Shri Pravash Kumar Sahoo and Another vs Shri S.M. Pattnaik

P.K. Mohanty, J.—By Order dated 17.11.2004, on agreement of the Learned Counsel for the parties, this contempt application was directed to be finally heard on 24.11.2004, the case was listed on 24.11.2004, but in view of the difficulty expressed by the Learned Advocate General, the case was adjourned to 8.12,2004 for final hearing of the matter.

When the matter was taken up for hearing, Sri B.K. Mohanty, Learned Advocate Genera! raised a preliminary question with regard to the maintainability of the contempt application and as such, the matter was heard on the question of maintainability.

It is submitted by the Learned Advocate General that cognizance of contempt upon the petition presented by any other person without the consent in writing of the Advocate General being not maintainable, the petitioner''s application for contempt, initiation of the contempt proceeding and the continuance of the proceeding is not maintainable in law and as such, the application is to be dismissed in limini. According to the Learned Advocate General, even if no objection had been taken earlier in this case which is pending since last four years and in the meantime, some interim orders had been passed and some of them had gone to the Supreme Court and orders passed, in view of the judgment of the Apex Court in Bal Thackrey Vs. Harish Pimpalkhute and Others, such a contempt application at the instance of the petitioner without the consent of the Advocate General and without following the guidelines in P.N. Dua Vs. P. Shiv Shanker and Others, is not maintainable. Learned Advocate General submits that the matter was neither placed before the Chief Justice of the High Court for suo motu action nor was there a written consent of the Advocate General, which was the statutory requirements of Section 15 of the Contempt of Courts Act, 1971, and, therefore, no cognizance could be taken even if the conduct constituted a contempt. Submission is made that the classification based on cognizance arose u/s 15 of the Contempt of Courts Act in case of Criminal Contempt and it speaks of two classes qua cognizance, that the cognizance can be taken on Court''s own motion or on motion initiated by any other person with the consent in writing of the Advocate General besides being inherent for any Court. It is submitted that Chapter-XVII of the Orissa High Court Rules provides the procedure to regulate the contempt proceedings and maintains a similar classification, qua cognizance between suo motu contempt and upon a petition presented by any other person with the consent in writing of the Advocate General. The High Court being a Court of Record, Constitution itself empowers to punish for contempt but this power can be defined and limited by law made by Parliament and logic and rational can be applied in Civil Contempt as defined under the Act or an inherent contempt contemplated under the Constitution. Rule 2 of the Orissa Rules does not cover cases arising u/s 14(1) of the Contempt of Courts Act. The word "cognizance and contempt" could mean and include a Criminal Contempt as defined under the Contempt of Courts Act, but a procedure being prescribed u/s 15 of the Act does not require the High Court to make further rules. The Learned Advocate General submits that in any kind of contempt, except contempt in fasie curae as under Article 215 of the Constitution or in Civil contempt, cognizance is to be taken in accordance with the provision of Rule (2) of Chapter-XVII of the High Court Rules. Rule 2 of the High Court Rules brings under the category of contempt under Article 215 of the Constitution another class, namely, of a petition presented by any other person.

Mr. M.S. Panda, Learned Counsel for the Petitioner No. 1, however, submits that the present contempt petition is pending since last four years and in the meantime, some interim orders had been passed and some such orders had been challenged before the Supreme Court and during such time, nor in the earlier point of time the question of maintainability had been raised and as such, the same cannot be raised at this belated stage when the matter is fixed for hearing. It is further submitted that Bal Thackrey''s case referred to and relied on by the Learned Advocate General in support of his case relates to a contempt contemplated u/s 15 of the Contempt of Courts Act which is a Criminal contempt and as such, this being a contempt of Civil nature contemplated in Section 2(b) of the Contempt of Courts Act, the contentions raised and the decision relied on has no application. Sri S.S. Das, Learned Counsel appearing for Petitioner No. 2 while adopting the argument advanced by Sri Panda, has referred to certain decisions of this Court and the definition of ''Contempt'' contemplated u/s 2 of the Contempt of Courts Act. It is his submission that the contempt contemplated u/s 15 is in respect of Criminal Contempt and does not cover the case of the nature of a Civil Contempt envisaged u/s 14 of the Act as that of the present contempt application and as such, the contentions raised by the Learned Advocate General are misconceived in law. Initiation of a Civil Contempt for violation of the order of the Court needs no consent of the Advocate General as in cases of Criminal Contempt u/s 15 of the Act.

In order to appreciate the submission made at the bar, it is necessary to consider the brief background of the case, different provisions of the Contempt of Courts Act and the Contempt of High Court of Orissa and Courts Sub-ordinate to it (Regulation of Proceedings) Rules, 1975. Sri Pravash Ku. Sahoo, Organizing Secretary, Orissa State Non-Gazetted Officers Co-ordination Committee, Angul Collectorate, Angul alone filed the contempt application on 13.11.2000 alleging violation and non-implementation of the direction of this Court in the Judgment/Order dated 9,5.2000 passed in Public Interest Litigation, OJC No. 10774 of 2000, with a prayer to direct all the contemners to comply with the said direction forthwith in the interest of justice, equity, rule of law and up-keeping the dignity and honour of this Hon''ble Court. By Order dated 14.11.2000 a Division Bench of this Court directed issuance of notice to Opp. Parties 2 to 4 by special messenger fixing 30.11.2000 as the date of return. In view of the findings recorded and direction given in OJC No. 10774 of 1997 against one Sri P. K. Nayak, IAS, his case for further promotion and posting, if any, on the basis of such promotion was directed not be finalized. The Petitioner No. 2-Sri Hara Prasad Rath filed Misc. Case No. 5 of 2001 for intervention and by Order dated 22.1.2001, prayer for intervention was allowed and he has been impleaded as Petitioner No. 2. Several interim orders have been passed in the meantime and as against some of the orders, the parties have gone to the Hon''ble Supreme Court and the Supreme Court has passed certain orders. In none of the earlier stages, the question of maintainability of the contempt application was pressed.

Under Article 215 of the Constitution, every High Court is a Court of record and shall have all powers of such a Court including the powers to punish for contempt of itself. Section 2 of the Contempt of Courts Act defines ''Contempt of Court'' to means ''Civil Contempt'' or ''Criminal Contempt''. Section 2(b) defines a "Civil Contempt" to mean wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. Section 2(c) defines a "Criminal Contempt" to mean the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any Court or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. Section 12 speaks of punishment for contempt of Court. Section 14 speaks of procedure where contempt is in the face of the Supreme Court or a High Court. Section 14(1) of the Act reads thus :

"14. Procedure where contempt is in the face of the Supreme Court or a High Court : (1) When it is alleged, or appears to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and, at any time before rising of the Court, on the same day, or as early as possible thereafter, shall :

(a) cause him to be informed in writing of the contempt with which he is charged;

(b) afford him an opportunity to make his defence to the charge;

(c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and

(d) make such order for the punishment or discharge of such person as may be just".

However, Section 15 speaks of cognizance of Criminal Contempt in other cases and that reads as follows :

"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 to 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.

(2) In the case of any Criminal Contempt of a Sub-ordinate Court, the High Court may take action on a reference made to it by the Sub-ordinate Court or on a motion made by the Advocate-General or, in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.

(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.

Explanation : In this section, the expression "Advocate-General" means :

(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;

(b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established;

(c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.

In exercise of powers conferred u/s 23 of the Contempt of Courts Act, 1971, the High Court of Orissa has made a Rule called "The Contempt ,of High Court of Orissa and Courts Sub-ordinate to it (Regulation of Proceedings) Rules, 1975." Rule 2 provides that in respect of contempt other than the contempt referred to in Sub-section (1) of Section 14 of the Contempt of Courts Act, the High Court may take cognizance of contempt (a) suo motu (b) upon a petition made by the Advocate-General of the State of Orissa (c) upon a petition made by any other person with the consent in writing of the Advocate-General; or (d) upon a reference made by a Court Sub-ordinate to it relating to contempt of such Sub-ordinate Court. Every petition under Rule 2(b) and (c) is required to contain the name, description and place of residence of the petitioner or petitioners and of the person charge, nature of the contempt alleged, and such material facts, including the date or dates of commission of the alleged contempt, as may be necessary for the proper determination of the case; and if any petition had been previously made by him on the same facts and the result thereof. However, such petition is to be supported by an affidavit.

Rule 4(1) of the Contempt of High Court of Orissa and Courts Sub-ordinate to it (Regulation of Proceedings) Rules, 1975 (hereinafter called "the High Court Rules") contemplates that every petition under Rule 2 (b) and (c) shall be posted before the Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the Court, if satisfied that a prima facie case has been made out for issue of notice, shall direct issue of notice to the contemnor either to show cause why proceedings under the Act, may not be initiated against him or to show cause why the contemnor may not be suitably punished, and when no prima facie case is found, the petition shall be dismissed. In view of Rule 7, all proceedings under the Act in respect of Criminal Contempt only shall be heard by a Division Bench of the Court and all proceedings shall be registered as Original Criminal Miscellaneous Cases.

In that view of the matter, there can be room for doubt that Sections 14 and 15 of the Contempt of Courts Act contemplate two entirely different types of contempt of Court and the procedures to be followed are provided thereunder. Section 15 which relates to cognizance of Criminal Contempt in clear terms contemplates that in case or Criminal Contempt other than the contempt referred to in Section 14, the Supreme Court or the High Court is to take action on its own motion or on a motion made by the Advocate-General or any other person with the consent in writing of Advocate-General. Rule 2 of the Orissa High Court Rules prescribes both types of contempt procedures i.e., Civil Contempt and Criminal Contempt. The present contempt application has been filed alleging violation of the order of this Court passed in a Public interest Litigation bearing OJC No. 10774 of 2000 and undisputedly is not a contempt contemplated u/s 15 of the Contempt of Courts Act which speaks of Criminal Contempt in which event the procedure laid under the section itself read with Rule 2 of the High Court Rules is to be followed.

The Learned Advocate-General relies on the decision in Bal Thackery v. Harish Pimpalkhute and Ors. (supra) in support of his case and submits that the procedure laid down u/s 15 of the Contempt of Courts Act read with Rule 2 of Contempt of Orissa High Court Rules having not been complied with and the consent of the Advocate-General having not been taken, the contempt application was not maintainable. In Bal Thackery''s case (supra), the Hon''ble Supreme Court was considering the case of Criminal Contempt as defined in Section 2(c) of the Contempt of Courts Act and the Hon''ble Court has held that the case in P.N. Dua Vs. P. Shiv Shanker and Others, is applicable only to cases that are initiated suo motu by Court when some information is placed before it for suo motu action for contempt of Court and as such, it was laid down that in respect of contempt action, the procedure prescribed therein has to be followed.

In Niaz Mohammad and others, etc. etc. Vs. State of Haryana and others, a three-Judge Bench of the Apex Court held that where the contempt consists in failure to comply with or carry out an order of a Court made in favour of a party, it is a Civil Contempt. The person or persons in whose favour such order or direction has been made can move the Court for initiating proceeding for contempt against the alleged contemnor with a view to enforce the right flowing from the order or direction in question. The Court while considering the issue as to whether the alleged contemnor should be punished for not having complied with the order has to taken into consideration all factors of a particular case. In the case at hand, the petitioners herein were the Writ Petitioners in the Public Interest Litigation (OJC 10774 of 1997) and alleging violation and non-compliance of the Order dated 9.5.2000, the present contempt petition has been filed. Non-compliance of order or violation of any order passed by the Court by any authority amounts to a Civil Contempt within the meaning Section 2(b) of the Contempt of Courts Act. The petitioners therefore were entitled to move an application for initiating a contempt proceeding as has been held by the Apex Court in Niaz Mohammed case (supra). The procedure for initiation of a contempt proceeding u/s 15 of the Contempt of Courts Act in obtaining the consent in writing of the Advocate-General etc. is for the purpose of having the allegations screened by the prescribed authorities so that the Court is not troubled with frivolous matters, is in respect of a Criminal Contempt and has no application to a proceeding for Civil Contempt as defined u/s 2(b) of the Act.

In such view of the matter, it has to be held that initiation of the present contempt proceeding at the instance of the petitioners, did not require the consent in writing of the Advocate-General as prescribed u/s 15 of the Act read with Rule 2 of the Orissa Rules and, as such, is maintainable under law. This preliminary objection raised by the Learned Advocate-General at this belated stage, after more than four years is also not entertainable since the opposite parties have already filed their show cause and participated in the proceedings, moved the Apex Court as against interlocutory orders passed from time to time but did not chose to raise such objection at any point of time and when the matter is placed for hearing, such objection has been raised. In the result, we over rule the objection raised by the Learned Advocate-General and direct this matter to be placed for final hearing on 16th of March, 2005 when the parties shall come ready for hearing.

J.P. Mishra, J.

I agree.