Safiya Malik

A single-judge bench of the Kerala High Court, presided over by Justice C.S. Dias, has dismissed a petition challenging the refusal of the Advocate General to grant sanction for initiating criminal contempt proceedings. The petitioner argued that the refusal lacked application of mind, but the court held that such refusals are not subject to judicial review.

The case pertained to a dispute between the petitioner, N. Prakash, and the first respondent, R. Ashakumari, his brother’s wife. The petitioner alleged that the first respondent had obtained a ration card fraudulently and had submitted a false affidavit in W.P.(C) No. 19869 of 2024 to mislead the court. He filed Sanction Petition No. 7 of 2024 before the Advocate General under Section 15(1)(b) of the Contempt of Courts Act, 1971, seeking permission to initiate contempt proceedings. On December 24, 2024, the Advocate General rejected the application.

The petitioner contended that the Advocate General’s refusal was without reason and referred to precedents, including R.L. Jalappa v. Advocate General for the State of Karnataka (2009 SCC OnLine Kar 237) and H. Munireddy v. Advocate General, State of Karnataka, Bengaluru (2019 SCC OnLine Kar 3085). In response, the State’s Special Government Pleader argued that the role of the Advocate General under Section 15(1)(b) was administrative rather than judicial and relied on Supreme Court rulings such as P.N. Duda v. P. Shiv Shanker and Others [(1988) 3 SCC 167] and Bal Thackeray v. Harish Pimpalkhute and Others [(2005) 1 SCC 254] to support the argument that refusals of sanction are not justiciable.

The court examined Sections 2(c), 14, and 15 of the Contempt of Courts Act, 1971, which outline the procedure for initiating contempt proceedings. It referred to S.K. Sarkar v. Vinay Chandra Misra [(1981) 1 SCC 436], noting that, “In such cases, the High Court may be well advised to avail of the advice and assistance of the Advocate-General before initiating proceedings.”

The court also cited Joseph Kuzhijalil v. Joseph Pulikunnel [1999 KHC 557], stating, “The refusal of consent by the Advocate General cannot be said to be justiciable. Unlike in the case of a refusal of sanction under Section 92 of the Code of Civil Procedure, no right of a party could be said to have been impaired.” Further, it noted that the court could still initiate suo motu contempt proceedings if deemed necessary.

Discussing P.N. Duda v. P. Shiv Shanker and Others, the court acknowledged that judicial opinions on the issue varied. Justice Sabyasachi Mukherji had opined that courts could intervene in cases of arbitrary refusals, while Justice Ranganathan viewed the Advocate General’s role as advisory and not quasi-judicial.

The court reviewed the Supreme Court’s ruling in Delhi Judicial Service Association v. State of Gujarat [(1991) 4 SCC 406], which held that “procedural safeguards under Section 15 were intended to prevent frivolous contempt motions” and clarified that a refusal by the Advocate General does not preclude the court from taking suo motu action if circumstances warrant.

Additionally, the court referenced Conscientious Group v. Mohammed Yunus [(1987) 3 SCC 89], where the Supreme Court observed that “while the court could review the reasoning behind the Advocate General’s refusal, it could not substitute its own view unless the refusal was found to be arbitrary or legally untenable.”

The court held that the Advocate General’s refusal was not subject to judicial review, stating, “In light of the emphatic proclamation of the law in Joseph Kuzhijalil, an order declining sanction by the Advocate General is not justiciable. The writ petition necessarily fails.”

The court added, “Nonetheless, it is clarified that, the dismissal of this writ petition will not fetter the right of the petitioner to prosecute his application for initiating proceedings against the 1st respondent under Section 229 of the Bharatiya Nyaya Sanhita, 2023.”

 The court further held that “this Court retains the authority to determine whether criminal contempt proceedings should be initiated against the 2nd respondent.”

Case Title: N. Prakash v. R. Ashakumari & Anr.
Case Number: W.P.(C) 2407 of 2025
Bench: Justice C.S. Dias

[Read/Download order]