High court can proceed with contempt even if FIR registered

O.P.(Crl.) No.703/22
                                 -:1:-

                         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
   TUESDAY, THE 25TH DAY OF APRIL 2023 / 5TH VAISAKHA, 1945
                       OP(CRL.) NO. 703 OF 2022
 AGAINST CRL.MP 814/2022 IN CRL.MP 2478/2021 IN SC 118/2018
      OF ADDITIONAL SPECIAL SESSIONS COURT (SPE/CBI)-III,
                              ERNAKULAM
PETITIONERS:

      1        INDO-ASIAN NEWS CHANNEL PVT LTD.
               REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
               MR. M.V. NIKESH KUMAR,
               REPORTER STUDIO COMPLEX,
               HMT COLONY, PIN - 683503
      2        M.V. NIKESH KUMAR
               AGED 48 YEARS, S/O. M.V. RAGHAVAN,
               CHIEF EXECUTIVE OFFICER,
               INDO-ASIAN NEWS CHANNEL PVT.LTD
               MELETHU VEEDU, BARNASSERI,
               PAPPINISSERI VILLAGE
               KANNUR, PIN - 683503
               BY ADVS.
               SRI.KALEESWARAM RAJ
               SRI.C.P.UDAYABHANU
               SRI.BOBAN PALAT
               SRI.NAVANEETH.N.NATH
               SRI.P.U.PRATHEESH KUMAR
               SRI.P.R.AJAY
               SRI.RASSAL JANARDHANAN A.
               SRI.ABHISHEK M. KUNNATHU


RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR,
 O.P.(Crl.) No.703/22
                                 -:2:-

               HIGH COURT OF KERALA,
               ERNAKULAM, PIN - 682031
      2        P. GOPALAKRISHNAN @ DILEEP
               PADMA SAROVARAM HOUSE,
               KOTTARAKADAVU, ALUVA,
               ERNAKULAM, PIN - 683101
      3        BAIJU PAULOSE
               DY. S.P., CRIME BRANCH,
               ALAPPUZHA, PIN - 688001
      4        P. BALACHANDRA KUMAR
               S/O. P.PUSHKARAN,
               MANKALA PADIPURA, MANGOOTTAM,
               THIRUPURAM. P.O.,
               THIRUVANANTHAPURAM, PIN - 695133
               BY ADVS.
               SRI.PHILIP T.VARGHESE
               SMT.ACHU SUBHA ABRAHAM
               SMT.V.T.LITHA
               SMT.K.R.MONISHA
               SMT.NITYA R.
               SRI.SUJESH MENON V.B.



               SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR


THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 03.04.2023,
THE COURT ON 25.04.2023 DELIVERED THE FOLLOWING:
 O.P.(Crl.) No.703/22

12. To appreciate the contention on behalf of the petitioners that once FIR's have been registered, a further contempt action cannot be initiated, it is necessary to extract section 10 of the Act, which deals with the power of the High Court to punish for contempt of subordinate courts. The provision reads as below:

"10. Power of High Court to punish contempts of subordinate courts.- Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself:

O.P.(Crl.) No.703/22 Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860) "

13. Though the contention based upon the proviso to section 10 of the Act was impressive on first blush, such an interpretation cannot be accepted as that would defeat the very purpose of the statute itself. The proviso to S.10 of the Act can apply only in cases where the acts alleged as contempt are punishable as contempt itself under the specific provisions of the Indian Penal Code, 1860 (for short 'the IPC'). Merely because the acts alleged as contempt, also satisfy the description of other offences under the penal code, that by itself would not exclude the applicability of the contempt jurisdiction.

14. In the decision in Bathina Ramakrishna Reddy v. State of Madras (AIR 1952 SC 149), an identical contention was raised and rejected by the Constitution Bench of the Supreme Court with reference to the erstwhile Contempt of Courts Act, 1926. Thereafter, the issue came up once again for consideration in State of M.P. v. Revashankar (AIR 1959 SC 102). Again in Daroga Singh and Others v. B.K.Pandey [(2004) 5 SCC 26] also, the question was dealt with. After referring to all the earlier decisions, it was observed that the proviso to S.10 of the Act must be interpreted to exclude "only in cases where the acts alleged to constitute O.P.(Crl.) No.703/22 contempt are punishable as contempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided in the Indian Penal Code."

15. The offence alleged in the five FIR's is section 228A of IPC. The said provision penalises persons printing or publishing the name or anything which reveals the identity of the victim in a trial relating to rape without permission of the court. Section 228A creates an offence under the IPC not as contempt but as a separate penal provision. Though petitioners are being proceeded against under section 228A of the IPC, that by itself would not attract the proviso to section 10 of the Act. Thus, petitioners cannot take the benefit of the proviso to section 10 of the Act for excluding them from being proceeded against in contempt. Viewed in the above perspective, the main contention urged by the petitioners that they are protected by the proviso to section 10 of the Act is not at all tenable and has no merit in it.