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W.P(C) 2407 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
WP(C) NO. 2407 OF 2025
PETITIONER:
N.PRAKASH
AGED 60 YEARS
SON OF LATE A.NARAYANA RAO, PRAJITH VIHAR, AYINI
ROAD MARADU P.O ERNAKULAM, PIN - 682304.
BY ADV N.PRAKASH(Party-In-Person)
RESPONDENTS:
1 R.ASHAKUMARI
WIFE OF N.RAMESH JAYA VIHAR AYINI ROAD MARADU P.O
ERNAKULAM, PIN - 682304
2 THE ADVOCATE GENERAL
OFFICE OF THE ADVOCATE GENERAL HIGH COURT
BUILDINGS ERNAKULAM, PIN - 682031
BY ADVS.
SHRI.V.MANU, SENIOR G.P.(GP-46)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 18.02.2025, THE COURT ON 28.02.2025 DELIVERED
THE FOLLOWING:
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W.P(C) 2407 OF 2025
2
"C.R"
C.S.DIAS,J
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Dated this the 28th day of February, 2025
The petitioner has filed W.P.(C) No.19869 of 2024
before this Court, to direct the District Supply Officer
and Taluk Supply Officer, Kanayannur, to take action
against the 1st respondent (the petitioner's brother's
wife) who has obtained a ration card by perpetrating
fraud. The 1st respondent has filed a counter affidavit in
the writ petition containing false statements to mislead
the Court. The 1st respondent has filed the affidavit,
knowing the statements to be false. The 1 st respondent
is guilty of criminal contempt. Hence, the petitioner
filed Sanction Petition No.7 of 2024 before the learned
Advocate General (the second respondent) under
Section 15(1)(b) of the Contempt of Courts Act, 1971
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W.P(C) 2407 OF 2025
("Act", for short) to initiate criminal contempt
proceedings against the 1st respondent. The petitioner
has also filed I.A.No.3 of 2024 in W.P(C)No.19869 of
2024 to initiate proceedings against the 1st respondent
under Section 229 of the Bharatiya Nyaya
Sanhita, 2023. However, by Ext.P17 order, the learned
Advocate General has rejected the petitioner's
application. Ext.P.17 order is opposed to law and is
liable to be interfered with by this Court.
2. Heard; Sri.Prakash. N, the petitioner and Sri. V.
Manu, the learned Special Government Pleader.
3. The petitioner argued that Ext.P17 order has
been passed without any application of mind or valid
reason. The impugned order is justiciable before this
Court in view of the decisions of the Karnataka High
Court in R.L.Jalappa v. Advocate General for the
State of Karnataka and others (2009 SCC OnLine Kar
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W.P(C) 2407 OF 2025
237) and H.Munireddy v. Advocate General, State of
Karnataka, Bengaluru and others (2019 SCC OnLine
Kar 3085).
4. The learned Special Government Pleader
opposed the writ petition. He contended that the writ
petition is not maintainable because the grant or refusal
of sanction/consent by the learned Advocate General
under Section 15 (1) (b) of the Act is not justiciable.
The role of the learned Advocate General is that of an
amicus curiae to assist this Court on the administrative
side. Furthermore, the grant or refusal of sanction is
immaterial because even if the sanction is granted, this
Court can dismiss the contempt case, and the refusal of
sanction does not preclude this Court from suo motu
taking cognizance of the contempt. He relied on the
decisions of the Honourable Supreme Court in
P.N.Duda v. P.Shiv Shanker and others [(1988) 3
SCC 167] and Bal Thackrey v. Harish Pimpalkhute
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and others [(2005) 1 SCC 254] and the decision of the
Karnataka High Court in N.Venkataramanappa v.
D.K.Naikar and others (AIR 1978 Kant 57) to
substantiate his contentions.
5. Section 2(c) of the Contempt of Courts Act, 1971
defines criminal contempt; Section 14 lays down the
procedure where contempt is in the face of the Supreme
Court or a High Court, and Section 15 deals with the
manner in which cognizance is to be taken in a criminal
contempt proceeding, other than those falling under
Section 14.
6. To understand the question at hand, it is
necessary to refer to sub-sections (1) and (2) of Section
15 of the Contempt of Courts Act, 1971, which reads as
follows:
"15. Cognizance of criminal contempt in other cases.--(1) In the case of
a criminal contempt, other than a contempt referred to in Section 14, the Supreme
Court or the High Court may take action on its own motion or on a motion made
by--
(a) the Advocate-General, or
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(b) any other person, with the consent in writing of the Advocate-General,
(c) in relation to the High Court for the Union Territory of Delhi as the
Central Government may, by notification in the Official Gazette, specify in this
behalf, or any other person, with the consent in writing of such Law Officer.
(2) In the case of any criminal contempt of a subordinate court, the High
Court may take action on a reference made to it by the subordinate court or on a
motion made by the Advocate-General or, in relation to a Union territory, by such
Law Officer as the Central Government may, by notification in the Official
Gazette, specify in this behalf ...... ...... .....".
7. In S.K. Sarkar v. Vinay Chandra Misra [(1981) 1 SCC 436],
the Honourable Supreme Court has explained the powers of the
Advocate General under Section 15 of the Act as under:
"19. ...........In such cases, the High Court may be well advised to avail of
the advice and assistance of the Advocate-General before initiating proceedings.
The advice and opinion, in this connection, expressed by the Sanyal Committee is
a pertinent reminder:
"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. . . ."
8. In P.N. Duda's case, the two Judges of the
Hon'ble Supreme Court took divergent views while
considering whether the granting or non-granting of
consent is justiciable. Justice Sabyasachi Mukherji
opined that it was not possible to accept the position
that under no circumstances can the exercise of
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discretion by the Attorney General or Solicitor General
be enquired into. The learned Judge held that even
though the Attorney General may have declined to deal
with the matter, the Court could deal with the matter, on
attention being drawn to the Court. On the contrary,
Justice Ranganathan opined that the role of the Attorney
General/Solicitor General was akin to that of an amicus
curiae to assist the Court in an administrative matter
rather than a quasi-judicial role determining a lis
involving the rights of a member of the public vis-a-vis
an alleged contemner. If the consent is granted, no
person can approach the Court to contend that the
Attorney General/Solicitor General ought not to have
given his consent, for it would always be open to the
Court if it is found that there is no reason to initiate
action, to dismiss the petition. The learned Judge
further observed that it was not a fruitful exercise to
review the decision of the Attorney General/Solicitor
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General, and in any event, the petitioner is not deprived
of his remedy of coming before the Court and
requesting the Court to take suo motu action. The
petition would be nothing more than information on
which the Court may or may not take suo motu action.
9. Subsequently, in Joseph Kuzhijalil v. Joseph
Pulikunnel [1999 KHC 557], the question of whether
the granting or refusal of consent by the learned
Advocate General is justiciable was settled by the
Division Bench of this Court by holding as follows:
"6. S. 15(1) of the Contempt of Courts Act contemplates a motion either by
the Advocate General or by any other person with the consent in writing of the
Advocate General. The refusal of consent by the Advocate General cannot be
said to be justiciable. Unlike in the case of a refusal of sanction under S. 92 of
the Code of Civil Procedure before its amendment in the year 1976, when an
Advocate General refuses sanction for moving the Court under S. 15(1) of the
Contempt of Courts Act, no right of a party could be said to have been
impaired. Hence the principle recognised by this Court in Simon v. Advocate
General (1975 KLT 78) may not have application to a case where the Advocate
General refuses the consent This was the view adopted by this Court
in Berely v. Xavier (1986 KLT 1078) wherein this Court held that the refusal
to give consent by the Advocate General is not justiciable and a petition
under S. 226 of the Constitution of India seeking to challenge that order was
not maintainable. This Court of course relied on the decision of the Kamataka
High Court in N. Venkitaramanappa v. D.K. Naikar (AIR 1978 Karnataka 57) in
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support. Though the decision in N. Venkitaramanappa v. D.K. Naikar (AIR 1978
Karnataka 57) was overruled by a Full Bench of the Karnataka High Court in A.V.
Kowdi & Co. v. R.V. Laxshmi Devamma (ILR 1990 KAR 4355) that was not on
this point but on the point of applicability of S. 20 of the Contempt of Courts Act
in the matter of initiation of suo motu action under Art. 215 of the Constitution.
7. In Conscientious Group v. Mohammed Yunus ((1987) 3 SCC 89) the
Supreme Court indicated that when reasons for refusal of consent by the Advocate
General (Solicitor General in that case) are not found to be irrelevant or arbitrary,
the Court cannot permit the revival of the contempt of Court proceeding which
had earlier been permitted to be withdrawn so as to enable the petitioner to move
first, the Solicitor General for consent under S. 15(1) of the Act This decision
indicates that the Court can when it is moved for initiating action for contempt of
Court, consider whether the reasons given by the Advocate General are irrelevant
in the eye of law and to a limited extent can consider whether the view expressed
by him is arbitrary, illegal or unreasonable. This Court in the judgment in O.P.
7352 of 19185 (Contempt) (1986 KLT SN Case No. 38) while considering the
question of absence of consent of the Advocate General stated:--
"It is true that even in a case where suo motu action for contempt is not taken,
and where the Advocate General had declined to give his consent, this Court,
when properly alerted, can consider action under the Act against the offending
publications. However, the fact that the Advocate General had not considered it fit
to give his consent would weigh with this Court as one of the aspects to be
adverted to, in embarking upon an enquiry whether the statements complained of
constitute contempt"
8. It has also been laid down by the Supreme Court in Delhi Judicial Service
Association case ((1991) 4 SCC 406) that S. 15 of the Contempt of Courts Act
prescribes the modes for taking cognizance of criminal contempt by the High
Court and by the Supreme Court It is not a substantive provision conferring power
on the High Court and the Supreme Court for taking action for contempt of its
subordinate courts. The whole object of prescribing procedural modes of taking
cognizance under S. 15 of the Act is to safeguard the valuable time of the High
Court and the Supreme Court being wasted by frivolous complaints of contempt
of court. S. 15(2) of the Act does not restrict the power of the High Court to take
cognizance of the contempt of itself or of a subordinate court, on its own motion
although apparently, the Section does not say so. It can thus be seen that the
Advocate General moved for sanction, is not taking a decision on whether
contempt of court has been committed, but only considers whether sanction ought
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to be given on the materials placed before him. But certainly, it is a procedural
safeguard to weed out frivolous or unnecessary motions being made before the
Court for initiation of contempt action. In that context, when the Court is moved
after sanction is refused by the Advocate General, the Court has necessarily to
keep that fact in mind before deciding to initiate suo motu action for contempt of
court. As observed by the Division Bench in the Guruvayur Devaswom
case referred to earlier, the view of the Advocate General in that context is entitled
to weight and due consideration. But that is different from saying that the Court
cannot initiate action merely on the ground that the Advocate General has not
granted the consent sought for in a given case".
(emphasis supplied)
10. In the light of the emphatic proclamation of the
law in Joseph Kuzhijalil's case, an order declining
sanction by the learned Advocate General under Section
15 (1) (b) of the Contempt of Courts Act, 1971 is not
justiciable. Therefore, the writ petition has to
necessarily fail. Nonetheless, it is clarified that, the
dismissal of this writ petition will not fetter the right of
the petitioner to prosecute his application for initiating
proceedings against the 1st respondent under Section
229 of the Bharatiya Nyaya Sanhita, 2023, and this
Court from deciding whether criminal contempt of court
proceeding is to be initiated against the 1st respondent.
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With the above observation, the writ petition is
dismissed.
Sd/-C.S.DIAS, JUDGE
rmm/ma/27.02.2025
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W.P(C) 2407 OF 2025
APPENDIX OF WP(C) 2407/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF RATION CARD DETAILS OF
RATION CARD NO.1734040551 DOWNLOADED
FROM THE WEBSITE OF CIVIL SUPPLIES
DEPARTMENT
Exhibit P2 TRUE COPY OF RATION CARD DETAILS OF
RATION CARD NO.1734040501 DOWNLOADED
FROM THE WEBSITE OF CIVIL SUPPLIES
DEPARTMENT
Exhibit P3 TRUE COPY OF G.O.(MS)NO.4/2017/F&CS
DATED 7.3.2017 PRESCRIBING FEES FOR
ISSUE OF NEW RATION CARDS
Exhibit P4 TRUE COPY OF FIRST PAGE OF APPLICATION
FORM TO BE SUBMITTED FOR NEW RATION CARD
WHICH SPECIFIES IN COLUMN 2 THAT ONLY IF
THERE IS NO WOMAN HAVING COMPLETED 18
YEARS, NAME OF MALE HEAD OF THE FAMILY
IS TO BE GIVEN
Exhibit P5 THE TRUE COPY OF THE COVER PAGE OF
EXHIBIT P2 RATION CARD
Exhibit P6 TRUE COPY OF THE RELEVANT PORTION FROM
THE NP (NS) MEMBER LIST EXHIBITED IN ARD
NO.126
Exhibit P7 TRUE COPY OF TRANSACTION DETAILS IN
RESPECT OF EXHIBITS P1 AND P2 FOR THE
MONTH OF JUNE 2023
Exhibit P8 TRUE COPY OF TRANSACTION DETAILS IN
RESPECT OF EXHIBITS P1 AND P2 FOR THE
MONTH OF OCTOBER 2023
Exhibit P9 TRUE COPY OF TRANSACTION DETAILS IN
RESPECT OF EXHIBITS P1 AND P2 FOR THE
MONTH OF NOVEMBER 2023
Exhibit P10 TRUE COPY OF TRANSACTION DETAILS IN
RESPECT OF EXHIBITS P1 AND P2 FOR THE
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W.P(C) 2407 OF 2025
MONTH OF DECEMBER 2023
Exhibit P11 TRUE COPY OF TRANSACTION DETAILS IN
RESPECT OF EXHIBITS P1 AND P2 FOR THE
MONTH OF FEBRUARY 2024
Exhibit P12 TRUE COPY OF TRANSACTION DETAILS IN
RESPECT OF EXHIBITS P1 AND P2 FOR THE
MONTH OF MARCH 2024
Exhibit P13 TRUE COPY OF TRANSACTION DETAILS IN
RESPECT OF EXHIBITS P1 AND P2 FOR THE
MONTH OF APRIL 2024
Exhibit P14 TRUE COPY OF THE COUNTER AFFIDAVIT DATED
5.8.2024 FILED BY THE FIRST RESPONDENT
BEFORE THE HONOURABLE HIGH COURT OF
KERALA IN W.P.C.NO.19869 OF 2024
Exhibit P15 TRUE COPY OF THE SANCTION PETITION NO.7
OF 2024 DATED 17.9.2024 (WITHOUT THE
EXHIBITS THEREIN AS THEY ARE PRODUCED AS
EXHIBITS P1 TO P14 IN THIS WRIT
PETITION) FILED BY THE PETITIONER BEFORE
THE SECOND RESPONDENT
Exhibit P16 TRUE COPY OF I.A.NO.3 OF 2024 IN
W.P.C.NO.19869 OF 2024
Exhibit P17 TRUE COPY OF THE COMMUNICATION BEARING
NO.S.P.NO.7/2024 DATED 27.12.2024
ENCLOSING WITH IT THE ORDER OF THE
SECOND RESPONDENT DATED 24.12.2024
