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IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANIKUMAR, SHAJI P.CHALY, JJ.
Suo Motu X– Appellant
Versus
Santy George –Respondent
I.A.Nos.3 & 4 of 2020 in Cont. Case (Crl.)No.3 of 2019-S
Decided on : 30-01-2020
Contempt of Courts Act, 1971- Section 15(1) -Santy George has sent a communication to the former Judge abusing him with offensive language. It seems that the matter is per se contemptuous, requiring to take suo motu cognizance under Section 15 of the Contempt of Courts Act, 1971-It may be considered whether suo motu action be taken. Subject to the orders above, a Contempt of Court (Criminal) case may be registered suo motu and the case may be posted for preliminary hearing as provided in Rule 7 of the Rules under the Contempt of Courts Act, 1971.
Statement of facts:
Decision of a Division Bench of this Court in suo motu C.C. (Crl.)No.1 of 2009 reported in 2009 (1) KLT 695, alleged contemnor submitted that as per Section 15(1) of the Contempt of Courts Act, 1971, read with Rules 7 and 9 of Contempt of Courts (High Court of Kerala) Rules framed by this Court, a Full Court Reference is required before initiating suo motu contempt and in the absence of the above, decision taken by the Hon'ble Chief Justice on the basis of a complaint written by a former Judge of this Court, Hon'ble Mr.Justice B.Kemal Pasha, is not a correct approach- Party in person further submitted that as per Section 2(d) of the Code Of Criminal Procedure, 1973, "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. According to the party in person, a complaint ought to have been preferred to the concerned Magistrate and that suo motu contempt proceedings cannot be initiated- Alleged contemnor has also filed I.A.No.3 of 2020 for a direction to conduct the trial including recording the evidence in the contempt case in the open court.
Finding of the court:
As per the procedure contemplated under Rule 6 of the Contempt of Courts (High Court of Kerala) Rules, Registry is directed to issue summons to the witness for his appearance on 18.2.2020 at 2.30 p.m. in Chambers. Party in person is directed to appear at 2.30 p.m. on that day in Chambers.
Result: I.A.No.3 of 2020 is dismissed. Directed
ORDER :
S.Manikumar, J.
Learned counsel appearing for the alleged contemnor has relinquished his Vakalath and alleged contemnor appears in person. Alleged contemnor/ party in person has filed I.A.No.4 of 2020 for a direction to drop the entire proceedings against him. In the supporting affidavit, at paragraph Nos.2 to 7, he has averred as hereunder:
“Contempt of Courts Act 1971. Section 15 Suo-Motu action for criminal contempt has to be taken only after placing the matter before the full court and full court decides to take action. After such decision, matter should be placed before bench as per roster. Contempt of Courts (High Court of Kerala) Rules 1988 Rule-7.” “Held-Section 15 would show that the action for criminal contempt has to be taken on the motion of High court and not on the motion of the Chief Justice or the Judge designated by him. When a decision is to be taken by the High Court it means The Full Court Consisting of The Chief Justice and all other Judges”
4. In CC No.3/2019, there is no full court decision under section 15(1) of the Contempt of Courts Act 1971.
5. In CC No. 3/2019, there is no preliminary hearing conducted under Rule 7 of the contempt of courts (High Court of Kerala) Rules 1988.
6. Annexure A – Page 9 to 13, in Page 11 is Registrar General's note. In page 13 as, “X Approved, Chief Justice sd-21.8.2019” is seen.
7. CC No: 3/2019 now became unconstitutional.”
2. Further, inviting the attention of this Court to a decision of a Division Bench of this Court in suo motu C.C. (Crl.)No.1 of 2009 reported in 2009 (1) KLT 695, alleged contemnor submitted that as per Section 15(1) of the Contempt of Courts Act, 1971, read with Rules 7 and 9 of Contempt of Courts (High Court of Kerala) Rules framed by this Court, a Full Court Reference is required before initiating suo motu contempt and in the absence of the above, decision taken by the Hon'ble Chief Justice on the basis of a complaint written by a former Judge of this Court, Hon'ble Mr.Justice B.Kemal Pasha, is not a correct approach.
3. Party in person further submitted that as per Section 2(d) of the Code Of Criminal Procedure, 1973, "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. According to the party in person, a complaint ought to have been preferred to the concerned Magistrate and that suo motu contempt proceedings cannot be initiated.
4. Alleged contemnor has also filed I.A.No.3 of 2020 for a direction to conduct the trial including recording the evidence in the contempt case in the open court. In the supporting affidavit, he has averred as hereunder:
4. I cannot agree with this. First of all there is no provision in the Contempt of Courts Act 1971 or High Court Rules under the Contempt of Courts Act or any precedent still now adopted by any other High Courts in India or Apex Court decision in this matter.
5. I received the witness list. Witness is the retired Judge of High Court of Kerala. He has no special status which are enjoyed by the President. Republic of India or the Governor, States in India.
9. My counsel Shri. Shajin S.Hameed is too young and having very good future in Law Section. I don't want to spoil his good future. So, I personally decided to step into CC 3/2019 and conduct the case in Person.
10. So, I will examine the witnesses in CC 3/2019. For the last 20 years I knew this retired Judge from while he was as the Additional District Judge of T
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