JUDGMENT
G.M. Lodha, J.
1. In this contempt, a preliminary objection has been raised by Shri S. B. Mathur; appearing for the non petitioners that since the present one is a case under Section 15 of the Contempt of Courts Act, 1971, (hereinafter referred to as’ the Contempt of Courts Act’), no cognizance can be taken by this Court unless either, proceedings are initiated by the High Court itself, on its own motion or on a motion made by the learned Advocate Ceneral or, any other person with the consent in writing of the Advocate General.
2. Shri Mathur has referred us to Section 15(1) of the Contempt of courts Act, which reads as under:
15. Cognizance of criminal contempt in other cases; (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 consent in writing of 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.
3. Shri Nandlal Sharma, the Petitioner, present in person, confronted with the above, submitted that it is true that the present one is criminal contempt but, Section 15 of the Contempt of Courts Act is ultra-vires and it is not necessary to obtain the consent of the Advocate General nor it is necessary to comply with the requirement of Section 15 of the Contempt of Courts Act.
4. In support of his contention, Shri Sharma, placed reliance upon the decision of the Supreme Court in C.K. Daflary v. O.P. Gupta wherein there Lordships while dealing with the objection that the petitioners have no locus standi, held that the Court can issue a notice suo moto, and further, the advocates of the Court, including the President of the Supreme Court Bar Association, are perfectly entitled to bring to the notice of the Court any contempt of court. In that case, the respondent referred to Lord Shaweross Committee’s recommendation that proceedings should be instituted only if the Attorney General in his discretion considers them necessary.” Then, there Lordships observed that this is only a recommendation made in the light of circumstances prevailing in England but, it is not law. Their Lordships further mentioned that the Attorney General in England has quite a different position than the Attorney General of India or the Advocates General of the States. And, the Attorney General in England is a member of the Cabinet, and as far as they are aware, unlike the Advocate General in India he does not have to receive instructions from Government whether to move a contempt petition or not.
5. Shri Sharma referred us to para 88 particularly of that decision (supra_ wherein it has been observed as under:
88. Be that as it may, there is nothing in law which prevents this court from entertaining a petition at the instance of the President of the Supreme Court Bar Association and there other advocates of the Court. The Bar is vitally concerned, in the maintenance of the dignity, of Courts and the proper administration of justice.
6. We find that the above decision of the Supreme Court neither declares Section 15 of the Contempt of Courts Act, ultra vires nor it could have done so because this judgment is of March 19, 1971, whereas the Contempt of Courts Act came into force with effect from 24th December, 1971, and, therefore, it was not in existence at the time of the above judgment of C.K. Daftaty’s case (supra). We further find that in the above judgment, all that was said was, that the Supreme Court, can suo moto initiate the proceedings. Even under Section 15 of the Contempt of Courts Act, a High Court can take action on its own, motion.
7. The present one is not a case where the High Court has chosen to take action on its own motion. This Court in State of Raj. v. N.R. Mitruka 1978 Cr.L.J. 1440 observed as under:
In view of Rule 324 and Sections 15, 17 and 18 of the Contempt of Courts Act the proper procedure to be followed in the case of criminal contempt is that the matter should be placed before the Chief Justice and if he considers it expedient that proceedings for criminal contempt should be intitiated, then he should direct that the matter be placed before an appropriate Bench, which after applying its judicial mind to the facts, may take cognizance of the case. Such proceedings can only be initiated when the Division Bench consisting of two Judges, constituted to hear and determine such a case, issues, notice to the contemonor Under Section 17(1) of the Act, after applying its mind to the alleged contemptuous act. It is not necessary that the motion under Section 15 can be made only by a Full Court. When a show cause notice against the contemnor was issued under the order of the Chief Justice, but the matter was not placed before a Division Bench for consideration nor a bench applied its mind and decided to initiate proceeding and no cognizance was ever taken, no further action could be justified. The notice issued to the contemnor was improper and invalid.
8. The same view was taken by the Supreme Court in S.K. Sarkar, Member, Board of revenue, UP v. V.C. Misra wherein it was observed that, the Court of Revenue Board is a court “subordinate to it” (i.e. the High Court) within the contemplation of Section 10. Their Lordships held that Section 15(2) does not restrict the power of the High Court to take cognizance of and punish criminal contempt of a subordinate court on its own motion. The precise observations are the following:
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 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, 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 responsible member of the legal profession, it may act suo moto, more so, if the petitioner-Advocate as in the instant case prays that the court should act suo moto. If the High Court is prima facie satisfied that the information received by it regarding the commission of contempt of a subordinate court is not frivolous, and the contempt alleged is not merely technical or trial, it may, in its discretion, act suo moto and commence the proceedings against the contemnor. However, this mode of taking suo motu cognizance of contempt of a subordinate court, should be restored 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), otrose. In such cases, the High Court may be well advised to avail of the advice and assistance of the Advocate General before initiating proceedings. (para 19).
In the peculiar circumstances of the instant case, the High Court cannot be said be said to have acted improperly or illegally in taking suo moto cognizance on the petition of the respondent-advocate.” (para 20).
9. It is obvious that in view of Section 15 read with Sections 17 and 18 of the Contempt of Courts Act, it is not permissible for this bench to entertain such contempt petition.
10. It is not in dispute that, neither the Advocate General has moved an application, nor his consent has been obtained. It is further not disputed that the Chief Justice has not initiated these proceedings nor this Bench has been constituted by the Chief Justice of this Court after initiation of the proceedings deciding this contempt petition.
11. It may be noticed that apart from the above decisions of the Apex Court, this point was raised and considered by the various courts, time and again. In Dr. J.P. Gupta v. Dr. O.P. Chakarvarty 1975 Cri LJ 164 (D8), the Allahabad High Court held that Section 16 is not ultra vires. Again, the Karnataka High Court in Suneel Keerthi v. Union of India and Ors. AIR 1975 Kar 224 held that Section 15 is not ultra vires. Their Lordships of Karnataka observed that the imposition of the condition about the consent of the Advocate General cannot by itself invalidate the section, nor can it be said that the power conferred there in is arbitrary aid, the Advocate General is expected to exercise his discretion reasonably and in accordance with the policy indicated by the Act, while considering the request for consent to move High Court to initiate action for contempt and that, the bare possibility that the discretionary power may be abused is no ground invalidating the section.
12. Their Lordships of the Allahabad observed that “Section 15 is not hit by Article 14 of the Constitution on the ground of being discriminative. The Advocate-General holds a high status and is supposed to act impartially in coming to a conclusion whether or not he should move the court under Section 15 or give his consent in writing to any other person to move it. An ordinary citizen cannot belong to that group. A restraint or check has been placed upon a citizen in a matter of criminal contempt for the sake of public good so that only tenable motions come before the Supreme Court or a High Court. There is no discrimination inter se between the citizen and another. Both suffer under the same disability.”
13. We are in respectful agreement with it & hold that Section 15 is not violative of Article 14 of the Constitution. In view of the plain readings of Section 18 (sic)ad with Section 17 & 18 of the Contempt of Courts Act, we are of the opinion (sic)at, unless the proceedings of contempt which are criminal in nature are (sic)itiated by the Court suo moto which means the initiation by the Chief Justice of the High Court or an application, is moved by the Advocate General or private party with the consent of the Advocate General, this Court is not competent to entertain direct application. Admittedly, none of the requirement mentioned above, has been fulfilled in the present case. We have, therefore, no hesitation in accepting objections of Shri Mathur, the learned Addl. Govt. Advocate, and, dismiss the application for initiating the proceeds under the Contempt of Courts Act summarily.
