Rama Jois, J.
1. In view of the preliminary objection raised to the maintainability of this petition presented under Article 215 of the Constitution of India read with the provisions of the to Contempt of Courts Act 1971 alleging that the respondents had committed 'criminal contempt' of this Court and praying for taking suitable action against them, the following question of law arises for our consideration :
Whether the provision for making a motion for taking action for criminal contempt of the High Court against an alleged contemner with the consent of the Advocate General incorporated in Section 15(1) of the Contempt of Courts Act, 1971, is mandatory or directory
2. Briefly, the facts of the case are these :
(i) The petitioner is one of the petitioners in an election petition filed under section 80 of the Representation of the People Act, 1951, and pending before this Court calling in question the election of Sri Devraj Urs, former Chief Minister of Karnataka to the State Legislative Assembly from Hunsur Constituency, who is the first respondent in this petition. The allegations made in this petition inter alia are that respondents 3 to 8, who were all the supporters of the 1st respondent, forcibly kidnapped the petitioner from Hunsur on 29-6-1978, brought him to Bangalore, kept him in a hotel at Bangalore under wrongful restraint till 3-7-1978 and during this period he was taken before the 1st respondent and his advocate, the 2nd respondent, and ultimately took a letter from him addressed to his advocate asking her to withdraw the election petition under threat, coercion and danger spelled out to his life and the life of his wife and children, and that after such letter was taken and sent to his advocate, and he was released, he met his advocate and explained the circumstances under which the letter was written and thereafter this petition has been filed. After narrating all the facts, in para 29 the petitioner has stated as follows :
'The respondents by threatening me, keeping me under illegal confinement, taking letters from me forcibly have tried to interfere with the court proceedings and have thus committed contempt of court and they are liable to be punished according to law.' (ii) On 10-7-1978, a Division Bench of this Court directed the issue of notice to the respondents. At the instance of the 2nd respondent, who maintained that no case had been made out against him, the matter in so far as it related to the second respondent was heard, and by an order made on July 31, 1978, proceedings were dropped against him.
(iii) The matter was being adjourned from time to time and ultimately the petition, as against respondents I and 3 to 7 was heard on August 1, 1980. Last para of the order made by us on that date reads as follows :
'In our opinion in the circumstances of the case the assertion made by respondent No. 1 that he had refused to meet the petitioner though he had been brought to his house and that he had made no suggestions to the petitioner in the matter of his withdrawing from the Election Petition and did not threaten the petitioner in any way is probable. There are no other materials justifying the allegation made by the petitioner that Respondent No. 1 tried to interfere in the course of justice before this Court. It, therefore, appears to us that the proceedings in so far as Respondent No. 1 is concerned has to be dropped.
5. So far as the other Respondents, viz. Respondents Nos. 3 to 7 are concerned, the counter affidavit filed by Respondent No. 6 which has been virtually adopted by the other respondents, to a large extent corroborates the averments made by the petitioner though the attempt on the part of the respondent No. 6 is to make out that it was at the instance of the petitioner that he was brought to Bangalore and that they did not coerce 'or' compel him to do anything. Therefore it appears to us that the proceedings against them cannot be dropped. It appears that there is prima facie case for framing a charge against the Respondents Nos. 3 to 7. Therefore, we direct the Respondents Nos. 3 to 7 to be present in the Court on 25th August, 1980 for this purpose.'
Accordingly further proceedings have to be taken against respondents 3 to 7. No objection to the maintainability of the petition for want of the consent of the Advocate General, as provided in Section 15(1) of the Act had been raised on behalf of the respondents until the matter came up after our above said order 1st August, 1980 on 25th August, 1980 and respondents 3 to 7 were present before the Court as directed by us.
3. It is not disputed by Sri A. N. Jayaram, learned counsel for respondents 3 to 7, and could not be disputed that if the information available or the allegations made in the petition are true, the acts alleged to have been committed by respondents 3 to 7 amounts to criminal contempt of this Court as defined in Section 2(c) of the Contempt of Courts Act 1952 (hereinafter referred to as 'the Act'), which reads :
'2(c) 'Criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which -
(i) scandalises or tends no scandalise, 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 of justice in any other manner;'
There is also no controversy that the alleged acts of contempt do not constitute 'ex facie' contempt to wit a contempt of this Court in its presence or hearing, the procedure for taking action in respect of which is laid down under section 14 of the Act, and, therefore the present case comes within the purview of Section 15(1) of the Act, which reads :
'15. Cognizance of criminal contempt in other cases. - (1) In the case of 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 of the Advocate General'
According to the above provision, action for 'criminal contempt' of the High Court can be initiated -
(1) by the High Court on its own motion; or
(2) on a motion made by the Advocate-General; or
(3) on a motion made by any other person with the consent of the Advocate-General.
It is also a fact that the petitioner has not secured consent of the Advocate General for presenting this petition. When the learned counsel raised a preliminary objection on 25th August, 1980 based on Section 15(1) of the Act and submitted that the petition cannot be entertained by this Court as the petitioner had not secured the consent of the Advocate General, he was directed to file a memorandum raising the contention and the petitioner was permitted to file reply and we also dispense with the presence of the accused until the issue of any further direction to be present. Thereafter a specific plea or the lines of the preliminary objection raised has been taken by respondents 3 to 7. The petitioner has filed his reply in which he has contended that as the petition is filed under Article 215 of the Constitution for taking action against the respondents for having committed criminal contempt of the High Court, an exercise of its powers under that Article consent of the Advocate General was not necessary and in any event the taking of consent of the Advocate General as provided in Section 15(1) of the Act is only directory and not mandatory. The petitioner has explained that he could not have sought for the consent of the Advocate General as he was himself appearing for one of the respondents, in the election petition, which fact is also not in dispute.
4. In support of his preliminary objection, learned counsel for respondents 3 to 7 submitted as follows :
Though the power of this Court to punish contempt of itself is derived from Article 215 of the Constitution, the procedure for taking action is regulated by the provisions of the Act. Section 15 of the Act specifically provides that the High Court may entertain a motion for taking action for criminal contempt of High Court not referred to in Section 14 made by any person other than the Advocate General with the consent of the Advocate General. That requirement is mandatory. Therefore, the petition should be dismissed in limine. In support of his contention, he relied on the following decisions :
(i) B. K. Misra v. Chief Justice, Orissa High Court, : AIR1974Ori1 (FB)
(ii) Baradakanta Misra v. Mr. Justice Gatikrushna Misra, C.J. of the Orissa High Court, : 1975CriLJ1
(iii) N. Venkataramanappa v. D. K. Naikar, : AIR1978Kant57 .
(iv) Suneel Keerthi v. Union of India, (1975) 2 Kant LJ 121 : (AIR 1975 Kant 224).
5. Smt. Pramila, learned counsel for the petitioner submitted to the contrary as follows : The Jurisdiction and powers of this Court to punish any one for committing contempt of itself is derived from the provisions of the Constitution vide Article 215 and not from the provisions of the Act, as distinct from its power to punish for contempt of subordinate courts. The petition is filed under Article 215 of the Constitution. For exercising the power under Art. 215, consent of the Advocate General prescribed under section 15 of the Act is not necessary. In any event, the consent of Advocate General, prescribed is only directory and not mandatory. In support of her submission she relied on the decisions of the Supreme Court in C. K. Daphtary v. O. P. Gupta, : 1971CriLJ844 ; R. L. Kapur v. State of Tamil Nadu, : 1972CriLJ643 and Hari Vishnu v. Ahmad Ishaque, : 1SCR1104 and on the views expressed by V. G. Ramachandran in his book 'Contempt of Court'.
6. Having set out the facts of the case and the contention urged for the parties, we shall now proceed to consider the question arising for consideration. Article 215 of the Constitution reads -
'215. Every High Court shall be a Court of record and shall have all the powers of such a court including the power to punish for contempt of itself'. The Article confers on every High Court the power to punish for contempt of itself. This power is wide enough to cover cases of ex facie criminal contempt as also every act or omission which amounts to contempt of High Court. Therefore whether contempt of High Court alleged to have been committed by any one is of the description referred to in Section 14 or Section 15, it is competent for the High Court to punish the alleged contemner in exercise of its power under that Article. Such an action could be taken by the High Court under Article 215, either on its own motion on securing information in whatever manner or on a motion made by the Advocate General or by any other person. Consent of the Advocate General is not contemplated by the Article for a motion made by any other person. Article 129 confers similar power on the Supreme Court. Even so an objection of the type raised to this petition was raised before the Supreme Court against a motion made by the President of the Supreme Court Bar Association in the case of O. P. Gupta, (1971 Crt LJ 844) for taking action against O. P. Gupta for criminal contempt of the Supreme Court committed by him, in exercise of its power under Article 129 of the Constitution which in pari materia with Article 215. Repelling the contention, the Supreme Court observed :
'92. In this connection we may also deal with his objection in para 10 of the application that the petitioners have no locus standi. This Court can issue notice suo motu. Further, the advocates of this Court, including the president of the Supreme Court Bar Association, are perfectly entitled to bring to our notice any contempt of this Court.
93. The first respondent referred to Lord Shawcross Committee's recommendation that proceedings should be instituted only if the Attorney-General in his discretion considers them necessary. This is only a recommendation made in the light of circumstances prevailing in England. But is not law. We may mention that the Attorney-General in England has quite a different position than the Attorney-General of India or the Advocates-General of the States. The Attorney-General in England is a member of the cabinet, and as far as we are aware, unlike the Attorney-general in India he does not have to receive instructions from Government whether to move a contempt petition or not.
94. Be that as it may, there is nothing in law which prevents this Court from entertaining a petition at the instance of the President of the Supreme Court Bar Association and three other advocates of the Court. The bar is vitally concerned in the maintenance of the dignity of Courts and the proper administration of justice.'
7. The law laid down by the Supreme Court as above is equally applicable to an action which could be taken by a High Court under Article 215. The contention for the respondents, however is though in view of the above law laid down by the Supreme Court, would have been competent for this Court to entertain a petition for taking action for criminal contempt by any one, without the consent of the Advocate General, the position has changed with the enactment of the Act, subsequent to the above decision. The question for consideration is whether by the coming into force of the Act with Section 15(1) in it, the powers of the High Court given to it under Article 215, as flowing from the ratio of the decision of the Supreme Court in O. P. Gupta's case (1971 Cri LJ 844) has been affected to that extent. If the contention of the learned counsel for respondents 3 to 7 that the consent of the Advocate General provided for in Section 15(1) is mandatory is to be accepted as correct, there can be no doubt that the power of the High Courts under Article 215 stands affected to that extent by a law enacted by Parliament and as a result after the coming into force of the Act, a petition presented by any individual, notwithstanding his locus standi or bona fides, including a president of a Bar Association for taking action against an alleged contemner for criminal contempt, without the consent of the Advocate General, has to be rejected in limine.
8. In our view, the language of Section 15(1) of the Act does not compel the taking of such a view. Even after the enactment of the Act, the power of the High Court to punish for contempt of itself, continues to be derived from and traceable only to Article 215, and therefore a provision in an enactment made by the Legislature to regulate contempt actions cannot be so construed as to affect the content of the power given to the High Court under the Constitution. On this aspect of the matter also we have the ratio emerging directly from the decision of the Supreme Court in the case of R. L. Kapur (1972 Cri LJ 643). In that case the question for consideration before the Supreme Court, was, whether the provisions of Sections 63 to 70 of the Indian Penal Code which were applicable to the levy and recovery, of fines under any law, by virtue of Section 25 of the General Clauses Act was applicable for the recovery of fines imposed by the High Court against a person for having committed contempt of itself at a time when the Contempt of Courts Act 1952 was in force and consequently the fine could not be recovered on the ground that it was barred by time in view of Section 70 of the Penal Code. Repelling the contention, the Supreme Court stated -
'5. The question is, does the power of the High Court of Madras to punish contempt of itself arise under the Contempt of Courts Act, 1952, so that under section 25 of the General Clauses Act, 1897, Sections 63 to 70 of the Penal Code and the relevant provisions of the Code of Criminal Procedure would apply The answer to such a question is furnished by Article 215 of the Constitution and the provisions of the Contempt of Courts Act, 1952 themselves. Article 215 declares that every High Court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself. Whether Article 215 declares the power of the High Court already existing in it by reason of its being a court of record or whether the Article confers the power as inherent in a court of record, the jurisdiction is a special one, not arising or derived from the Contempt of Courts Act, 1952, and therefore, not within the purview of either the Penal Code or the Code of Criminal Procedure. Such a position is also clear from the provisions of the Contempt of Courts Act, 1952, Section 3 of that Act provides that every High Court shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself. The only limitation to the power is, as provided by sub-section. (2), that it shall not take cognizance, of a contempt committed in respect of a court subordinate to it where such contempt is an offence punishable under the Penal Code.
** ** In any case, so far as contempt of the High Court itself is concerned, as distinguished from that of a court subordinate to it, the Constitution vests these rights in every High Court, and so no act of a legislature could take that away that jurisdiction and confer it afresh by virtue of its own authority. No doubt, Section 5 of the Act states that a High Court shall have Jurisdiction to inquire into and try a contempt of itself or of a court subordinate to it whether the alleged contempt is committed within or outside the local limits of its jurisdiction and whether the contemner is within or outside such limits. The effect of Section 5 is only to widen the scope of the existing jurisdiction of a special kind and not conferring a new jurisdiction. It is true that under section 4 of the Act the maximum sentence and fine which can be imposed is respectively simple imprisonment for six months and a fine of Rs. 2,000/- or both. But that again is a restriction on an existing jurisdiction and not conferment of a new jurisdiction. That being the position, Section 25 in the General Clauses Act, 1897 cannot apply. The result is that Section 70 of the Penal Code is no impediment by way of limitation in the way of the recovery of the fine.'
From the above observations, it is clear that power of the High Court to punish for contempt of itself derived from Article 215 stands on a different footing than its power to punish for contempt of subordinate courts which is derived by the provisions of the Act. Therefore Section 15(1) providing for the consent of the Advocate-General cannot be construed as mandatory as the power of the High Court to punish for criminal contempt of itself is conferred on it by Article 215 without any such restriction.
9. The observation of the Supreme Court in the case of Hari Vishnu : 1SCR1104 also supports such a view. In that case it was contended for the respondent that as the Representation of the People Act, 1951, enacted as required under Article 329 of the Constitution, had provided in Section 80 thereof that as an election to State Legislature or Parliament could be called in question only by means of an election petition, the High Court had no power to issue writ of certiorari against an order of election tribunal. The Supreme Court rejected the contention with these words -
'(6) The first question that arises for decision in this appeal is whether the High Courts have jurisdiction under Article 226 to issue writs against decisions of Election Tribunals. That Article confers on High Courts power to issue appropriate writs to any person or authority within their territorial jurisdiction in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. If we are to recognise or admit any limitation on this power, that must be founded on some provision in the Constitution itself.'
Therefore it is not permissible to read Section 15(1)(b) of the Act as mandatory as no such condition is implicit in Article 215 or any other Article in the Constitution.
10. The principles, which govern the interpretation of statutes to decide as to whether a provision is mandatory or directory are also well settled. In this behalf, the Supreme Court in Lachmi Narain v. Union of India : 2SCR785 stated -
'.... The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law-maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of 'must' instead of 'shall', that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is perse indicative of the intent that the provision is to be mandatory (Crawford, the Constitution of Statutes pp 523-524).'
The Section 15(1) is not couched in a negative language stating that 'no motion by a person (other than the Advocate General) shall be entertained by the High Court without the consent of the Advocate General.' The legislative intent or its reason also does not justify the construction suggested for the respondents. It is obvious that the purpose of the provision is only to prevent the abuse of the process of the Court by unscrupulous persons by filing frivolous petitions. The Advocate General, having regard to his high constitutional position has been entrusted with the duty and responsibility of scrutinising a petition intended to be presented before the Court and to give or withhold consent having due regard to the public interest sought to be achieved by an action for contempt. Therefore the provision is only intended to act as a check on the abuse of process of the Court and not to control the power of the Court itself to take action on a petition which is perfectly bona fide and presented by a person aggrieved or a person interested in the maintenance of the dignity and authority of the Courts and rule of law, and when the Court is satisfied that there is a prima facie case. There might be cases, where having regard to the facts and circumstances, the High Court is satisfied that there is a prima facie cam for initiating action though consent of the Advocate General has not been obtained and that the presentation of the petition is by a person, who has locus standi and bona fide and there might also be cases, the circumstances of which indicate that the petitioner had good reasons for not approaching the Advocate General seeking his consent or that the consent has been wrongly refused. Further there might be cases, where acts of criminal contempt committed by an alleged contemner is not by way of public speeches, or writings published in newspaper or books or pamphlets, but as in the present case, are within the personal knowledge of an individual, and consequently an action is practicable and also convenient to be allowed to be taken at the instance of the aggrieved person, instead of a suo motu action by the Court. Section 15(1), in our opinion, is certainly not intended to preclude the High Court from entertaining such a petition and compel the High Court to take action suo motu only.
11. It is not disputed by the learned counsel for the respondents that it is competent for the High Court to take suo motu action to punish for contempt of itself in respect of criminal contempt falling within the purview of Section 15 the Act in whatever manner the alleged contempt is brought to the notice the High Court. Nor is it disputed that it is competent for the High Court take action on the basis of information secured in any manner including rough a petition filed by a person without consent of the Advocate General and to direct the Advocate General or any other advocate including the Advocate who had appeared for such a petitioner, to assist and conduct the case. As stated earlier, in this case, after hearing the learned counsel, we have taken the view that there is a prima facie case against respondents Nos. 3 to 7. Therefore, if on the basis of the information disclosed in the petition, taking action against respondents 3 to 7 and directing the counsel for the petitioner to conduct the case is lawful, notwithstanding the fact that the consent of the Advocate General has not been obtained, the contention that the said requirement is mandatory and therefore the petition is not maintainable in law, amounts to attaching greater importance to mere form than substance.
12. Learned author V. G. Ramachandran in his book 'Contempt of Court' has discussed this question and expressed the view that the provision is directory. He states -
'While the provision in Section 15(1)(b) is in accordance with prior practice and must be deemed as only directory and not mandatory, the provision in clause (1)(b) introduces a difficulty. Is the consent in writing by the Advocate General mandatory in respect of a petition by party other than the Advocate General Is such consent ultra vires It appears to us that sub-clause (b) is ultra vires if it is treated as mandatory inasmuch as it a transgression into judicial power of inherent sui juris : 1971CriLJ844 jurisdiction vis a vis-vis contempt, under Articles 129 and 215 read with Articles 135 and 225 of the Constitution of India. The latter two articles keep alive in the present Supreme Court and the High Courts all the prior jurisdiction and powers of the Federal Court (and the prior Privy Council) as also those of the High Courts which existed previous to the coming into force of the Constitution on January 26th 1950. This means the inherent powers of these Courts of Record to take action in contempt under Articles 135 and 225 is preserved. There can be no interference in this by any subsequent statute. In this view to make Section 15(1)(b) mandatory would be to prevent access to the courts by persons other than the Advocate General and further it would curtail the powers of the Courts in not taking cognizance of contempt petitions preferred by third parties.'
x x x x x x x x x x '... So we submit that sub-clause (b) of clause (1) of Section 15 is either illegal or should be deemed as merely directory, leaving to the Court the final say in the matter of locus standi of the person who moves the contempt proceedings.'
We are in agreement with the view expressed by the learned author that the provision is only directory.
13. By construing Section 15(1)(b) as directory we do not mean that the provision should be ignored or that the consent of the Advocate General provided for in Section 15(1) is of no importance at all. It is well settled that a directory provision also must be given due weight and should not be rendered useless. Therefore having due regard to the purpose with which the above provision has been made, in all cases of motions made under section 15(1)(b) of the Act where consent of Advocate General is not obtained or it has been refused, the Court should take that circumstance into account. The Court may reject a petition presented without consent of Advocate General or where consent has been refused, in Iimine. However, if in a given case the Court finds that the petition is bona fide by a person who has locus standi and there are sufficient grounds to take action the Court is not precluded by Section 15(1)(b) to entertain the motion as Section 15(1)(b) of the Act is only directory.
14. In this present case, we are fully satisfied that the presentation of the petition is bona fide and the petitioner has locus standi. In a case of this type, no one else than the petitioner could make these allegations and furnish information to the Court and prove them. The fact that the Advocate General was appearing for one of the respondents in this petition, in the election petition, though in his personal capacity, is a strong circumstance to indicate that the petitioner could not be expected to secure his consent to prosecute this petition. We have already found in our order dated 1st August 1980 that there is a prima facie case against respondents 3 to 7. In this situation, if this Court has the power to initiate contempt proceedings suo motu against respondents 3 to 7 on the basis of the information contained in the petition, existence of which is indisputable, we fail to see why the petitioner, who was the victim of the alleged actions of respondents 3 to 7 which if proved amount to criminal contempt of this Court, should not be allowed to proceed with the ease and to prove the allegations when all the allegations made by him are only within his personal knowledge.
15. Learned counsel for the respondents relied on the decision of the Orissa High Court in B. K. Misra's case : AIR1974Ori1 (FB) and of the Supreme Court in appeal from that decision : 1975CriLJ1 . In that case the High Court observed that the motion made without consent of Advocate General was not in accordance with Section 15(1) of the Act and hence not maintainable and also found that there was no reason to entertain the motion and it was lacking in bona fides. The question as to whether the provision was mandatory or directory was neither canvassed nor considered. Before the Supreme Court in the appeal against that judgment also such a contention was not raised or decided. The question of law considered in the appeal was about the scope of Section 19 of the Act viz., as to whether an appeal under that section lies to the Supreme Court only against an order imposing penalty or also against an order of the High Court refusing to initiate proceedings for contempt against an alleged contemner. In the case of Kallangouda (N. Venkataramanappa's case, (1978 Cri LJ 726 (Kant)) also the only question argued for the complainant before a Division Bench of this Court, as is clear from para-6 of the judgment, was that the Advocate General was not justified in not giving consent and that the reasons given by the Advocate General for not giving the consent, were untenable. The Division Bench held that the decision of the Advocate General was not justiciable. The question as to whether the requirement of consent of Advocate General was only directory and therefore the petition could be entertained by this Court without such consent was not raised or considered Learned counsel for respondents, however, tried to derive support to his contention that consent of Advocate General is a precondition for entertaining the petition, from the latter part of the judgment in which the Division Bench held that though it was a fit ease for taking action suo motu, it was barred by limitation in view of Section 20 of the Act. In our view that part of the judgment, is not germane to the question, arising for consideration in this case, namely, the interpretation of Section 15(1) of the Act. However, we may observe that the question whether the period of limitation prescribed in Section 20 of the Act is applicable to actions for contempt of High Court, requires reconsideration in the light of the judgment of the Supreme Court in R. L. Kapur's case (1972 Cri LJ 643) as that decision had not been brought to their Lordships notice. In the case of Suneel Keerthi (AIR 1975 Kant 224) it was contended for the petitioner that Section 15(1)(b) of the Act was violative of Article 14 of the Constitution and the contention was rejected as being without any substance and, therefore, not on the point for our consideration in this case.
16. In the light of the foregoing discussion we hold that consent of Advocate General prescribed in Section 15(1)(b) of the Act for making a motion under the provision is directory and the motion made by the petitioner through this petition though made without consent of the Advocate General should be continued and overrule the preliminary objection raised.
17. Petition allowed.