REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 607 OF 2005

BIMAN BASU … APPELLANT

VERSUS

KALLOL GUHA THAKURTA & ANR.… RESPONDENTS

JUDGMENT

B. SUDERSHAN R EDDY, J.

1.This appeal preferred under Section 19(1) of the

Contempt of Courts Act, 1971 is directed against the

judgment dated 31

st

March, 2005 of the High Court of

Calcutta in C.P.A.N. No. 1535 of 2003 whereby the

appellant has been held to have committed criminal

contempt as defined in Section 2(c) of the Contempt of

Courts Act, 1971 and sentenced to undergo simple

imprisonment for a period of three days and to pay a fine

of Rs.10,000/-.

2.The origin of the proceedings is traceable to an incident

that had taken place on 24

th

September, 2003 when some

1

of the Judges of the Calcutta High Court while on their

way to the High Court were ‘detained’ by a police officer

so as to allow a procession of adivasis to pass by who

were out to press their demand for recognition of

Shanthali as one of the Scheduled language under the

Constitution of India. Justice Amitava Lala of that Court

felt the procession caused enormous disruption not only

to the “official business of the Court” but also “the people

at large”. The learned Judge issued suo-motu rule of

contempt upon Deputy Commissioner of Police (Traffic)

and other police officers. As is evident from the order

dated 29

th

September, 2003, the learned Judge felt

humiliated as the police officers refused to make

necessary arrangements for the free movement of his car

so that he could reach the Court on time. The learned

Judge was of the opinion that the “Court does not mean

Court room but movement of the Judge even outside, at

least when he is moving to discharge his official

functions”. It is under those circumstances that the

learned Judge thought it fit that it was high time to issue

suo-motu rule of contempt upon the appropriate public

2

authorities to show cause. The learned Judge in the said

contempt proceedings initiated by him suo-motu issued as

many as twelve directions/guidelines with respect to

traffic regulations and holding of processions/meetings in

the city of Kolkata. We wish to say no more on this aspect

of the matter since the directions so issued by the learned

Judge are stated to be under the consideration in appeal

before a Division Bench of the High Court.

3.The appellant herein is alleged to have not only criticized

the order but also made certain adverse comments

against the Judge who passed the said order. These

comments were widely reported and published in various

newspapers on 5.10.2003. In the meanwhile, a Division

Bench of the Calcutta High Court stayed all the directions

issued by the learned Single Judge on 29

th

September,

2003 in the contempt proceedings concerning the

regulation of traffic and processions/public meetings. The

respondents in this appeal moved a contempt petition in

the High Court on 13

th

October, 2003 with a prayer to

initiate appropriate contempt proceedings against the

appellant for making deliberate and willful derogatory,

3

defamatory and filthy statements against Justice Amitava

Lala which were widely published in the newspapers and

electronic media. In their petition, the respondents

pleaded that the derogatory, defamatory and

contumacious statements and remarks made by the

appellant constitute a straight and direct attack upon a

sitting High Court Judge and the same has not only

lowered the dignity of the sitting High Court Judge but

also total judicial system of the country. They have

accordingly prayed to initiate contempt proceedings

against the appellants “under Sections 2(a), 2(b), 2(c)

and 2(d) or any other applicable Sections of the Contempt

of Courts Act, 1971 and to put him behind the bars and

also to saddle him with fine…”. They have also prayed for

award of costs and other incidental charges in connection

with the contempt application. The contempt petition was

duly supported by an affidavit as required and solemnly

affirmed by the first respondent. In the affidavit, it is

specifically stated that the statements, comments and

averments made in paragraph Nos. 1 to 4, 6 and 8 are

true to his knowledge.

4

4.A Division Bench of the Calcutta High Court vide its order

dated 17

th

October, 2003 passed the following order:

“Heard.

After hearing Mr. Ali, learned counsel moving this

petition and perusing the issue of Bartaman

dated 5

th

October, 2003, we are of the view that

a Rule be issued. Rule is made returnable on 7

th

of November, 2003.

This Court, however, makes it clear that the

records of this case may be placed before the

Hon’ble the Chief Justice for assignment of this

rule for hearing before any Bench that the

Hon’ble the Chief Justice may think fit and

proper”.

5.This order was followed by rule requiring the appellant

herein to show cause why he should not be committed to

prison or otherwise penalized or dealt with for making

“deliberate and willful derogatory, defamatory and filthy

statements against a sitting Judge of this Court Hon’ble

Justice Amitava Lala, as well making such derogatory,

defamatory and filthy languages (sic) remarks and

statements in front (sic) of the Press, Electronic Media

and open meeting regarding the order dated 29

th

September, 2003 passed by Justice Amitava Lala.” The

appellant was required to be personally present on 7

th

5

November, 2003 before the Court. The appellant was

accordingly served with the contempt petition together

with all annexures and enclosures including the affidavit

of the first respondent filed in support of the contempt

petition.

6.The appellant accordingly appeared before the Court

along with his counsel on 7

th

November, 2003 and filed a

brief affidavit in opposition inter alia stating that he has

got great respect to the dignity and majesty of the Court

and that he has never meant to show any disrespect to

the High Court or to any of the Judges of the Court and

that if his act or conduct reflected any disrespect, the

same was inadvertent and unintentional. He accordingly

expressed his regret for such “unintentional error”. The

appellant also raised the issue of maintainability of the

contempt petition since the motion was moved without

the consent in writing of the Advocate General. The Court

vide its order dated 7

th

November, 2003 expressly kept

open the question of maintainability of the petition.

Thereafter, various TV news channels and editors of

newspapers were added as parties to the contempt

6

proceedings. The High Court after hearing the parties

passed the impugned judgment. Hence this appeal.

7.We have heard Shri K.K. Venugopal and Dr. Shri Rajiv

Dhawan, learned senior counsel for the appellant and

none appeared on behalf of the respondents. We have,

however, considered the written submissions of the first

respondent which were filed into the Court after

completion of the hearing of the matter.

8.The Division Bench judgment has been divided into mainly

five parts viz., (i) maintainability (ii) free speech and

contempt (iii) standard of proof (iv) fair comment and

contempt (v) evidence in the present case. The finding of

the Division Bench on the maintainability is that the

contempt petition was maintainable as suo-motu action

has been taken by the Court to initiate contempt

proceedings. Since the whole question centers around the

maintainability of the application, it may be necessary to

notice the view taken by the High Court in its own words:

“In the instant case, having regard to the nature

of the complaint made in the petition along with

the newspaper reports which were also referred to

in the High Court’s order dated 17

th

October, 2003

while issuing the Rule coupled with the fact that

7

one of the petitioners was an Advocate of this

Court and the petition contained an averment to

take action suo-motu, this Court records that it

took the action suo-motu. Therefore, the objection

about the maintainability of the proceedings is not

sustainable”.

9.The main issue that arises for our consideration and

determination in this appeal is whether contempt

proceedings were initiated against the appellant suo-motu

by the Court or by the respondents? The Contempt of

Courts Act, 1971 as enacted by the Parliament is an Act

to define and limit the powers of certain Courts in

punishing for the contempt of Courts and to regulate their

procedure in relation thereto. The Statement of Objects

and Reasons clearly explains the reasons as to how it was

felt that the existing law relating to contempt of Courts

was somewhat uncertain, undefined and unsatisfactory.

The jurisdiction to punish for contempt touches upon two

important fundamental rights of the citizen, namely, the

right to personal liberty and the right to freedom of

expression. It was, therefore, considered advisable to

have the entire law on the subject scrutinized by a Special

Committee. Accordingly, a Committee was set up in 1961

8

under the Chairmanship of late Shri H.N. Sanyal, the then

Additional Solicitor General. The Committee made a

comprehensive examination of the law and problems

relating to contempt of Court in the light of the position

obtaining in our own country and various foreign

countries. The recommendations which the Committee

made took note of the importance given to freedom of

speech in the Constitution and of the need for

safeguarding the status and dignity of Courts and

interests of administration of justice. The

recommendations of the Committee have been generally

accepted by Government after considering the views

expressed on those recommendations by the State

Governments, the Supreme Court and the High Courts.

10.The Act, inter alia, defines criminal contempt and also

provides for the procedure of taking cognizance thereof.

The Act defines that “Contempt of Court means Civil

contempt or Criminal contempt”. In the present case, we

are concerned with the criminal contempt. Criminal

contempt is defined in Section 2(c) of the Contempt of

Courts Act, 1971 and it says, “criminal contempt means

9

the publication (whether by words, spoken or written, or

by signs, or by visible representation, or otherwise) of any

matter or the doing of any other act whatsoever which (i)

scandalizes or tends to scandalize, or lowers or tends to

lower the authority of any Court; or (ii) prejudices, or

interferes or tends to interfere with the due course of any

judicial proceeding; or (iii) interferes or tends to interfere

with or obstructs or tends to obstruct the administration

of justice in any other manner”. In the case of criminal

contempt, other than a contempt referred to in Section

14, the manner of taking cognizance has been provided

for in Section 15 of the Act. This Section, inter alia,

provides that the action for contempt may be taken by

the Supreme Court or the High Court 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.

11.The question that arises in the present case is whether

the High Court can entertain a contempt petition filed by a

private person without the consent in writing of the

Advocate General? For determination of this issue, it will

10

be relevant to note the observations of the Sanyal

Committee, whose recommendations were taken into

consideration for enacting the Act. The Committee

observed:

“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. . .the

Advocate-General may, also, move the court not

only on his own motion but also at the instance of

the court concerned. . . .”

12.In S.K. Sarkar, Member, Board of Revenue, U.P. Vs.

Vinay Chandra Misra

1

this Court, approvingly referred

to the recommendations of the Committee and observed:

“If the High Court acts on information derived

from its own sources, such as from a perusal of

the records of a subordinate court or on reading a

report in a newspaper or hearing a public speech,

without there being any reference from the

subordinate court or the Advocate-General, it can

be said to have taken cognizance on its own

1

(1981) 1 SCC 436

11

motion. But if the High Court is directly moved by

a petition by a private person feeling aggrieved,

not being the Advocate-General, can the High

Court refuse to entertain the same on the ground

that it has been made without the consent in

writing of the Advocate-General? It appears to us

that the High Court, has, in such a situation, a

discretion to refuse to entertain the petition, or to

take cognizance on its own motion on the basis of

the information supplied to it in that petition. If

the petitioner is a responsible member of the legal

profession, it may act suo motu, more so, if the

petitioner-advocate, as in the instant case, prays

that the court should act suo motu. The whole

object of prescribing these procedural modes of

taking cognizance in Section 15 is to safeguard

the valuable time of the High Court or the

Supreme Court from being wasted by frivolous

complaints of contempt of court. If the High Court

is prima facie satisfied that the information

received by it regarding the commission of

contempt of a subordinate court is not frivolous,

and the contempt alleged is not merely technical

or trivial, it may, in its discretion, act suo motu

and commence the proceedings against the

contemner. However, this mode of taking suo

motu cognizance of contempt of a subordinate

court, should be resorted to sparingly where the

contempt concerned is of a grave and serious

nature. Frequent use of this suo motu power on

the information furnished by an incompetent

petition, may render these procedural safeguards

provided in sub-section (2), otiose. In such cases,

the High Court may be well advised to avail of the

advice and assistance of the Advocate-General

before initiating proceedings”.

13.In State of Kerala Vs. M.S. Mani

2

this Court held:

2

(2001) 8 SCC 82

12

“The requirement of consent of the Advocate-

General/Attorney-General/Solicitor-General where

any person other than the said law officers makes

motion in the case of a criminal contempt in a

High Court or Supreme Court, as the case may be,

is not a mere formality; it has a salutary purpose.

The said law officers being the highest law officers

at the level of the State/Centre as also the officers

of the courts are vitally interested in the purity of

the administration of justice and in preserving the

dignity of the courts. They are expected to

examine whether the averments in the proposed

motion of a criminal contempt are made

vindicating public interest or personal vendetta

and accord or decline consent postulated in the

said provision. Further, cases found to be

vexatious, malicious or motivated by personal

vendetta and not in public interest will get filtered

at that level. If a motion of criminal contempt in

the High Court/Supreme Court is not accompanied

by the written consent of the aforementioned law

officers, the very purpose of the requirement of

prior consent will be frustrated. For a valid motion

compliance with the requirements of Section 15 of

the Act is mandatory. A motion under Section 15

not in conformity with the provisions of Section

15, is not maintainable”.

14.In M.S. Mani (supra), the consent of the learned

Attorney General was obtained after filing of the contempt

petition. This Court held that the motion to take action

against the respondents therein was not made with the

consent of the learned Attorney General or Solicitor

General and therefore is incompetent. This Court

13

observed: “Subsequent obtaining of the consent, in our

view, does not cure the initial defect so as to convert the

incompetent motion into a maintainable petition”.

15.In P.N. Duda Vs. P. Shiv Shankar

3

this Court observed

that in terms of Section 15(1) and Rule 3(c), a petition for

contempt will not be maintainable by a private person

without the written consent of the Attorney General or the

Solicitor General. One cannot get over the objection to

the maintainability of a petition without such consent

merely by the device of adding the Attorney General and

Solicitor General as respondents to the petition. In

Paragraph 54 of the Judgment, it is explained that so far

as this Court is concerned, action for contempt may be

taken by the court on its own motion or on the motion of

the Attorney-General (or Solicitor-General) or of any

other person with his consent in writing. This Court

further observed:

“There is no difficulty where the court or the

Attorney-General choose to move in the matter.

But when this is not done and a private person

desires that such action should be taken, one of

three courses is open to him. He may place the

3

(1988) 3 SCC 167

14

information in his possession before the court and

request the court to take action: (vide C.K.

Daphtary v. O.P. Gupta, (1971) 1 SCC 626

and Sarkar v. Misra, (1981) 1 SCC 436); he

may place the information before the Attorney-

General and request him to take action; or he may

place the information before the Attorney-General

and request him to permit him to move the court.

In the present case, the petitioner alleges that he

has failed in the latter two courses — this will be

considered a little later — and has moved this

“petition” praying that this Court should take suo

motu action. The “petition” at this stage,

constitutes nothing more than a mode of laying

the relevant information before the court for such

action as the court may deem fit and no

proceedings can commence until and unless the

court considers the information before it and

decides to initiate proceedings. Rules 3 and 4 of

the Supreme Court (Contempt of Court) Rules also

envisage a petition only where the Attorney-

General or any other person, with his written

consent, moves the court”.

16.In Bal Thackrey Vs. Harish Pimpalkhute

4

this Court

held:

“It is well settled that the requirement of obtaining

consent in writing of the Advocate General for

making motion by any person is mandatory. A

motion under Section 15 not in conformity with

the requirements of that section is not

maintainable”.

17.It is settled law that the High Courts even while

exercising their powers under Article 215 of the

4

(2005) 1 SCC 254

15

Constitution to punish for contempt, the procedure

prescribed by law is required to be followed (See L.P.

Misra (Dr.) Vs. State of U.P.

5

, Pallav Sheth Vs.

Custodian

6

). The High Court in the present case relied on

the decision of this Court in C.K. Daphtary Vs. O.P.

Gupta

7

wherein this Court overruled the objection raised

on behalf of the alleged contemnor that the contempt

petition filed in the Supreme Court without the consent of

the Attorney General was not maintainable. The decision

was rendered prior to the Act coming into force. There

was no provision of law at the relevant time which

prevented the Courts from entertaining a petition filed by

interested persons even without the prior consent in

writing of the Attorney General or the Advocate General,

as the case may be.

18.The High Court in the present case rested its conclusion

relying on averments made in the petition stating that

“even a suo motu contempt proceedings may be initiated”

at the instance of the petitioners “on going through the

5

(1998) 7 SCC 379

6

(2001) 7 SCC 549

7

(1971) 1 SCC 626

16

newspapers”. Be it noted that there is no prayer in the

contempt petition filed by the respondents to initiate suo

motu proceedings. We are unable to sustain the finding of

the High Court in this regard for the same is not

supported by any material available on record. The order

dated 17

th

October, 2003 and the Rule issued in clear and

categorical terms reflects that law was set in motion

exclusively based on the averments made in the petition

and the affidavit of verification filed in support of the

petition and the arguments of the counsel. There is

nothing on record suggesting that the contents of the

petition were treated as information placed before the

Court for initiating the contempt proceedings suo motu by

the Court. The contents of the petition of the respondents,

their affidavit of verification dated 13

th

October, 2003, the

exhibits and annexures to the said petition and the

arguments of the counsel alone constituted the

foundation, based on which the law was set in motion.

The petition itself is not styled as any piece of information

that was placed before the court for its consideration. It

is not a case where the High Court refused to entertain

17

the petition and took cognizance on its own motion on the

basis of the information supplied to it in the petition. The

record does not bear any such proceedings of the Court.

Had it been so, the respondents would have been

nowhere in the picture. It is true that any person may

move the High Court for initiating proceedings for criminal

contempt by placing the facts constituting the commission

of criminal contempt to the notice of the Court. But once

those facts are placed before the Court, it becomes a

matter between the Court and the contemnor. But such

person filing an application or petition does not become a

complainant or petitioner in the proceeding. His duty ends

with the facts being placed before the Court. The Court

may in appropriate cases in its discretion require the

private party or litigant moving the Court to render

assistance during the course of the proceedings. In D.N.

Taneja Vs. Bhajan Lal

8

this Court observed that “a

contempt is a matter between the Court and the alleged

contemnor. Any person who moves the machinery of the

Court for contempt only brings to the notice of the court

8

(1988) 3 SCC 26

18

certain facts constituting contempt of Court. After

furnishing such information he may still assist the Court,

but it must always be borne in mind that in a contempt

proceeding there are only two parties, namely, the Court

and the contemnor”. Thus the person bringing the facts

constituting contempt to the notice of the Court can never

be a party to the lis nor can join the proceedings as a

petitioner. Similar is the view taken by this Court in State

of Maharashtra Vs. Mahboob S. Allibhoy & Anr.

9

.

19.In Om Prakash Jaiswal Vs. D.K. Mittal & Anr.

10

this

Court held that the jurisdiction to initiate proceedings for

contempt as also the jurisdiction to punish for contempt in

spite of a case of contempt having been made out are

both discretionary with the Court. “Contempt generally

and criminal contempt certainly is a matter between the

Court and the alleged contemnor”. No one can compel or

demand as of right initiation of proceedings for contempt.

Certain principles have emerged. It is further observed :

“Source of initiation of contempt proceedings may be suo

9

(1996) 4 SCC 411

10

(2000) 3 SCC 171

19

motu, on a reference being made by the Advocate

General or any other person with the consent in writing of

the Advocate General or on reference made by a

subordinate Court in case of criminal contempt. A private

party or a litigant may also invite the attention of

the Court to such facts as may persuade the Court

in initiating proceedings for contempt. However,

such person filing an application or petition before

the Court does not become a complainant or

petitioner in the proceedings. He is just an informer

or relator. His duty ends with the facts being

brought to the notice of the Court. It is thereafter

for the Court to act on such information or not to

act though the private party or litigant moving the

Court may at the discretion of the Court continue to

render its assistance during the course of

proceedings. (emphasis supplied)

20.In the case in hand, it is evident from the record, the

respondents were continued to be shown as the

petitioners in the contempt case before the High Court

20

and participated throughout as if they were prosecuting

the appellant. There is no order reflecting that the Court

having taken note of the information made before it,

initiated suo motu proceedings on the basis of such

information furnished and required the respondents only

to assist the Court till the disposal of the matter. On the

contrary, respondents are shown as the petitioners in the

contempt case before the High Court. It is thus clear, it is

the respondents who initiated the proceedings and

continued the same but without the written consent of the

Advocate General as is required in law. The proceedings,

therefore, were clearly not maintainable.

21.In what manner the suo motu power may be exercised in

appropriate cases is dealt with by this Court in J.R.

Parashar V. Prasant Bhushan

11

in which it is observed:

“In any event the power to act suo motu in

matters which otherwise require the Attorney-

General to initiate proceedings or at least give his

consent must be exercised rarely. Courts normally

reserve this exercise to cases where it either

derives information from its own sources, such as

from a perusal of the records, or on reading a

report in a newspaper or hearing a public speech

11

(2001) 6 SCC 735

21

or a document which would speak for itself.

Otherwise sub-section (1) of Section 15 might be

rendered otiose.”

22.While dealing with the importance of the procedure for

taking cognizance of criminal contempt other than a

contempt referred to in Section 14 of the Act, this Court

in Bal Thackrey (supra) observed:

“The directions in Duda case

when seen and

appreciated in the light of what we have

noticed hereinbefore in respect of contempt

action and the powers of the Chief Justice, it

would be clear that the same prescribe the

procedure to be followed by High Courts to

ensure smooth working and streamlining of

such contempt actions which are intended to

be taken up by the Court suo motu on its

own motion. These directions have no effect

of curtailing or denuding the power of the

High Court. It is also to be borne in mind that

the frequent use of suo motu power on the

basis of information furnished in a contempt

petition otherwise incompetent under Section

15 of the Act may render the procedural

safeguards of the Advocate General’s consent

nugatory. We are of the view that the

directions given in Duda case are legal and

valid.”

23.In exercise of the powers conferred by Section 23 of the

Contempt of Courts Act, 1971 and by Article 215 of the

Constitution of India and other enabling powers in that

22

behalf, the High Court of Calcutta made the rules to

regulate the proceedings for contempt of itself or of a

Court subordinate to it under the Act. The rules are

known as Calcutta High Court Contempt of Court Rules,

1975. The rules, inter alia, provide that proceedings in a

criminal contempt may be initiated (a) on its own motion

by the High Court under Section 15(1) of the Act; or (b)

on a motion founded on a petition presented by the

Advocate General under Section 15(a) of the Act; or (c)

on a motion founded on a petition presented by any other

person with the consent in writing of the Advocate

General under Section 15(1)(b) of the Act. Every such

petition shall contain full particulars of the material upon

which the petition is grounded and the prayer to the

petition and distinctly state the particular contumacious

conduct alleged for which the rule is prayed for and shall

be signed and dated by the petitioner or his duly

authorized agent and every such petition shall be verified

by the solemn affirmation made by the petitioner or by a

person or persons having cognizance of facts stated and

shall state clearly whether the statements are based on

23

knowledge, information and belief or on record. Rule 19 of

the rules enables the Court either to issue Rule Nisi or

summarily reject the petition or make such order

thereupon as thought fit and the Rule Nisi shall be drawn

up as far as may be in the model form in Form No.1,

Appendix I. Rule 20 provides that where the Rule is

issued by the Court on its own motion or on a motion

made by the Advocate General under Section 15, the Rule

Nisi shall be drawn up, as far as may be in the model

Form No. 2, Appendix I. It is fairly well settled that

Schedules, Forms and Appendix form part of the statutes

and or the rules as the case may be.

24.In the present case, Rule Nisi has been issued under the

orders of the High Court in Form No. 1 and not in Form

No.2. Had it been a proceeding initiated by the Court on

its own motion, the Rule Nisi would have been issued in

the model Form No.2, Apendix I. It is clearly evident from

the record that the Court did not set the law in motion on

its own accord. In the present case, the petitioner No.1

before the High Court is a practicing advocate and argued

24

his case in person. Sofaras petitioner No.2 is concerned,

he was represented by more than one lawyer. We have

meticulously examined the contempt petition in which

there was no prayer for taking suo motu action against

the appellants. The proceedings before the High Court

were initiated by the respondents by filing contempt

petition under Section 15. The petition was vigorously

pursued and argued as private petition. From the material

available on record including the impugned judgment, it is

impossible to accept the view taken by the High Court

that the Court had taken suo motu action. Even in this

Court, the respondents entered their appearance through

their counsel who did not turn up but elaborate written

submissions were submitted by the first respondent.

25.For all the aforesaid reasons, we hold that the petition to

take action against the appellant under Section 15

without the written consent of the learned Advocate

General was not maintainable in law.

25

26.For the view we have taken as regards the

maintainability of the petition itself, we are not required

to go into the merits of the case.

27.The impugned judgment is accordingly set aside. The

appeal is allowed.

………… ……………… ……………… J.

(B. SUDERSHAN R EDDY)

………… ……………… …………… ..J.

(SURINDER SINGH NIJJAR)

NEW DELHI,

AUGUST 25, 2010.

26