanghi Vs. High Court of Punjab & Haryana, reported in AIR 1991 SC 1834 (paragraphs 2, 11,12), in the case of Mohd. Zahir Khan Vs. Vijai Singh, reported in AIR 1992 SC 642 (paras 5 and 6), in the case of In Re: Vinay Chandra Mishra, reported in (1995) 2 SCC 584 (paragraphs 38 & 43), in the case of U.P. Sales Tax Service Assn. Vs. Taxation Bar Association, reported in (1995) 5 SCC 716 (para 11), in the case of Ajay Kumar Pandey, Advocate, In Re: reported in (1998) 7 SCC 248 (paras 32 and 34), in the case of Radha Mohan Lal Vs. Rajasthan High Court, reported in (2003) 3 SCC 427, I am of the view that the act of Mr. Nandlal Thakkar amounts to Contempt of Court.”
(2) Learned Amicus further contended that there was no violation of section 14 of the Contempt of Courts Act, 1971 by the suo motu proceeding being transferred from the Court of the learned Single Judge to the Court of Division Bench comprising of Hon’ble Mr.Justice M.S. Shah & Hon’ble Mr.Justice S.D. Dave (as their Lordships then were) without the respondent applying for it either orally or in writing. In fact, the suo motu proceeding was placed before the learned Single Judge on 18.10.2005 but considering the fact that justice must not only be done but must also appear to have been done, the learned Single Judge recused himself and directed the High Court registry to place the suo motu proceeding before the another Bench. This was only for the benefit of the respondent and would not have prejudiced the respondent in any case.
(3) Learned Amicus further contended that even though the Division Bench order dated 30.11.2005 directing issuance of notice upon the respondent-contemnor was not modeled in Form No.I, as required by Rule 13 of the Contempt of Courts (Gujarat High Court) Rules, 1984, the oral order dated 29.09.2005 along with the papers of the suo motu proceeding were furnished to the opponent after 20.12.2005 and the opponent had in response thereto filed his written submissions on 29.06.2006. Therefore, applying not the per se rule but the rule of prejudice, there was no violation of due procedure.
(4) Learned Amicus also contended that the alleged contempt was stated to have been committed on 29.09.2005 and since notice was issued by the Division Bench of this Court on 30.11.2005, the suo motu proceeding initiated against the respondent was within limitation. On the issue, learned counsel has placed reliance on the following decisions: –
1) Pallav Sheth v. Custodian and others (2001) 7 SCC 549
2) Dineshbhai A Parikh v. Kripalu 1981 GLR 165 Cooperative Housing Society
3) Girishchandra R. Bhatt v. 1996(1) GLR 812 Dineshbhai N. Sanghvi & Ors.
(5) Lastly, learned Amicus contended that Article 215 of the Constitution confers on every High Court the power to punish for contempt of itself. He submitted that this power is wide enough to cover cases of ex-facie criminal contempt, as also every act or omission which amounts to contempt of High Court. In short, the sum and substance of the contention is that whether contempt of High Court alleged to have been committed by any one is of the description referred to in Section 14 or Section 15 of the Act, it is competent for the High Court to punish the alleged contemner in exercise of its power under Article 215. He tried to substantiate the contention on the premises that such an action could be taken by the High Court under Article 215, either on its own motion if it is brought to the notice of the High Court by learned Single Judge, or on a motion made by the Advocate General or by any other person.
V. Provisions of the Act and the Rules applicable:
We find it expedient before analysing the rival contentions of the respective parties to look into the provisions of the Act and the Rules applicable so far as the present suo- motu proceedings are concerned.
(i) Section 2, Clause (c) defines Criminal Contempt, which reads as under:-
"2. Definitions:-- In this Act, unless the context otherwise requires, --
(a) "contempt of court" means civil contempt or criminal contempt;
(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;
(c) "criminal contempt" 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 --
(i) scandalises or tends to scandalise, 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 proceedings; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
(d) "High Court" means the High Court for a State or a Union territory, and includes the court of the Judicial Commissioner in any Union territory."
(ii) Section 14 prescribes the procedure where contempt is in the face of the Supreme Court or a High Court. Section 14 reads as under:-
"14. Procedure where contempt is in the face of the Supreme Court or a High Court. -- (1) When it is alleged, or appears to the Supreme Court or the High Court upon its own view, that a person has ben guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and, at any time before the rising ofthe Court, on the same day, or as early as possible thereafter, shall --
(a) cause him to be informed in writing of the contempt with which he is charged;
(b) afford him an opportunity to make his defence to the charge;
(c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and
(d) make such order for the punishment or discharge of such person as may be just.
(2) Notwithstanding anything contained in sub-section (1), where a person charged with contempt under that sub-section applies, whether orally or in writing, to have the charge against him tried by some Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, and the Court is of opinion that it is practicable to do so and that in the interests of proper administration of justice the application should be allowed, it shall cause the matter to be placed, together with a statement of the facts of the case, before the Chief Justice for such directions as he may think fit to issue as respects the trial thereof.
(3) Notwithstanding anything contained in any other law, in any trial of a person charged with contempt under sub-section (1) which is held, in pursuance of a direction given under sub-section (2), by a Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed to appear as a witness and the statement placed before the Chief Justice under sub-section (2) shall be treated as evidence in the case.
(4) Pending the determination of the charge, the Court may direct that a person charged with contempt under this section shall be detained in such custody as it may specify:
Provided that he shall be released on bail, if a bond for such sum of money as the Court thinks sufficient is executed with or without sureties conditioned that the person charged shall attend at the time and place mentioned in the bond and shall continue to so attend until otherwise directed by the Court:
Provided further that the Court may, if it thinks fit, instead of taking bail from such person, discharge him on his executing a bond without sureties for his attendance as aforesaid."
(iii) Section 15 deals with cognizance of criminal contempt in other cases. It reads as under:-
"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 to the Advocate-General, [or]
(c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer.
(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.
(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) in relation to the Supreme Court, the Attorney- General or the Solicitor-General;
(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) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf."
(iv) Section 17 lays down the procedure after cognizance. It reads as under:-
"17. Procedure after cognizance:-- (1) Notice of every proceeding under Section 15 shall be served personally on the person charged, unless the Court for reasons to be recorded directs otherwise.
(2) The notice shall be accompanied--
(a) in the case of proceedings commenced on a motion, by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded; and
(b) in case of proceedings commenced on a reference by a subordinate court, by a copy of the reference.
(3) The Court may, if it is satisfied that a person charged under Section 15 is likely to abscond or keep out of the way to avoid service of the notice, order the attachment of his property of such value or amount as it may deem reasonable.
(4) Every attachment under sub-section (3) shall be effected in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908), for the attachment of property in execution of a decree for payment of money, and if, after such attachment, the person charged appears and shows to the satisfaction of the court that he did not abscond or keep out of the way to avoid service of the notice, the Court shall order the release of his property from attachment upon such terms as to costs or otherwise as it may think fit.
(5) Any person charged with contempt under Section 15 may file an affidavit in support of his defence, and the court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires."
(v) Section 20 prescribes Limitation for actions for contempt. It reads as under:-
"20. Limitation for actions for contempt:-- No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
(vi) We shall also now look into Rules which shall govern the disposal of the present suo-motu proceedings for contempt. These rules are called "The Contempt of Courts (Gujarat High Court) Rules, 1984. Rule 5 is with regard to proceedings in criminal contempt, which reads as under:-
"5. Proceedings in Criminal Contempt -- Proceedings in connection with a criminal contempt may be initiated --
(a) on a motion of the High Court in respect of a contempt committed upon its own view under Section 14 of the Act, or
(b) on its own motion by the High Court under Section 15(1) of the Act; or
(c) on a motion founded on a petition presented by the Advocate General under Section 15(1)(a) or Section 15(2) of the Act; or
(d) on a motion founded on a petition presented by any other person with the consent in writing of the Advocate-
General under Section15(1) (b) of the Act; or
(e) on a reference made to the High Court by the Subordinate Courts under section 15(2) of the Act."
(vii) Rule 8 is with regard to content in motion by the High Court. It reads as under:-
8. Content in motion by the High Court Every motion by the High Court under Rules 4(b) or 5(b) shall be based on details such as, --
(i) Full name, description and place of person charged;
(ii) nature of the contempt alleged and such material facts, including the date or dates of commission of the alleged contempt as may be necessary for the proper determination of the case and shall be arranged in suitable paragraphs consecutively numbered."
(viii) Rule 12 provides for preliminary hearing, which reads as under:-
"12. Preliminary hearing - Every petition, motion or reference made under these rules except under rule 4 (b), rule 5 (a) and 5 (b) shall be posted before the High Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the High Court, if satisfied that no prima-facie case has been made out for issue of notice, may dismiss the petition and if not so satisfied, direct that notice of the petition be issued to the contemner."
(ix) Rule 13 provides for procedure after cognizance, which reads as under:-
"13. Procedure after cognizance.
(a) Every notice issued by the High Court shall be drawn, as far as may be, in the model form, Form No.1, annexed to these rules.
(b) Every such notice shall be accompanied by a copy of petition, motion or reference made under rules 4(a), 4(b), 5(c), 5(d) and 5(e) as the case may be, with copies of its annexures, if any.
(c) Every such notice shall be signed and dated by the Deputy Registrar or the Assistant Registrar and shall be sealed with the seal of the High Court.
(d) Notice of every proceedings under this Act, shall be served personally on the person charged, unless the High Court for reasons to be directs otherwise. In that case the service may be effected by alternative form of service authorised by the Code of Civil Procedure, the Bombay High Court Appellate Side Rules, 1960, as made applicable to the High Court of Gujarat.
(e) The High Court may, if satisfied that the person charged is absconding or is likely to abscond or is keeping out or is likely to keep out of way to avoid service of the notice, order issue of warrant of his arrest which in the case of criminal contempt, may be in lieu or in addition to the attachment of his property under sub-sections (3) and
(4) of section 17 of the Act. Such warrants may be endorsed in the manner laid down in Section 71 of the Code of Criminal Procedure.
(f) Every person who is arrested and detained shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate."
VI. Final Analysis:
So far as the first contention as canvassed by respondent that learned Single Judge having not proceeded as per Section 14, Clause (1) of the Act even after holding that the respondent was guilty of contempt, the procedure prescribed in Section 15 thereafter could not be availed of in a suo-motu proceeding said to have been initiated by the High Court, on the face of it is without any merit. It is true that Sections 14 and 15 of the Act contemplate two entire different types of contempt with mutually exclusive procedure. It is also true that Section 14 comes first and Section 15 coming subsequently expressly mentions "in cases of criminal contempt, other than criminal contempt referred to in Section 14". However, we are of the view that just because learned Single Judge did not deem fit to proceed in accordance with the procedure as laid down under Section 14(1) of the Act will not operate as a bar for the High Court to initiate suo-motu proceedings against the respondent under Section 15 of the Act. It appears that though learned Single Judge was of the view that the contempt alleged was in the face of the Court, learned Judge may have thought it fit and proper to refer the matter to the Chief Justice of the High Court, as learned Single Judge would not have liked to be a prosecutor, a witness and the judge himself in the matter. As a matter of fact, such a procedure has been approved by the Supreme Court in the case of Re: Vinaychandra Mishra, reported in (1995) 2 SCC 584. In Vinaychandra Mishra (supra), the contemner was a practicing Senior Advocate in the High Court of Allahabad against whom learned Single Judge of the Allahabad High Court alleged contempt on the face of the High Court. The facts in Vinaychandra Mishra's case were that learned Judge of the Allahabad High Court addressed a letter to the Acting Chief Justice bringing to his notice the contemptuous act and mis-happening in the Court and requested the learned Acting Chief Justice of the said High Court to do something for restoration of dignity of judiciary. As the facts reveal the Acting Chief Justice forwarded the said letter of the learned Judge to the then Chief Justice of India by his letter dated 5.4.1994 and Hon'ble Supreme Court took suo-motu cognizance of the said letter of the Acting Chief Justice and issued show cause notice upon the alleged contemner i.e. the Senior Advocate, calling upon him to show cause as to why he should not be punished for his contemptuous behaviour under the Contempt of Courts Act. It is in this background that the Supreme Court held that the procedure which has been adopted cannot be said to be in any manner illegal or in conflict with the provisions of the Contempt of Courts Act, 1971. We may quote para 26 of the said judgment where the Supreme Court held as under:-
"The contemner has further contended that it will be necessary to hold an inquiry into the allegations made by the learned Judge by summoning the learned Judge for examination to verify the version of the incident given by him as against that given by the contemner. According to him, in view of the conflicting versions of the incident given by him and the learned Judge, it would be necessary for him to cross- examine the learned Judge. As the facts reveal, the contempt alleged is in the face of the Court. The teamed Judge or the Bench could have itself taken action for the offence on the spot. Instead, the learned Judge probably thought that it would not be proper to be a prosecutor, a witness and the Judge himself in the matter and decided to report the incident to the learned Acting Chief Justice of his Court. There is nothing unusual in the course the learned Judge adopted, although the procedure adopted by the learned Judge has resulted in some delay in taking action for the contempt [see Balogh v. Crown Court at St. Albans [(1975) QB 73, (1974) 3 All ER 283]. The criminal contempt of court undoubtedly amounts to an offence but it is an offence sui generis and hence for such offence, the procedure adopted both under the common law and the statute law even in this country has always been summary."
2. Section 14 of the Act empowers the High Court to take immediate and emergent action when the contempt is on the face of the Court, whether civil or criminal. This power of the Court is a summary power, and therefore, should be exercised by the Court only when no other procedure will do if the ends of justice are to be met, for when this power is exercised by the Judge, he appears to be prosecutor acting in his own cause. As held by the Division Bench of this High Court in suo-motu Vs.
S.B. Vakil, Advocate, High Court of Gujarat and ors. reported in 2006 (3) GLR 2684 that summary power under Section 14 of the Act indicates that the same can be exercised in rare cases and when there is urgent necessary to take action against the person concerned for preventing him from disturbing the proceedings of the Court. Explaining the scheme of Section 14 of the Act, Division Bench in suo-motu Vs. S.B. Vakil (supra) held as under:-
"The Scheme of Sec. 14 of the Act is such that it empowers the Court to take action against the person who has been guilty of contempt committed in its presence or hearing. Taking of action under Sec. 14 would be justified only if the Court comes to the conclusion that the judicial proceedings would continue to be disrupted and not otherwise."
"A conjoint and meaningful reading of the provision of Sec. 14(1) of the Act and Rules 4 and 11 of the Rules makes it very clear that normally contempt proceedings under Sec. 14(1) can be initiated only when (a) the contempt is clear, (b) the contempt affects a trial in progress or about to start, (c) it is urgent and imperative to act immediately in order to prevent justice being obstructed and undermined and to preserve the integrity of the trial, and (d) no other procedure can be resorted to, to meet the ends of justice."
3. The procedure prescribed in Section 14 of the Contempt of Courts Act only requires that the party concerned be afforded a reasonable opportunity of hearing by making the alleged contemner aware of precisely what the charge against him is and that he be given a full and fair opportunity of defending himself. There is a reason for this so far as unlike other categories of contempt, where the contempt is on the face of the Court, it would be the highest form of contempt and requires to be virtually dealt with on the spot. This is absolutely essential in order to maintain the decorum of the Court, the dignity of the Judges and the unobstructed working of the administration of justice. If a party, whosoever he is, is permitted to commit acts of contempt on the face of the Court and if thereafter the usual procedure prescribed by the rules which is almost like a trial is required to be adopted, the situation becomes grossly aggravated because of the time lag between the date when the incident took place and the period of time that elapsed before the party is punished. This is the essence of Section 14 of the Act and this is precisely the object of the provision of Section 14 of the Act. In the case of M.S. Sheriff and anr. Vs. State of Madras - AIR 1954 AIR (SC) 397, the Supreme Court pointed out that it is very necessary from the point of view of criminal justice that the guilty must be punished when the facts are fresh in the public mind. It is this principle that is embodied in Section 14 of the Act, which is why the elaborate procedure does not have to be resorted to. We are of the view that when the contempt is on the face of the Court, then it is very essential for that Court to follow the procedure as prescribed in Section 14 of the Act, but for any reason if the concerned Court does not proceed in accordance with Section 14 of the Act and refers the matter to the Hon'ble Chief Justice of the High Court informing about the alleged contempt, then in that case it is always open and within the powers of the High Court to take suo-motu cognizance of the same and proceed against the alleged contemner in accordance with the procedure as laid down under Section 15 of the Act. Therefore, to say that since the learned Single Judge failed to adopt the procedure as laid down under Section 14 of the Act even after holding that the respondent is guilty of contempt, will not operate as a bar for the High Court to take suo-motu cognizance of the same in exercise of powers under Article 215 of the Constitution read with Section 15 of the Act. There is one more reason why our view is much more consistent keeping in mind the object of punishing a particular person who so ever he may be, for the alleged act of contempt. When the High Court decided to suo-motu initiate the proceedings against the respondent contemner, it did so not to vindicate the dignity and honour of the learned Single Judge who complained of indecent behaviour and contemptuous act on the part of the respondent, but to uphold the majesty of law and the administration of justice. In a given case despite the fact that the contempt is on the face of the Court and even then if the concerned Court does not proceed to punish the contemner after following the procedure prescribed under Section 14 of the Act, then can it be said that the High Court on its own should not do anything and remain silent. As we have stated earlier in our judgment that the concerned Court for many reasons may not deem fit to proceed in accordance with the procedure as laid down under Section 14 of the Act, but that by itself will not prevent the High Court in suo-motu exercise of powers under Article 215 of the Constitution as a Court of Record and Section 15 of the Act to proceed against the alleged contemner.
4. The Supreme Court in Arundhati Roy, in Re (2002) 3 SCC 343 after quoting Vinaychandra Mishra's case (supra), reiterated the position of law relating to the powers of contempt and opined that the judiciary is not only the guardian of the rule of law and the third pillar but in fact the central pillar of the democratic State. It held as under:-
"If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the citilized life in the society. It is for this purpose that the courts are entrusted with extraordinary powers of punishing those who indulge in acts, whether inside or outside the courts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalising it. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual Judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded."
Thus, we hold that Article 215 of the Constitution confers on every High Court the powers to punish the contempt of itself. This power is wide enough to cover ex-facie criminal contempt as also every act or omission which amounts to contempt of High Court. Therefore, where contempt of High Court alleged to have been committed by anyone is of the description referred to in Section 14 or Section 15 of the Act, it is competent for the High Court to punish the alleged contemner in exercise of its power under Article 215 of the Constitution read with Section 15 clause (1) of the Act after following the due procedure of law as laid down under the Act and the Rules governing the same.
5. We shall also look in to the Division Bench judgment of Calcutta High Court in the case of Smt. Manisha Mukherjee (supra), which has been relied upon by the respondent. In the case before the Division Bench of the Calcutta High Court, a petition was preferred complaining of contempt of Court with the consent of the Advocate General given under Section 15(1) (b) of the Contempt of Courts Act, 1971. As per the facts of the said case, the pet4itioner alleged that the statement of the contemner made before a Division Bench in connection with the hearing of a criminal appeal amounted to contempt inasmuch as it scandalise or lower the authority of the Court. The facts of the case are to a certain extent identical with the present case. It appears that the Division Bench before whom the alleged act of contempt was committed, for some reason, did not deem fit to proceed under Section 14 of the Act in spite of the fact that the contempt was on the face of the Court. One of the parties in the said Criminal Appeal therefore, thought fit to file a petition for contempt after obtaining consent of the Advocate General. In this background, it was argued before the Division Bench of the Calcutta High Court that if the concerned Bench did not start proceedings under Section 14 of the Act against the opposite party in spite of the conduct attributed to the opposite party, the inference is permissible that the Court was satisfied that the opposite party was not motivated by a desire to scandalise the Court or to lower its authority. The Division Bench after comparing Sections 14(1) and 15(1) of the Act, took the view and held as under:-
"10. Comparing the above provisions we find that two different procedures have been prescribed for conduct amounting to contempt indulged in two broadly different circumstances. When the offending conduct has been indulged in the presence or hearing the Supreme Court or High Court, the Court will follow the procedure laid down in S. 14. In all other cases, that is to say, when offending conduct was resorted to at places outside the presence or hearing of the Supreme Court or High Court, the procedure prescribed by Sec. 15 of the Act is to be followed. Section 14 occurs first and S. 15 coming subsequently expressly mentions "In cases of criminal contempt other than criminal contempt referred to in S. 14", Sec. 15 thus excludes from its ambit the cases covered by S. 14,. So the conclusion is unavoidable that two sections are mutually exclusive and apply to two different types of cases, otherwise there was no necessity for prescribing two different procedures for two different types of cases under the Act."
"11. Under Sec. 14, when it appears to the Supreme Court or High Court that the contemnor has been guilty of contempt committed in its presence or hearing the Court may draw up proceedings as prescribed suo motu. When a third party makes allegation of such conduct against anybody, even then the Court may adopt the procedure prescribed by S. 14 only if the conduct has been indulged in close proximity of the court room, namely in its presence or hearing unnoticed by the Court itself. The character of the procedure under S. 14 is summary and requires detention of the offender in custody immediately. The procedure under Sec 15 of the Act is not summary nor does it require the offender to be detained in custody immediately.
Sec. 14 applies to gross and desperate conduct and arms the Court with power to deal with such conduct, in summary and peremptory fashion for its own protection and protection of its dignity. Sec. 15 on the other hand contemplates a detailed enquiry, because the contempt has been committed away from the court premises. Now the question, is even if contempt has been committed close to the court room, is a third party precluded from resorting to procedure prescribed by Sec. 15 of the Act? We are tempted to answer the question in the negative, use of the expression "other than a contempt referred to in S. 14" in Sec. 15 excluded application of the procedure to such cases. Further proceedings under S. 14 are summary. A third party may make allegations regarding conduct of a contemnor contemplated in Sec. 14 unnoticed by the Court itself, but as soon as such allegation has been made the person to be proceeded against is required to be detained in custody, informed of the charge, and he is to take his defence immediately. The implication of the above is that the allegation is to be made soon after the conduct has been indulged in before the offender has left the precincts of the Court. But allegations may be made under Sec. 15 of the Act within a reasonable time after the impugned conduct was indulged in; and at the time of making the allegation the offender may be away from the Court for which he is to be personally served with notice under S. 17 of the Act. Service of notice personally required under S. 17 does not apply to proceedings under Sec.
14. In the present case no allegation was made against the contemnor on 17.9.1981 when he was within the Court premises. So he could not be detained in custody under S. 14 of the Act. We, therefore, reach the conclusion that proceedings under Ss. 14 and 15 of the Contempt of Courts Act, contemplate two entirely different types of contempt of Court with mutually exclusive procedure. In the present case the conduct complained of was indulged in, in the presence and hearing of the High Court. Still the Court did not proceed in the fashion prescribed by S. 14. In the circumstances the procedures prescribed by S. 15 could not be availed of because of the words used in the section."
6. We are unable to subscribe to the view which has been taken by the Division Bench of the Calcutta High Court for more than one reason. Firstly, the view is not in consonance with the subsequent judgment of the apex Court in the case of Vinaychandra Mishra (supra) and Arundhati Roy (supra). Secondly, the case before the Calcutta High Court was not one of suo-motu proceedings initiated by the High Court under Sec. 15(1) of the Act, but it was at the instance of one of the parties after obtaining the consent of the Advocate General given under Section 15(1)(b) of the Act of 1971. Thirdly, the Division Bench took the view that if contempt is on the face of the Court, and if such Court does not take any action and proceed under Section 14 of the Act, then a third party is precluded from resorting to procedure prescribed by Section 15 of the Act. Thus, the present case stands on entirely a different footing. We once again at the cost of repetition state that if High Court decides to take suo-motu cognizance of a criminal contempt on the face of the Court, then it does not do so to vindicate the dignity and honour of the individual Judge who is personally attacked or scandalised, but to uphold the majesty of the law and the administration of justice. Therefore, if what the learned Single Judge observed in his order dated 29.9.2005 is believed to be true, and even then the High Court keeps quiet and does nothing to the alleged contemnor, it would be nothing short of giving premium to such person who have no respect for the supremacy of law, as held by the Supreme Court in Arundhati Roy (supra). That who ever the person may be, however high he or she is, no one is above the law notwithstanding how powerful and how rich he or she may be. It is only through the Courts that the rule of law unfolds its contents and establishes its concept. The confidence in the Courts on justice, which the people possess, cannot, in any way, be allowed to be tarnished, diminished or wiped out by contumacious behaviour of any person. The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of Court left in the armory of judicial repository, which when needed, can reach any neck how-so- ever high or far it may be.
Thus, we are not convinced in any manner with the first contention of the respondent for the purpose of dropping suo- motu proceedings of contempt.
7. So far as the second contention as regards the suo-motu proceedings being barred by the period of limitation as prescribed under Section 20 of the Act is concerned, we are of the view that the issue is no longer res-integra. In the present case, the alleged contempt is said to have been committed on 29.9.2005 and the notice in this regard came to be issued by the Division Bench of this Court on 30.11.2005. This is suggestive of the fact that as such the contempt proceedings can be said to have been initiated within a period of 2 months. Contention of the respondent is that mere issuance of a notice, though within a period of two months, cannot be construed as initiating the proceedings for contempt after taking cognizance of the same is meritless. The substance of the contention appears to be that it is only when the Court issues rule and decides to call upon the alleged contemnor to show cause as to why he should not be punished for his act of contempt, that the proceedings can be said to have been initiated. In the present case, according to the respondent, the matter is still at the stage of notice and he has not been served with notice in Form-I as prescribed under the Rules of 1984 and almost six years have elapsed and therefore, the proceedings can be said to have been time barred as they cannot be said to have been initiated within a period of one year from the date of the alleged contempt i.e. 29.5.2005.
8. In Pallav Sheths case reported in (2001) 7 SCC 549, the Supreme Court has settled the position of law quite abundantly. In paragraphs 40, 42 and 44, the Supreme Court held as under:-
"40. In other words, the beginning of the action prescribed for taking cognizance of criminal contempt under Section 15 would be initiating the proceedings for contempt and the subsequent action taken thereon of refusal or issuance of a notice or punishment thereafter are only steps following or succeeding to such initiation. Similarly, in the case of a civil contempt filing of an application drawing the attention of the Court is necessary for further steps to be taken under the Contempt of Courts Act, 1971."
"42. The decision in Om Prakash Jaiswal's case (supra), to the effect that initiation of proceedings under Section 20 can only be said to have occurred when the Court formed the prima facie opinion that contempt has been committed and issued notice to the contemner to show-cause why it should not be punished, is taking too narrow a view of Section 20 which does not seem to be warranted and is not only going to cause hardship but would perpetrate injustice. A provision like Section 20 has to be interpreted having regard to the realities of the situation. For instance, in a case where a contempt of a subordinate court is committed a report is prepared whether on an application to Court or otherwise, and reference made by the subordinate court to the High Court. It is only thereafter that a High Court can take further action under Section 15. In the process, more often than not, a period of one year elapses. If the interpretation of Section 20 put in Om Prakash Jaiswal's case (supra) is correct, it would mean that notwithstanding both the subordinate court and the High Court being prima facie satisfied that contempt has been committed the High Court would become powerless to take any action. On the other hand, if the filing of an application before the subordinate court or the High Court making of a reference by a subordinate court on its own motion or the filing an application before an Advocate-General for permission to initiate contempt proceedings is regarded as initiation by the Court for the purposes of Section 20, then such an interpretation would not impinge on or stultify the power of the High Court to punish for contempt which power, dehors the Contempt of Courts Act, 1971 is enshrined in Article 215 of the Constitution. Such an interpretation of Section 20 would harmonise that section with the powers of the Courts to punish for contempt which is recognised by the Constitution.
44. 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 other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the Court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed."
In view of the settled position of law, we are not convinced with the second contention of the respondent that the proceedings deserve to be dropped as they cannot be said to have been initiated within a period of one year as per Section 20 of the Act.
9. The third and the last contention of the respondent as regards violation of Section 15, Clause 3 of the Act and Rule 13 of the Contempt of Courts Act (Gujarat High Court) Rules, 1984 deserves close scrutiny and consideration. It is now clear that the proceedings have been initiated by the High Court suo-
motu on its own motion in exercise of powers under Section 15, clause (1) of the Act. Section 15 of the Act, read with Rule 13 of the Rules, 1984 require two things:-
(1) Every motion or reference made under Sec. 15 shall specify the contempt of which the person charged is alleged to be guilty.
(2) Every notice issued by the High Court in a suo-motu proceeding shall be drawn as far as may be, in the model form, Form No.I, annexed to the Rules.
10. Learned Amicus appearing for the High Court with his usual fairness conceded that no notice at any point of time was issued in model Form No.I as prescribed under the Rules. The only notice which was received by the respondent in the suo- motu proceeding was that of the Division Bench on 30.11.2005, which was in the following words;-
"Notice returnable on 20th December, 2005."
Neither did the suo-motu proceeding specify the contempt of which the opponent was alleged to be guilty, nor did the High Court notice dated 30.11.2005 calls upon the respondent to show cause why he should not be committed to prison or otherwise penalised or dealt with for the acts or conduct that he was charged with. Therefore, the contention of the respondent that there is violation of Section 15 and Rule 13 of the Rules merits consideration. This issue is going to the root of the matter. In Muthu Karuppan Vs. Parithi Hamvazhuthi (supra), the Supreme Court while considering the criminal contempt held that the Court should be satisfied that there is a reasonable foundation for the charge and further held that the punishment cannot be imposed on mere probabilities and the Court cannot punish the alleged contemner without any foundation merely on conjectures and surmises. How the Criminal contempt has to be proceeded, that has been explained in paragraph 9, which reads as follows:-
9) The contempt proceedings being quasi criminal in nature, burden and standard of proof is the same as required in criminal cases. The charges have to be framed as per the statutory rules framed for the purpose and proved beyond reasonable doubt keeping in mind that the alleged contemnor is entitled to the benefit of doubt. Law does not permit imposing any punishment in contempt proceedings on mere probabilities, equally, the court cannot punish the alleged contemnor without any foundation merely on conjectures and surmises. As observed above, the contempt proceeding being quasi criminal in nature require strict adherence to the procedure prescribed under the rules applicable in such proceedings."
In paragraph 23 of the same judgment, the Supreme Court led much stress and emphasis on compliance with procedures. It held in paragraph 23 as under:-
"23) We have already pointed out that while dealing with criminal contempt in terms of Section 2(c) of the Act, strict procedures are to be adhered. In a series of decisions, this Court has held that jurisdiction to initiate proceedings for contempt as also the jurisdiction to punish for contempt are discretionary with the court. Contempt generally and criminal contempt certainly is a matter between the court and the alleged contemnor. No one can compel or demand as of right initiation of proceedings for contempt. The person filing an application or petition before the court does not become a complainant or petitioner in the proceedings. 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. [Vide Om Prakash Jaiswal vs.
D.K. Mittal, (2000) 3 SCC 171] Further Section 15 of the Act as well as the Madras High Court Contempt of Court Rules insist that, particularly, for initiation of criminal contempt, consent of the Advocate General is required. Any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt. In the present case, the above provisions have not been strictly adhered to and even the notice issued by the then Division Bench merely sought for explanation from the appellant about the allegations made by Respondent No. 1."
11. What can be deduced from the judgment of the apex Court in the case of Muthu Karuppan (supra) is that any violation or deviation from the Rules which are framed by the High Court in exercise of powers under Section 23 of the Act should not be accepted or condoned lightly and must be deem to be fatal to the proceedings taken to initiate action for contempt. In the present case also, we are convinced that there is gross violation of the Rules, 1984. No notice at any point of time was drawn and served upon the respondent in the model form, Form No. I, as provided in the Schedule to the Rules.
12. In a very recent pronouncement of the Supreme Court in the case of Anup Bhushan Vohra (supra), which has been referred to earlier, the Supreme Court has quoted with approval the view in Muthu Karuppan's case (supra) and has once again reiterated that any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt.
13. We have also examined the issue in question from a little different dimension. What will be the effect of the words "as far as may be" as provided in Rule 13 clause (1) of the 1984 Rules. The expression "as far as may be" at the first brush would suggest that it is not mandatory but directory. However, this would not save the situation because if it is held to be directory, then in that case the simple notice without the requisite and necessary particulars will be bereft of the charge of the acts for which proceedings are intended to be launched against the alleged contemner. Even if it is believed that the rule is directory and not mandatory keeping in mind the nature of the proceedings, the rule needs to be interpreted very strictly. There is nothing on record to show as to what was that impediment in the way of the Registry in not issuing the notice in Form I as prescribed under the Rules. In a given case if there is any practical difficulty, then the lapse perhaps may be excused, but the term "as far as may be" itself suggests that it is only in the rarest of the rare cases that the notice under Form I can be avoided. At this stage, we may quote paragraph 22 of the decision of the Supreme Court in J. R Parashar, Advocate Vs. Prasant Bhushan, Advocate, reported in AIR 2001 SC 3395. It reads as under:-
"The actual proceedings for contempt are quasi-criminal and summary in nature. Two consequences follow from this. First, the acts for which proceedings are intended to be launched must be intimated to the person against whom action is proposed to be taken with sufficient particularity so that the persons charged with having committed the offence can effectively defend themselves. It is for this reason S. 15 requires that every motion or reference made under this section must specify the contempt of which the person charged is alleged to be guilty. The second consequence which follows from the quasi-criminal nature of the proceedings is that if there is reasonable doubt on the existence of a state of facts that doubt must be resolved in favour of the person or persons proceeded against. In addition this Court has framed Rules under, inter-alia S. 23 of the Act providing in detail for the procedure to be followed by the Court and its Registry on the one hand and the complainant/respondent on the other."
We would also like to quote a part of para 35 where the Supreme Court has observed as under:-
"35. .......... It is true that the notice did not specify the contumacious acts with which the respondent was charged in terms of Rule 6 read with Form 1. Only a copy of the petition had been served on the respondents along with the notice. It would not be unreasonable for the respondent No.2 to assume that every statement contained in the petition formed part of the charge."
Since we have relied upon the decision in J.R. Parashar's case (supra) we also looked into the Supreme Court Rules regulating proceedings for contempt of the Supreme Court, 1975. We looked into the language used in the Rules and we found that Rule 6 clause (1) in the following language:-
"Notice to the person charged shall be in Form-I".
The language used indicates that the same is mandatory and that is the reason why Supreme Court in paragraph 22 of J.R. Parashar has led much emphasis on the procedural aspect.
We also take judicial notice of a very important fact. We have gone through the Rules of practically all High Courts and we have noticed that all High Courts have said in the Rules that the notice shall be in Form-I as prescribed under the Rules. It is only in the 1984 Rules of our High Court that the language employed is "as far as may be". Be that as it may, we have explained the importance of the notice and the contents of the same keeping in mind that the actual proceedings for contempt are quasi-criminal and summary in nature.
14. In the above view of the matter, and more particularly in view of the dictum as laid down in Muthu Karuppan (supra) and Anup Bhushan Vohra (supra), we are left with no other option but to discharge the notice issued upon the respondent for contempt. It is bit disturbing to discharge the notice due to a serious lapse in strictly following the procedure as laid down under the Act and the Rules. This is an eye-opener for the Registry of this High Court to ensure that henceforth any notice issued by the High Court, be it on its own motion or otherwise, has to be in model Form No.I and all other Rules governing the procedure should be scrupulously followed and observed. We therefore, deem fit to direct the Registry of the High Court to ensure that the notice for contempt issued by the High Court shall be drawn in the model Form No.I annexed to the Contempt of Courts (Gujarat High Court) Rules, 1984, and other Rules of 1984 are followed without any deviation. It is also not permissible for us now at this stage to ask the Registry to issue notice in Form No.I as prescribed in Rule 13 of the Rules, as fresh contempt action would be time barred under Section 20 of the Contempt of Courts Act, 1971.
15. In the result, the notice served upon the respondent is discharged and the suo-motu contempt proceedings initiated against the respondent are hereby ordered to be dropped. However, there shall be no order as to costs.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B. Pardiwala, J.) */Mohandas