Madhya Pradesh High Court
In Reference vs Shri Nilesh Kumar Surana on 2 May, 2024
Author: Chief Justice
Bench: Chief Justice
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CONCR No. 2 of 2022
(IN REFERENCE Vs SHRI NILESH KUMAR SURANA AND OTHERS)
Dated : 02-05-2024
Shri Anshuman Singh - Advocate appears as amicus curiae.
Shri Awadhesh Kumar Singh - Advocate for accused/respondent
No.1.
Shri Anil Khare - Senior Advocate with Shri Shailendra Verma -
Advocate for accused/respondent No.2.
Heard the learned amicus curiae.
2. These proceedings were initiated against the accused No.1,
wherein during pendency of the proceedings, an amicus curiae was
appointed to assist the court in disposing off this petition. An application
was filed by the learned amicus curiae in IA No.9053 of 2023 seeking to
implead the second accused herein.
3. On considering the same, this Court by the order dated 21.04.2023
allowed the application and directed the accused No.2 to be impleaded.
4. Thereafter, the instant preliminary objection/recall of the order
dated 21.04.2023 has been filed on 31.10.2023. Learned senior counsel
appearing for the accused No.2 relies on the judgment of the Hon'ble
Supreme Court in the case of Vilas V. Sanghai Vs. Sumermal Mishrimal
Bafna and Another reported in (2016) 9 SCC 439 with reference to paras
10, 14, 15 and 16 which reads as follows:-
"10. So far as the legal provisions are concerned, he
submitted that the provisions of Section 15 of the Act ought
to have been complied with for initiating proceedings for
punishing the appellant for criminal contempt. In the instant
case, the action was not initiated on a motion made by the
Advocate General or on a reference made by the subordinate
court concerned as per the provisions of Section 15 of the
Act. For the aforestated reason, the entire proceedings were
vitiated.
14. The impugned order is in violation of the provisions of
Section 15 of the Act. The relevant portion of Section 15
reads as under:
"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
(b) any other person, with the consent in writing to the
Advocate General, or
(c) in relation to the High Court for the Union
Territory of Delhi, such Law Officer 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.
(3) ***"
15. In the instant case, the alleged criminal contempt was of a
subordinate court and therefore, the action could have been
taken on a reference made to the High Court by the
subordinate court or on a motion made by the Advocate
General, but the proceedings had been initiated in pursuance
of an application submitted by Respondent 1. From the
record, we do not find that the learned Advocate General had
ever given his consent for initiation of the said proceedings.
16. Without going into the facts of the case, only on this
limited ground that the criminal contempt proceedings had
not been initiated as per the provisions of Section 15 of the
Act, in our opinion, the proceedings are vitiated and
therefore, the impugned order passed by the High Court is
neither just nor legal and therefore, we set aside the
impugned order [Sumermal Mishrimal Bafna v. Vilas V.
Sanghai, 1997 SCC OnLine Bom 558 : (1998) 2 Mah LJ 1] ."
5. We have heard Shri Anil Khare, learned senior counsel appearing
for the accused No.2 as well as Shri Anshuman Singh, learned counsel
appearing as amicus curiae. The reason assigned in the application is to
the effect that the application is not maintainable under Section 15 (2) of
the Contempt of Courts Act, 1971. That the procedure under Section 15
(2) has not been followed. It is barred by limitation. Primarily, it is
contended that the application could not have been allowed.
6. Learned amicus curiae relies on the judgment of the High Court of
Karnataka in the case of Muslim Co-operative Bank Ltd. Vs. Assistant
Registrar of Co-operative Societies reported in 1990 SCC OnLine Kar
304 with reference to para 6, which reads as follows :-
"6. As far as the exercise of suo motu powers is
concerned, under what circumstances it should be exercised
is left to the Registrar himself under the Societies Act as also
under the Act. He could do so in whatever manner he gets
information if he considers the information sufficient to
institute an enquiry into the affairs of the Society or a Co-
operative Society, as the case may be. Even if one member of
a Society or a Co-operative Society lodges a complaint and
requests the Registrar of a Society or a Registrar of a Co-
operative Society, as the case may be, the Registrar
concerned has the power to institute an enquiry under Section
25 of the Societies Act in the case of a Society and Section
64(1) of the Act in the case of a Co-operative Society, if the
Registrar is satisfied that sufficient basis is made out in such
written representation. Such is the suo motu power conferred
on the Registrar of Societies under Section 25(1) of the
Societies Act and on the Registrar of Co-operative Societies
under Section 64(1) of the Act. Therefore the fact that the
Registrar has referred to the complaint made by a member in
the order instituting the enquiry is no ground to hold that the
Registrar had not acted suo motu. Naturally for exercise of
suo motu powers also, there must be some source of
information for the Registrar to do so. Such information may
come to the Registrar of the Societies or the Registrar of Co-
operative Societies, during his inspection of a Society or a
Co-operative Society as the case may or by any other means
including a written complaint by a member. For these
reasons with great respect, we are unable to agree with the
view expressed by Puttaswamy, J., in the case of Mahila Seva
Samaj that if a Registrar institutes an enquiry on the basis of
a complaint submitted by members who do not constitute
either fifty per cent of the governing body members or one
third of the members of the society, the enquiry instituted is
illegal, and that his power to institute enquiry suo motu must
be exercised without reference to any complaint by any
member or members who do not fulfil the requirement
prescribed under Section 25."
7. Having considered the contentions, we do not find any ground to
entertain the objections. The powers of the High Court to initiate
contempt are not in any manner limited by the provisions of the Contempt
of Courts Act. Section 15 is not the source of power to issue notice for
contempt. It only provides procedure in which such proceedings for
contempt are to be initiated. Therefore, as far as suo motu powers of the
court are concerned, there is no requirement as such of taking consent
because the court is exercising its inherent power to issue notice for
contempt. It is within the constitutional power of the court to consider the
contumacious acts of the contemnor and to punish him/her for the same.
The Hon'ble Supreme Court in the case of Rajeshwar Singh Vs. Subrata
Roy Sahara and Others reported in (2014) 14 SCC 257 referred to its
earlier decision in Delhi Judicial Service Assn. Vs. State of Gujrat
reported (1991) 4 SCC 406 wherein it is held as follows :
"22...................."The power of the Supreme Court and the
High Court being the courts of record as embodied under Articles
129 and 215 respectively cannot be restricted and trammelled by
any ordinary legislation including the provisions of the Contempt
of Courts Act. Their inherent power is elastic, unfettered and not
subjected to any limit. The power conferred upon the Supreme
Court and the High Court, being courts of record under Articles
129 and 215 of the Constitution respectively is an inherent power
and the jurisdiction vested is a special one not derived from any
other statute but derived only from Articles 129 and 215 of the
Constitution of India and therefore the constitutionally vested right
cannot be either abridged by any legislation or abrogated or cut
down. Nor can they be controlled or limited by any statute or by
any provision of the Code of Criminal Procedure or any rules. The
caution that has to be observed in exercising this inherent power
by summary procedure is that the power should be used sparingly,
that the procedure to be followed should be fair and that the
contemnor should be made aware of the charge against him and
given a reasonable opportunity to defend himself..............."
8. Suo motu powers being exercised by the court are within the power
vested by the court. The contention that there has not been proper
compliance of Section 15(2) of the Contempt of Courts Act would not
deter or take away the constitutional powers conferred on this court under
Article 215 of the Constitution of India. Therefore, whether an
application is filed under Order 1 Rule 10 of the CPC, would be of no
consequence. The power exercised by the court being a suo motu power,
we do not find that the proceedings against the accused No.2 could be
said to be not maintainable. Hence, the objections are rejected.
9. Call on 13.05.2024 to enable the respondent No.2 to file
objections.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
skm
