Delhi High Court
Sh.Ishwar P.Pujara & Ors vs Mr.Rakesh Kumar Daver & Ors on 19 February, 2010
Author: Anil Kumar
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Cont.Cas (Crl.) No.11/2005
% Date of Decision: 19.02.2010
Sh.Ishwar P.Pujara & Ors .... Petitioners
Through Mr.Neeraj K.Sharma, Advocate.
Versus
Mr.Rakesh Kumar Daver & Ors .... Respondents
Through Mr.V.K.Tandon, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE V.K.SHALI
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported in YES
the Digest?
ANIL KUMAR, J.
Mr.Neeraj K.Sharma appears on behalf of petitioners and seeks
an adjournment. No one had been present on behalf of petitioners on
27th November, 2009 and on 8th January, 2010. The learned counsel
appearing on behalf of petitioners contends that now the matter is to be
argued by Sh.S.C.Ladi, Advocate. It is contended that Mr.Ladi is out of
town.
The adjournment is opposed by the learned counsel for the
respondents contending that the ex-facie the Criminal Contempt filed
by the petitioners is not maintainable as permission contemplated
under Section 15 of Contempt of Courts Act, 1971 had not been
obtained by the petitioners. In any case the ground that the counsel for
the petitioner is not available cannot be ground for adjournment,
considering that the matter has been adjourned on one ground or other
at the instance of the petitioners.
Considering the history of the case we are not inclined to adjourn
the matter especially since the criminal contempt has been filed without
obtaining the sanction of the standing counsel (Criminal), Government
of NCT under Section 15 of the Contempt of Courts Act, 1971.
The petition itself stipulates in para 35 that sanction from the
standing counsel (Criminal), Government of NCT under Section 15 of
Contempt of Courts Act, 1971 has not been obtained and reliance has
also been placed on letter dated 13th May, 2005 of the standing counsel
(Crl.) declining the sanction.
The learned counsel for the respondent has pointed out that there
has been extrapolation in para 35 of the petition as the word 'not' has
been inserted later on and it is not initialed. Even the date of the letter
has been changed and the letter dated 13th May, 2005 has also been
produced and inserted later on in the Court record as at page 129 of the
paper book, annexure P12 is the copy of the letter from the counsel of
the petitioners to the standing counsel (Criminal) which is numbered as
page 129 whereas at page 130 is the application on behalf of petitioners
under provisions analogous to Order 39 Rules 1 & 2. The letter dated
13th May, 2005 by Ms.Mukta Gupta, standing Counsel (Criminal)
declining sanction for initiating criminal contempt has been inserted in
between these two pages and it does not bear any page number. In the
circumstances it is asserted that the said letter has been inserted later
on. It is contended that had the petitioners disclosed initially that the
permission has not been granted, the Court would not have issued
notice to the respondents.
Be that as it may, the fact remains that the sanction as
contemplated under Section 15 of the Contempt of Courts Act, 1971
has not been granted by the concerned authorities. Even if there is any
extrapolation in para 35 of the petition, the fact remains that now even
according to the petitioners the sanction has not been granted by letter
dated 13th May, 2005.
A full Bench of Patna High Court in 1986 Crl. L.J 320, Harish
Chandra Mishra and ors. vs The Hon'ble Mr. Justice S.Ali Ahmed had
held by a majority judgment that requirement of written consent in
application for initiating contempt by a private individual is a must. In
this case the application for Criminal Contempt filed on behalf of the
petitioners without the consent in writing of the Advocate General was
held to be not maintainable and was not entertained. A division Bench
of Bombay High Court in 1990 Crl.L.J.2179, Vishwanath Vs
E.S.Venkatramaih & ors had held that petition for initiation of
proceeding for criminal contempt without consent of Advocate General
is not maintainable.
From Perusal of section 15 of the Contempt of Courts Act, 1971 it
is apparent that the section contemplates only three modes as to how a
contempt petition can be moved. Either the Court can initiate the
proceedings suo motu or on a motion made by the Advocate General or
on a motion made by any other person, with the consent in writing of
the Advocate General. In relation to High Court for Union Territories of
Delhi it can be any law officer who is specified by the Central
Government by notification in the official Gazette which is the Standing
Counsel Criminal at New Delhi. Another Division Bench of this Court in
Subhash Chand v. Shri S. M. Aggarwal, ILR (1984) 1 Del 850, at page
850 had held that the Court may reject a petition presented without
the consent of Advocate General or where consent has been refused in
limine.
The letter dated 13th May, 2005 from standing counsel (Crl.), Ms.
Mukta Gupta is categorical that the case of the petitioners does not fall
within the ambit of criminal contempt and as such the consent is
declined. The case of the respondent nos.1 to 15, officials of Canara
Bank is that the debtors of the Bank despite due service of the
summons of the recovery proceedings initiated by the Canara Bank
against them had not contested the proceedings and therefore the
petitions of the bank for recovery were allowed by order dated 14th
December, 2004 and recovery certificates for Rs.35,53,515/- and
Rs.2,22,29,356.53 together with interest and costs were issued. The
petitioners who are the purchasers from the debtors of the Bank after
issuance of recovery certificate had filed a CM (M) 226 of 2005 under
Article 227 of the Constitution of India for quashing of order dated 14th
December, 2004 and the Court had passed an order dated 7.2.2005
staying the operation of the impugned order. The CM (M) 226 of 2005
where the stay order was passed, was dismissed by the Court later on
by order dated 21st March, 2006. The Canara Bank had contended that
recovery proceedings were initiated against borrowers including M/s
S.K.Trading Corporation, M/s Ess Kay International, M/s Goodwill
Exporters, M/s S.K.Worldwide Clothing Ltd. And M/s Fast Forward
Fashions after decrees had been passed after following due process of
law and in the circumstances no criminal contempt has been
committed by any of its officials.
This is not disputed that the permission as contemplated under
section 15 (1) (b) of the Contempt of Courts Act, 1971 was not granted
by the Standing Counsel (Crl.). In the circumstances, the petition for
initiating criminal contempt against the respondents who are the
officials of Canara Bank shall not be maintainable without the
permission as contemplated under Section 15 (1) (b) of the Contempt of
Courts Act, 1971. Consequently, the criminal contempt is not
maintainable. Resultantly, the petition is dismissed, however, parties
are left to bear their own cost.
ANIL KUMAR, J.
February 19th, 2010 V.K.SHALI, J.
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