STATE OF RAJASTHAN Vs. M R MITRUKA

JUDGEMENT

(1.) THESE proceedings arise out of a letter written by the respondent as President of the Rajasthan Judicial Service Association to Hon'ble the Union Home Minister, Central Government, New Delhi in respect of the alleged corruption in judiciary of Rajasthan. The letter appears to have been brought to the notice of Hon'ble the then Chief Justice of this Court, Shri V. P. Tyagi, who on Dec. 20, 1977 sought the opinion of the Advocate-General whether a notice for contempt of Court could be issued on the basis of the allegations made in the letter. The Advocate-General, Rajasthan, relying upon the decision of a Full Bench of the Orissa High Court in Registrar, Orissa High Court v. Barada Kanta Mishra gave his opinion that the contents of the letter contain an attack on the judiciary and as such it was a fit case in which a notice of contempt could be issued. Relying upon the opinion of the Advocate-General, the then Chief Justice while passing an administrative order regarding initiation of disciplinary proceedings against the respondent, on Dec. 24, 1977 (which was a holiday), also directed that a show cause notice be issued to the respondent why proceedings for contempt of Court may not be started against him for addressing such a letter to the Home Minister, The matter has come up before us in pursuance of the notice issued on the basis of the aforesaid order passed by the then Chief Justice. It may not be out of place to mention here that no order directing the issuance of a notice or taking cognisance of the case, passed by the Court or by Hon'ble the then Chief Justice has been placed on the record of these proceedings but what we find is that only some extracts of the orders, passed by Hon'ble the then Chief Justice on Dec. 20, 1977 and Dec. 24, 1977 on the administrative side, in connection with the initiation of disciplinary proceedings against the respondent, have been copied out by some official and notices have been issued to the respondent on the basis of the aforesaid typed extracts.

(2.) THE respondent has contested the validity of the notice issued to him and it has been submitted by him that no notice could have been issued unless cognizance was taken by this Court either on its own motion or on a motion made by the Advocate-General, or any other person, with the consent in writing of the Advocate-General. Learned Government Advocate tried to defend the procedure adopted in these proceedings and relied upon Rule 324 of the Rules of this Court. Under Sub-rule (1) of Rule 324, when an application for taking proceedings for contempt of court is presented before a Judge, other than the Chief Justice, he should direct that it be laid before the Chief Justice for orders. The rule does not provide as to who was authorised to direct the issuance of notice in a matter relating to contempt of Court. However, Sub-rule (3) of Rule 324 provides that where an order has been made directing that notice be issued to any person to show cause why he should not be punished for contemt of court a date shall be fixed for hearing and notice thereof in the prescribed form shall be given to the person concerned as also to the Government-Advocate. The notice shall contain a substance of the allegations made against such person and require him to appear, unless otherwise ordered, in person before the Court at the time and on the date specified therein to show cause why he should not be punished for contempt of Court. The form of notice for contempt of court, as prescribed under the Rules of this Court, also goes to show that the matter is to be considered by the Court, and it is the Court which can direct issuance of a notice and fix a date for hearing of the matter. After the coming into force of the Contempt of Courts Act, 1971 (hereinafter referred to as "the Act") the procedure to be followed in cases of Criminal contempt, as defined in Section 2 of the Act, has been prescribed in Section 15. According to the said provision, the Supreme Court or the High Court is empowered to take action in this regard either on its own motion or on a motion made by the Advocate-General or any other person with the consent of the Advocate-General or on a reference by a subordinate Court. Then under Section 17 of the Act; a notice of every proceeding under Section 15 has to be served personally on the person charged, except otherwise directed by the Court and such notice has to be accompanied by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded, where the proceedings in the case have commenced on a motion. Section 18 of the Act provides that every case of criminal contempt under Section 15 shall be heard and determined by a Bench of not less than two Judges. Reading the provisions of Rule 324 of the Rules of this Court together with those of Sections 15, 17 and 18 of the Act, the proper procedure to be followed in the case of criminal contempt appears to be that the matter should be placed before the Chief Justice and if he considers it expedient that proceedings for criminal contempt should be initiated, then he should direct that the matter be placed before an appropriate Bench, which after applying it's judicial mind to the facts, may take cognisance of the case.

(3.) WE may also point out that a Bench of the High Court, which is entitled to take cognizance of a criminal contempt under Section 15 of the Act, may take action either on its own motion or on a motion made by any one of the persons specified in that section or on a reference made by a subordinate court, but such a bench must consists of at least two Judges of the High ;court. To our mind, the words "heard and determined" employed in Section 18 of the Act are clearly indicative of the fact that the proceedings with regard to criminal contempt should be taken up, from the initial stage of taking cognizance up to the final determination, by a Bench consisting of not less than two Judges of the High Court, except in the case of the Court of a Judicial Commissioner. We may also refer in this connection to the decision of their Lordships of the Allahabad High Court in G. N. Verma v. Har Govind Dayal. Rule 19 of Chap. XVIII of the Rules of that Court appears to be analogous to the provisions of Rule 324 of this Court. In that case, the application for contempt of court was presented before a single Judge of the Allahabad High Court, who directed it to be laid before the Hon'ble Chief Justice of that Court and thereafter the Hon'ble Chief Justice ordered that the case be laid before a Division Bench of that Court. In the Case of State of Rajasthan v. Manohar Choghad Criminal Misc. Contempt Appl. No. 1224 of 1974, decided by a Division Bench of this Court on 24-2-1978 reported in 1978 WLN 85, to which one of us was a party, a similar argument was advanced that the proceedings for a criminal contempt can only be initiated when the Division Bench, constituted to hear and determine such a case, issues notice to the contemner under Section 17 (1) of the Act, after applying its mind to the alleged contemptuous act. Although in that case, the Division Bench of this Court did not express its final opinion in this matter, as the case was decided on the question of limitation, yet the Bench observed that the aforesaid contention "does not appear to be devoid of force".