JUDGMENT
G. Sasidharan, J.
1. Petitioner is the complainant in C.M.P. 3157/2003 on the file of the Judicial Magistrate of the First Class-III, Thiruvananthapuram. He filed the above complaint in Court alleging that the accused in that complaint committed the offences under Sections 465 and 468 read with Section 120B of the Indian Penal Code. The learned Magistrate commenced proceedings under Section 202 of the Criminal Procedure Code.
2. The learned Magistrate issued summons to the second respondent in this petition, who is the Speaker of the Legislative Assembly of Kerala, for production of documents. It is stated that the summons was not accepted by the Speaker and it was returned. Regarding the issuance of summons to the second respondent for production of documents he made statements to the press which, according to the petitioner, will amount to contempt of Court. The statement alleged to have been made by the second respondent reported in Malayala Manorama daily dated 16th September, 2003 is extracted in the petition. The report in the newspaper was that no Magistrate who knows things will not make such a demand and that anybody, who had read the Constitution of India, will not make such a demand to the Speaker of the Legislative Assembly.
3. Petitioner filed an application under Section 15(2) of the Contempt of Courts Act (hereinafter referred to as ‘the Act) seeking action against the second respondent and for making a reference to this Court for initiating action against him in contempt. Learned Magistrate posted the petition for preliminary hearing and after hearing the counsel appearing for the petitioner, made an order on 1st November, 2003 disposing of the petition taking decision not to proceed with the matter. Magistrate felt that there is no need for reference being made to this Court for contempt proceedings. In this Writ Petition one of the prayers is to quash the order made by the learned Magistrate refusing to make a reference to this Court. There is another prayer to give direction to the first respondent, who is the Judicial Magistrate of the First Class-III, Thiruvananthapuram, to make a reference to this Court for initiation of contempt proceedings.
4. According to the petitioner, if it is found that Ext.P2 order cannot be quashed and direction need not be given to the Magistrate for making reference to this Court for contempt of Court, this Court can initiate proceedings against the second respondent for contempt since the facts constituting contempt had come to the knowledge of this Court as a result of filing of this Writ Petition. The alternative prayer in this petition is to issue notice to the second respondent to show cause why action in contempt shall not be taken against him under the Contempt of Courts Act. The petitioner says in the petition that this Court in exercise of the powers under the Contempt of Courts Act and Article 215 of the Constitution of India has to initiate proceedings against the second respondent for contempt of court.
5. In this Writ Petition the petitioner says that the intention of the second respondent was to bring into ridicule and contempt the image of the judiciary as a whole, which is clear from other references made against the High Court and the Chief Justice. The petitioner would say that the statement made by the second respondent was motivated with the object of ridiculing the Judges and judiciary in the eye of the public and thereby making people lose faith in the entire system.
6. The submission made for and on behalf of the petitioner is that since the learned Magistrate found that there was contempt of court committed by the second respondent the only course open to him was to make a reference to this Court under Section 5(2) of the Act. According to the learned counsel appearing for the petitioner, what action has to be taken in respect of the contempt can be decided only by this Court and the learned Magistrate cannot drop the proceedings after finding that the statements made by the second respondent amounted to contempt of court.
7. Section 14 of the Act deals with the procedure to be followed where contempt is in the face of the Supreme Court or a High Court. Section 15 of the Act deals with cognizance of criminal contempt in other cases. Sub-section (1) of Section 15 says that in the case of a criminal contempt other than a contempt referred to in Section 14 of the Supreme Court or the High Court may take action on its own motion or on a motion made by Advocate General or any other person with the consent in writing of the Advocate General and 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 that behalf, or any other person, with the consent in writing of such Law Officer.
8. Section 15(2) of the Act deals with criminal contempt of subordinate courts. In the case of any criminal contempt of 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 Union Territory, by the Law Officer.
9. It is pointed out that Magistrate made request to the second respondent for production of document in Form No. 29 in Appendix I of Criminal Rules of Practice. Form No. 29 is in the form of a letter of request for production of records. Rule 252 of the Criminal Rules of Practice says that summons for production of document in the custody of the House of Parliament or a Legislature of a State shall be by letter of request as in Judicial Form No. 29. In the Form it is stated that a request has to be made to move the House, if the Speaker has no objection to grant leave for the production of documents in any Court and if such leave is granted, to arrange to send the documents/certified copies of the documents so as to reach the Court on or before a specified day. A request in the above form was made by the Magistrate for production of documents and the objectionable statements are alleged to have been made to the press when the second respondent came to know that the Magistrate made a request for production of documents.
10. The learned counsel appearing for the petitioner would submit that in taking a decision not to make a reference to the High Court after having found that the statements made by the second respondent to the press constituted contempt of Court the Magistrate exceeded his powers in so far as he took decision for dropping the proceedings. It is submitted that the Magistrate ought to have conducted an inquiry as provided in Rule 8 of the Contempt of Courts (Kerala) Rules (hereinafter referred to as the “Rules”). In Bar Council of Kerala v. Saju, 2001 (1) KLT 341, this Court said that for conducting an inquiry, necessarily the subordinate Court has to issue notice to the alleged contemner and that it is open to the subordinate Court to take statements of the complainants and the alleged contempt in the course of inquiry contemplated under Rule 8(i). A reading of the judgment of the Division Bench of this Court in the above decision would go to show that three orders made by two learned Judges of this Court in the matter were brought to the notice of the Court. In those cases the learned Single Judges took the view that the subordinate Court had no jurisdiction to issue notice directly to the alleged contemner while proceeding under Section 15(2) of the Act and that the proper procedure was to refer to the matter to this Court. It was taking note of the above fact that the Division Bench of this Court referring to the procedure mentioned in Rule 8 of the Rules observed that notice could be issued to the contemner in conducting an inquiry under Rule 8. The above observation was made by the Division Bench of this Court when dealing with the question whether the subordinate Court had the power to issue notice to the alleged contemner when conducting an inquiry under Rule 8 of the Rules. That decision cannot be understood as laying down a proposition that in all cases in which a petition is filed under Section 15(2) of the Act the Subordinate Court has to issue notice to the contemner and dispose of the application only after issuing such notice.
11. Rule 8 of the Rules says that before making a reference under Section 15 of the Act, the Subordinate Court may hold such inquiry as it deems fit in the circumstances leading to the reference. The above provision says that the mode of inquiry has to be decided by the Subordinate Court and that itself would indicate that in all cases notice need not be issued to the contemner before taking a decision as to what has to be done with the petition filed for initiating contempt.
12. In Joseph Kuzhijalil v. Joseph Pulikunnel, 1999 (3) KLT 165, a Division Bench of this Court held that when the High Court is moved after sanction is referred by the Advocate General the Court has necessarily to keep that fact in mind before deciding to initiate suo motu action for contempt of Court and that the view of the Advocate General in that context is entitled to weight and due consideration. The Division Bench of this Court went on to observe that Court is not debarred from taking suo motu action for contempt of Court merely on the ground that the Advocate General has not granted the consent for initiating proceedings. In the above decision it was also held that right of a person other than the Advocate General to move the High Court can be said to be circumscribed by the need for him to move the Advocate General first for his consent when what is complained of is criminal contempt of Court and that nothing stands in the way of the High Court treating the information furnished before it as sufficient to initiate action suo motu for contempt of itself or of a Court subordinate to it.
13. In State of Kerala v. M.S. Mani and Ors., 2001 (3) KLT 456 = 2001 (8) SCC 82, the Supreme Court had the occasion to consider the question whether a motion for criminal contempt can be made without the consent of the Advocate General. That was a case in which the State of Kerala filed a contempt petition alleging that the dignity and authority of the Supreme Court were undermined by the respondents by publishing a three column news on the front page of the newspaper Kerala Kaumudi. When notice was issued to the respondents from the Supreme Court, they entered appearance and raised the preliminary objection that the contempt petition was not maintainable for the reason that the consent of the Advocate General under Section 15 of the Act was not obtained before filing the contempt petition. Referring to Section 15(1) of the Act the Supreme Court said that it is clear from the above provision that a motion made by any person other than the Advocate General must be with the prior consent in writing of the Advocate General. In the case which came up before the Supreme Court the motion for contempt was not accompanied by the consent in writing of the Attorney General/Solicitor General. The Supreme Court went on to observe that the requirement of consent of the Advocate General/Attorney General/Solicitor General where any person other than the said Law Officers makes motion in the case of a criminal contempt in a High Court or Supreme Court, as the case may be, is not a mere formality and that if a motion of criminal contempt in the High Court or the Supreme Court is not accompanied by the written consent of the law officers, the very purpose of requirement of prior consent will be frustrated. The Supreme Court went on to observe that for a valid motion compliance with the requirements of Section 15 of the Act is mandatory and that subsequent obtaining of consent does not cure the initial defect so as to convert the incompetent motion into a maintainable petition.
14. The position will be the same in the case of Section 15(2) which provides that in the case of any criminal contempt of subordinate court the High Court may take action on a reference to it by the subordinate Court or on a motion made by the Advocate General or in relation to Union Territory, by such Law Officer, as the Central Government may, by notification in the official gazette, specify in that behalf. Applying the principles followed by the Supreme Court in the above decision in observing that Section 15(1) of the Act which says that a motion for criminal contempt can be made by the Advocate General or any other person with the consent in writing of the Advocate General is mandatory, the provision in Section 15(2) which deals with criminal contempt of the subordinate Court and says that the High Court can take action on a reference made to it by the subordinate Court or on a motion made by the Advocate General is also mandatory.
15. When a petition is filed in the Court alleging that somebody committed criminal contempt certain facts are brought to the notice of the Court and the Court cannot turn a blind eye to those facts for the reason that in Sections 15(1) and 15(2) it is said that the motion for criminal contempt has to be in the manner stated in those sections. The above aspect of the matter was not considered by the Supreme Court in the decision in M.S. Mani’s case (supra). But in the decision of the Division Bench in Joseph Kuzhijalil’s case (supra), that aspect of the matter had been considered by this Court and it was observed that suo motu proceedings can be initiated by the Court for criminal contempt. There was no conscious consideration by the Supreme Court of the question whether when certain facts come to the notice of the Court as a result of somebody filing petition for contempt the Court can initiate suo motu action for criminal contempt. The observation made by the Division Bench of this court that suo motu proceedings can be initiated by the Court for criminal contempt on the basis of the facts which come to the notice of the Court has not been overruled by the Supreme Court in the above decision or any observation has been made by the Supreme Court in the decision contrary to what was held by the Division Bench of this Court on that point.
16. The submission made by the learned counsel appearing for the petitioner is that there is finding by the learned Magistrate that the statements made by the second respondent to the press would amount to contempt of court. In paragraph 11 of the order the learned Magistrate says that if the respondent is rightly quoted in the news item that may attract either defamation proceedings or contempt or both. But the Court proceeded on to say that that Court could not make a conclusive finding that the alleged statement was contemptuous and that it was for the High Court to decide that question. The further statement in the order of the learned Magistrate is that he can only make a finding as to whether the alleged statements prima facie constitute a contempt so as to make a reference. The above statements in the order of the learned Magistrate would go to show that there was no conclusive finding by the learned Magistrate that the statements of the second respondent amounted to contempt of Court.
17. The object of prescribing special mode of taking cognizance of criminal contempt under Section 15 of the Act is to prevent frivolous complaint of contempt of Court being filed in Court. Section 15(2) of the Act does not in any way restrict the power of the High Court to proceed against anybody for criminal contempt. The restriction imposed under Section 15(2) is in respect of motion being made in the Court alleging commission of criminal contempt. High Court has the power to take cognizance of the contempt of itself or of subordinate Court on its own motion in spite of the fact that Section 15(2) provides that motion for contempt of Court can be made in the High Court in a particular mode. Any person, who moves the High Court for initiating proceedings for criminal contempt, brings the facts constituting the commission of criminal contempt to the notice of the Court and once those facts are placed before the Court it becomes a matter between the Court and the contemner.
18. In D.N. Taneja v. Bhajan Lal, (1988) 3 SCC 26, the Supreme Court held that any person who moves the machinery of the Court for contempt only brings to the notice of the Court certain facts constituting contempt of court. After furnishing information such a person may still assist the Court, but in a contempt proceedings there are only two parties, namely, the Court and the contemner. In State of Maharashtra v. Mahboob S. Allibboy and Anr., (1996) 4 SCC 411, the Supreme Court said that contempt proceedings is not a dispute between two parties; the proceeding is primarily between the Court and the person who is alleged to have committed the contempt of Court. The person who informs the Court or brings to the notice of the Court that anyone has committed contempt of such Court is not in the position of the prosecutor; he is simply assisting the Court so that the dignity and the majesty of the Court is maintained and upheld. In that case the Supreme Court went on to observe that it is for the Court, which initiates proceedings to decide whether the person against whom such proceedings has been initiated should be punished or discharged taking into consideration the facts and circumstances of the particular case.
19. In Om Prakash Jaiswal v. D.K. Mittal, (2000) 3 SCC 171, the Supreme
Court said that no one can compel or demand as of right initiation of proceedings for
contempt and that jurisdiction in contempt shall be exercised only on a clear case
having been made out. A private party or a litigant may invite the attention of the
Court to such facts as may be persuade the Court in initiating proceedings for contempt.
But such person filing an application or petition before Court does not become a
complainant or petitioner in a proceedings. He is just an informer or relator and his
duty ends with the facts being brought to the notice of the Court. It is for the Court to
act on such information or not to act though the private party or litigant moving the
Court may at the discretion of the Court continue to render its assistance during the
course of the proceedings.
20. In Pallav Sheth v. Custodian and Ors. (AIR 2001 SC 2763) it was held that reference or motion can conceivably commence on an application being filed by a person whereupon the subordinate court or the Advocate General, if it is so satisfied, may refer the matter to the High Court. The Supreme Court went on to say that 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. 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 for contempt. Contempt can be initiated suo motu by the Court or it can be instituted otherwise than on the Court’s own motion. In the case of suo motu proceedings it is the Court which must initiate proceedings by issuing notice. In other cases, initiation of proceedings can only be by a party filing an application for contempt and the procedure prescribed in Section 15 of the Act has to be complied with. When a party files an application in Court without complying with the procedure prescribed in Section 15 of the Act, he will be placing before it the facts which, according to him, are sufficient for constituting contempt of Court. Even though the procedure for filing an application by a party is not followed those facts came to the notice of the Court and the Court will not be bereft of powers to look into those facts and if necessary, initiate proceedings for contempt.
21. When this Writ Petition was taken up for admission hearing, Mr. M. Ajay, Government Pleader took notice for the second respondent. After the learned counsel appearing for the petitioner argued the case, the above Government Pleader argued for and on behalf of the second respondent and in reply, the learned counsel appearing for the petitioner raised the contention that the Government Pleader cannot appear for the contemner. The submission made for and on behalf of the petitioner is that Advocate General is the person who when approached by a person for moving the Court that criminal contempt, has to decide the question whether sanction has to be granted or not and hence the Government Pleader who works on the instructions given by the Advocate General cannot appear for the contemner.
22. In Aloysius v. Sarada Muraleedharan, 1995 (2) KLT 741, a Division Bench of this Court had the occasion to confer whether Advocate General can appear for the person against whom contempt proceedings are initiated. In the above case objection was raised that Government Pleader could not appear and defend the respondent against whom contempt proceedings were initiated. The Government Pleader took the stand that under Rule 5A when dealing with a contempt petition copy of such petition shall be furnished to the Advocate General and registry shall accept the petition only on proof of service of such copy and hence the Advocate General is entitled to defend the respondent. The Division Bench of this Court said that on a combined reading of Section 15 of the Act and Rule 5A it was not possible to accept the stand of the Additional Advocate General and it was not proper for the Additional Advocate General to appear and defend the respondent.
23. The question whether officers appointed by the State can defend the contemner came up for consideration of the Supreme Court in the decision in Commissioner, Agra and Ors. v. Rohtas Singh and Ors., (1998) 1 SCC 349. The Allahabad High Court decided that Government Advocates and Standing Counsel for the State of Uttar Pradesh cannot be allowed to appear and defend Government Officials against whom notices for contempt of Court are issued. Appeals were filed from the judgment of the Allahabad High Court in which such a decision was taken and the Supreme Court observed that the High Court seems to have proceeded on the basis that it is for the State to prosecute contemners and therefore Counsel for the State cannot appear for accused contemner. Observing that the foundation of the High Court’s reasoning is unfortunately not sound, the Supreme Court held that it was on account of the mistaken notion that the State has to prosecute an action for contempt of Court against the contemner that the High Court, in that case, came to the conclusion that the advocates appointed by the State to represent it in courts of law cannot appear for an officer of the State who is charged with contempt. Supreme Court held that it is open to the State to nominate its advocates to appear for its officials in contempt proceedings. Referring to the decision of the Supreme Court in the case of T.C. Hingorani v. G.P. Misra, 1967 All.W.R. 662, in which it was held that the State Government could assign to the Advocate General the duty to appear in a contempt proceedings for a contemner and the Advocate General was entitled to appear, the Supreme Court held in Commissioner, Agra and others’ case (supra) that there was no justification for the Allahabad High Court to direct that the Additional Advocate General should not appear for the contemner. In the light of the above decision of the Supreme Court, it is clear that Advocate General or State Law Officer can appear for the contemner.
24. A reading of the impugned order does not in any way indicate that there is finding by the Magistrate that he cannot proceed to decide whether a reference has to be made to the High Court on the basis of the materials which came to his notice when an application was filed by the petitioner for proceeding for criminal contempt. What is said in the order is that under Section 15(2) of the Act the petitioner has no right to approach the subordinate Court for the purpose of a reference. In the order it is correctly said that the matter of contempt is entirely between the Court and the contemner and that reference can be made either based on its own knowledge regarding the contempt or when an instance of contempt is brought to its notice by anybody. The learned Magistrate said in the order that any person can inform the Court regarding the contempt and on the basis of such information the Court can initiate proceedings. After observing so, the learned Magistrate said that that does not mean that any person can as a matter of right approach the Court and compel initiation of contempt proceedings.
25. The submission made by the learned counsel appearing for the petitioner is that there is a finding by the Court that there was contempt of Court committed by the second respondent. The learned Magistrate says that if the statements appeared in newspapers are correct that may attract either defamation proceedings or contempt or both. After making such observation the learned Magistrate said that he cannot make a conclusive finding that the statements would amount to contempt and that it is for the High Court to decide that question.
26. The main point urged by the learned counsel appearing for the petitioner is that the Magistrate transferred the powers in not making a reference after finding that the statement made by the second respondent amounted to contempt of Court. In the first place there is no finding arrived at by the Court that the statements made by the second respondent amounted to contempt of Court. Even if the subordinate Court comes to the conclusion that there are materials to prima facie show that a person committing contempt of court, that Court has the discretion not to proceed further in the matter or to make a reference to the High Court for initiating contempt proceedings.
27. In Baradakanta Mishra v. Mr. Justice Gatikrishna Misra, Chief Justice of Orissa High Court, (1975) 3 SCC 535, the Supreme Court considered the question whether the Court has the discretion to drop the proceedings for contempt even after finding that the Court is prima facie satisfied that contempt has been committed. In the above decision, the Supreme Court said that no one has a statutory right or common law right to say that he is entitled as a matter of course to an order for committal because the alleged contemner is guilty of contempt. All that he can do is to move the Court and draw its attention to the contempt alleged to have been committed and it will then be for the Court, if it thinks so fit, to take action to vindicate its authority and commit the alleged contemner for contempt. The Supreme Court made it clear that it is for the Court in the exercise of its discretion to decide whether or not to initiate a proceeding for contempt. The Supreme Court went to the extent of saying that even if the Court is prima facie satisfied that a contempt has been committed the Court may yet choose to ignore it and decline to take action and that there is no right in any one to compel the Court to initiate a proceeding for contempt even where a prima facie case appears to have been made out. Even in cases in which proceedings in contempt are initiated by the Court the Court can drop the proceedings in exercise of its discretion. An outsider comes only by way of drawing the attention of the Court to the contempt which has been committed. Such a person does not become a part of the proceedings for contempt which is initiated by the Court. So, it is not possible to find fault with the learned Magistrate in exercising his discretion not to proceed with the reference even if it is assumed that he has come to the conclusion that there are materials to show prima facie that there was contempt of Court committed.
28. There is an alternate prayer in the petition that this Court has to initiate contempt proceedings against the second respondent. This is a case in which the learned Magistrate, after considering the matter, came to the conclusion that it was not necessary to refer the matter to this Court for initiating contempt proceedings. This Court also, has the discretion to decide whether proceedings for contempt have to be initiated or not. In the light of the fact that after considering the materials on records the subordinate Court took a decision for not proceeding with the matter and not to make a reference to this Court and also the other circumstances, this Court does not find any reason for initiating contempt proceedings against the second respondent. Petitioner is not entitled to any of the reliefs claimed in the petition. Petition is liable to be dismissed.
In the result, this petition is dismissed.