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High Court Of Himachal Pradesh
R.S.PATHAK,D.B.LAL
HARI KRISHAN - Appellant
Versus
NAROTAM DUTT SHASTRI - Respondent
Criminal Misc. Petn. No. 27 of 1974 in Criminal Contempt Petn. No. 9 of 1973
Decided On : 09/25/1974
CONTEMPT OF COURT - CRIMINAL CONTEMPT - INITIATION OF PROCEEDINGS - CONSENT OF ADVOCATE GENERAL - ADVOCATE GENERAL'S AUTHORITY TO PROSECUTE - VAKALATNAMA - NECESSITY.
Fact of the Case:
The respondent, Shri Narotam Datt Shastri, filed a miscellaneous petition contending that the Advocate General of Himachal Pradesh acted without authority in examining and cross-examining witnesses in a criminal contempt petition filed against him by Shri Hari Krishan.
Finding of the Court:
The court held that the Advocate General was not entitled to appear for the petitioner without a Vakalatnama and that the petitioner had no statutory right to be represented by him. The court also held that the Code of Criminal Procedure did not apply to contempt proceedings under the Contempt of Courts Act, 1971, and that the Advocate General was not entitled to prosecute the contempt petition as a Public Prosecutor under the Code. However, the court held that the Advocate General was entitled to examine and cross-examine witnesses on behalf of the petitioner as this was part of the function of "pleading."
Issues: 1. Whether the Advocate General can initiate criminal contempt proceedings under the Contempt of Courts Act, 1971? 2. Whether the Code of Criminal Procedure applies to contempt proceedings under the Contempt of Courts Act, 1971? 3. Whether the Advocate General has authority to prosecute a criminal contempt petition by virtue of the duties assigned to him by the Governor under Article 165 of the Constitution? 4. Whether the Advocate General requires a Vakalatnama executed by the petitioner to enable him to prosecute the criminal contempt petition?
Ratio Decidendi: 1. The court held that the Advocate General cannot initiate criminal contempt proceedings under the Contempt of Courts Act, 1971, as the Act specifically provides that such proceedings can be initiated by the Advocate General or any other person with the consent in writing of the Advocate General. 2. The court held that the Code of Criminal Procedure does not apply to contempt proceedings under the Contempt of Courts Act, 1971, as the Act is a comprehensive legislation that lays down the law in respect of several matters which hitherto had been the subject of judicial exposition. 3. The court held that the Advocate General does not have authority to prosecute a criminal contempt petition by virtue of the duties assigned to him by the Governor under Article 165 of the Constitution, as the State does not have a right to be represented in a contempt proceeding. 4. The court held that the Advocate General requires a Vakalatnama executed by the petitioner to enable him to prosecute the criminal contempt petition, as the examination and cross-examination of witnesses amounts to "acting", and no pleader can be allowed to "act" unless he has filed his Vakalatnama.
Final Decision: The court dismissed the respondent's miscellaneous petition, but made no order as to costs.
R. S. Pathak, C. J. :- By this miscellaneous petition the respondent, Shri Narotam Datt Shastri, contends that the Advocate General of this State has acted without authority in the present criminal contempt petition by examining the petitioners witnesses and cross-examining the respondents witnesses, and he claims that therefore the said proceedings should be struck off the record.
2. On September 26, 1973, Shri Hari Krishan filed the present criminal contempt petition against the respondent alleging that in a speech delivered by the latter on August 8, 1973 at Bilaspur the respondent made certain derogatory observations in respect of a learned Judge of this Court and that, therefore, he should be punished for committing criminal contempt of this court. By an endorsement of the same date made on the petition, it is apparent that the Advocate General accorded his consent to the institution of the petition. It may be mentioned that while the petition is signed by Shri Hari Krishan, it has been described as having been made through the Advocate General. On the next day, the Advocate General filed a memorandum of appearance which recites that he has been engaged by Shri Hari Krishan to appear for him in the case. The learned Advocate General has throughout appeared on behalf of the petitioner and participated in the proceeding in that capacity. He has not filed any power of attorney.
3. It is contended by Shri Inder Singh, on behalf of the respondent, that the Advocate General is not entitled to appear for the petitioner without a Vakalatnama, and in any event, the petitioner has no statutory right to be represented by him. The Advocate General seeks to sustain his position in the proceeding on the basis of a number of submissions. In the first place, he says, he is entitled to pursue that proceeding. In the second place, he urges, by virtue of holding the office of Advocate General he is entitled under the Code of Criminal Procedure to function as a Public Prosecutor and prosecute the case, the proceeding being a proceeding governed by the Code of Criminal Procedure. In the third place, he contends, he has been authorised by the Governor under Art.165(2) of the Constitution to represent the State in a contempt proceeding. Fourthly, he urges, the memorandum of appearance is sufficient to enable him to appear in the case and no Vakalatnama is necessary.
4. On the submissions of the parties the following questions arise for consideration :
1. Can the present criminal contempt petition be said to have been initiated by the Advocate General under the Contempt of Courts Act, 1971 ?
2. Is the present criminal contempt petition governed by the Code of Criminal Procedure, and is the Advocate General entitled to prosecute it as a Public Prosecutor under the Code ?
3. Has the Advocate General authority to prosecute the criminal contempt petition by virtue of the duties assigned to him by the Governor under Article 165 of the Constitution ?
4. Does the Advocate General require a Vakalatnama executed by the petitioner to enable him to prosecute the criminal contempt petition ? Point No. 1
5. It is beyond doubt that the act charged against the respondent is an act of "criminal contempt" as defined in Section 2(c) of the Contempt of Courts Act, 1971. Section 15(1) of the Act declares that 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 of the Advocate General. The petition filed by Shri Hari Krishan clearly shows that it has been filed with the consent in writing of the Advocate General. The submission of the Advocate General that the proceeding was initiated by him is without merit. He has drawn our attention to the circumstance that Shri Hari Krisran is his Assistant, but that, it seems to me, is of no moment. Plainly the case falls unde
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