‘It is explicit, the reference court should make clear findings in respect to the nature of contempt. Therefore, the findings are prima facie opinion of the Sessions Court during the course of adjudication to decide, the nature of the proceedings to be referred as per Sec.15(2) of Act, 1971.’
The Kerala High Court, dismissing plea of advocate Biju Antony Aloor, has observed that any citizen is entitled as of right to approach the subordinate court concerned seeking ‘contempt’ reference to the high court.
Advocate Shafeek NA had filed an application under Section 15(2) of the Contempt of Courts Act, before the District and Session’s judge, alleging that advocate Biju Antony Aloor made disrespectful and contemptuous remarks about the principal district judge. Advocate Aloor was the counsel for the accused in Perumbavoor law student rape-murder case. In December 2017, the trial court had awarded death sentence to Ameerul Islam, the accused.
Senior Advocate K Ramakumar appeared before the high court bench presided by Justice Shaji P Chaly and made two contentions. It was contended that the Sessions Court had only the power to refer the matter to the high court, however, the Sessions Court entered into definite findings as if to appear that the petitioner has committed contempt. The second argument advanced was with respect to the right of a third person to file an application seeking a reference.
Justice Chaly, perusing the reference order, observed that sufficient opportunity was provided to advocate Aloor to contest the proceedings and thereafter only, the reference order is made. The court also observed that the reference court should make clear findings in respect to the nature of contempt and these findings are the prima facie opinion of the Sessions Court during the course of adjudication to decide the nature of the proceedings to be referred as per Sec.15(2) of Act.
“Without such a finding, the Sessions Court cannot make a reference, since the initial burden was left with the Sessions Court to identify whether the application filed by the 2nd respondent, is entitled to be referred to the High Court, which thus means, if no prima facie case is made out, by the subordinate court, it can dismiss the petition and drop the proceedings,” the court added.
It also said under Rule 8 of the Contempt Rules, the reference order is to be accompanied by a draft charge also, which means, without forming a prima facie opinion, no draft charges can be framed.
Any Citizen Can Seek Contempt Reference
With regard to the question about locus of a third person in filing application seeking ‘contempt’ reference, the court observed: “In my considered opinion, making imputations and allegations against a judge or Court affecting the dignity and prestige of the Court, is a matter affecting social order and the rule of law prevailing in the country, interfering with the democratic principles founded on the three pillars namely the legislature, executive and the judiciary. Such allegations will severely affect and damage the integrity and independence of the judiciary and thereby affecting the faith, trust and confidence reposed by the public at large on the justice delivery system as such. Therefore, any citizen interested in upholding the rule of law is entitled as of right to approach the subordinate court concerned seeking reference. Be it also noted, there is no prohibition or legal fetter created under the Act or Rules, disabling a citizen to invoke the provision in question. It also means, the subordinate court is entitled to make a reference by its own motion or on any application made by any person.”