A reference for contempt of court made by a subordinate court without conducting a preliminary enquiry as required by Rule 5 of the High Court of M. P. (Contempt of Court Proceedings) Rules, 1980, is incompetent and should be dropped.

P.N.S. Chouhan, J.

1. This is a reference under Section 15(2) of Contempt of Courts Act, 1971 (hereinafter the said Act)."

2. Shri Sharad Kumar Gupta, Civil Judge Class and J.M.F.C, Lakhnadon, District Seoni, has made this reference against respondent Shri Indra Dut Naik a practising Advocate of his court, based mainly upon a newspaper report which was published in Daily Deshbandhu, published from Jabalpur, in its issue of 3rd January, 1993. The gist of the news item is that on 6-12-1992, the Bar Association of Lakhnadon held a meeting which was attended by the aforesaid judicial officer, Shri Gupta. In that meeting, a political resolution was passed condemning the demolition of Babri Masjid at Ayodhya. Then, there is reference to a number of alleged irregularities being committed by the said judicial officer. The news item concludes in these words :

;gk ds yksxksa dh ekax gS fd bl rjg ls U;k;ky; esa dk;Zokgh gksrh jgh rks fuf'pr :i ls yksxksa dks U;k; ikuk dfBu gks tk,xk vkSj vnkyr Hkh vke foHkkxksa dh rjg ywV[klksV dk vM~Mk ek= cudj jg tk,xhA bl rjg dh xfrfof/k;ksa ij gLr{ksi fd;k tk, ftlls U;k;ky; dh xfjek ij dksbZ vkp u vk ldsA

Shri Gupta initiated action against the local correspondent of Deshbandhu Shri Vinit Kumar Jain. An enquiry was held in which Vinit Kumar Jain was examined. He also filed an affidavit. His plea was that the offending news item was published on a press note entrusted to him by Shri Indra Dutt Naik, Advocate. He then tendered unqualified apology saying that he never intended to lower the dignity of the Court. The learned Magistrate accepted his apology and discharged him. Then, on the basis of his statement and affidavit he came to the conclusion that a prima facie case of criminal contempt of Court was made out against Shri Indra Dutt Naik, Advocate and then without affording Shri Naik an opportunity of hearing made this reference to the Registrar

3. Shri R.P. Tiwari, Advocate arguing for Shri Naik challenges the jurisidiction of the aforesaid officer who made this reference. his submission is that under Rule 5 of the Rules of Procedure framed by this Court under the said Act it is mandatory that an enquiry should be held before making a reference. Rule 5 of the High Court of M. P. (Contempt of Court Proceedings) Rules, 1980 reads as follows :

"5. (a) Reference under Section 15(2) of the Act may be made by subordinate Court either suo motu or on an application received by it.

(b) Before making a reference the subordinate Court shall hold a preliminary enquiry by issuing a show case notice accompanied by copies of relevant documents, if any, to the contemner and after receiving the reply, if any, of the show cause notice the subordinate court shall write a concise reasoned order of reference indicating why contempt appears to have been committed."

The submission is that since the mandatory preliminary enquiry as contemplated in this Rule was not made against Shri Naik the learned Magistrate had no jurisdiction to make this reference against him. Shri Tiwari contends that the procedure followed by the learned Magistrate was palpably perverse. He having initiated the enquiry against Shri Vinit Kumar Jain instead making a reference against him made this reference against a gentleman who was never noticed and was never given any opportunity to put up his defence. Referring to Annexure R-l, order-sheet dated 12-1-1993, it was contended that this document shows that Shri Naik attempted to take part in the proceedings but was frustrated as Shri Vinit Kumar Jain against whom the proceedings were going on objected to the presence of Shri Naik and thus, notwithstanding a sincere effort made by Shri Naik he was not permitted to take part in the proceedings. At the end of the enquiry, the learned Judge discharged the notice issued against Shri Vinit Kumar Jain and made this reference against Shri Naik sans any show cause notice to him.

4. The above basic infirmity in the reference is too obvious. It appears that the