P. Damodaran vs Cherkalam Abdulla and Others

J.B. Koshy, J.—The preliminary point to be decided in this case is whether the proceedings for contempt is barred by limitation in view of Section 20 of the Contempt of Courts Act, 1971 (hereinafter referred to as ''the Act''). Section 20 of the Act reads as follows:

Limitation for actions for contempt :- No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.

It is the contention of the respondent that the incident alleged to have occurred on 1 -6-2001. The petition for contempt was filed on 4-10-2001 and defects were cured and represented only on 11-10-2001. Even though the petition was filed, no further action was done and only on 18-7-2005, Chief Justice ordered that the matter be posted and it was posted on 21-7-2005. Notice on admission was ordered. As the time of filing the petition, first respondent was a Minister, but, by the time notice was issued, he ceased to be a Minister and, therefore, correct address was ordered to be furnished. I.A. No. 11998 of 2005 filed for the above purpose was allowed on 27-10-2005 and correct address was furnished. Thereafter, again, notice on admission was ordered. Notice on admission was issued on 28-10-2005. He filed counter. After considering the above, notice for appearance was issued only on 21-2-2006. It is the contention of the respondent that here initiation of proceedings started on 21-2-2006 as that is the time when Court applied its mind and initiated proceedings. Earlier on 28-10-2005, notice on admission was issued and that is only a show cause notice. Even otherwise, since the incident was on 1-6-2001, four years have elapsed when notice on admission was issued against the respondent and the matter is barred by limitation u/s 20 of the Act. It was also argued that Section 20 of the Act is a mandatory provision and contempt action can be initiated by the Supreme Court and High Courts under Articles 129 and 215 of the Constitution of India as contempt runs only within the period of one year mentioned in Section 20 of the Contempt of Courts Act. It is true that contrary view expressed by the Full Bench of this Court in A. Mayilswami Vs. State of Kerala and Others, that limitation prescribed u/s 20 of the Contempt of Courts Act is not applicable when action is taken under Article 129 or 215 of the Constitution of India is no more good law in view of the judgment of the Apex Court in Om Prakash Jaiswal Vs. D.K. Mittal and Another [OVERRULED], . The above dicta with regard to the application of Section 20 was affirmed by the three member bench decision of the Apex Court in Pallav Sheth Vs. Custodian and Others, even though three member Bench had differed with the view in Om Prakash Jaiswal''s case (supra), with regard to the question of starting point of limitation and the meaning of the word ''initiate'' appearing in Section 20 of the Act.

Here, admittedly, no action is taken under Article 129 or 215 of the Constitution of India, but, notice is issued on the basis of an application filed by an aggrieved party and the only disputed question is when proceedings are said to have been initiated for the purpose of calculating the period of limitation u/s 20 of the Act. The learned Counsel, when preliminary objection was filed, relied on the decision of the two member bench decision in Om Prakash Jaiswal Vs. D.K. Mittal and Another [OVERRULED], in support of the contention. During argument, the learned Counsel for the respondent fairly pointed out the three member bench decision in Pallav Sheth Vs. Custodian and Others, . After considering the contentions and considering the word ''initiate'', Apex Court held that in a civil contempt, filing of an application by an aggrieved party and in the case of criminal contempt filing of an application through the Advocate General will be considered as ''initiated''. The Apex Court held as follows:

In the case of 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 the Law Officer of the Central Government in the case of a Union Territory. This 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. Proceedings for civil contempt normally commence with a person aggrieved bringing to the notice of the Court the wilful disobedience of any judgment, decree, order etc. which could amount to the commission of the offence. The attention of the Court is drawn to such a contempt being committed only by a person filing an application in that behalf. In other words, unless a Court was to take a suo motu action, the proceeding under the Contempt of Courts Act. 1971 would normally commence with the filing of an application drawing the attention of the Court to the contempt having been committed. When the judicial proceeding requires an application being filed either before the Court or consent being sought by a person from the Advocate-General or a Law Officer, it must logically follow that proceedings for contempt are initiated when the applications are made.

In other words, the beginning of the action prescribed for taking cognizance of criminal contempt u/s 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 such initiation. Similarly, 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 under the Contempt of Courts Act, 1971.

Again, at paragraph 44, it is also held as follows:

Action for contempt is divisible into two categories namely, that initiated suo motu by the Court and that instituted otherwise than on the Court''s own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the Court itself which must initiate by issuing a notice, in the other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated. either by filing of an application or by the Court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed.

In this case, petitioner filed the application to bring to the notice of the Court regarding the alleged contempt in time, i.e. within one month of the alleged date of incident. At the time of filing the application, correct address of the first respondent was given, but, this Court delayed in posting the case and by the undue delay in posting the case by the Court for no fault of the petitioner, they cannot suffer. The maxim ''Ac-tus curiae neminem gravabit'' - an act of the Court shall prejudice no man - is well accepted in Indian jurisprudence as held by the Apex Court in Rajesh D. Darbar and Others Vs. Narasingrao Krishnaji Kulkarni and Others, and South Eastern Coalfields Ltd. Vs. State of M.P. and Others, . In any event, in view of the Apex Court''s decision in Pallav Sheth''s case (supra) that action is initiated on the date of filing of the complaint, we are of the view that this contempt petition cannot be closed as barred by limitation.

The parties are directed to file list of witnesses and proof affidavits on or before the re-opening of the Court after summer recess. If any witnesses are to be summoned to be examined as Court witnesses, their names and addresses also should be furnished by both sides. Copies of the lists etc. filed by both sides should be exchanged between the parties.

Post of 13-6-2007 for evidence.