Motilal Roy vs Jagadish Sharma and Another

J.N. Sarma, J.—This Criminal contempt shall stand closed in view of its factual position. This Contempt petition was filed before this court by an individual (a private person) on 4.3.1999 u/s 15 of the Contempt of Courts Act, 1871. The written permission of the Advocate General is necessary to file a Criminal Contempt by a private individual, in this case the written consent of the Advocate General was obtained only on 15.3.1999, i.e., after filing of the Contempt case.

This matter is no longer res integra in view of the decision of the Apex Court reported in State of Kerala Vs. M.S. Mani and Others, where the Supreme Court pointed out that requirement of obtaining prior consent in writing of Advocate General for making motion by any person other than Advocate General is mandatory. So, failure to obtain prior consent would render the motion non-maintainable. Obtaining consent subsequently would not cure the initial defect. The Supreme court in paragraph 6 stated as follows :-

"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 ; it has a salutary purpose. The said law officers being the highest law officers at the level of the State/Centre as also the officers of the courts are vitally interested in the purity of the administration of justice and in preserving the dignity of the courts. They are expected to examine whether the averments in the proposed motion of a criminal contempt are made vindicating public interest or i. Further, cases found to be vexatious, malicious or motivated by personal vendetta and not in public interest will get filtered at that level. If a motion of criminal contempt in the High Court/Supreme Court is not accompanied by the written consent of the aforementioned law officers, the very purpose of the requirement of prior consent will be frustrated. For a valid motion compliance with the requirements of Section 15 of the Act is mandatory. A motion u/s 15 not in conformity with the provisions of Section 15, is not maintainable. (See : Conscientious Group v. Mohd. Yunus and P.N. Duda v. P. Shiv Shhaker). In this view of the matter, law has been correctly laid down by the Orissa High Court in B. K. Misra v. Chief Justice, Orissa High Court, the Patna High Court in Harish Chandra Vishwanath v. E. S. Venkatramiah. We may also note here that non-compliance with Section 7 of the English Contempt of Courts Act. 1081, referred to above, was held to be fatal to the action [Borrie & Lowe : The Law of Contempt, 3rd Edn., p. 461 (Note 14)].

In that view of the matter, this contempt petition shall stand closed as not maintainable. None appeared for the petitioner. We have heard Mr. H. Roy, learned Advocate for the respondent No. 2 and D.K. Talukdar learned Advocate for the Respondent No. 1.