MOTILAL ROY Vs. JAGDISH SHARMA

JUDGEMENT

(1.) This Criminal contempt shall stand closed in view of its factual position. This Contempt petition was filed before this court by an individual ( a private person ) on 4/3/1999 under Section 15 of the Contempt of Courts Act, 1971. The written permission of the Advocate General is necessary to file a Criminal Contempt by a private individual. In this case the written consent of the Advocate General was obtained only on 15/3/1999 i.e. after filing of the Contempt case.

(2.) This matter is no longer res itegra in view of the decision of the Apex Court reported in (2001) 8 SCC 82(State of Kerala Vs. M.S. Mini and ors) where the Supreme Court pointed out that requirement of obtaining prior consent in writing of Advocate General for making motion by any person other than Advocate General is mandatory. So, failure to obtain prior consent would render the motion non- maintainable. Obtaining consent subsequently would not cure the initial defect. The Supreme Court in paragraph 6 stated as follows :- "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 men: formality; it has a salutary purpose. The said law officers being the highest law officers aJ 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 Further, cases found to be vexatious, malicious or motivated by personal vendetta and not irr public interest will get filtered at that level. If it 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: or prior consent will be frustrated. For a valid motion compliance with the requirements of Section 15 of the Act is mandatory. A motiom under Section 15 not in conformity with the provisions of Section 15, is not maintainable; (See Conscientious Group Vs Mohd. Yunua and P.N. Duda V P.Shiv Shhaker). In this view of the matter, law has been correctly laid down by the Orissa High Court in B.K. Misra V. Chief Justice, Orissa High Court, the Patna High Court in Harish Chandra Vishwanath V. E.S Venkatramiah. We may also note here that non-compliance with Section 7 of the English Contempt of Courts Act, 1081, referred to above, was held to be fatal to the action [Borrie & Lowe : The Law of Contempt, 3rd Edn., p.481 (Note 14)].

(3.) In that view of the matter, this contempt petition shall stand closed as not maintainable. None appears for the petitioner. We have heard Mr. H. Roy. Learned Advocate for the respondent No.2 and D.K. Talukdar, learned Advocate for the Respondent No. 1