IN THE HIGH COURT OF BOMBAY AT GOA CONTEMPT PETITION NO. 8 OF 2014 1. Mr. Kashinath Jairam Shetye son of late Mr. Jairam Shetye major of age, occupation service, resident of Ground Floor, Babino Building, Alto Fondvem, Ribandar, Tiswadi Goa. 2. Dr. Ketan Govekar, major of age, occupation Service, resident of Third Floor, Wadji Building, St. Inez, Panaji, Tiswadi Goa. 3. CA. Pradip Kakodkar, major of age, occupation Professional, resident of H.No.125, Bansai Curchorem Goa. … Petitioners V e r s u s Manohar Parrikar, major in age, Chief Minister of Goa, Secretariat, Porvorim Goa. … Respondent Mr. R. Menezes, Advocate for the petitioners. Mr. A. N. S. Nadkarni, Advocate General for the State. Coram : - F. M. REIS & Z. A. HAQ, JJ. Date :- 13 th March, 2014 :2: ORAL ORDER (Per Z. A. HAQ, J.) Heard Mr. R. Menezes, learned counsel for the petitioners and Mr. Nadkarni, learned Advocate General for the State who has put in his appearance suo motu. 2. The Contempt Petition is filed complaining that certain comments of the respondent amounts to a criminal contempt as defined in Section 2(c) of the Contempt of Courts Act, 1971. Admittedly, the petitioners have neither made any application to the learned Advocate General seeking consent for filing the contempt petition nor the petitioners are entitled to move the Court as contemplated under Section 15 of the Contempt of Courts Act, 1971. The learned Advocate for the petitioners has made arguments in his effort to persuade us to take suo motu cognizance of the alleged contempt. However, we are not inclined to take suo motu cognizance of an alleged criminal contempt on a motion being moved by the petitioners. The law in this regard is well settled. The suo motu cognizance of the criminal contempt can be taken by the Court on its own motion in any one of the modes as discussed in the various judgments i.e. either by taking cognizance pursuant to the press reports or taking :3: the cognizance after considering some contemptuous speech made by contemner. 3. The learned Advocate for the petitioners has relied on the judgment in the case of S. K. Sarkar V/s Vinay Chandra Misra reported in 1981(1) SCC 436 and submitted that the suo motu cognizance of the criminal contempt can be taken by this Court as held in the above referred judgment. The controversy in the case of S. K. Sarkar referred to above was as to whether the High Court can take suo motu cognizance of contempt of a subordinate or inferior Court when it is not moved in either of the two modes mentioned in Section 15(2) of the Contempt of Courts Act, 1971. Section 15(1) and (2) of the Contempt of Courts Act reads as under : “(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 :4: 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.” While considering this issue, the Honble Supreme Court has held that sub-section (2) of Section 15 of the :5: Contempt of Courts Act, 1971 does not deprive the High Court of the power of taking cognizance of criminal contempt of a subordinate court on its own motion also. However, the Honble Apex Court has specifically laid down that the High Court in its discretion may refuse to interfere in the petition filed by the third party or take cognizance on its own motion on the basis of the information supplied to it in the contempt petition which reads as under : “Harmoniously construed, sub section (2) of Section 15 does not deprive the High Court of the power of taking cognizance of criminal contempt of a subordinate court, on its own motion, also. If the intention of the Legislature was to take away the power of the High Court to take suo motu cognizance of such contempt, there was no difficulty in saying so in unequivocal language, or by wording the sub-section in a negative form. We have, therefore, no hesitation in holding in agreement with the High Court, that sub-section (2) of Section :6: 15, properly construed, does not restrict the power of the High Court to take cognizance of and punish contempt of a subordinate court, on its own motion. It is, however, to be noted that 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 :7: 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. If the petitioner is a responsible member of the legal profession, it may act suo motu, more so, if the petitioner-advocate, as in the instant case, prays that the court should act suo motu. The whole object of prescribing these procedural modes of taking cognizance in Section 15 it to safeguard the valuable time of the High Court or the Supreme Court from being wasted by frivolous complaints of contempt of court. If the High Court is prima facie satisfied that the information received by it regarding the commission of :8: contempt of a subordinate court is not frivolous, and the contempt alleged is not merely technical or trivial, it may, in its discretion, act suo motu and commence the proceedings against the contemner. However, this mode of taking suo motu cognizance of contempt of a subordinate court, should be resorted to sparingly where the contempt concerned is of a grave and serious nature. Frequent use of this suo motu power on the information furnished by an incompetent petition, may render these procedural safeguards provided in sub-section (2), otiose. In such cases, the High Court may be well advised to avail of the advice and assistance of the Advocate-General before initiating proceedings.” 4. The learned Advocate for the petitioners has relied on the judgment of the Honble Apex Court in the case :9: of Amicus Curiae V/s Prashant Bhushan and has submitted that if suo motu cognizance is not being taken by the Court then the Registry of the Court may be directed to place it before the Honble Chief Justice for His consideration. In our view, the submissions made on behalf of the petitioners are misconceived. 5. In the case of Amicus Curiae referred to (supra), the information about the contemptuous statements published were placed before the Court which was presided over by the Honble Chief Justice of India and the Court had taken suo motu cognizance on the basis of the information placed before it. Moreover, the arguments made in the case of Amicus curiae referred to ( supra ) were made on the basis of the provisions of Rule 2 of the “Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975” which read thus: “13. The learned Amicus Curiae, Mr. Harish Salve, filed an application in an ongoing proceeding to bring to the knowledge of the Honble Chief Justice of India certain statements made by the Respondent No.1 in an interview :10: given to the Tehelka magazine deliberately aimed at tarnishing the image of the judiciary as a whole, and, in particular, a sitting Judge of the Supreme Court, in the eyes of the general public without any foundation or basis therefore. By publishing the said interview, the Respondent No.2 was also responsible for lowering the dignity of this Court in the eyes of all stake holders in the justice delivery system. Prima facie, a case for issuance of notice having been made out, the Honble Chief Justice of India directed issuance of notice to the Respondents to show cause in regard to the allegations contained in the application filed by the learned Amicus Curiae. The error committed by the Registry of the Supreme Court in placing the matter on the judicial side instead of placing the same before the Honble Chief Justice of India on the :11: administrative side, is an administrative lapse which does not reduce the gravity of the allegations. 14..................... 15. Thus, on prima facie satisfaction that there were sufficient grounds for taking action on its own motion, the Court initiated suo motu action by directing issue of notice to the Respondents. Hence, the present contempt proceeding was initiated by the Court on its own motion and it is not covered by clauses (a), (b) and (c) of sub- section (1) of Section 15 of the Contempt of courts Act, 1971 or clauses (b) and (c) of Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975. On the other hand, the present proceeding is covered by clause (a) of rule 3 of the said Rules. Merely because the information regarding the :12: allegedly contemptuous statements made by Respondent No.1 and published by Respondent No.2 was furnished to the Court by the learned Amicus Curiae, the proceeding cannot lose its nature or character as a suo motu proceeding. The learned Amicus Curiae was entitled to place the information in his possession before the court and request the court to take action. The petition filed by him constituted nothing more than a mode of laying the relevant information before the court for such action as the court may deem fit.” 6. It is held in the case of P. N. Duda V/s P. Shiv Shankar and others reported in 1988 AIR 1208 that the petition filed by the third party should not even be registered as contempt petition and should not be placed before the Bench on the judicial side, which reads thus : “53. A conjoint perusal of the Act and rules makes it clear that, so far as this :13: 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, [1971] Suppl. S.C.R. 76 and Sarkar v. Misra, [1981] 2 S.C.R. 331); 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 the Court. In the present :14: case, the petitioner alleges that he has failed in the latter two courses-this will be considered a little later-and has moved this petition praying that this Court should take suo motu action. The petition at this stage, constitutes nothing more than a mode of laying the relevant information before the Court for such action as the Court may deem fit and no proceedings can commence until and unless the Court considers the information before it and decides to initiate proceedings. Rules 3 and 4 of the Supreme Court (Contempt of Court) Rules also envisage a petition only where the Attorney General or any other person, with his written consent, moves the Court. Rule 5 is clear that only a petition moved under Rule 3(b) and (c) is to be posted before the Court for preliminary hearing. The form of a criminal miscellaneous petition styling the informant as the petitioner :15: and certain other persons as respondents is inappropriate for merely lodging the relevant information before the Court under Rule 3(a). It would seem that the proper title of such a proceeding should be In re .. (the alleged contemner) (see: Kar v. Chief Justice, [1962] 1 SCR 319 though that decision related to an appeal from an order of conviction for contempt by the High Court). The form in which this request has to be sought and considered in such cases has also been touched upon by the Delhi High Court in Anil Kumar Gupta v. K. Subba Rao, ILR 1974 Delhi 1. This case, at the outset, pointed out that the information had been erroneously numbered by the office of the Court as Criminal original No. 51 of 1978 and concluded with the following observations: The office is to take note that in future :16: if any information is lodged even in the form of a petition inviting this court to take action u/s 15 of 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 before 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. The office to direct to strike off the information as Criminal original No. 51 of 1973 and to file it I think that 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 :17: Court and other High Courts. However, a petition having been filed and similar petitions having perhaps been entertained earlier in several courts, I do not suggest that this petition should be dismissed on this ground.” The Honble Supreme Court had made observation regarding placing of the informations supplied in the form of “petition” before the Honble Chief Justice of India on His administrative side based on the provisions of Rule 3 and Rule 4 of the Supreme Court ( Contempt of Court) Rules, 1975. We have not been shown any such provisions in the Bombay High Court Appellate Side Rules, 1960. The submission made on behalf of the petitioners that the Registry/office be directed to place the “petition” before the Honble Chief Justice is without any legal support and sanctity. Therefore, we are not agreeable to the submission as made on behalf of the petitioners. 7. The learned Advocate for the petitioners has further relied on the order passed by the Division Bench of this Court in Criminal Contempt Petition No. 1 of 2012 on :18: 28.01.2013 and submitted that the papers of the petition be directed to be placed before the Honble Chief Justice as was done by the Division Bench in Criminal Contempt Petition No.1 of 2012. In Criminal Contempt Petition No. 1 of 2012, the petitioner had sought the consent of the learned Advocate General for filing the contempt petition. Thus the necessary requirement of Section 15 was fulfilled in that case. It cannot be said that every criminal contempt petition which comes before the Division Bench on the judicial side should be directed to be placed before the Honble Chief justice even though the necessary requirement of seeking consent of the learned Advocate General is not complied with. 8. The learned Advocate General has submitted that the allegations made by the petitioners does not constitute criminal contempt as defined in Section 2(c) of the Contempt of Courts Act, 1971. The learned Advocate General has relied upon the judgment reported in AIR 1965 SC 745 and more specifically at para 32 of it, which is as follows : “32. Having conferred freedom of speech on the legislators, clause (2) emphasis the fact that the said freedom is intended to be absolute and unfettered. Similar freedom is :19: guaranteed to the legislators in respect of the votes they may give in the Legislature or any committee thereof. In other words, even if a legislator exercises his right of freedom of speech in violation, say, of Art. 211, he would not be liable for any action in any Court. Similarly, if the legislator by his speech or vote, is alleged to have violated any of the fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly, he would not be answerable for the said contravention in any Court. If the impugned speech amounts to libel or becomes actionable or indictable under any other provision of the law, immunity has been conferred on him from any action in any Court by this clause, he may be answerable to the house for such a speech and the Speaker may take appropriate action against him in respect of it; but that is another matter. It is plain that the Constitution-makers attached so much importance to the necessity of absolute freedom in debates within the legislative chambers that they :20: thought it necessary to confer complete immunity on the legislators from any action in any Court in respect of their speeches in the legislative chambers in the wide terms prescribed by clause(2). Thus, clause(1) confers freedom of speech on the legislators within the legislative chamber and clause (2) makes it plain that the freedom is literally absolute and unfettered.” 9. The learned Advocate General has further relied on the judgment reported in AIR 1970 SC 1573 in the case of Tej Kiran Jain and others V/s M. Sanjiva Reddy and others and more specifically para 8 which is reproduced as follows : “8. In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of anything said........... in Parliament. The word anything is of the widest import and is equivalent to everything. The only limitation arises from the words in Parliament :21: which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any court. This immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Government that peoples representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The courts have no say in the matter and should really have none.” However, as stated earlier, we are not inclined to go into the merits of the petition at all and we are not inclined to take suo motu cognizance of the alleged criminal contempt at the instance of the petitioners. Therefore, the submission made on behalf of the petitioners that the :22: Registry be directed to place the papers before the Honble Chief justice cannot be considered. The petition is accordingly disposed of. Z. A. HAQ, J F. M. REIS, J at*
Posted on: Sun, 30 Mar 2014 17:20:25 +0000
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