Cashew Corp Scam: Kerala High Court Questions State's Locus To Appeal Against Summoning Of Industries Department Secretary In Contempt Case

The Kerala High Court on Thursday (May 21) questioned the locus standi of the State in filing an appeal against a Single Judge's order directing personal appearance of Mohammed Hanish, Principal Secretary of the Industries Department (Cashew) of the State, in a contempt case.The contempt plea was initiated against the Secretary for repeatedly denying sanction for the Central Bureau of Investigation (CBI) to prosecute allegedly corrupt ex-officials of the State Cashew Development Corporation (KSCDC). The Single Bench had ordered for the Principal Secretary's personal appearance after finding him to be prima facie in contempt of the Court's direction.The Division Bench of Justice K. Natarajan and Justice Johnson John orally asked the government pleader appearing for Mohammed Hanish:"How State files contempt appeal? Contempt against who? It is in the name of the person Mohammed Hanish? How State appearing? State filing appeal? It's an individual case. Contempt is against a person. It's a basic tenet, State can't file…He has not given vakalath to you…He has to contest and he has to say he has not committed wilful disobedience of any order…Individually, he can appoint an advocate. He can take out the case…But how is the State having interest in filing the appeal?…You verify and give judgment that State can file appeal in the contempt application against contemner."The contempt plea before the Single Judge was moved after the State again declined nod for CBI prosecution, despite a previous direction of the High Court in Kadakampally Manoj v. State of Kerala and Ors. setting aside State's first order refusing to grant sanction in the matter. Thereafter, while the contempt plea was pending, the State refused sanction for a third time, leading to severe criticism by the Single Judge.On Monday, when the Principal Secretary failed to personally appear saying that he had filed an appeal against the order, the Single Bench had orally questioned the absence and remarked that once personal appearance is ordered, the two options available were either to appear in person or get a stay on the order.The counsel appearing for contempt petitioner Kadakampally Manoj submitted before the Division Bench that the Single Judge had found prima facie contempt and wanted to proceed for framing charges under Rule 14 and it was at this stage that an appeal was filed. He added that it is inappropriate for government lawyer to appear for the contemner:"He has not filed vakalath, he has not paid court fee. They say they are not liable to pay court fee."Hearing the submissions, the Court added:"Say, Court found, either rightly or wrongly that there was prima facie contempt and went to frame charge against you. So the respondent should approach the Court by appointing an advocate...Serious allegation is made against you. If a contempt is said to be committed, it is your duty to appear before this Court and file application for discharge. You can file application for discharge but first you have to appear in person, explain that you have not disobeyed the order...Let him file application. You can't file appeal…His name is mentioned, not State of Kerala."The counsel for the contempt petitioner at this juncture added that as per Rule 15 of the Contempt of Courts (High Court of Kerala) Rules, 1988, it is the Advocate General who has to conduct the contempt proceedings against the respondent. Agreeing, Justice Natarajan orally told the government pleader:"AG will have to step into the shoes of the [contempt] petitioner. AG will have to prosecute… File vakalath. You can't appear when general order passed by the government appointing you on behalf of the State…Where is the vakalath? You can engage any counsel. Your choice. Whether government pleader can appear when the judgement is directly against you and is at the stage of charge now. You can appear seeking a discharge also."While hearing the appeal, the Bench questioned the contempt petitioner as to why a contempt plea was filed instead of challenging the order refusing sanction and also asked him to show which direction of the Court was disobeyed by the alleged contemner:"Please show a positive direction given by the Court to accord sanction to prosecute? Please show what is narrated to accord sanction. Directed to pass the order is different. That is the crux of the matter. Direction to dispose the matter within some time, rejected it again. Rejection, you can challenge but whether you can challenge the same in a contempt petition…How in a contempt you can challenge...If he keeps silence, there is disobedience."In reply, the counsel submitted: "Not mere direction to pass order. In the light of the judgment. But he passes a per se order, that is liable to be challenged in contempt."The Court also enquired why the CBI was not taking any steps to get sanction to prosecute in the matter:"Why the CBI is not coming forward? When they are filing a report mentioning a prima facie case, seeking...

Cashew Corp Scam: Kerala High Court Questions State's Locus To Appeal Against Summoning Of Industries Department Secretary In Contempt Case

K. Salma Jennath

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K. Salma Jennath

Cashew Corp Scam: Kerala High Court Questions State's Locus To Appeal Against Summoning Of Industries Department Secretary In Contempt Case

K. Salma Jennath

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K. Salma Jennath

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