BIMAN BASUversusKALLOL GUHA THAKURTA & ANR.

                   [2010] 10 S.C.R. 631


                       BIMAN BASU                             A
                             V.
            KALLOL GUHA THAKURTA & ANR.
             (Criminal Appeal No. 607 of 2005)
                    AUGUST 25, 2010
                                                              B
   [B.SUDERSHAN REDDY AND SURINDER SINGH
                 NIJJAR, JJ.)

      Contempt of Courts Act, 1971 - ss. 2(c) and 15 - Criminal
contempt - Procedure for taking cognizance - Contempt C
petition filed by private person without ·the written consent of
the Advocate-General - Held: Is not maintainable - Calcutta
High Court Contempt of Court Rules, 1975.

    Interpretation of Statutes - Schedules, Forms and
                                                              0
Appendix - Held: They form part of the statutes/rules.

      The respondents filed a contempt petition in the
 Calcutta High Court under Section 15 of the Contempt of
 Courts Act, 1971, seeking initiation of appropriate
 contempt proceedings against the appellant for making E
 deliberate and willful derogatory, defamatory and filthy
 statements against a sitting Judge of the High Court.
 They, accordingly, prayed for initiation of contempt
 proceedings against the appellant under Sections 2(a),
 2(b), .2(c) and 2(d) of the Act. The appellant challenged the F
 maintainability of the contempt petition on the ground
 that the motion was moved without the written consent
 of the Advocate General. The High Court, however, held
that the contempt petition was maintainable as suo-motu
action was taken by the Court to initiate contempt G
.proceedings, and convicted the appellant for committing
criminal contempt as defined in Section 2(c) of the Act
and sentenced him, to undergo simple imprisonment for
a period of three days and to pay a fine of Rs.10,000/-.
                                631                            H
    632      SUPREME COURT REPORTS           [2010] 10 S.C.R.


A       The question for consideration in the instant appeal
    was whether the Contempt Petition filed by the
    respondents was not maintainable as the consent of the
    Advocate General had not been obtained.

          Allowing the appeal, the Court
B
       HELD:1.1. The instant case relates to criminal
  contempt as defined in s.2(c) of the Contempt of Courts
  Act, 1971. Section 15 of the Act, inter alia, provides that
  the action for contempt may be taken by the Supreme
C Court or the High Court on its own motion or on a motion
  made by (a) the Advocate-General or (b) any other person
  with the consent in writing of the Advocate General. The
  petition to take action against the appellant under Section
  15 of the Act, without the written consent of the Advocate
o General was not maintainable in law. It is evident from the
  record, the respondents were continued to be shown as
  the petitioners in the contempt case before the High
  Court and they participated throughout as if they were
  prosecuting the appellant. There is no order reflecting
E that the High Court having taken note of the information
  made before it, initiated suo motu proceedings on the
  basis of such information furnished and required the
  respondents only to assist the Court till the disposal of
  the matter. On the contrary, respondents are shown as
F the  petitioners in the contempt case before the High
  Court. It is thus clear, it is the respondents who initiated
  the proceedings and continued the same but without the
  written consent of the Advocate General as is required
  in law. The proceedings, therefore, were clearly not
G maintainable. [Paras 20, 25] [650-C; 647-D-F]

         1.2. In exercise of the powers conferred by Section
    23 of the Contempt of Courts Act, 1971 and by Article 215
    of the Constitution and other enabling powers in that

H
 BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 633


behalf, the High Court made the Calcutta High Court A
Contempt of Court Rules, 1975. The Rules, inter alia,
provide that proceedings in a criminal contempt may be
initiated (a) on its own motion by the High Court under
Section 15(1) of the Act; or (b) on a motion founded on a
petition presented by the Advocate General under Section B
15(1 )(a) of the Act; or (c) on a motion founded on a
petition presented by any other person with the consent
in writing of the Advocate General under Section 15(1 )(b)
of the Act. Rule 19 of the rules enables the Court either
to issue Rule Nisi or summarily reject the petition or make c
such order thereupon as thought fit and the Rule Nisi shall
be drawn up as far as may be in the model form in Form
No.1, Appendix I. Rule 20 provides that where the Rule
is issued by the Court on its own motion or on a motion
made by the Advocate General under Section 15, the Rule
                                                             0
Nisi shall be drawn up, as far as may be in the model Form
No. 2, Appendix I. It is fairly well settled that Schedules,
Forms and Appendix fo~m part of the statutes and or the
rules as the case may be. [Para 23] [648-G-H; 649-A-B; O-
F]
                                                             E
      1.3. In the present case, Rule Nisi has been issued
under the orders of the·High Court in Form No. 1 and not
in Form No.2. Had it been a proceeding initiated by the
High Court on its own motion, the Rule Nisi would have
been issued in the model Form No.2, Apendix I. It is clearly F
evident. from the record that the High Court did not set
the law in motion on its own accord. Petitioner No.1
before the High Court, i.e. respondent no.1, is a practicing
advocate and argued his case in person. So far as
petitioner No.2 is concerned, i.e. respondent no.1 herein, G
he was represented by more than one lawyer. In the
contempt petition there was no prayer for taking suo motu
action against the appellants. The proceedings before the
High Court were initiated by the respondents by filing
contempt petition under Section 15. The petition was H
    634      SUPREME COURT REPORTS            [2010] 10 S.C.R.


A -vigorously pursued and argued as a private petition.
   Even in this Court, the respondents entered their
   appearance through their counsel who did not turn up
   but elaborate written submissions were submitted by
   respondent no.1. From the material available on record
B including the impugned judgment passed by the High
   Court, it is impossible to accept the view taken by the
   High Court that it had taken suo motu action. [Para 24)
   [649-F-H; 650-A-C]

         S.K. Sarkar, Member, Board of Revenue UP. v. Vinay
c   Chandra Misra (1981) 1 SCC 436; State of Kera/a v. M. S.
    Mani (2001) a SCC 82; P.N. Duda v. P. Shiv Shankar (1988)
    3 SCC 167; Bal Thackrey v. Harish Pimpalkhute (2005) 1
    SCC 254; L.P. Misra (Dr.) v. State of UP. (1998) 7 SCC 379;
    Pal/av Sheth v. Custodian (2001) 7 SCC 549; C.K. Daphtary
D   v. O.P. Gupta (1971) 1 SCC 626; D.N. Taneja v. Bhajan Lal
    (1988) 3 SCC 26; State of Maharashtra v. Mahboob S.
    Allibhoy & Anr. (1996)4 SCC 411; Om Prakash Jaiswal v.
    D.K. Mittal & Anr. (2000) 3 SCC 171 and J.R. Parashar V.
    Prasant Bhushan, (2001) 6 SCC 735 - referred to.
E
                        Case Law Reference:
          (1981) 1 sec 436      referred to          Para 12
          (2001) 8 sec 82       referred to          Para 13
F         (1988) 3 sec 167      referred to          Para 15
          (2005) 1 sec 254      referred to          Para 16
          (1998) 1 sec 379      referred to          Para 17

G         (2001) 1 sec 549      referred to          Para 17
          (1971) 1 sec 626      referred to          Para 17
          (1988) 3 sec 26       referred to          Para 18
          (1996) 4 sec 411      referred to          Para 18
H
 BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 635


     (2000) 3 sec 111         referred to           Para 19      A
     (2001) s sec 735         referred to           Para 21
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 607 of 2005.
                                                                 B
   From the Judgment & Order dated 31.03.2005 of the High
Court of Calcutta in C.P.A.N. No. 1535 of 2003.

    K.K. Venugopal, Rajeev Dhaw.an, Bikas Ranjan
Bhattacharya, Rauf Rahim, Yadunandan Bansal, Gopal Shankar
Narayan, Pallavi Mohan for the Appellant.                  C

    Subrata Biswas, Dr. Kailash Chand, Mridula Ray
Bharadwaj, S.S. Jauhar for the Respondents.

     The Judgment of the Court was delivered by
                                                                 D
     B. SUDERSHAN REDDY, J. 1. This appeal preferred
under Section 19(1) of the Contempt of Courts Act, 1971 is
directed against the judgment dated 31st March, 2005 of the
High Court of Calcutta in C.P.A.N. No. 1535 of 2003 whereby
the appellant has been held to have committed criminal           E
contempt as defined in Section 2(c) of the Contempt of Courts
Act, 1971 and sentenced to undergo simple imprisonment for
a period of three days and to pay a fine of Rs.10,000/-.

     2. The origin of the proceedings is traceable to an incident F
that had taken place on 24th September, 2003 when some of
the Judges of the Calcutta High Court while on their way to the
High Court were 'detained' by a police officer so as to allow
a procession of adivasis to pass by who were out to press
their demand for recognition of Shanthali as one of the G
Scheduled language under the Constitution of India. Justice
Amitava Lala of that Court felt the procession caused enormous
disruption not only to the "official business of the Court" but
also "the people at large". The learned Judge issued suo-motu
rule of contempt upon Deputy Commissioner of Police (Traffic) H
    636 .    SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A   and other police officers. As is evident from the order dated
    29th September, 2003, the learned Judge felt humiliated as
    the police officers refused to make necessary arrangements
    for the free movement of his car so that he could reach the
    Court on time. The learned Judge was of the opinion that the
B   "Court does not mean Court room but movement of the Judge
    even outside, at least when he is moving to discharge his
    official functions". It is under those circumstances that the
    learned Judge thought it fit that it was high time to issue suo-
    motu rule of contempt upon the appropriate public authorities
c   to show cause. The learned Judge in the said contempt
    proceedings initiated by him suo-motu issued as many as
    twelve directions/guidelines with respect to traffic regulations
    and holding of processions/meetings in the city of Kolkata.
    We wish to say no more on this aspect of the matter since the
    directions so issued by the learned Judge are stated to be
0
    under the consideration in appeal before a Division Bench of
    the High Court.

        3. The appellant herein is alleged to have not only criticized
  the order but also made certain adverse comments against
E the Judge who passed the said order. These comments were
  widely reported and published in various newspapers on
  5.10.2003. In the meanwhile, a Division Bench of the Calcutta
  High Court stayed all the directions issued by the learned
  Single Judge on 29th September, 2003 in the contempt
F proceedings concerning the regulation of traffic and
  processions/public meetings. The respondents in this appeal
  moved a contempt petition in the High Court on 13th October,
  2003 with a prayer to initiate appropriate contempt proceedings
  against the appellant for making deliberate and willful
G derogatory, defamatory and filthy statements against Justice
  Amitava Lala which were widely published in the newspapers
  and electronic media. In their petition, the respondents pleaded
  that the derogatory, defamatory and contumacious statements
  and remarks made by the appellant constitute a straight and
H direct attack upon a sitting High Court Judge and the same
 BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 637
          [B.SUDERSHAN REDDY, J.]
has not only lowered the dignity of the sitting High Court Judge     A
but also total judicial system of the country. They have
accordingly prayed to initiate contempt proceedings against
the appellants "under Sections 2(a), 2(b), 2(c) and 2(d) or any
other applicable Sections of the Contempt of Courts Act, 1971
and to put him behind the bars and also to saddle him with           B
fine ... ". They have also prayed for award of costs and other
incidental charges in connection with the contempt application.
The contempt petition was duly supported by an affidavit as
required and solemnly affirmed by the first respondent. In the
affidavit, it is specifically stated that the statements, comments   c
and averments made in paragraph Nos. 1 to 4, 6 and 8 are
true to his knowledge.

    4. A Division Bench of the Calcutta High Court vide its
order dated 17th October, 2003 passed the following order:
                                                                     D
    "Heard.

    After hearing Mr. Ali, learned counsel moving this petition
    and perusing the issue of Bartaman dated 5th October,
    2003, we are of the view that a Rule be issued. Rule is
                                                                     E
    made returnable on 7th of November, 2003.

     This Court, however, makes it clear that the records of this
     case may be placed before the Hon'ble the Chief Justice
     for assignment of this rule for hearing before any Bench
     that the Hon'ble the Chief Justice may think fit and proper".   F

     5. This order was followed by rule requiring the appellant
herein to show cause why he should not be committed to
prison or otherwise penalized or dealt with for making
"deliberate and willful derogatory, defamatory and filthy G
statements against a sitting Judge of this Court Hon'ble Justice
Amitava Lala, as well making such derogatory, defamatory .
and filthy languages (sic) remarks and statements in front (sic)
of the Press, Electronic Media and open meeting regarding
the order dated 29th September, 2003 passed by Justice H
    638     SUPREME COURT REPORTS               [2010] 10 S.C.R.

A Amitava Lala." The appellant was required to be personally
  present on 7th November, 2003 before the Court. The appellant
  was accordingly served with the contempt petition together
  with all annexures and enclosures including the affidavit of the
  first respondent filed in support of the contempt petition.
B
        6. The appellant accordingly appeared before the Court
  along with his counsel on 7th November, 2003 and filed a
  brief affidavit in opposition inter alia stating that he has got
  great respect to the dignity and majesty of the Court and that
C he has never meant to show any disrespect to the High Court
  or to any of the Judges of the Court and that if his act or
  conduct reflected any disrespect, the same was inadvertent
  and unintentional. He accordingly expressed his regret for such
  "unintentional error". The appellant also raised the issue of
  maintainability of the contempt petition since the motion was
D moved without the consent in writing of the Advocate General.
  The Court vide its order dated 7th November, 2003 expressly
  kept open the question of maintainability of the petition.
  Thereafter, various TV news channels and editors of
  newspapers were added as parties to the contempt
E proceedings. The High Court after hearing the parties passed
  the impugned judgment. Hence this appeal.

       7. We have heard Shri K.K. Venugopal and Dr. Shri Rajiv
  Dhawan, learned senior counsel for the appellant and none
F appeared on behalf of the respondents. We have, however,
  considered the written submissions of the first respondent
  which were filed into the Court after completion of the hearing
  of the matter.

       8. The Division Bench judgment has been divided into
G mainly five parts viz., (i) maintainability (ii) free speech and
  contempt (iii) standard of proof (iv) fair comment and contempt
  (v) evidence in the present case. The finding of the Division
  Bench on the maintainability is that the contempt petition was
  maintainable as suo-motu action has been taken by the Court
H to initiate contempt proceedings. Since the whole question
 BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 639
          [B.SUDERSHAN REDDY, J.]
centers around the maintainability of the application, it may be   A,
necessary to notice the view taken by the High Court in its own
words:
    "In the instant case, having regard to the nature of· the
    complaint made in the petition along with the newspaper
                                                                8
    reports which were also referred to in the High Court's
    order dated 17th October, 2003 while issuing the Rule
    coupled with the fact that one of the petitioners was an
    Advocate of this Court and the petition contained an
    averment to take action suo-motu, this Court records that
    it took the action suo-motu. Therefore, the objection about C
    the maintainability of the proceedings is not sustainable".

      9. The main issue that arises for our consideration and
 determination in this appeal is whether contempt proceedings
were initiated against the appellant suo-motu by the Court or D
 by the respondents? The Contempt of Courts Act, 1971 as
enacted by the Parliament is an Act to define and limit the
 powers of certain Courts in punishing for the contempt of
 Courts and to regulate their procedure in relation thereto. The
 Statement of Objects and Reasons clearly explains the reasons E
 as to how it was felt that the existing law relating to contempt
 of Courts was somewhat.uncertain, undefined and
 unsatisfactory. The jurisdiction to punish for contempt touches
 upon two important fundamental rights of the citizen, namely,
the right to personal liberty and the right to freedom of F
 expression. It was, therefore, considered advisable to have
the entire law on the subject scrutinized by a Special
Committee. Accordingly, a Committee was set up in 1961
under the Chairmanship of late Shri H.N. Sanyal, the then
Additional Solicitor General. The Committee made a G
comprehensive examination of the law and problems relating
to contempt of Court in the light of the position obtaining in our
own country and various foreign countries. The
recommendations which the Committee made took note of
the importance given to freedom of speech in t~e Constitution
                                                                   H
    640      SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A   and of the need for safeguarding the status and dignity of
    Courts and interests of administration of justice. The
    recommendations of the Committee have been generally
    accepted by Government after considering the views expressed
    on those recommendations by the State Governments, the
B   Supreme Court and the High Courts.

        10. The Act, inter alia, defines criminal contempt and also
  provides for the procedure of taking cognizance thereof. The
  Act defines that "Contempt of Court means Civil contempt or
  Criminal contempt". In the present case, we are concerned
C with the criminal contempt. Criminal ~ontempt is defined in
  Section 2( c) of the Contempt of Courts Act, 1971 and it says,
  "criminal contempt means the publication (whether by words,
  spoken or written, or by signs, or by visible representation, or
  otherwise) of any matter or the doing of any other act
D whatsoever which (i) scandalizes or tends to scandalize, or
  lowers or tends to lower the authority of any Court; or (ii)
  prejudices, or interferes or tends to interfere with the due
  course of any judicial proceeding; or (iii) interferes or tends to
  interfere with or obstructs or tends to obstruct the administration
E of justice in any other manner". In the case of criminal contempt,·
  other than a contempt referred to in Section 14, the manner of
  taking cognizance has been P{OVided for in Section 15 of the
  Act. This Section, inter alia, provides that the action for contempt
  may be taken by the Supreme Court or the High Court on its
F own motion or on a motion made by (a) the Advocate-General
  or (b) any other person with the consent in writing of the
  Advocate General.

       11. The question that arises in the present case is whether
  the High Court can entertain a contempt petition filed by a
G private person without the consent in writing of the Advocate
  General? For determination of this issue, it will be relevant to
  note the observations of the Sanyal Committee, whose
  recommendations were taken into consideration for enacting
  the Act. The Committee observed:
H
BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 641
         [B.SUDERSHAN REDDY, J.]
     "In the case of criminal contempt, not being contempt A
     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 B
     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   c
     of the court concerned .... "

      12. In S.K. Sarkar, Member, Board of Revenue, U.P. Vs.
Vinay Chandra Misra 1 this Court, approvingly referred to the
recommendations of the Committee and observed:
                                                                      D
     "If the High Court acts on information derived from its own
     sources, such as from a perusal of the records of a
     subordinate court or on reading a report in a newspaper
     or hearing a public speech, without there being any
     reference from the subordinate court or the Advocate- E
     General, it can be said to have taken cognizance on its
     own motion. But if the High Court is directly moved by a
     petition by a private person feeling aggrieved, not being
     the Advocate-General, can the High Court refuse to
     entertain the same on the ground that it has been made F
     without the consent in writing of the Advocate-General? It
     appears to us that the High Court, has, in such a situation,
     a discretion to refuse to entertain the petition, or to take
     cognizance on its own motion on the basis of the
     information supplied to it in that petition. If the petitioner is G
     a responsible member of the legal profession, it may act
     suo motu, more so, if the petitioner-advocate, as in the
     instant case, prays that the court should act suo motu. The
     whole object of prescribing these procedural modes of
1.   (1981) 1 sec 436.                                                H
    642        SUPREME COURT REPORTS                [2010] 10 S.C.R.


A         taking cognizance in Section 15 is to safeguard the
          valuable time of the High Court or the Supreme Court from
          being wasted by frivolous complaints of contempt of court.
          If the High Court is prima facie satisfied that the
          information received by it regarding. the commission of
B         contempt of a subordinate court is notlrivolous. and the
          contempt alleged is not merely technical or trivial, it may,
          in its discretion, act suo motu and commence the
          proceedings against the contemner. However, this mode
          of taking suo motu cognizance of contempt of a
c         subordinate court, should be resorted to sparingly where
          the contempt concerned is of a grave and serious nature.
          Frequent use of this suo motu power on the information
          furnished by an incompetent petition, may render these
          procedural safeguards provided in sub-section (2), otiose.
          In such cases, the High Court may be well advised to avail
D
          of the advice and assistance of the Advocate-General
          before initiating proceedings".

          13. In State of Kera/a Vs. M.S. Mam"2 this Court held:

E         "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 mere formality; it has a salutary
F         purpose. The said law officers being the highest law
          officers at 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
G
          are made vindicating public interest or personal vendetta
          and accord or decline consent postulated in the said
          provision. Further, cases found to be vexatious, malicious
          or motivated by personal vendetta and not in public interest

H   2.   (2001) a sec a2
 BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 643
          [B.SUDERSHAN REDDY, J.]
      will get filtered at that level. If a motion of criminal contempt   A
      in the High Court/Supreme Court is not accompanied by
      the written consent of the aforementioned law officers, the
      very purpose of the requirement of prior consent will be
      frustrated. For a valid motion compliance with the
      requirements of Section 15 of the Act is mandatory. A               B
      motion under Section 15 not in conformity with the
      provisions of Section 15, is not maintainable".

 ,    14. In M.S. Mani (supra), the consent of the learned
Attorney General was obtained after filing of the contempt C
petition. This Court held that the motion to take action against
the respondents therein was not made with the consent of the
learned Attorney General or Solicitor General and therefore is
incompetent. This Court observed: "Subsequent obtaining of
the consent, in our view, does not cure the initial defect so as
to convert the incompetent motion into a maintainable petition". D

       15. In P.N. Duda Vs. P. Shiv Shankaf3 this Court observed
that in terms of Section 15(1) and Rule 3(c), a petition for
contempt will not be maintainable by a private person without
the written consent of the Attorney General or the Solicitor E
General. One cannot get over the objection to the maintainability
of a petition without such consent merely by the device of
adding the Attorney General and Solicitor General as
respondents to the petition. In Paragraph 54 of the Judgment,
it is explained that so far as this Court is concerned, action for F
contempt may be taken by the court on its own motion or on
the motion of the Attorney-General (or Solicitor-General) or of
any other person with his consent in writing. This Court further
observed:

     'There is no difficulty where the court or the Attorney- G
     General choose to move in the matter. But when this is not
     done and a private person desires that such action should
     be taken, one of three courses is open to him. He may

3.   (1988) 3 sec 167.                                                    H
    644         SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A           place the information in his possession before the court
            and request the court to take action: (vide C.K. Daphtary
            v. O.P. Gupta, (1971) 1 SCC 626 and Sarkar v. Misra,
            (1981) 1 sec 436); he may place the information before
            the Attorney-General and request him to take action; or he
B           may place the information before the Attorney-General and
            request him to permit him to move the court. In the present
            case, the petitioner alleges that he has failed in the latter
            two courses - this will be considered a little later - and
            has moved this "petition" praying that this Court should take
c           suo motu action. The "petition" at this stage, constitutes
            nothing more than a mode of laying the relevant
            information before the court for such action as the court
            may deem fit and no proceedings can commence until and
            unless the court considers the information before it and
D           decides to initiate proceedings. Rules 3 and 4 of the
            Supreme Court (Contempt of Court) Rules also envisage
            a petition only where the Attorney-General or any other
            person, with his written consent, moves the court".

            16. In Ba/ Thackrey Vs. Harish Pimpalkhute 4 this Court
E   held:

            "It is well settled that the requirement of obtaining consent
            in writing of the Advocate General for making motion by
            any person is mandatory. A motion under Section 15 not
F           in conformity with the requirements of that section is not
            maintainable".

       17. It is settled law that the High Courts even while
  exercising their powers under Article 215 of the Constitution
  to punish for contempt, the procedure prescribed by law is
G required to be followed (See L.P. Misra (Dr.) Vs. State of
  U.P., 5 Pal/av Sheth Vs. Custodian 6 ). The High Court in the

    4.   (2005) 1 sec 254.
    5.   (1998) 7 sec 379.
H   6.   (2001) 7 sec 549.
     BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 645
              [B.SUDERSHAN REDDY, J.]
present case relied on the decision of this Court in C.K.          A
Daphtary Vs. O.P. Gupta 7 wherein this Court overruled the
objection raised on behalf of the alleged contemnor that the
contempt petition filed in the Supreme Court without the consent
of the Attorney General was not maintainable. The decision
was rendered prior to the Act coming into force. There was no      B
provision of law at the relevant time which prevented the Courts
from entertaining a petition filed by interested persons even
without the prior consent in writing of the Attorney General or
the Advocate General, as the case may be.

       18. The High Court in the present case rested its O
conclusion relying on averments made in the petition stating
that "even a suo motu contempt proceedings may be initiated"
at the instance of the petitioners "on going through the
newspapers". Be it noted that there is no prayer in the contempt
petition filed by the respondents to initiate suo motu D
proceedings. We are unable to sustain the finding of the High
Court in this regard for the same is not supported by any
material available on record. The order dated 17th October,
2003 and the Rule issued in clear and categorical terms
reflects that' law was set in motion exclusively based on the E,
averments made in the petition and the affidavit of verification
filed in support of the petition and the arguments of the counsel.
There is nothing on record suggesting that the contents of the
petition were treated as information placed before the Court
for initiating the contempt proceedings suo motu by the Court. F
                                                                       !
The contents of the petition of the respondents, their affidavit
of verification dated 13th October, 2003, the exhibits and
annexures to the said petition and the arguments of the counsel
alone constituted the foundation, based on which the law was
set in motion. The petition itself is not styled as any piece of G
information that was placed before the court for its
consideration. It is not a case where the High Court refused to
entertain the petition and took cognizance on its own motion
on the basis of the information supplied to it in the petition.
7.    (1971) 1 sec 626.                                            H
    646        SUPREME COURT REPORTS               [2010] 10 S.C.R.

A   The record does not bear any such proceedings of the Court.
    Had it been so, the respondents would have been nowhere in
    the picture. It is true that any person may move the High Court
    for initiating proceedings for criminal contempt by placing the
    facts constituting the commission of criminal contempt to the
B   notice of the Court. But once those facts are placed before the
    Court, it becomes a matter between the Court and the
    contemnor. But such person filing an application or petition
    does not become a complainant or petitioner in the proceeding.
    His duty ends with the facts being placed before the Court.
C   The Court may in appropriate cases in its discretion require
    the private party or litigant moving the Court. to render
    assistance during the course of the proceedings. In O.N. Taneja
    Vs. Bhajan La/8 this Court observed that "a contempt is a
    matter between the Court and the alleged contemnor. Any
    person who moves the machinery of the Court for contempt
D   only brings to the notice of the court certain facts constituting
    contempt of Court. After furnishing such information he may
    still assist the Court, but it must always be borne in mind that
    in a contempt proceeding there are only twc.i parties, namely,
    the Court and the contemnor". Thus the person bringing the
E   facts constituting contempt to the notice of the Court can never
    be a party to the lis nor can join the proceedings as a petitioner.
    Similar is the view taken by this Court in State of Maharashtra
     Vs. Mahboob S. Allibhoy & Anr. 9 .

F      19. In Om Prakash Jaiswal Vs. D.K. Mitta/ & Anr. 10 this
  Court held that the jurisdiction to initiate proceedings for
  contempt as also the jurisdiction to punish for contempt in
  spite of a case of contempt having been made out are both
  discretionary with the Court. "Contempt generally and criminal
G contempt certainly is a matter between the Court and the alleged
  contemnor". No one can compel or demand as of right initiation
  of proceedings for contempt. Certain principles have emerged.
    8.   (1988) 3   sec 26.
    9.   (1996)4SCC411.
H   10. (2000) 3    sec 1?1.
  BIMAN BASU v. KALLOL GUHA THAKURTA & ANR.                  647
           [B.SUDERSHAN REDDY, J.]
 It is further observed : "Source of initiation of contempt A
 proceedings may be suo motu, on a reference being made by
 the Advocate General or any other person with the consent in
 writing of the Advocate General or on reference made by a
 subordinate Court in case of criminal contempt. A private party
 or a litigant may also invite the attention of the Court to such B
 facts as may persuade the Court in initiating proceedings for
 contempt. However, such person filing an application or
 petition before the Court does not become a complainant or
 petitioner in the proceedings. He is just an informer or relator.
 His duty ends wlfh the facts being brought to the notice of the     c
 Court. It is thereafter for the Court to act on such information
 or not to act though the private party or litigant moving the
 Court may at the discretion of the Court continue to render
 its assistance during the course of proceedings. (emphasis
 supplied)
                                                                     D
       20. In the case in hand, it is evident from the record, the
. respondents were continued to be shown as the petitioners in
  the contempt case before the High Court and participated
  throughout as if they were prosecuting the appellant. There is
  no order reflecting that the Court having taken note of the        E
  information made before it, initiated suo motu proceedings on
  the basis of such information furnished and required the
  respondents only to assist the Court till the disposal of the
  matter. On the contrary, respondents are shown as the
  petitioners in the contempt case before the High Court. It is      F
  thus clear, it is the respondents who initiated the proceedings
  and continued the same but without the written consent of the
  Advocate General as is required in law. The proceedings,
  therefore, were clearly not maintainable.
                                                                     G
      21. In what manner the suo motu power may be exercised
 in appropriate cases is dealt with by this Court in J.R. Parashar
  V. Prasant Bhushan 11 in which it is observed:


 11. (2001) 6 sec 735.                                               H
    648       SUPREME COURT REPORTS                [2010] 10 S.C.R.


A         "In any event the power to act suo motu in matters which
          otherwise require the Attorney-General to initiate
          proceedings or at least give his consent must be exercised
          rarely. Courts normally reserve this exercise to cases
          where it either derives information from its own sources,
B         such as from a perusal of the records, or on reading a
          report in a newspaper or hearing a public speech or a
          document w.hich would speak for itself. Otherwise sub-
          section (1) of Section 15 might be rendered otiose."

         22. While dealing with the importance of the procedure
C   for taking cognizance of criminal contempt other than a
    contempt referred to in Section 14 of the Act, this Court in Ba/
    Thackrey (supra) observed:

          "The directions in Duda case when seen and appreciated
0         in the light of what we have noticed hereinbefore in respect
          of contempt action and the powers of the Chief Justice, it
          would be clear that the same prescribe the procedure to
          be followed by High Courts to ensure smooth working and
          streamlining of such contempt actions which are intended
E         to be taken up by the Court suo rnotu on its own motion.
          These directions have no effect of curtailing or denuding
          the power of the High Court. It is also to be borne in mind
          that the frequent use of suo motu power on the basis of
          information furnished in a contempt petition otherwise
F         incompetent under Section 15 of the Act may render the
          procedural safeguards of the Advocate General's consent
          nugatory. We are of the view that the directions given in
          Duda case are legal and valid."

         23. In exercise of the powers conferred by Section 23 of
G   the Contempt of Courts Act, 1971 and by Article 215 of the
    Constitution of India and other enabling powers in that behalf,
    the High Court of Calcutta made the rules to regulate the
    proceedings for contempt of itself or of a Court subordinate to
    it under the Act. The rules are known as Calcutta High Court
H   Contempt of Court Rules, 1975. The rules, inter alia, provide
 BIMAN BASU v. KALLOL GUHA THAKURTA & ANR. 649
          [B.SUDERSHAN REDDY, J.]
that proceedings in a criminal contempt may be initiated (a)        A
on its own motion by the High Court under Section 15(1) of the
Act; or (b) on a motion founded on a petition presented by the
Advocate General under Section 15(a) of the Act; or (c) on a
motion founded on a petition presented by any other person
with the consent in writing of the Advocate General under           B
Section 15(1 )(b) of the Act. Every such petition shall contain
full particulars of the material upon which the petition is
grounded and the prayer to the petition and distinctly state the
particular contumacious conduct alleged for which the rule is
prayed for and shall be signed and dated by the petitioner or       c '
his duly authorized agent and every such petition shall be
verified by the solemn affirmation made by the petitioner or by
a person or persons having cognizance of facts stated and
shall state clearly whether the statements are based on
knowledge, information and belief or on record. Rule 19 of the      D
rules enables the Court either to issue Rule Nisi or summarily
reject the petition or make such order thereupon as thought fit
and the Rule Nisi shall be drawn up as far as may be in the
model form in Form No.1, Appendix I. Rule 20 provides that
where the Rule is issued by the Court on its own motion or on
a motion made by the Advocate General under Section 15,
                                                                    E
the Rule Nisi shall be drawn up, as far as may be in the model
Form No. 2, Appendix I. It is fairly well settled that Schedules,
Forms and Appendix form part of the statutes and or the rules
as the case may be.
                                                                    F
     24. In the present case, Rule Nisi has been issued under
the orders of the High Court in Form No. 1 and not in Form
No.2. Had it been a proceeding initiated by the Court on its
own motion, the Rule Nisi would have been issued in the model
Form No.2, Apendix I. It is clearly evident from the record that    G
the Court did not set the law in motion on its own accord. In
the present case, the petitioner No.1 before the High Court is
a practicing advocate and argued his case in person. Sofaras
petitioner No.2 is concerned, he was represented by more
than one lawyer. We have meticulously examined the contempt         H
                                       <
    650     SUPREME COURT REPORTS                 [2010] 10 S.C.R.

A petition in which there was no prayer for taking suo motu action
  againstthe appellants. The proceedings before the High Court
  were initiated by the respondents by filing contempt petition
  under Section 15. The petition was vigorously pursued and
  argued as private petition. From the material available on
B record including the impugned judgment, it is impossible to
  accept the view taken by the High Court that the Court had
  taken suo motu action. Even in this Court, the respondents
  entered their appearance through their counsel who did not
  turn up but elaborate written submissions were submitted by
c the first respondent.
         25. For all the aforesaid reasons, we hold that the petition
    to take action against the appellant under Section 15 without
    the written consent of the learned Advocate General was not
    maintainable in law.
D
         26. For the view we have taken as regards the
    maintainability of the petition itself, we are not required to go
    into the merits of the case.

E       27. The impugned judgment is accordingly set aside. The
    appeal is allowed.

    8.8.B                                          Appeal allowed.