IMPORTANT POINT
In a criminal complaint requirement of obtaining prior consent in writing of Advocate General for making motion by any person other than Advocate General is mandatory and failure to obtain prior consent would render the motion non-maintainable.

ORDER (ORAL)

T.P. Sharma, J.— We have perused the petition filed under Section 10 of the Contempt of Courts Act, 1971 (for short ‘the Act’).

2. By this petition, the petitioners have prayed for initiation of contempt proceeding against judicial officer posted as District & Sessions Judge, Raipur, who has passed order dated 19.2.2002 in a judicial proceeding (anticipatory bail proceeding). As per the contents of the petition, the respondent/judicial officer has not acted in judicial manner and has committed contempt of his own court, and while dealing with regular bail of the applicants when they were under protective order, the respondent herein has taken them into custody and thereby committed contempt of his own court.

3. This is petition for initiation of contempt proceeding under sub-section (2) of Section 15 of the Act. In the present case, motion has not been made by the Advocate General. The petitioners herein have not filed this petition with the consent in writing to the Advocate General, but they have prayed for taking suo motu action against the contemnor.

4. While dealing with the question of taking suo motu cognizance for the criminal contempt in appropriate cases, the Supreme Court in the matter of S.K. Sarkar v. V.C. Misra1, observed as under:

“In the case of criminal contempt, not being contempt committed in the face of the court, we are of the opinion that it would lighten the burden of the court, without in any way interfering with the sanctity of the administration of justice, if action is taken on a motion by some other agency. Such a course of action would give considerable assurance to the individual charged and the public at large. Indeed, some High Courts have already made rules for the association of the Advocate- General in some categories of cases at least.”

5. While dealing with the same question the High Court of Delhi in the matter of Anil Kumar Gupta v. K. Subba Rao2 has observed that a petition for suo motu contempt should be placed before the Chief Justice for orders in Chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the Court whether to take any cognizance of the information or not. The High Court of Delhi concluded the proceeding with the following observations:

“The office is to take note that in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice for orders in chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the Court whether to take any cognizance of the information. The office is directed to strike off the information as “Criminal Original No.51 of 1973” and to file it.”

6. By relying upon the aforesaid observations of the Delhi High Court, the Apex Court in the matter of P.N. Duda v. P. Shiv Shanker and others3, has held that “the direction given by the Delhi High Court sets out the proper procedure in such cases and may be adopted, at least in future, as a practice direction or as a rule, by this Court and other High Courts”, and dismissed the petition for taking suo motu cognizance against the contemnor on the basis of the petition filed on behalf of private party, and has considered that the said petition is nothing more than an information.

7. While dealing with same question, the Apex Court in the matter of State of Kerala v. M.S. Mani and others4 has held that requirement of obtaining prior consent in writing of Advocate General for making motion by any person other than Advocate General is mandatory and failure to obtain prior consent would render the motion non-maintainable. Obtaining consent subsequently would not cur