High Courts may now frame rule on the line suggested in Duda’s case

Criminal Appeal Nos. 149-150 of 1997 with Cri. A. Nos. 168 and 169 of 1997, decided on 29/11/2004

Judgement

Bench: Y.K. Sabharwal, D.M. Dharmadhikari, Tarun Chatterjee

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.

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High Courts may now frame rule on the line suggested in Duda’s case

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