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Judgment
This Criminal Misc. Contempt Application was filed by a Senior Advocate of this Court with a prayer to punish the opposite parties by taking suo motu action for having committed contempt of court on a story published in the Weekly News Magazine ''Outlook" published on October 4, 2010 under Article 215 of Constitution of India read with Section 15 of Contempt of Courts Act. By the order dated October 11, 2010 the Court ex-facie found the ingredients of Section 2(c) of the Contempt of Court Act, 1971 to be disclosed making the alleged contemnors liable to be prosecuted u/s 2(c) of the Contempt of Court Act, 1971, punishable u/s 12 of the Act. Notices were issued intimating the Respondents that the Court has taken suo moto cognizance of the matter and to show cause as to why charges be not framed for making the contemptuous statement outlined in the story which denigrate the Chief Justice and the judiciary generally and tend to scandalize and lower the authority of the Court and to prejudice the due course of judicial proceedings. In the same order, the Court requested Hon''ble Chief Justice to assign a bench for regular hearing of the matter. The Court also directed that the name of the Petitioner (Senior Advocate) shall be deleted from the array of the parties and the case should be treated as one where the Court has taken suo motu action in the matter and cause title be described as Re: In the matter of contempt by the weekly magazine OUTLOOK.
The matter was nominated to us on 01.11.2010.
Shri Gopal Chaturvedi assisted by Shri Samit Gopal entered appearance on behalf of opposite party Nos. 2, 3 and 8. Shri Anup J. Bhambhani along with Samit Gopal entered appearance for opposite parties No. 4, 5, 6, 7, and 9.
By an order dated January 17, 2011 we allowed the applications for exemption of personal presence of Shri Vinod Mehta (opposite party No. 1); Sugata Srinivasaraju (opposite party No. 5); Ms. Smurti Koppikar (opposite party No. 6); Chander Suta Dogra (opposite party No. 7); and Ms. Chandrani Banerjee (opposite party No. 9). They were exempted to appear personally unless otherwise directed by the Court, and the matter was fixed for hearing of framing of charges.
Shri Gopal Chaturvedi and Shri Samit Gopal, learned Counsels appearing for opposite parties submit that though the High Court has not framed the rules in compliance of the directions of Apex Court in Bal Thackrey Vs. Harish Pimpalkhute and Others, reminding the High Court to frame rules, where the rules and/or practice direction on the line suggested in Duda''s case have not been framed. The Allahabad High Court has framed rules u/s 23 of the Contempt of Court Act, 1971 contained in Chapter XXXV-E of the Allahabad High Court Rules, 1952, vide notification dated 31.12.2002, to govern the presence and hearing of the contempt of court cases coming to the court under the Contempt of Courts Act, 1971. He submits that under Rule 3 (c) a petition made u/s 15(1)(b) of the Act shall also be accompanied by the consent in writing of the Advocate General and a copy thereof. Sub rule (4) provides that every petition in respect of criminal contempt, where it is not moved by the Advocate General and where the consent in writing of the Advocate General has not been obtained, and where no reference has been made by it, and the petition is moved without the consent of the Advocate General shall clearly state the reason why the consent in writing of the Advocate General could not be obtained and why the Court has been approached to act suo moto. He further submits that where an order has been made directing that notices be issued to any person to show cause, why he should not be punished for contempt of court, Rule 6 provides a date has to be fixed for hearing and a notice thereof in the prescribed form given to the person concerned. The notice of a criminal contempt shall also be served of the Government Advocate. The notice shall be accompanied by the copies of the application, motion and the affidavit or a copy of the charge or charges as framed by the Court and shall require the person concerned to appear either in person or through counsel unless otherwise ordered before the Court at the time and on the date specified therein to show cause as he should not be punished for contempt of court. Notices of every proceeding u/s 15 of the Act are provided to be served personally on the person charged unless the Court, for the reason to be recorded, directs otherwise.
Shri Gopal Chaturvedi submits that in the present case the Petitioner, who is a Senior Advocate of this Court, has not disclosed the reason for which he did not apply for the permission of the Advocate General. If a person is allowed to file an application to take cognizance of criminal complaint u/s 15 without the consent of the Advocate General and further without disclosing as to why such consent could not be obtained by him, praying for suo moto action, the provisions of Section 15(1) shall be rendered otiose. He submits that the person approaching the Court must give reasons as to why he could not approach the Advocate General and that the procedure adopted in the present case to issue notices suo moto on an application filed by the Advocate is not permissible in law. The Court was wrongly persuaded to take suo moto action, and has committed serious legal error in taking cognizance and fixing a date to allow the opposite parties to show cause as to why the charges be not framed against them.
Shri Gopal Chaturvedi submits that though the Court does not lack the power u/s 15(1) to take action on its own motion, the procedure should be correctly followed. The Court cannot entertain an application made by an advocate of the court with a prayer to take suo motu action, but without disclosing the reason for which he did not approach the Advocate General for his consent. He has relied upon a judgments of Supreme Court in Biman Basu Vs. Kallol Guha Thakurta and Another, Sahdeo @ Sahdeo Singh Vs. State of U.P. and Others, in support of the submission.
Shri Chaturvedi submits that Shri Krishna Prasad, Editor, Outlook Magazine has, in his affidavit filed in response to the order dated October 11, 2010, accepted the organizational responsibility for what is published in the magazine. The contents of the article including the reference to administrative matters relating to this Hon''ble Court were published by way of merely reportage on the goings-on that were in the public domain and on which prior reportage had already been made by the Hindustan Times in its issue dated 20.9.2010. The journalist concerned undertook independent verification of the matter and only after duly verifying the factual position in regard to the issue, the said journalist authored the concerned portion of the said Article being satisfied of the factual correctness. In para-17 of the affidavit it is stated that inspite of the foregoing if this Hon''ble Court still considers anything stated in the said Article as offensive, he urges the Hon''ble Court to accept the regret, tendered by him and to discharge the notice of contempt issued or intended to be issued. Shri Gopal Chaturvedi further submits that the preliminary objections to the manner, in which the cognizance has been taken in the contempt proceedings, should be decided by the Court, before proceedings further in the matter.
In Biman Basu (supra) the Supreme Court considered the maintainability of the contempt petition in the context in which a complaint made in the petition along with the newspaper reports which were also referred to in the High Court order dated 17.10.2003 while issuing the rule, coupled with the fact that one of the Petitioners was an Advocate of the Court and the petition contained an averment to take action suo motu. The Court recorded, that it had taken action suo motu. It was held that the jurisdiction to punish for contempt touches upon two important fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of expression. The Committee set up in 1961 under the Chairmanship of late Shri H.N. Sanyal, the then Additional Solicitor General made a comprehensive examination of the law and made recommendations which were generally accepted by the Government after considering the views expressed by the State Governments, the Supreme Court and the High Court. In criminal contempt, other than a contempt referred to in Section 14, the manner of taking cognizance has been provided for in Section 15 of the Act. This Section provides that the action for contempt may be taken by the Supreme Court or the High Court on its own motion or on a motion made by (a) the Advocate-General, or (b) any other person with the consent in writing of the Advocate General. The Supreme Court relied upon S.K. Sarkar, Member, Board of Revenue, U.P., Lucknow Vs. Vinay Chandra Misra, State of Kerala Vs. M.S. Mani and Others, P.N. Dua Vs. P. Shiv Shanker and Others, Bal Thackrey Vs. Harish Pimpalkhute and Others, Dr. L.P. Misra Vs. State of U.P., Om Prakash Jaiswal Vs. D.K. Mittal and Another [OVERRULED], and held that there was nothing on record of the case suggesting that the contents of the petition were treated as information placed before the Court for initiating the contempt proceedings, suo motu by the Court. The contents of the petition of the Respondents, their affidavit of verification dated 13th October, 2003, the exhibits and annexure to the said petition and the arguments of the counsel alone constituted the foundation, based on which the law was set in motion. The petition itself was not styled as any piece of information that was placed before the court for its consideration. It was not a case where the High Court refused to entertain the petition and took cognizance on its own motion on the basis of the information supplied to it in the petition. The record did not bear any such proceedings of the Court. Had it been so, the Respondents would have been nowhere in the picture. It is true that any person may move the High Court for initiating proceedings for criminal contempt by placing the facts constituting the commission of criminal contempt to the notice of the Court. But once those facts are placed before the Court, it becomes a matter between the Court and the contemnor. Such person filing an application or petition does not become a complainant or Petitioner in the proceeding. His duty ends with the facts being placed before the Court. The Court may in appropriate cases in its discretion require the private party or litigant moving the Court to render assistance during the course of the proceedings. In these circumstances the Supreme Court held that the petition for taking action against the Appellant therein u/s 15 without the written consent of learned Advocate General was not maintainable in law and allowed the appeal.
In Sahdeo (supra) the Supreme Court, considering a matter in which the High Court had after receiving the report of the District Judge regarding the violation of the directions issued by the Apex Court in D.K. Basu v. State of West Bengal AIR 1977 SC 610, issued notices to the four indicted police personnel initiating proceeding for criminal contempt suo motu, held that the proceeding of contempt of court are quasi-criminal in nature. Unless the non-compliance of the order of the Court is intentional, no charge of contempt can be brought. There may possibly be a case where disobedience is incidental. In contempt proceedings the Court is both the accuser as well as the judge of the accusation. The Court therefore must act with as great circumspection as possible, making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished. The punishment under the law of contempt is called for when the lapse is deliberate and in disregard of one''s duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged. The Supreme Court said that the jurisdiction of contempt has to be exercised in accordance with the procedures prescribed by law. In para-20 the Supreme Court observed that when the contempt proceedings are initiated suo motu for ensuring the compliance of the orders passed by the Court, the same standard of proof is required, in the same manner as in other criminal cases. The contemnor is entitled to the protection of all the safeguards/rights which are provided in the criminal jurisprudence, including the benefit of doubt. The alleged contemnor is to be informed as to what is the charge, he has to meet. Specific charge has to be framed in precision and the contemnor may ask the Court to permit him to cross-examine the witnesses who have deposed against him. Although the provisions of Code of Criminal Procedure, 1973 and the Evidence Act are not attracted for the reason that proceedings have to be concluded expeditiously, the trial has to be concluded as early as possible.
Shri Gopal Chaturvedi has relied upon paragraphs 24 and 27 of the Sahdeo''s case in submitting that Rules mandate the framing of charges and furnishing a copy of the documents to the alleged contemnor on the basis of which the charges have been framed and that they should be informed as to what are the charges against them.
Learned Asst. Government Advocate, submits that in para 18 of Biman Basu''s case the Supreme Court has clarified, when the High Court can refuse to entertain a petition filed without consent of the Advocate General, and also without reasons as to why the Petitioner could not approach the Advocate General, and take cognizance on its own motion on the basis of information supplied in the petition. He submits that in the present case the Court has not yet framed the charges, and thus Rule 3 of Chapter XXXV-E has not been violated. The order dated October 11, 2010 clearly bears evidence of the fact that the Court had taken suo motu cognizance in the matter. The Court had not acted upon the complaint but the material placed before the Court for taking cognizance in the matter. The Court has also taken care that the informant does not plead the case and has no further concern or participation in the proceedings.
In the order dated October 11, 2010 while initiating contempt proceedings suo motu, the Court was conscious of the fact that the petition was filed by applicant without the consent of the Advocate General. It was found, relying upon S.K. Sarkar, Member, Board of Revenue, U.P., Lucknow Vs. Vinay Chandra Misra, and Bal Thackrey''s case that even if a petition is preferred by a private person, the Court has jurisdiction to take suo motu cognizance of the matter in its contempt jurisdiction, if it considers it to be a fit case. The suo motu action may be taken in rare cases, even in the absence of a motion and consent in writing of the Advocate General, if it considers to be a fit case. The Court thereafter considered the contents of the article and found that the story appears to be a roving indictment of the Chief Justice of Allahabad High Court and other Judges of this Court and other Courts. The language used in the article ex-facie satisfied the Court that the article has been published in a reckless and unfair manner, and in complete violation of ''Norms of Journalistic Conduct 2005'', issued by the Press Council of India. The Court thereafter considering the source of information, as it was disclosed in the articles and the manner in which the story was published found that the article tends to create distrust in the minds and impairs the confidence of the people in the Courts. It further tends to create mistrust in the head of the State judiciary and is not of the proper standard. While issuing notices to the Respondents intimating them that the Court has taken suo motu cognizance of the matter and to show cause why charges be not framed for making the contemptuous statement outlined in the article which denigrade the Chief Justice and the judiciary generally and tend to scandalize and lower the authority of this Court and to prejudice the due course of judicial proceedings, the Court took care that the name of the Petitioner be deleted from the array of parties; changed the cause title and directed the matter to be placed before the Chief Justice for assigning the bench for regular hearing of the matter.
The contempt petition was filed by Senior Advocate of this Court appearing in person with a prayer to punish the opposite parties for having committing contempt of court by taking suo motu action. In para-2 of the contempt petition, he had clearly stated that he is filing the application to invoke the jurisdiction of the Hon''ble Court to take suo motu action of the criminal contempt against the opposite parties. The applicant was conscious of the fact that he could not file the application for criminal contempt himself unless he has taken consent of the Advocate General and had quoted the judgment of Bal Thackrey and P.N. Duda v. P. Shiv Shanker AIR 1998 SC 1208. The applicant pleaded that since rules have not been framed by the High Court in pursuance to the Bal Thakrey''s case, the Court may take suo motu action. He was, on the facts pleaded and payers made in the Petitioner, not required to give any reason as to why he was not taken consent of the Advocate General. The object of the contempt petition was to bring to the notice of the Court the scandalous allegations made by the Magazine without verifying the correct facts, which tends to scandalize and lower the authority of the Court, prejudice and interfere and obstruct the administration of justice. The Court was conscious of the fact that it could not have taken cognizance of contempt petition on the application made by the Senior Advocate of the Court without the consent of the Advocate General, and treated the petition as a piece of information enclosing the story published by the magazine. Having examined the contents thereof and its effect on the office of Chief Justice of the Judicature, the Court consciously decided to take suo motu action. The Court also took care to direct that the applicant''s name should not be shown in the cause list and that he should not be associated with the proceedings any longer. The cause title of the case was also changed while issuing notices to the opposite parties. The contents of the order clearly give out the allegations on which suo motu cognizance was taken.
In the facts and circumstances, we do not find that there was any error in taking cognizance of the criminal contempt of the Court committed by the opposite parties suo motu u/s 15(1) of the Contempt of Courts Act, 1971.
The objections are rejected.
Orders on the objections raised by the contemnor applicant/opposite parties were pronounced in the open court today.
List on 9.5.2011 at 2.00 PM, for hearing on the question of framing of charges, if any.
The opposite parties, whose presence has not been exempted, will again appear on the next date.