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High Court of Karnataka
THE HONOURABLE MRS. JUSTICE MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE A.S. PACHHAPURE
Ashish Kumar & Another
Versus
Mohammed Ali
CCC (Civil) No. 1433 of 2004
Decided on : 09-01-2009
CONTEMPT OF COURTS ACT, 1971 - Section 23 & High Court Karnataka (Contempt of Court Proceedings) Rules, 1981, Rule 11: [Mrs. Manjula Chellur & A.S. Pachhapure, JJ] Conduct of contempt proceedings - Role of complainant and his right to prosecute contempt proceedings - Held, Time and again, the Courts have clarified the position of a petitioner or complainant in a contempt proceedings. He is only an informant. When once he brings to the notice of the Court the facts revealing the alleged wilful disobedience on an order or direction, his duty ends, therefore, he can be only an informant though he may continue to assist the Court during the proceedings at the instance of the Court. The role that has to be played by the complainant is that of an informant, therefore, ultimately, it lies within the discretion of the Court to act or not to act on the material brought to the notice of the Court by the complainant. Therefore, the Court may at its discretion allow the party i.e., the informant to assist the Court or it can command the assistance of any Advocate to assist the court in the process of contempt action against the contemnor. In other words, the complainant has no role to play when once the Court is satisfied that there is prima facie case made out to take action for contempt. Therefore, the Courts should be cautious to allow the private party who acts as an informant as he may likely to wreck vengeance against the alleged contemnor. It is a matter between the Court and the contemnor. Therefore, even if the complainant, for the reasons best known to him, intends to withdraw the proceedings for contempt, it is for the Court to decide whether proceedings could be dropped or not. Because, it is matter between the Court and the contemnor and the duty of the informant ends once he brings to the notice of the Court of alleged contempt. The Judges who tries a person for contempt cannot be equated with litigants, who come before the Court claiming relief or to defend the relief sought for against them because in a contempt proceedings, they are expected to decide the matter without evincing personal interest though it is a contempt against the Court, therefore, the decision of the Judge in a contempt proceedings has to be like any other decision made by those Judge pertaining to any other litigation which come before them. In other words, the jurisdiction of contempt Court is not invoked with an idea of vindicating the party but it is only to uphold the rule of law.
CONTEMPT OF COURTS ACT, 1971 - Section 23 & High Court of Karnataka (Contempt of Court Proceedings) Rules, 1981, Rule 11: [Mrs. Manjula Chellur & A.S. Pachhapure, JJ] Conduct of contempt proceedings - Words ’any other Advocate’ under Rule 11 - Held, The plain reading of Rule 11 ex facie does not indicate any bar or embargo for the Advocate of choice of complainant to appear and conduct the proceedings. But the fact remains, under the guise of personal vendetta, he may be very active to prosecute the contempt proceedings. The Rule commences with the words "court may direct". These three words definitely indicate and refer to the discretion of the Court to give direction at its choice or option. Therefore, as a matter of right, the complainant cannot choose an Advocate of his choice though Court can at its discretion allow the Advocate of choice of complainant to assist the Court. When the contemnor takes objection to such assistance, it is not open to the complainant to insist for an Advocate of his choice. Ultimately, the complainant cannot choose any particular Advocate to prosecute the proceedings without the consent of the Court. Therefore, court has to consider the entire matter very discreetly while permitting the complainant to have an Advocate of his choice to conduct the proceedings in the light of the fact that the matter is between the Court and the contemnor. So far as contemnor, the very proceeding would indicate he can claim as a matter of right, an Advocate of his choice as his personal liberty is involved. Therefore, it is very much within the domain or powers of the Court to take a decision who should prosecute the contempt proceedings ? It could be Advocate General or any Advocate of choice of the Court to conduct the proceedings against the contemnor. Therefore, the Court has to say at what stage the Advocate General or any other Advocate of choice of the Court to proceed with the contempt proceedings once the stage or framing of charge is completed.
CONTEMPT OF COURTS ACT, 1971 - Section 23 & High Court of Karnataka (Contempt of Court Proceedings) Rules, 1981, Rule 11: [Mrs. Manjula Chellur & A.S. Pachhapure, JJ] Conduct of contempt proceedings - Where Advocate General or Government Advocate if asked to handle contempt proceedings - Held, The Government Advocate was submitting that it would be embarrassing for the Government Advocate to prosecute Government officials whenever they are hauled up for action of contempt. In that situation, is it the State which prosecutes the contemnor? The State is also like any other litigant before the Court of law. Its officials are not above the rule of law. Then, whether the Government Advocate can assist the Court in prosecuting such officials for contempt? Though contempt proceedings are quasi-criminal in nature, because of provision of punishment for the contemnor, it cannot be equated with the prosecution of a criminal by the State. The Courts are aware that the Advocate General and the Government Advocates at it are over burdened with the duty of prosecuting or defending the interest of the State in vast litigation before the Courts of law. If Advocate General or Government Advocate is asked to handle contempt proceedings, they are duty bound to assist the Court to prosecute the contempt proceedings.
Manjula Chellur, J.
These two contempt proceedings are initiated contending that these is failure on the part of the respondent-contemnors to comply with the orders dt.14.6.2004 and subsequent order dt.3.8.2004 in W.P.Nos. 22238/04 and 22239/04.
2. After initiation of contempt proceedings, notice was ordered to the respondents. Subsequently, in reply, the respondents appeared and filed their objection statements. Later on, this Court after hearing both the parties opined that there was prima facie material indicating disobedience of the orders passed by this Court dt.14.6.04 and 3.8.04, therefore charges have to be famed. Accordingly, charges were framed and evidence was also let in. when the matter was posted for hearing the arguments, the respondents took objection to the representation by the Counsel for the complainant Mr. Aditya Sondhi on the ground that Rule 11 of The High Court of Karnataka (Contempt of Court Proceedings) Rules, 1981 (hereinafter referred to as Rules) do not provide for Advocate of choice of complainant to appear and conduct the proceedings against the accused. In view of the above objection, an occasion arose for this Court to have an in depth consideration of the matter with reference to Rule 11 as stated above.
3. The learned Advocate for the respondents represented by Senior Counsel Sri S.P. Shankar was heard and Sri Aditya Sondhi, was heard on behalf of the complainant. The Government Advocate was also called upon to address the arguments in this regard and accordingly, he was heard.
4. According to the learned Counsel for the respondent accused on 6.9.06, this Court permitted the participation of the Counsel/Advocate for the complainant in the proceedings without deciding the intensity and veracity of the objections raised by the respondents. The order dated 6.9.06 reads as under:
“For the present, we will request Sri Adithya, learned Counsel to assist us in these proceedings. Call on 07.09.2006”
5. This would indicate as early as 2006 itself, the respondents took objection to the appearance of Mr. Aditya Sondhi, the Advocate on record for the complainants to conduct the proceedings. When the matter came up for the arguments as stated above, both the parties submitted to the Court that this question needs to be decided once for all to have uniformity.
6. According to the learned Counsel for the respondent-accused, as contemplated under Section 23 of the Contempt of Courts Act, several High Courts have framed Rules and most of the High Courts have allowed only the Advocate General to conduct the proceedings in contempt matters, some High Courts have reserved the right to have Advocate of ‘his choice’ while other High Court have framed the Rule to the effect that Advocate General or any Counsel as directed by the High Court can conduct proceedings for complainant. However, according to the learned Senior Counsel Sri S.P. Shankar, the words ‘any other Advocate’ definitely would not include the Advocate’ definitely would not include the Advocate of choice of the complainant. According to him, the Advocate who represent the complainant cannot be allowed to take part in the proceedings after framing of charges. It is further submitted, in order to maintain majesty and dignity of the institution, proceedings under Contempt of Courts Act were thought of and they are meant to punish the contemnor for bringing down the majesty or for causing interference with the administration of justice by willful disobedience of the judgment, decree, order etc. According to him, when once the Court concludes that a prima facie case is made out and charges are framed on accused pleading not guilty of the charges, the proceedings would be only between the Court and the contemnor, therefore, the participation of the complainant is not required. He also relies on Section 19 of the Act to support his contention that complainant has no right to take the matter in appeal if the Court drops the proceedings of contemp
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