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Single Judge Bench Can Take Cognizance And Decide Civil Contempt Petitions: Kerala High Court

LIVELAW NEWS NETWORK
5 Feb 2021 7:11 AM GMT
Single Judge Bench Can Take Cognizance And Decide Civil Contempt Petitions: Kerala High Court
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The Kerala High Court has held that a Single Judge Bench can take cognizance and decide civil contempt petition.The Division Bench comprising the Chief Justice S. Manikumar and Justice Shaji P. Chaly struck down Rule 6 of the Contempt of Courts (High Court of Kerala) Rules as ultra vires to the Constitution of India and Section 19(1) of the Contempt of Courts Act. Rule 6 provided that a...

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The Kerala High Court has held that a Single Judge Bench can take cognizance and decide civil contempt petition.

The Division Bench comprising the Chief Justice S. Manikumar and Justice Shaji P. Chaly struck down Rule 6 of the Contempt of Courts (High Court of Kerala) Rules as ultra vires to the Constitution of India and Section 19(1) of the Contempt of Courts Act. Rule 6 provided that a Division Bench alone can take cognizance of the contempt proceedings and that if and when, a prima facie case is found out, the contempt petition has to be referred to a Bench of two Judges. 

The court said that the Rule indirectly takes away the statutory right of an appeal available to an aggrieved person against an order or decision, which requires to be passed by a learned Single Judge and thereby, deprives the statutory right of an appeal under Section 19(1) of the Contempt of Courts Act.

Reference

The bench was answering the reference from a single bench doubting a division bench judgment in Jyothilal K.R. v. Mathai M.J. 2014 (1) KLT 147 in which it was held that a single Judge is required to hold a preliminary enquiry, only to find out whether there is or not a prima facie case and that he shall not take cognizance in the matter. "Under second proviso to Rule 6, learned single Judge has to find out whether a prima facie case of contempt is made out or not and then refer the matter to a Division Bench which alone can take cognizance and proceed with the matter further. High Court Rules clearly indicate, after taking cognizance when notice is issued by the Division Bench, unless the respondent contemnor is exempted from personal appearance, he should necessarily appear before the court. Till then there is no requirement for the appearance of the respondent contemnor especially for the limited purpose of making an enquiry whether a prima facie CAC 3/2013 & con. cases 33 case is made out to refer the matter to a Division Bench or not.", it was observed thus in Jyothilal case. 

Single bench constitutionally and statutorily empowered to take cognizance of contempt, and pass an order or decision in the contempt petition

Referring to the provisions of the Contempt of Courts Act and Rules made by the High Court, the bench observed:

Taking into account the provisions of Section 19, right of appeal under Section 19(1) of Act, 1971 is a substantive right and it is trite law that rules framed in exercise of powers under Articles 215 and 225 of the Constitution of India and Section 23 of the Contempt of Courts Act, 1971 are procedural. When a learned Single Judge, under Article 215 of the Constitution of India, is constitutionally and statutorily empowered to take cognizance of contempt, and pass an order or decision in the contempt petition, on the basis of an original jurisdiction, as per the provisions of the Kerala High Court Act, 1958 and under Sections 11 and 12 of the Contempt of Courts Act, 1971, which deals with civil contempt, in Rule 6 of the Contempt of Courts (High Court of Kerala) Rules under the Contempt of  Courts Act, 1971, there is a specific exclusion of exercise of original jurisdiction by a learned Single Judge except holding a preliminary enquiry to find out as to whether there is a prima facie case or not, which thus means that a learned Single Judge enjoined with the powers under Article 215 of the Constitution of India, cannot take cognizance of a civil contempt. Having understood the provisions of the Constitution of India as above, the Kerala High Court Act, 1958 and the Contempt of Courts Act, 1971, we are of the definite opinion that Rule 6 of the Contempt of Courts (High Court of Kerala) Rules under the Contempt of Courts Act, 1971, cannot be permitted to overreach the provisions of Constitution of India, in particular, Article 215, and Section 19(1) of the Contempt of Courts Act, 1971.

The court said that a single Judge is vested with ample powers under Article 215 of the Constitution of India to hear and pass orders in a contempt petition (civil), which is an original petition. Answering the reference, the bench held:

In effect, we hold that in a Civil Contempt, a learned Single Judge is vested with ample powers to proceed absolutely to its culmination in a contempt proceeding initiated under the Contempt of Courts Act, 1971, by virtue of constitutional and statutory powers conferred in the Kerala High Court Act, 1958 and the Act, 1971. Therefore, Rule 6 of the Contempt of Courts (High Court of Kerala) Rules under the Contempt of Courts Act, 1971, is struck down as ultra vires to the Constitution of India and Section 19(1) of the Contempt of Courts Act, 1971. The reference made doubting the decision in Jyothilal (cited supra) is answered accordingly
Case: M.P. VARGHESE vs. V.P. DEVASSIA [Con tempt Case(C) No.1073/2014]

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