1. 'Rule of Law' is the basic rule of governance of any civilised democratic policy.

Our
Constitutional scheme is based upon the concept of Rule of Law which we have adopted
and given to ourselves. Everyone, whether individually or collectively is unquestionably
under the supremacy of law. Whoever the person may be, however high he or she is, no-
one is above the law notwithstanding how powerful and how rich he or she may be. For
achieving the establishment of the rule of law, the Constitution has assigned the special
task to the judiciary in the country. It is only through the courts that the rule of law
unfolds its contents and establishes its concept. For the judiciary to perform its duties and
functions effectively and true to the spirit with which it is sacredly entrusted, the dignity
and authority of the courts have to be respected and protected at all costs. After more than
half a century of independence, the judiciary in the country is under a constant threat and
being endangered from within and without. The need of the time is of restoring
confidence amongst the people for the independence of judiciary. Its impartiality and the
glory of law has to be maintained, protected and strengthened. The confidence in the
courts of justice, which the people possess, cannot, in any way, be allowed to be
tarnished, diminished or wiped out by contumacious behavior of any person. The only
weapon of protecting itself from the onslaught to the institution is the long hand of
contempt of court left in the armoury of judicial repository which, when needed, can
reach any neck howsoever high or far away it may be. In Re: Vinay Chandra Mishra (the
alleged contemner) this Court reiterated the position of law relating to the powers of
contempt and opined that the judiciary is not only the guardian of the rule of law and third
pillar but in fact the central pillar of a democratic State. If the judiciary is to perform it
duties and functions effectively and true to the spirit with which they are sacredly
entrusted to it, the dignity and authority of the courts have to be respected and protected
at all costs. Otherwise the very corner-stone of our constitutional scheme will give way
and with it will disappear the rule of law and the civilized life in the society. It is for this
purpose that the courts are entrusted with extraordinary powers of punishing those who
indulge in acts, whether inside or outside the courts, which tend to undermine the
authority of law and bring it in disrepute and disrespect by scandalizing it. When the
court exercise this power, it does not do so to vindicate the dignity and honour of the
individual judge who is personally attacked or scandalised, but to uphold the majesty of
the law and of the administration of justice. The foundation of the judiciary is the trust
and the confidence of the people in its ability to deliver fearless and impartial justice.
When the foundation itself is shaken by acts which tend to create disaffection and
disrespect for the authority of the court by creating distrust in its working, the edifice of
the judicial system gets eroded.

2. No person can flout the mandate of law of respecting the courts for establishment of
rule of law under the cloak of freedoms of speech and expression guaranteed by the
Constitution. Such a freedom is subject to reasonable restrictions imposed by any law.
Where a provision, in the law, relating to contempt imposes reasonable restrictions, no
citizen can take the liberty of scandalizing the authority of the institution of judiciary.
Freedom of speech and expression, so far as they do not contravene the statutory limits as
contained in the Contempt of Courts Act, are to prevail without any hindrance. However,
it must be remembered that the maintenance of dignity of courts is one of the cardinal
principles of rule of law in a democratic set up and any criticism of the judicial institution
couched in language that apparently appears to be mere criticism but ultimately results in
undermining the dignity of the courts cannot be permitted when found crossed the limits
and has to be punished. This Court in In Re: Harijai Singh and Anr. has pointed out that a
free and healthy Press is indispensable to the function of a true democracy but, at the
same time, cautioned that the freedom of Press is not absolute, unlimited and unfettered at
all times and in all circumstances. Lord Dening in his Book "Road to Justice" observed
that Press is the watchdog to see that every trial is conducted fairly, openly and above
broad but the watchdog may sometimes break loose and has to be punished for
misbehavior. Frankfurther, J. in Pennekamp v. Florida [(1946) 90 Led 1295 at p. 1313]
observed:

"If men, including Judges and journalists were angels, there would be no problems of
contempt of Court. Angelic Judges would be undisturbed by extraneous influences and
angelic journalists would not seek to influence them. The power to punish for contempt,
as a means of safeguarding Judges in deciding on behalf of the community as impartially
as is given to the lot of men to decide, is not a privilege accorded to Judges. The power to
punish for contempt of court is a safeguard not for Judges as persons but for the function
which they exercise."

3. The law of contempt has been enacted to secure public respect and confidence in the
judicial process. If such confidence is shaken or broken, the confidence of the common
man in the institution of judiciary and democratic set up is likely to be eroded which, if
not checked, is sure to be disastrous for the society itself.

4. In this backdrop of the mandate of rule of law, we are called upon to deal with the case
of the respondent against whom suo motu contempt proceedings have been initiated by
this Court. The respondent, who is stated to be an author of name and fame, has landed
herself in the dock of the court, apparently by drifting away from the path on which she
was traversing by contributing to the art and literature. During whole of the proceeding
she has not shown any repentance or remorse and persistently and consistently tried to
justify her action which, prima facie, was found to be contemptuous. To frustrate the
present proceedings, the respondent has resorted to all legal tactics and pretences. In view
of this we have no option but to deal with the case on its merits, not being influenced by
any other factor or circumstance except our commitment to protect the dignity and respect
of the institution of judiciary so that the confidence of the common man is not shaken in
the institution.

5. The facts of the case, which are not seriously disputed, are that an organisation,
namely, Narmada Bachao Andolan filed a petition under Article 32 of the Constitution of
India being Writ Petition No. 319 of 1994 in this Court. The petitioner was a movement
or andolan, whose leaders and members were concerned about the alleged adverse
environmental impact of the construction of the sardar Sarovar Reservoir Dam in Gujarat
and the far-reaching and tragic consequences of the displacement of hundreds of
thousands of people from their ancestral homes that would result from the submerging of
vast extents of land, to make up the reservoir. During the pendency of the writ petition
this Court passed various order. By one of the order, the Court permitted to increase the
height of the dam to RL 85 meters which was resented to and protested by the writ
petitioners and others including the respondent herein. The respondent Arundhati Roy,
who is not a party to the writ proceedings, published an article entitled "The Greater
Common Good" which was published in Outlook Magazine and in some portion of a
book written by her. Two judges of this Court, forming the three-judge Bench felt that the
comments made by her were, prima facie, a misrepresentation of the proceedings of the
court. It was observed that judicial process and institution cannot be permitted to be
scandalised or subjected to contumacious violation in such a blatant manner, it had been
done by her. The action of the respondent had caused the court much anguish and when
the court expressed its displeasure on the action of the respondent in making distorted
writing or manner in which leaders of the petitioner Ms. Medha Patkar and one
Dharmadikhari despite giving assurance to the court acted in breach of the injunction, the
Court observed:

"We are unhappy at the way the leaders of NBA and Ms. Arundhati Roy have attempted
to undermine the dignity of the Court. We expected better behavior from them."

6. Showing its magnanimity, the Court declared:

"After giving this matter our thoughtful consideration and keeping in view the importance
of the issue of resettlement and rehabilitation of the PAFs, which we have been
monitoring for the last five years, we are not inclined to initiate proceedings against the
petitioner, its leaders or Ms. Arundhati Roy. We are of the opinion, in the largest interest
of the issues pending before us, that we need not pursue the matter any further. We,
however, hope that what we have said above would serve the purpose and the petitioner
and its leaders would hereafter desist from acting in a manner which has the tendency to
interfere with the due administration of justice or which violates the injunctions issued by
this Court from time to time."

7. The third learned Judge also recorded his disapproval of the statement made by the
respondent herein and others and felt that as the court's shoulders are broad enough to
shrug off their comments and because the focus should not shift from the resettlement and
rehabilitation of the oustees, no action in contempt be taken against them.

8. However, after the judgment was pronounced in IA No. 14 of 1999 on 15th October,
1999 , an incident is stated to have taken place on 30th December, 2000 regarding which
Contempt Petition No. 2 of 2001 was filed by J.R. Parashar, Advocate and others.
According to the appellations made in that petition, the respondents named therein, led a
huge crowd and held a Dharna in front of this Court and shouted abusive slogans against
the court including slogans ascribing lack of integrity and dishonesty to his institution. It
was alleged that when the petitioners therein protested, they were attacked and assaulted
by the respondents. In the evening on the same day, the respondents are stated to have
attacked, abused and assaulted the petitioners. A complaint was stated to have been
lodged with the Tilak Marg Police Station on the next day. In for aforesaid contempt
proceeding notices were issued to the respondents in response to which they filed separate
affidavits. All the three respondents therein admitted that there was a Dharna outside the
gates of this Court on 30th December, 2000 which was organised by Narmada Bachao
Andolan and the gathered crowd were persons who lived in the Narmada Valley and were
aggrieved by the majority judgment of this Court relating to the building of the dam on
the Narmada River. In her affidavit the respondent, amongst other averments, had stated:
"On the grounds the judges of the Supreme Court were too busy, the Chief Justice of
India refused to allow a sitting judge to head the judicial enquiry into the Tehelka
scandal, even though it involves matters of national security and corruption in the highest
places.

Yet when it comes to an absurd, despicable, entirely unsubstantiated petition in which all
the three respondents happen to be people who have publicly -though in markedly
different ways - questioned the policies of the government and severely criticized a recent
judgment of the Supreme Court, the Court displays a disturbing willingness to issue
notice.

It indicates a disquieting inclination on the part of the court to silence criticism and
muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a
petition based on an FIR that even a local police station does not see fit to act upon, the
Supreme Court is doing its own reputation and credibility considerable harm."

(EMPHASIS SUPPLIED)

9. The assertions in the aforesaid contempt petition attributed that the contemnors shouted
abusive slogans against the court including slogans ascribing lack of integrity and
dishonesty to the institution undoubtedly made the action of the contemnor gross
contemptuous and as such the court had initiated the contempt proceedings by issuing
notice. But in view of the denial of the alleged contemnors to the effect that they had
never shouted such slogans and used such abusive words as stated in the contempt
petition, instead of holding an inquiry and permitting the parties to lead evidence in
respect of here respective stand, to find out which version is correct, the court though it fit
not to adopt that course and decided to drop the proceedings. But in the very show cause
that had been filed by the respondent No. 3, Smt. Arundhati Roy, apart from denying that
she had not used any such words as ascribed to her, she had stated in three paragraphs, as
quoted earlier which were absolutely not necessary, after denying that she had never
uttered the words ascribed to her and those paragraphs having been found prima-facie
contemptuous, the suo-motu proceedings had been initiated and notice had been issued.
However, the Court felt that respondent No. 3 therein (Arundhati Roy) was found to have,
prima facie, committed contempt as she had imputed motives to specific courts for
entertaining litigation and passing orders against her. She had accused courts of harassing
her as if the judiciary were carrying out a personal vendetta against her. She had brought
in matters which were not only not pertinent to the issues to be decided but has drawn
uninformed comparisons to make statements about this Court which do not appear to be
protected by law relating to fair criticism. It was stated by her in the court that she stood
by the comments made by her even if the same are contumacious. For the reason recorded
therein, the Court issued notice int he prescribed form to the respondent herein asking her
to show cause as to why she should not be proceeded against for contempt for the
statements in the offending three paragraphs of her affidavit, reproduced hereinearlier.

10. In her reply affidavit, the respondent has again reiterated what she had stated in her
earlier affidavit. It is contended that as a consequence of the Supreme Court judgment the
people in the Narmada Valley are likely to lose their homes, their livelihood and their
histories and when they came calling on the Supreme Court, they were accused of
lowering the dignity of the court which, according to her is a suggestion that the dignity
of the court and the dignity of the Indian citizens are incompatible, oppositional,
adversarial things. She stated:

"I believe that the people of the Narmada valley have the constitutional right to peacefully
against what they consider an unjust and unfair judgment. As for myself, I have every
right to participate in any peaceful protest meeting that I choose to. Even outside the gates
of the Supreme Court. As a writer I am fully entitled to put forward my views, my
reasons and arguments for why I believe that the judgment in the Sardar Sarovar case is
flawed and unjust and violates the human rights of Indian citizens. I have the right to use
all my skills and abilities such as they are, and all the facts and figures at my disposal, to
persuade people to my point of view."

11. She also stated that she has written and published several essays and articles on
Narmada issue and the Supreme Court judgment. None of them was intended to show
contempt to the court. She justified her right to disagree with the court's view on the
subject and to express her disagreement in any publication or forum. In her belief the big
dams are economically unviable, ecologically destructive and deeply undemocratic. In
her affidavit she has further stated:

"But whoever they are, and whatever their motives, for the petitioners to attempt to
misuse the Contempt of Court Act and the good offices of the Supreme Court to stifle
criticism and stamp out dissent, strikes at the very roots of the notion of democracy.

in recent months this Court has issued judgments on several major public issues. For
instance, the closure of polluting industries in Delhi, the conversion of public transport
buses from diesel to CNG, and the judgment permitting the construction of the Sardar
Sarovar Dam to proceed. Ali of these have had far-reaching and often unanticipated
impacts. They have materially affected, for better or for worse, the lives and livelihoods
of millions of Indian citizens. Whatever the justice or injustice of these judgments
whatever their finer legal points, for the court to become intolerant of criticism or
expressions of dissent would mark the beginning of the end of democracy.

An 'activist' judiciary, that intervenes in public matters to provide a corrective to a

corrupt, dysfunctional executive, surely has to be more, not less accountable. To a society
that is already convulsed by political bankruptcy, economic distress and religious and
cultural intolerance, any form of judicial intolerance will come as a crippling blow. If the
judiciary removes itself from public scrutiny and accountability, and severs its links with
the society that it was set up to serve in the first place, it would mean that yet another
pillar of Indian democracy will crumble. A judicial dictatorship is a fearsome a prospect
as a military dictatorship or any other form of totalitarian rule.

The Tehelka tapes broadcast recently on a national television network show the repulsive
sight of Presidents of the Bhartiya Janata Party and the Samata Party (both part of the
ruling coalition) accepting bribes from spurious arms dealers. Though this ought to have
been considered prima facie evidence of corruption, yet the Delhi High Court declined to
entertain a petition seeking an enquiry into the defence deals that were referred to in the
tapes. The bench took strong exception to the petitioner approaching the court without
substantial evidence and even warned the petitioner's counsel that if he failed to
substantiate its allegations, the court would impose costs on the petitioner.

On the grounds that judges of the Supreme Court were too busy, the Chief Justice of India
refused to allow a sitting judge to head the judicial enquiry into the Tehelka scandal, even
though it involves matters of national security and corruption in the highest places.

Yet when it comes to an absurd, despicable, entirely unsubstantiated petition in which all
the three respondents happen to be people who have publicly - though in markedly
different ways - questioned the policies of the government and severely criticized a recent
judgment of the Supreme Court, the Court displays a disturbing willingness to issue
notice.

It indicates a disquieting inclination on the part of the court to silence criticism and
muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a
petition based on an FIR that even a local police station does not see fit to act upon, the
Supreme Court is doing its own reputation and credibility considerable harm.

In conclusion, I wish to reaffirm that as a writer I have right to state my opinions and
beliefs. As a free citizen of India I have the right to be part of any peaceful dharna,
demonstration or protest march. I have the right to criticize any judgment of any court
that I believe to be unjust. I have the right to make common cause with those I agree with.
I hope that each time I exercise these rights I will not dragged to court on false charges
and forced to explain my actions."

12. We have heard the learned counsel appearing for the parties at length and perused the
relevant record.

13. Before dealing with the main case we propose to dispose of the preliminary objection
raised by Shri Shanti Bhushan, Senior Advocate who has appeared for the respondent-
contemnor. Without filing a formal application it has been urged on behalf of the
respondent that the Hon'ble Judges who issued notice in Criminal Petition No. 2 of 2001
should not be a party to the present proceeding and the case be transferred to some other
Bench, allegedly on the ground that the respondent-contemnor had reasonable
apprehension of bias on the part of the said Judges to whom she claims to have allegedly
attributed motives. Such a prayer was made after the commencement of the proceedings
which, we feel, was not bonafide. The apprehension expressed by the respondent much
less being reasonable in fact has no basis. It has to be kept in mind that notice was issued
to the respondent not for having attributed motives to a particular judge but for imputing
motives to the court in general for allegedly harassing her as if the judiciary were carrying
out personal vendetta against her. The contemptuous part of her affidavit, noticed
hereinbefore, does not attribute any motive or make any allegation against any judge. It
has to be kept in mind that the present proceedings are distinguishable from the
proceedings contemplated under Section 14 of the Contempt of Courts Act (hereinafter
referred to as "the Act"). Initially on the petition of one J.R. Parashar, notice had been
issued by a Bench constituting of G.B. pattanaik and U.C. Banerjee, JJ. When the
contemners appeared in that case, and filed show cause, no prayer had been made seeking
refusal of any judge. Finally that application registered as Contempt Petition No. 2/2001
was heard by a Bench of G.B. pattanaik and Ruma Pal, JJ. and disposed of by the
judgment dated 28th August, 2001 discharging the contemners and initiating a suo motu
proceedings because of disparaging comments in the show cause filed by Arundhati Roy.
In pursuance to such notice, the proceeding was registered as Suo Motu Contempt
Petition (Criminal) No. 10/2001. In the proceeding contemner appeared on 29.10.2001
and filed her show cause. No prayer for refusal had been made on that day. When the case
was taken up for hearing on 15.1.2002, prayer for refusal had been made, which was not
allowed. The narration of facts indicate only a frustration on the part of the contemner
and such belated prayer for bench haunting is to be curbed as it would be against the
administration of justice.

14. In the instant case cognizance of the criminal contempt against the respondent has
been taken by the COURT, suo motu under Section 15 of the Act. Whereas Sub-section
(2) of Section 14 permits a person charged with the contempt to have charge against him
tried by some Judge other than the judge or judges in whose presence or hearing the
offence is alleged to have been committed and the court is of opinion that it is practicable
to do so. No such provision is made under Section 15 of the Act. Obviously for the reason
that when action is at the instance of the COURT, there is no question of any motive of
and prejudice from any Judge. Accepting the plea raised by the respondent would amount
to depriving all the Judges of the court to hear the matter and thus frustrate the contempt
proceedings, which cannot be the mandate of law. The apprehension caused by the
respondent is imaginary, without basis and not bonafide. The oral prayer made for one of
us not to be a member of the Bench, hearing the matter, is rejected.

15. Mr. Shanti Bhushan made another endeavour to defer the proceeding, allegedly on the
ground of reference made to the Constitution Bench vide an order in Dr. Subramanian
Swamy v. Rama Krishna Hedge [200 (10) SCC 331]. It is contended that as truth can be
pleaded as a defence in Contempt proceedings and that the decision of this Court
in Perspective Publications (P) Ltd. v. State of Maharashtra has been referred to be
reconsidered, the present proceedings are required to await the judgment of the
Constitution Bench. Such a submission is without any substance inasmuch as the question
of truth being pleaded as defence, in the present case, does not arise Contempt
proceedings have been initiated against the respondent on the basis of the offending and
contemptuous part of the reply affidavit making wild allegations against the court and
thereby scandalised its authority. There is no point or fact in those proceedings which
requires to be defended by pleading the truth.

16. After referring to various judgments of this Court and courts of other counties, the
learned Senior Counsel for the respondent has asserted that no proceedings for contempt
can be initiated against any person on the ground of his/her allegedly scandalizing the
court. Much reliance is placed upon the judgment in Brahma Prakash Sharma and Ors. v.
The State of Uttar Pradesh [1953 SCR 1169]. In that case contempt proceedings were
initiated against the members of the Executive Committee of the District Bar Association
at Muzaffarnagar in the State of Uttar Pradesh because of certain resolutions passed by
the Committee in which it was alleged that the two Judicial Officers were thoroughly
incompetent in law, did not inspire confidence in their judicial work, were given to
stating wrong facts when passing orders and were over-bearing and discourteous to the
litigant public and the lawyers alike. A number of other defects were also catalogued in
the resolution passed by the Association. The High Court directed the issue of notice to
the members of the Committee of the Bar Association to show cause why they should not
be dealt with for contempt of court in respect of certain portion of the resolution which
was set out in the notice. In answer to those notices, the alleged contemners appeared and
filed affidavits. The Bench, hearing the case, came to the conclusion that with the
exception of the two alleged contemners, who were not the members of the Executive
Committee at the relevant date, the remaining six were guilty of contempt of court. It
was, however, held that the aforesaid six members of the Bar were not actuated by any
personal or improper motive and the statement made on their behalf was that their object
not intended to interfere with but to improve the administration of justice. Nevertheless it
was observed that the terms used in the resolution were little removed from personal
abuse and whatever might have been the motive, they were guilty of contempt. In
concluding portion of the judgment it was stated:

"We think that the opposite parties acted under a misapprehension as to the position, but
they have expressed their regrets and tendered an unqualified apology. In the
circumstances, we accept their apology, but we direct that they pay the costs of the
Government Advocate which we assess at Rs. 300."

17. The High Court in its judgment had concluded that the allegations made against the
judicial officers come within the category of contempt which is committed by
"scandalizing the court". The learned judges observed on the authority of the
pronouncement of Lord Russel in Reg. v. Gray [(1900) 2 G.B. 36] that this class of
contempt is subject to one important qualification. in the opinion of the judges of the
High Court, the complaint lodged by the contemners exceeded the bounds of fair and
legitimate criticism. This Court referred to various judgments of English Courts and
concluded:

"The position therefore is that a defamatory attack on a judge may be a libel so far as the
judge is concerned and it would be open to him to proceed against the libeler in a proper
action if he so chooses. If, however, the publication of the disparaging statement is
calculated to interfere with the due course of justice or proper administration of law by
such court, it can be punished summarily as contempt. One is a wrong done to the judge
personally while the other is a wrong done to the public. It will be injury to the public if it
tends to create an apprehension in the minds of the people regarding the integrity, ability
or fairness of the judge or to deter actual and prospective litigants from placing complete
reliance upon the court's administration of justice, or if it is likely to cause embarrassment
in the mind of the judge himself in the discharge of his judicial duties. It is well
established that it is not necessary to prove affirmatively that there has been an actual
interference with the administration of justice by reason of such defamatory statement; it
is enough if it is likely, or tends in any way, to interfere with the proper administration of
law."

(EMPHASIS SUPPLIED)

18. We cannot agree with the submission made on behalf of the learned counsel for the
respondent that in the light of Brahma Prakash Sharma's case no contempt proceedings
can be initiated against the respondent for scandalizing the court. No wrong appears to
have been done to any judge personally by filing the offending affidavit but the
contemptuous part of the affidavit demonstrates the wrong done to the public. The
respondent has tried to cast an injury to the public by creating an impression in the mind
of the people of this backward country regarding the integrity, ability and fairness of the
institution of judiciary.

19. Similarly reliance of Shri Shanti Bhushan, Senior Advocate on Shri Baradakanta
Mishra v. The Registrar of Orissa High Court and Anr. [1974 (1) 374] is of no great help
to his client. After referring to the definition of criminal contempt in Section 2(c) of the
Act, the court found that the terminology used in the definition is borrowed from the
English Law of contempt and embodies certain concepts which are familiar to that law
which, by and large, was applied in India. The expressions "scandalized", "lowering the
authority of the court," "interference", "obstruction" and "administration of justice" have
all gone into the legal currency of our sub-continent and have to be understood in the
sense in which they have been so far understood by our courts with the aid of English
Law, where necessary . Sub-clause (i) of the definition was held to embody the concept of
canalization, as discussed by Halsbury's Laws of England, 3rd Edition in Volume 8, page
7 at para 9. Action of scandalizing the authority of the court has been regarded as an
"obstruction" of public justice whereby the authority of the court is undermined. All the
three clauses of the definition were held to justify the contempt in terms of obstruction of
or interference with the administration of justice. It was declared that the Act accepts
what was laid down by the Privy Council and other English authorities that proceedings
in contempt are always with reference to the administration of justice. The canalization
within the meaning of Sub-section (i) must be in respect of the court or the judge with
reference to administration of justice. This Court concluded that the courts of justice are,
by their constitution, entrusted with functions directly connected with the administration
of justice, and it is the expectation and confidence of all those who have or likely to have
business therein that the court perform all their functions on a high level of rectitude
without fear or favour, affection or ill-will. It is this traditional confidence in courts of
justice that the justice will be administered to the people which is sought to be protected
by proceedings in contempt. The object obviously is not to vindicate the judge personally
but to protect the public against any undermining of their accustomed confidence in the
institution of the judiciary. canalization of the court was held to be a species of contempt
which may take several forms. Krishna Iyer, J. while concurring with the main judgment
authored by Palekar, J. observed that the dilemma of the law of contempt arises because
of the constitutional need to balance two great but occasionally conflicting principles -
freedom of expression and fair and fearless justice. After referring to the judgments of
English, American and Canadian Courts, he observed: "Before stating the principles of
law bearing on the facts of contempt of court raised in this case we would like to
underscore the need to draw the lines clear enough to create confidence in the people that
this ancient and inherent power, intended to preserve the faith of the public in public
justice, will not be so used as to provoke public hostility as overtook the Star Chamber. A
vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power
to punish vested in the prosecutor, a law which makes it a crime to public regardless of
truth and public good and permits a process of brevi manu conviction, may unwittingly
trench upon civil liberties and so the special jurisdiction and jurisprudence bearing on
contempt power must be delineated with deliberation and operated with serious
circumspection by the higher judicial echelons. So it is that as the palladium of our
freedoms, the Supreme Court and the High Courts, must vigilantly protect free speech
even against judicial umbrage - a delicate but sacred duty whose discharge demands
tolerance and detachment of a high order."

20. According to him the considerations, as noticed in the judgment, led to the enactment
of the Contempt of Courts Act, 1971 which makes some restrictive departures from the
traditional law and implies some wholesome principles which serve as unspoken
guidelines in this branch of law. Section 2(c) emphasizes to the interference with the
courts of justice or obstruction of the administration of justice or scandalizing or lowering
the authority of the court - not the judge. According to him, "The unique power to punish
for contempt of itself inheres in a court qua court, in its essential role of dispenser of
public justice. After referring to host of judicial pronouncements, Krishna Iyer, J.,
concluded:

"We may now sum up. Judges and Courts have diverse duties. But functionally,
historically and jurisprudentially, the value which is dear to the community and the
function which deserves to be cordoned off from public molestation, is judicial. Vicious
criticism of personal and administrative act of Judges may indirectly mar their image and
weaken the confidence of the public in the judiciary but the countervailing good, not
merely of free speech but also of greater faith generated by exposure to the actinic light of
bona fide, even if marginally over-zealous, criticism cannot be overlooked. Justices is so
cloistered virtue."

21. The Court in that case did not spare even a judicial officer and convicted him of the
offence by awarding the punishment of paying of fine of Rs. 1000/- or in default suffer
imprisonment for three months.

22. In In Re: S. Mulgaokar Beg, CJ observed that the judiciary is not immune from
criticism but when that criticism is based on obvious distortion or gross mis-statement
and made in a manner which is designed to lower the respect of the judiciary and destroy
public confidence in it, it cannot be ignored. He further declared"

"I do not think that we should abstain from using this weapon even when its use is needed
to correct standards of behavior in a grossly and repeatedly erring quarter.'

23. In that case when the matter was taken up in the court, the contempt proceedings were
dropped without calling upon the counsel appearing for the respondent in response to the
notice. The action had been initiated on some news items published in the Indian Express
which was termed to be milder publication. The erring sentence in the publication was,
"So adverse has been the criticism that the Supreme Court Judges, some of whom had
prepared the draft code, have disowned it". It was found that the judges of court were not
even aware of the contents of the letter before it was sent by the Chief Justice of India to
the Chief Justices of various High Courts suggesting, inter alia, that Chief Justices could
meet and draft a code of ethics themselves or through a Committee of Chief Justices so as
to prevent possible lapses from the path of rectitude and property on the part of Judges.
The error was pointed out to the Editor of the Indian Express in a letter sent by the
Registrar of this Court. In reply, the Registrar received a letter from the Editor showing
that the contents of the letter, which were confidential, were known to the Editor. Instead
of publishing any correction of the mis-statement about the conduct of judges of this
Court, the Editor offered to publish the whole material in his possession, as though there
was an issue to be tried between the Editor of the newspaper and this Court and the
readers were there to try it and decide it. It was pointed out that the writer of an article of
a responsible newspaper on legal matters is expected to know that there is no
constitutional safeguard or provision relating to the independence of the judiciary which
could possibly prevent Judges themselves meeting to formulate a code of judicial ethics
or to constitute a committee to formulate a code of judicial ethics and etiquette. The
article proceeded on the assumption that there was already a formulated code of ethics
sent to the Chief Justice which in fact was not correct. The counsel appearing for the
alleged contemner to whom the notice was issued tried to convince the court that there
was no intention on the part of the writer of the article or the Editor to injure the dignity
or position of the court but the intention was only to direct public attention to matters of
extreme importance to the nation. The Chief Justice made his statement clear and
removed the mis-apprehensions, if there were really and in discretion dropped the
proceedings. Nowhere in the judgment the court opined that publication of offending
material against the court did not amount to scandalizing the court. Krishna Iyer, J. while
concurring observed:

"The contempt power, though jurisdictionally large, is discretionary in its unsheathed

exercise. Every commission of contempt need not erupt in indignant committal or
demand punishment, because Judges are judicious, their valour non-violent and their
wisdom goes into action when played upon by a volley of values, the least of which is
personal protection - for a wide discretion, range of circumspection and rainbow of public
considerations benignantly guide that power. Justice if not hubris; power is not petulance
and prudence is not pusillanimity, especially when Judges are themselves prospectors and
mercy is a mark of strength, not whimper of weakness. Christ and Gandhi shall not be
lost on the Judges at a critical time when courts are on trial and the people ("We, the
People of India") pronounce the final verdict on all national institutions. Such was the
sublime perspective, not plural little factors, that prompted me to nip in the bud the
proceeding started for serving a larger cause of public justice than punitive action against
a publisher, even assuming )without admitting) he was guilty. The preliminary
proceeding has been buried publicly; let it lie in peace. Many values like free press, fair
trial, judicial fearlessness and community confidence must generously enter the verdict,
the benefit of doubt, without absolutist insistence, being extended to the defendants. Such
are the dynamics of power in this special jurisdiction. These diverse indicators, carefully
considered, have persuaded me to go no further, by a unilateral decision of the Bench.
This closure has two consequences. It puts the lid on the proceedings without
pronouncing on the guilt or otherwise of the opposite parties. In a quasi-criminal action, a
presumption of innocence operates. Secondly, whatever belated reasons we may give for
our action,w e must not proceed to substantiate the accusation, if any. To condemn
unheard is not fair play. Bodyline bowling, perhaps, is not cricket. So may reason do not
reflect on the merits of the charge."

24. He further observed that contempt power is a wise economy to use by the Court of
this branch of its jurisdiction. The court will act with seriousness and severity where
justice is jeopardized by a gross and/or unfounded attack on the Judges, where the attack
is calculated to obstruct or destroy the judicial process. The court should harmonise the
constitutional values of free criticism and the need for a fearless curial process and its
presiding functionary, the Judge. A happy balance has to be struck, the benefit of the
doubt being given generously against the Judge, slurring over marginal deviations but
severely proving the supremacy of the law over pugnacious, vicious, unrepentant and
malignant contemners, be they the powerful press, gang-up of vested interest, veteran
columnists of olympian establishmentarians. After referring to certain principles to be
kept in mind while dealing with the contempt proceedings and referring to host of
judgments of the foreign and this Court, he concluded:

"The Court is not an inert abstraction; it is people in judicial power. And when drawing
up standards for press freedom and restraint, as an 'interface' with an unafraid court, we
must not forget that in our constitutional scheme the most fundamental of all freedoms is
the free quest for justice by the small man. "When beggars die, there are comets seen" and
"when the bull elephants fight, the grass is trampled". The contempt sanction, once frozen
by the high and mighty press campaign, the sufferer, in the long run, is the small Indian
who seeks social transformation through a fearless judicial process. Social justice is at
stake if foul press unlimited were to reign. As Justice Frankfurther stated, may be "Judges
as persons, or courts as institutions, are entitled to no greater immunity from criticism
than other persons or institutions" (a question I desist from deciding here), but when
comment darkness into coercive imputation or calculated falsehood, threats to impartial
adjudication subtly creeps. Not because Judges lack firmness nor that the dignity of the
Bench demands enhanced respect by enforced silence, as Justice Black observed in the
Los Angeles Times case [314 US 263 et al] but because the course of justice may be
distorted by hostile attribution."

25. In Dr. D.C. Saxena v. Hon'ble the Chief Justice of India this Court held that if
maintenance of democracy is the foundation of free speech, society equally is entitled to
regulate freedom of speech or expression by democratic action. Nobody has a right to
denigrate others right of person and reputation. Bonafide criticism of any system or
institution including the judiciary cannot be objected to as healthy and constructive
criticism are fools to augment forensic tools for improving its function.

26. Relying upon some judgments of foreign courts and the cherished wishes expressed
or observations made by the Judges of this country it cannot be held as law that in view of
the constitutional protection of freedom of speech and expression no-one can be
proceeded with for the contempt of court on the allegation of scandalizing or intending to
scandalise the authority of any Court. The Act is for more comprehensive legislation
which lays down the law in respect of several matters which hitherto had been the subject
of judicial exposition. The legislature appears to have kept in mind to bring the law on the
subject into line with modern trends of thinking in other countries without ignoring the
ground realities and prevalent socio-economic system in India, the vast majority of whose
people are poor, ignorant, uneducated, easily liable to be misled. But who acknowledge
have the tremendous faith in the Dispensers of Justice. The Act, which was enacted in the
year 1971, much after

the adoption of the Constitution by the People of India, defined criminal contempt
under Section 2(c) to mean:
"Criminal contempt" means the publication (whether by words, spoken or written or by
signs, or by visible representation, or otherwise) of any matter or the doing of nay other
act whatsoever which

i) scandalises or tends to 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."

27. This Court has occasion to deal with the constitutional validity of the Act and came to
the conclusion that the same was intra vires. If the constitutional validity of criminal
contempt withstood the test on the touchstone of constitutionality in the light of the
fundamental rights, it is too late to argue at this stage that no contempt proceeding can be
initiated against a person on the ground of scandalizing the authority of the court.

28. Dealing with the meaning of the word "scandalizing", this Court in D.C. Saxena's
case (supra) held that it is an expression of scurrilous attack on the majesty of justice
which is calculated to undermine the authority of the courts and public confidence in the
administration of justice. The malicious or slanderous publication inculcates in the mind
of the people a general disaffection and dissatisfaction on the judicial determination and
indisposes in their mind to obey them. If the people's allegiance to the law is so
fundamentally shaken it is the most vital and most dangerous obstruction of justice
calling for urgent action. Dealing with Section 2(c) of the Act and defining the limits of
scandalizing the court, it was held:

"scandalizing the court, therefore, would mean hostile criticism of judges as judges or
judiciary. Any personal attack upon a judge in connection with the officer he holds is
dealt with under law of libel or slander. Yet defamatory publication concerning the judge
as a judge brings the court or judges into contempt, a serious impediment to justice and an
inroad on the majesty of justice Any caricature of a judge calculated to lower the dignity
of the court would destroy, undermine or tend to undermine public confidence in the
administration of justice or the majesty of justice. It would, therefore, be scandalizing the
judge as a judge, in other words, imputing partiality, corruption, bias improper motives to
a judge is canalization of the court and would be contempt of the court. Even imputation
of lack of impartiality or fairness to a judge in the discharge of his official duties amounts
to contempt. The gravamen of the offence is that of lowering his dignity or authority or an
affront to the majesty of justice. When the contemnor challenges the authority of the
court, he interferes with the performance of duties of judge's office or judicial process or
administration of justice or generation or production of tendency bringing the judge or
judiciary into contempt. Section 2(c) of the Act, therefore, defines criminal contempt in
wider articulation that any 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 scandalises or tends to scandalise, or lowers or tends to lower the
authority or any court; or prejudices, or interferes or tends to interfere with, or obstructs
or tends to obstruct, the administration of justice in any other manner, is a criminal
contempt. Therefore, a tendency to scandalise the court or tendency to lower the authority
of the court or tendency to interfere with or tendency to obstruct the administration of
justice in any manner or tendency to challenge the authority or majesty of justice, would
be a criminal contempt. The offending act apart, any tendency if it may lead to or tends to
lower the authority of the court is a criminal contempt. Any conduct of the contemnor
which has the tendency or produces a tendency to bring the judge or court into contempt
or tends to lower the authority of the court would also be contempt of the court."

29. In E.M. Sankaran Namboodripad v. T. Narayanan Nambiar it was contended on

behalf of the contenders that law of contempt must be read without encroaching upon the
guaranteed freedom of speech and expression in Article 19 of the Constitution and the
intention of the contemner in making the statement should be examined in the light of his
political views as he was at liberty to put them before the people. It was further argued as
that the species of contempt called 'scandalizing the court' had fallen in desuetude and
was no longer enforced in England, the freedom of speech and expression gave immunity
to the appellant-contemnor to publicise the political philosophy in which he believed.
Rejecting such a plea, the Court held:

"The appellant has contended before us that the law of contempt should be so applied that
the freedom of speech and expression are not whittled down. This is true. The spirit
underlying Article 19(1)(a) must have due play but we cannot overlook the provisions of
the second clause of the article. While it is intended that there should be freedom of
speech and expression, it is also intended that in the exercise of the right, contempt of
court shall not be committed. The words of the second clause are:

'Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law or
prevent the State from making any law, in so far as such law imposes reasonable
restriction on the exercise of the right conferred by the sub-clause... in relation to
contempt of court, defamation or incitement to an offence.' These provisions are to be
read with Articles 129 and 215 which specially confer on this Court and the High Courts
the power to punish for contempt of themselves. Article 19(1)(a) guarantees complete
freedom of speech and expression but it also makes an exception in respect of contempt
of court. The guaranteed right on which the functioning of our democracy rests, is
intended to give protection to expression of free opinions to change political and social
conditions and to advance human knowledge. While the right is essential to a free society,
the Constitution has itself imposed restrictions, in relation to contempt of court and it
cannot therefore be said that the right abolishes the law of contempt or that attacks upon
judges and courts will be condoned."

30. In Sheela Barse v. Union of India & Ors. the Court acknowledged that the broader
right of a citizen to criticise the systemic inadequacies in the larger public interest. It is
the privileged right of the Indian citizen to believe what he considers to be true and to
speak out his mind, though not, perhaps, always with the best of tastes; and speak
perhaps, with greater courage than care for exactitude. Judiciary is not exempt from such
criticism. Judicial institutions are, and should be made, of stronger stuff intended to
endure the thrive even in such hardy climate. But we find no justification to the resort to
this freedom and privilege to criticise the proceedings during their pendency by persons
who are parties and participants therein.

31. The law of contempt itself envisages various exceptions as incorporated in Section
3, 4, 5, 6 and 7. Besides the aforesaid defences envisaged under the Act, the court can, in
appropriate cases, consider any other defence put forth by the respondent which is not
incompatible with the dignity of the court and the law of contempt. Taking a cue from the
language of Section 8 of the Act, learned Senior Counsel appearing for the respondent
submitted that a reply submitted to a contempt notice can, in no case, amount to contempt
of court in the light of second exception to Section 499 of the Indian Penal Code. Such a
broad and general proposition is contrary to the law of contempt as adjudicated by the
courts in the country from time to time and the limits prescribed by the Act and the
judicial pronouncements which are well within the knowledge of all reasonable citizens.
It has to be always kept in mind that the law of defamation under the Penal Code cannot
be equated with the law of contempt of court in general terms. The Privy Council in
Surender Nath v. Chief Justice and Judges of the High Court [10 Cal. 109] observed that
"although contempt may include defamation, yet an offence of contempt is something
more than mere defamation and is of a different character". Approving the aforesaid view,
this Court in Bathina Ramakrishna Reddy v. State of Madras "When the act of defaming a
Judge is calculated to obstruct or interfere with the due course of justice or proper
administration of law, it would certainly amount to contempt. The offence of contempt is
really a wrong done to the public by weakening the authority and influence of Courts of
law which exist for their good. As was said by Willmot C.J., Wilmot's Opinion p.256;
Rex b. Davies 30 at p.40-41.

"attacks upon the judges excite in the minds of the people a general dissatisfaction with
all judicial determinations... and whenever man's allegiance to the laws is so
fundamentally shaken it is the most fatal and dangerous obstruction of justice and in my
opinion claim out for a more rapid and immediate redress than any judges as private
individuals but because they are the channels by which the Kings's justice is conveyed to
the people."

What is made punishable in the Indian Penal Code is the offence of defamation as
defamation and not as contempt of court. If the defamation of a subordinate court
amounts to contempt of Court proceedings can certainly be taken under Section
2, Contempt of Courts Act, quite apart from the fact that other remedy may be open to the
aggrieved officer under Section 499, Penal Code. But a libel attacking the integrity of a
Judge may not in the circumstances of a particular case amount to a contempt at all,
although it may be the subject matter of libel proceeding. This is clear from the
observation of the Judicial Committee in the case of the Matter of a Special Reference
from the Bahama Islands. 1989 A.C. 188."

32. Even a person claiming the benefit of second exception to Section 499 of the Indian
Penal Code, is required to show that the opinion expressed by him was in good faith
which related to the conduct of public servant in the discharge of his public functions or
respecting his character so far as his character appears in that conduct. Under the law of
contempt statements made in pleadings, petitions and affidavits of the parties, in a
number of cases, have been held defamatory statements amounting to offences under the
section unless it is shown that they fall within any of the exceptions. The statements made
in an affidavit filed in the court was held to amount to a criminal contempt by this Court
in In Re: Sanjiv Datta, Deputy Secretary's, Ministry of Information & Broadcasting, New
Delhi & Ors. The benefit of the exception even under the law of defamation, much less in
contempt proceedings may not be available if the insinuations are made against an
institution of the State and not restricted to the person as an individual or a collection of
persons.

33. Relying upon the observations made by this Court in P.N. Duda v. P. Shiv Shankar &
Ors. it has been argued on behalf of the respondents that if despite severe criticism and
wild allegations made by P. Shiv Shankar against the institution of judiciary, no action
was taken, the present proceedings also required to be dropped. In that case P. Shiv
Shankar who, at the relevant time, was the Minister of Law, Justice and Company
Affairs, delivered a speech before a meeting of the Bar Council at Hyderabad in which he
made derogatory statement against the Supreme Court and its dignity attributing partiality
towards economically affluent sections of the people by using language which is
extremely intemperate, undignified and unbecoming of a person of his stature and
position. In his speech the Minister had, inter alia, observed:

"The Supreme Court composed of the element from the elite class had their unconcealed
sympathy for the haves i.e. the Zamindars. As a result, they interpreted the word
'compensation' in Article 31 contrary to the spirit and the intendment of the Constitution
and ruled the compensation must represent the price which a willing seller is prepared to
accept from a willing buyer. The entire programme of Zamindari abolition suffered a
setback. The Constitution had to be amended by the 1st, 14th and 17th Amendments to
remove the oligarchy approach of the Supreme Court with little or no help. Ultimately,
this rigid reactionary and traditional outlook of property, led to the abolition of property
as a fundamental right.

Holmes Alexander in his column entitled '9 Men of Terror Squad' made a frontal attack
on the functions of the U.S. Supreme Court. It makes an interesting reading.

Now can you tell what that black-robbed elite are going to do next. Spring more
criminals, abolish more protections. Throw down more ultras. Rewrite more laws.

Chew more clauses out of the Constitution. May be as a former Vice-President once said,
the American people are too dumb to understand, but I would bet that the outcropping of
evidence at the top in testimony before the US Senate says something about the swelling
concern among the people themselves.

Should we not ask how true Holmes Alexander was in the Indian context.

Twenty years of valuable time was lost in this confrontation presented by the judiciary in
introducing and implementing basic agrarian reforms for removal of poverty what is the
ultimate result. Meanwhile even the political will seems to have given way and the
resultant effect is the improper and ineffective implementation of the land reform laws by
the executive and the judiciary supplementing and complementing each other.

The Maharajas and the Rajas were anachronistic in independent India. They had to be
removed and yet the conservative element in the ruling party gave them privy purses.
When the privy purpose were abolished, the Supreme Court, contrary to the whole
national upsurge, held in favour of the Maharajas.

Mahadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic

cord nowhere in the whole country except the Supreme Court of India. And the bank
magnates, the representatives of the elitist culture of this country, ably supported by
industrialists, the beneficiaries of independence, got higher compensation by the
intervention of the Supreme Court in Cooper case [R.C. Cooper v. Union of India, ].
Anti-social elements i.e. FERA violations, bride burners and a whole horde of
reactionaries have formed their haven in the Supreme Court."

34. After examining the entire speech, this Court found that the Minister had examined
the class composition of the Supreme Court. His view was that the class composition of
any instrument indicates its pre-disposition and its prejudices. After referring to various
judgments of this Court and the foreign courts, the Court held:

"As we have mentioned before the speech of the Minister has to be read in its entirety. In
the speech as we have set out hereinbefore it appears that Shri P. Shiv Shankar was
making a study of the attitude of this Court. In the portion set out hereinbefore, it was
stated that the Supreme Court was composed of the element from the elite class. Whether
it is factually correct or not in another matter. In our public life where the champions of
the downtrodden and the politicians are most from the so-called elite class, if the class
composition is analysed, it may reveal interesting factors as to whether elite class is
dominant as the champions of the oppressed or of social legislations and the same is the
position in the judiciary. But the Minister went on to say that because the judges had their
'unconcealed sympathy for the haves' they interpreted the expression 'compensation' in
the manner they did. The expression 'unconcealed' is unfortunate. But this is also an
expression of opinion about an institutional pattern. Then the Minister went on to say that
because of this the word 'compensation' in Article 31 was interpreted contrary to the spirit
and the intendment of the Constitution. The Constitution therefore had to be amended by
the 1st, 14th and 17th Amendments to remove this 'oligarchic' approach of the Supreme
Court with little or no help. The interaction of the decisions of this Court and the
constitutional amendments have been viewed by the Minister in his speech, but that is
nothing new. This by itself does not affect the administration of justice. On the other
hand, such a study perhaps is important for the understanding of the evolution of the
constitutional development. The next portion to which reference may be made where the
speaker has referred to Holmes Alexander in his column entitled '9 Men of Terror Squad'
making a frontal attack on the functions of the U.S. Supreme Court. There was a
comparison after making the quotation as we have set out hereinbefore,: "One should ask
the question how true Holmes Alexander was in the Indian context". This is also a poser
on the performance of the Supreme Court. According to the speaker twenty years of
valuable time was lost in this confrontation presented by the judiciary in introducing and
implementing basic agrarian reforms for removal of poverty what is the ultimate result.
The nation did not exhibit the political will to implement the land reforms laws. The
removal of the Maharajas and Rajas and privy purses were criticised because of the view
taken by this Court which according to the speaker was contrary to the whole national
upsurge. This is a study in the historical perspective. Then he made a reference to the
Keshavanand Bharti v. State and I.C. Golak Nath v. State of Punjab cases and observed
that a representative of the elitist culture of the country, ably supported by industrialists
and beneficiaries of independence, got higher compensation by the intervention of the
Supreme Court in Cooper Case. This is also a criticism of the judgment in R.C. Cooper
Case. Whether that is right or wrong is another matter, but criticism of judgments is
permissible in a free society. There is, however, one paragraph which appears to us to be
rather intemperate and that is to the following effect:

Anti-social elements i.e. FERA violators, bride burners and a whole horde of
reactionaries have found their haven in the Supreme Court.

This, of course, if true, is a criticism of the laws. The Supreme Court as it is bound to do
has implemented the laws and in implementing the laws, it is a tribute to the Supreme
Court that it has not discriminated between persons and persons. Criminals are entitled to
be judged in accordance with law. If anti-social elements and criminals have benefited by
decisions of the Supreme Court, the fault rests with the laws and the loopholes in the
legislation. The courts are not deterred by such criticisms.

Bearing in mind the trend in the law of contempt as noticed before, as well as some of the
decisions noticed by Krishna Iyer, J. in S. Mulgaokar case, the speech of the Minister
read in its proper perspective, did not bring the administration of justice into disrepute or
impair administration of justice. In some portions of the speech the language used could
have been avoided by the Minister having the background of being a former judge of the
High Court. The Minister perhaps could have achieved his purpose by making his
language mild but his facts deadly. With these observations, it must be held that there was
no imminent danger of interference with the administration of justice, not of bringing
administration into disrepute. In that view it must be held that the Minister was not guilty
of contempt of this Court."

35. It may be noticed that the criticism of the judicial system was made by a person who
himself had been the Judge of the High Court and was the Minister at the relevant time.
He had made studies about the system and expressed his opinion which, under the
circumstances, was held to be not defamatory despite the fact that the court found that in
some portion of the speech the language used could have been avoided by the Minister
having the background of being the former Judge of the High Court. His speech, under
the circumstances, was held to be not amounting to imminent danger of interference with
the administration of justice nor of bringing the administration into disrepute.

36. As already held, fair criticism of the conduct of a judge, the institution of the judiciary
and its functioning may not amount to contempt if it is made in good faith and in public
interest. To ascertain the good faith and the public interest, the courts have to see all the
surrounding circumstances including the person responsible for comments, his knowledge
in the field regarding which the comments are made and the intended purpose sought to
be achieved. All citizens cannot be permitted to comment upon the conduct of the courts
in the name of fair criticism which, if not checked, would destroy the institution itself.
Litigant losing in the Court would be the first to impute motives to the judges and the
institution in the name of fair criticism which cannot be allowed for preserving the public
faith in an important pillar of democratic set up, i.e., judiciary. In Dr. D.C. Saxena's case
(supra) this Court dealt with the case of P. Shiv Shankar by observing:

"In P.N. Duda v. P. Shiv Shankar this Court had held that administration of justice and
judges are open to public criticism and public scrutiny. Judges have their accountability
to the society and their accountability must be judged by the conscience and oath to their
office, i.e, to defend and uphold the Constitution and the laws without fear and favour.
Thus the judges must do, in the light given to them to determine, what is right. Any
criticism about the judicial system or the judges which hampers the administration of
justice or which erodes the faith in the objective approach of the judges and brings
administration of justice to ridicule must be prevented. The contempt of court
proceedings arise out of that attempt. Judgments can be criticised. Motives to the judges
need not be attributed. It brings the administration of justice into disrepute. Faith in the
administration of justice is one of the pillars on which democratic institution functions
and sustains. In the free market-place of ideas criticism about the judicial system or
judges should be welcome so long as such criticism does not impair or hamper the
administration of justice. This is how the courts should exercise the powers vested in
them and judges to punish a person for an alleged contempt by taking notice of the
contempt suo motu or at the behest of the litigant or a lawyer. In that case the speech of
the Law Minister in a Seminar organised by the Bar Council and the offending portion
therein were held not contemptuous and punishable under the Act. In a democracy judges
and courts alike are, therefore, subject to criticism and if reasonable argument or criticism
in respectful language and tempered with moderation is offered against any judicial act as
contrary to law or public good, no court would treat criticism as a contempt of court."

37. In the instant case the respondent has not claimed to be possessing any special
knowledge of law and the working of the institution of judiciary. She has only claimed to
be a writer of repute. She has submitted that "as an ordinary citizen I cannot and could not
have expected to make a distinction between the Registry and the Court". It is also not
denied that the respondent was directly or indirectly associated with the Narmada Bachao
Andolan and was, therefore, interested in the result of the litigation. She has not claimed
to have made any study regarding the working of this Court or judiciary in the country
and claims to have made the offending imputations in her proclaimed right of freedom of
speech and expression as a writer. The benefit to which Mr. P. Shiv Shankar, under the
circumstances, was held entitled is, therefore, not available to the respondent in the
present proceedings. Her case is in no way even equal to the case of E.M.S.
Namboodaripad (supra). In that case the contemner, believing in the philosophy he was
propounding had made certain observations regarding the working of the courts under the
prevalent system which, as already noticed, was found to be contemptuous.

38. The Constitution of India has guaranteed freedom of speech and expression to every
citizen as a fundamental right. While guaranteeing such freedom, it has also provided
under Article 129 that the Supreme 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. Similar
power has been conferred on the High Courts of the States under Article 215. Under the
Constitution, there is no separate guarantee of the freedom of the press and it is the same
freedom of expression, which is conferred on all citizens under Article 19(1). Any
expression of opinion would, therefore, be not immune from the liability for exceeding
the limits, either under the law of defamation or contempt of Court or the other
constitutional limitations under Article 19(2). If a citizen, therefore, in the grab of
exercising right of free expression under Article 19(1), tries to scandalise the court or
undermines the dignity of the court, then the court would be entitled to exercise power
under Article 129 or Article 215, as the case may be. In relation to a pending proceeding
before the Court, while showing cause to the notice issued, when it is stated the court
displays a disturbing willingness to issue notice on an absurd despicable, entirely
unsubstantiated petition, it amounts to a destructive attack on the reputation and the
credibility of the institution and it undermines the public confidence in the judiciary as a
whole and by no stretch of imagination, can be held to be a fair criticism of the Court's
proceeding. When a scurrilous attack is made in relation to a pending proceeding and the
noticed states that the issuance of notice to show cause was intended to silence criticism
and muzzle dissent, to harass and intimidate those who disagree with it, is a direct attack
on the institution itself, rather than the conduct of an individual Judge. The meaning of
the expressions used cannot come within the extended concept of fair criticism or
expression of opinion particularly to the case of the contemner in the present case, who
on her own right is an acclaimed writer in English. At one point of time, we had seriously
considered the speech of Lord Atkin, where the learned Judge has stated:

"The path of criticism is public way: the wrongheaded are permitted to err therein...
Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful,
even though outspoken, comments of ordinary men." [Andre Paul v. Attorney
General (1936), AC 322].

and to find out whether there can be a balancing between the two public interests, the
freedom of expression and the dignity of the court. We also took note of observations of
Bharucha, J. in the earlier contempt case against the present contemner, who after
recording his disapproval of the statement, observed that the Court's shoulders are broad
enough to shrug off the comments. But in view of the utterances made by the contemnor
in her show causes filed and not a word of remorse, till the conclusion of the hearing, it is
difficult for us either to shrug off or to hold the accusations made as comments of
outspoken ordinary man and permit the wrongheaded to err therein, as observed by Lord
Atkin.

39. We are not impressed with any of the arguments of the learned counsel for the
respondent which could persuade us to drop the proceedings and are of the opinion that it
has to be found on facts as to whether the offending portion of the affidavit of the
respondent amounts to scandalizing the court and thus a criminal contempt within the
meaning of Section 2(c) of the Act.

40. In the offending portion of her affidavit, the respondent has accused the court of
proceeding with absurd, despicable and entirely unsubstantiated petition which, according
to her, amounted to the court displaying a disturbing willingness to issue notice. She has
further attributed motives to the court of silencing criticism and muzzling dissent by
harassing and intimidating those who disagree with it. Her contempt for the court is
evident from the assertion "by entertaining a petition based on an FIR that even a local
police station does not see fit to act upon, the Supreme Court is doing its own reputation
and credibility consideration harm". In the affidavit filed in these proceedings, the
respondent has reiterated what she has stated in her earlier affidavit and has not shown
any repentance. She wanted to become a champion to the cause of the writers by asserting
that persons like her can allege anything they desire and accuse any person or institution
without any circumspection , limitation or restraint. Such an attitude shows her persistent
and consistent attempt to malign the institution of the judiciary found to be most
important pillar in the Indian democratic set up. This is no defence to say that as no actual
damage has been done to the judiciary, the proceedings be dropped. The well-known
proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it
misses to hit the target. The respondent is proved to have shot the arrow, intended to
damage the institution of the judiciary and thereby weaken the faith of the public in
general and if such an attempt is not prevented, disastrous consequences are likely to
follow resulting in the destruction of rule of law, the expected norm of any civilised
society.

41. On the basis of the record, the position of law our findings on various pleas raised and
the conduct of the respondent, we have no doubt in our mind that the respondent has
committed the criminal contempt of this Court by scandalizing its authority with malafide
intentions. The respondent is, therefore, held guilty for the contempt of court punishable
under Section 12 of the Contempt of Courts Act.

42. As the respondent has not shown any repentance or regret or remorse, no lenient view
should be taken in the matter. However, showing the magnanimity of law by keeping in
mind that the respondent is a woman, and hoping that better sense and wisdom shall dawn
upon the respondent in the future to serve the cause of art and literature by her creative
skill and imagination, we feel that the ends of justice would be met if she is sentenced to
symbolic imprisonment besides paying a fine of Rs. 2000/-.

43. While convicting the respondent for the contempt of the Court, we sentence her to
simple imprisonment for one day and to pay a fine of Rs. 2,000/-. In case of default in the
payment of fine, the respondent shall undergo simple imprisonment for three months.

Supreme Court of India

Mrityunjoy Das & Anr vs Sayed Hasibur Rahaman & Ors on 16 March, 2001
Author: Banerjee
Bench: Umesh C. Banerjee, S.N. Phukan
CASE NO.:
Contempt Petition (civil) 202 of 2000

PETITIONER:
MRITYUNJOY DAS & ANR

Vs.

RESPONDENT:
SAYED HASIBUR RAHAMAN & ORS.

DATE OF JUDGMENT: 16/03/2001

BENCH:
Umesh C. Banerjee & S.N. Phukan

JUDGMENT:

In SLP No. 1416 of 1997 JUDGMENT BANERJEE, J.

L...I...T.......T.......T.......T.......T.......T.......T..J The introduction of the Contempt of Courts

Act, 1971 in the statute book has been for purposes of securing a feeling of confidence of
the people in general for due and proper administration of justice in the country. It is a
powerful weapon in the hands of the law courts by reason wherefor it must thus be
exercised with due care and caution and for larger interest.

Incidentally, a special leave petition (1416/1997) was filed before this Court by Paschim
Banga Rajya Bhumijibi Sangh against the judgment of the Calcutta High Court pertaining
to the question of constitutionality of certain provisions of West Bengal Land Reforms
Amendment Acts 1981 and 1986. The said Sangha filed an Interlocutory Application
being I.A.No.3 OF 1999 for issuance of certain directions which inter alia reads as below:

(a) direct the State of West Bengal and its Revenue Authorities not to initiate any
proceedings for vesting of the land against the members of the Petitioner Sangha and if
any vesting proceeding has been already initiated against the members of the Petitioner
Sangha in that event not to pass any order and maintain status-quo in respect of the land
in question in all respect till the disposal of the Special Leave Petition (Civil) No.1416 of
1997 pending before this Honble Court or in alternative clarify that the order dated
20.3.1998 as quoted in paragraph 19-20 will apply only to the parties thereto and not to
the members of the Petitioner No.1 Sangha.

The Interlocutory Application was heard on 29th October, 1999 and this Court was
pleased to pass an order therein to the following effect:
At the request of Learned counsel for the Applicants four weeks time is granted to enable
him to put on record appropriate information regarding members of the Sangha for whom
the application is moved and the nature of the stay required.

In the meantime Learned Counsel for the Respondent will also take appropriate
instructions in connection with this I.A.

Subsequently on 16th December, 1999, this Court in I.A.No.3 passed an interim order to
the effect as below:@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Having heard Learned
counsel for the parties, by way of an interim order, it is directed that status-quo regarding
possession on spot shall be maintained by both the sides in connection with the members
of the Petitioner-Sangha who were before the High Court in the Writ Petition out of
which the present proceedings arise.

(Emphasis supplied) In the meantime, learned senior counsel for the respondent-State of
West Bengal will verify the list of these members, (Emphasis supplied ) which is
furnished to him by Learned Counsel for the Petitioner and subject to that verification
further orders will be passed after three months.

To be placed after three months.

In the application (I.A.No.3) a further order was passed on 17th April, 2000 which reads
as below:@@ JJJJJJJJJJJJJJJJJJJJJJJJJJ We have heard learned senior counsel for the
Petitioners, Mr. Shanti Bhushan and Learned Senior Counsel for respondent-State of
West Bengal, Mr. Ray, Learned Senior Counsel for respondent-State of West Bengal is
right when he says that some more time is required as 13,000 persons are listed and they
have to ascertain about their existence on the spot. We grant time up to the end of July,
2000. I.A. will be placed in the second week of August, 2000. In the meantime, at the
request of Learned Counsel for the Petitioners, Mr. Shanti Bhusan we grant additional
interim relief in continuation of our earlier order dated 16.12.1999 to the effect that if in
the meantime, any vesting orders have been passed in respect of the lands of members of
Petitioner Sangha who were before the High Court in the matter out of which the present
proceedings arise, then those vesting orders shall not be implemented until further
orders."

It is this order which is said to have been violated and thus bringing the orders of this
Court into ridicule. The factum of violation is said to have been deliberate since in spite
of the order as above and even after the service of the order dated 17th April, 2000 to the
authorities of Land Reforms Department, Government of West Bengal for its compliance,
the Petitioner No.1 being a resident of village Amriti, District, Malda, West Bengal and a
life member of the Paschim Banga Rajya Bhumijibi Sangha was served with a notice
dated 5.4.2000 under Section 57 of the West Bengal Land Reforms Act together
with Section 14-T (3) of the said Act read with Rule 4 of the Rules framed thereunder by
the Revenue Officer Cell, Malda asking to submit details of land held by him and his
family members since 7.8.1969 and particulars of land transferred by him after that date.
The records depict that a reply to the said notice was furnished as early as 30th April,
2000 alongwith the certification of membership of the Sangha and copy of the order dated
16th December, 1999 passed by this Court. It further appears that a hearing did take place
and the Revenue Officer passed an order of vesting on 17th April, 2000. Subsequently, on
the factual matrix, it appears that by the notice dated 26th April, 2000 issued by the
Revenue Officer, possession of 37.47½ acres of land was directed to be made over to the
Land Revenue Authority on 27.4.2000. It has been the definite case of the petitioners that
in spite of receipt of both the orders dated 16th December, 1999 and 17th April, 2000, the
Block Land & Land Reforms Officer, English Bazar, Malda came on the site and took
possession of the said land. Similar is the situation as regards the land belonging to
petitioner No.2 and possession 20.76 acres of land was also obtained by the Block Land
& Land Reforms Officer, English Bazar, Malda. This act of obtaining possession from
the applicants herein is stated to be a deliberate violation of this Courts order and thus
cannot but be ascribed to be contemptuous in nature.

Mr. Sanyal, the learned Senior Advocate appearing in support of the petition for
Contempt contended that the high handedness of the executive authorities is apparent in
the deliberate action of taking over possession of land from two of the members of the
Samiti even after coming to know of the orders of this Court and resultantly committing
an act of gross contempt.

Admittedly, this Court passed an order on 17th April, 2000 as a continuation of the earlier
order dated 16th December, 1999 to the effect that if in the meantime, any vesting order
has been passed in respect of the land of members of petitioners Sangha who were before
the High Court in the matter out of which the present proceeding arise, then those vesting
orders shall not be implemented until further orders. The order dated 16th December,
2000 also categorically records the maintenance of status quo regarding possession on
spot by both the State and Private Respondents. As regards however the Private
Respondents, the order was directed to be made applicable to the cases of the members of
the petitioners Sangha who were before the High Court in the Writ Petition out of which
the present proceeding arose.

Needless to state that Land Reforms Legislation in States have been introduced with a
view to proceed with the socialistic approach as enshrined in the Constitution. The
amendments have been effected in the main provisions of the act, validity of which stands
further scrutiny before this Court. We are however, not called upon to delve into these
issues neither we intend to do the same. The noting aforesaid is just to introduce the
subject for our consideration though in a separate jurisdiction being of extra- ordinary
nature but as conferred by and under the statute.

Let us however, at this juncture consider the counter affidavit as filed by the alleged
Contemnors and assess the situation as to whether there is any deliberate act on the part
of the revenue officers of the State or an omission to note the true effect of the order
which has resulted in such an action which is said to be contemptuous in nature. The
alleged Contemnors No.2 and 3 being Sayed Kadar Hossain and Chitaranjan Chakraborti
stated that as officers of the Government, they have tried to discharge their duties to the
best of their ability, capacity and understanding. There was never any motive or intention
to violate or disobey the orders of this Court. In paragraphs 4 and 5 alleged contemnors
stated as below.
4. We respectfully submit that as understood by us that the number of the Petitioner
Sangha who were before the High Court in the Writ Petition were understood by us as
parties on the date on which the Writ Petition was filed. The petitioners themselves have
admitted that they became members only in 1992-93, and the order of this Honble Court
would not be applicable then as they were not members of the Sangha on the date of
filing the Writ Petition. If the interpretation given by the Petitioners was sought to be
accepted, then there could be no occasion for this Honble Court making the order for
verification of members of the Sangha. We never proceeded with the matter to violate the
orders of this Honble Court.

5. We also submit that in the proceedings, the Petitioners were given full opportunity of
being heard and in fact the Petitioner appeared through Advocate and made submission
and after considering the facts and circumstances of the case and also the material on
record, the Revenue Officer being the competent Authority under the Act (Contemnor
No.2) recorded the following finding:

It appears from certificate which was issued by that Sangha that Sl. No. of Life
Membership of raiyat Mrityunjoy Das is 2698/93. It is clear that the raiyat obtained
membership in the year 1993 and he was not the member of the said Sangha during the
time of filing the Writ Applicant or before the Honble High Court. So the raiyat is not
entitled to get benefit of the order of the Honble Supreme Court dated 16.12.1999.

A true copy of the order dated 17.4.2000 in this regard is annexed herewith and marked
as Annexure- R 1/1.

We further submit that we have not tried to justify the conduct any way, by making the
aforesaid statements and have stated these only to explain the circumstances and if any
lack of understanding as aforesaid has resulted in violation of this order and consequently
the Contempt of Court, I repent for the same and tender my unqualified apology before
this Honble Court. I further submit that whatever I have done was in the course of my
official work as a Government servant and I have no personal interest whether the process
of Land Reforms continues or halts. On the face of this order of this Honble Court, or in
that way any Order of any Court, which I am duty bound to obey. I again submit that if
my interpretation of the order of this Honble Court was wrong that was because of my
limitations to understand but there is nothing malafide in it and I cannot think of over-
reaching or flouting the order of this Honble Court in any way or under any
circumstances.

On the state of pleadings as above, Mr. Tapas Chandra Ray, the learned Senior Advocate
appearing for the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Respondents with
his usual eloquence submitted that the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJ order of this
Court dated 16th December, 1999 pertaining to the maintenance of status quo regarding
possession, has been rather categorical in its application: This Court has restricted its
applicability to the members of the petitioners Sangha who were before the High Court in
the Writ Petition and not all and sundry. Mr. Ray drew the attention of the Court to a
portion of the order (as emphasized in page 3 hereof) and submitted that a contra
interpretation to the order would not only be grossly irregular but be totally
unsubstantiated. The user of the words who were before the High Court in the writ
petition shall have to be attributed some meaning and the intention has been rather clear
and categorical as to its applicability. Mr. Ray contended that this Court obviously could
not indulge in surplusage or record a specific order without attributing any meaning
thereto and it is in this context Mr. Ray further contended that in any event, if two
explanations are available and out of which one stands adopted by the alleged contemnors
which cannot by any stretch, be termed to be wholly unwarranted, question of returning a
verdict of guilty in an Application for Contempt does not and cannot arise.

Contra however, is the submission of Mr. Sanyal and Mr. Ganguli for the petitioners with
reference to the user of the words present proceeding by this Court which cannot as
contended but mean that the order has been intended to apply to the applicants before this
Court, in addition to the members who were members on the date of filing of the Writ
Petition and this by no stretch be restrictive at all. Since, otherwise the order would only
be partial and a majority of the persons proceeding with this litigation as parties herein
would be deprived of the same a situation which cannot possibly be conceived in the
matters of an order of this Court since this Court confers benefit on to those who seek
relief in a proceeding before this Court indeed an attractive submission.

Before however, proceeding with the matter any further, be it noted that exercise of
powers under the Contempt of Courts Act shall have to be rather cautious and use of it
rather sparingly after addressing itself to the true effect of the contemptuous conduct. The
Court must otherwise come to a conclusion that the conduct complained of tentamounts
to obstruction of justice which if allowed, would even permeat in our society
(vide Murray & Co. v. Ashok Kr. Newatia & Anr.: 2000 (2) SCC 367) this is a special
jurisdiction conferred on to the law courts to punish an offender for his contemptuous
conduct or obstruction to the majesty of law. It is in this context that the observations of
the this Court in Murrays case (supra) in which one of us (Banerjee, J.) was party needs to
be noticed.

The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of
law since the image of such a majesty in the minds of the people cannot be led to be
distorted. The respect and authority commanded by Courts of Law are the greatest
guarantee to an ordinary citizen and the entire democratic fabric of the society will
crumble down if the respect for the judiciary is undermined. It is true that the judiciary
will be judged by the people for what the judiciary does, but in the event of any
indulgence which even can remotely be termed to affect the majesty of law, the society is
bound to lose confidence and faith in the judiciary and the law courts thus, would forfeit
the trust and confidence of the people in general.

The other aspect of the matter ought also to be noticed at this juncture viz., the burden
and standard of proof. The common English phrase he who asserts must prove has its due
application in the matter of proof of the allegations said to be constituting the act of
contempt. As regards the standard of proof, be it noted that a proceeding under the extra-
ordinary jurisdiction of the Court in terms of the provisions of the Contempt of Court
Act is quasi criminal, and as such, the standard of proof required is that of a criminal
proceeding and the breach shall have to be established beyond reasonable doubt. The
observations of Lord Denning in Re Bramblevale (1969 3 All ER 1062) lend support to
the aforesaid. Lord Denning in Re Bramblevale stated:
A contempt of court is an offence of a criminal character. A man may be sent to prison
for it,. It must be satisfactorily proved. To use the time- honoured phrase, it must be
proved beyond all reasonable doubt. It is not proved by showing that, when the man was
asked about it, he told lies. There must be some further evidence to incriminate him. Once
some evidence is given, then his lies can be thrown into the scale against him. But there
must be some other evidence. Where there are two equally consistent possibilities open to
the Court, it is not right to hold that the offence is proved beyond reasonable doubt.

In this context, the observations of the Calcutta High Court in Archana Guha v. Ranjit
Guha Neogi (1989 (II) CHN

252) in which one of us was a party (Banerjee, J.) seem to be rather apposite and we do
lend credence to the same and thus record our concurrence therewith.

In The Aligarh Municipal Board and Others v. Ekka Tonga Mazdoor Union and
Others (1970 (III) SCC 98), this Court in no uncertain term stated that in order to bring
home a charge of contempt of court for disobeying orders of Courts, those who assert that
the alleged contemners had knowledge of the order must prove this fact beyond
reasonable doubt. This Court went on to observe that in case of doubt, the benefit ought
to go to the person charged.

In a similar vein in V.G. Nigam and others v. Kedar Nath Gupta and another (1992 (4)
SCC 697), this Court stated that it would be rather hazardous to impose sentence for
contempt on the authorities in exercise of contempt jurisdiction on mere probabilities.

Having discussed the law on the subject, let us thus at this juncture analyse as to whether
in fact, the contempt alleged to have been committed by the alleged cotemners, can said
to have been established firmly without there being any element of doubt involved in the
matter and that the Court would not be acting on mere probabilities having however, due
regard to the nature of jurisdiction being quasi criminal conferred on to the law courts.
Admittedly, this Court directed maintenance of status quo with the following words the
members of the petitioner Sangha who were before the High Court in the writ petition out
of which the present proceedings arise. And it is on this score the applicant contended
categorically that the intent of the Court to include all the members presenting the
Petition before this Court whereas for the Respondent Mr. Ray contended that the same is
restricted to the members who filed the writ petition before the High Court which
culminated in the initiation of proceeding before this Court. The Counter affidavit filed
by the Respondents also record the same. The issue thus arises as to whether the order
stands categorical to lend credence to the answers of the respondent or the same supports
the contention as raised by the applicants herein Incidentally, since the appeal is pending
in this Court for adjudication, and since the matter under consideration have no bearing
on such adjudication so far as the merits of the dispute are concerned, we are not
expressing any opinion in the matter neither we are required to express opinion thereon,
excepting however, recording that probabilities of the situation may also warrant a
finding, in favour of the interpretation of the applicant. The doubt persists and as such in
any event the respondents being the alleged contemners are entitled to have the benefit or
advantage of such a doubt having regard to the nature of the proceeding as noticed herein
before more fully.
In view of the observations as above, we are not also inclined to go into the question of
apology. On the wake of@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJ the aforesaid, this Contempt
Petition fails and is dismissed@@ JJJJJJJJJ without however, any order as to costs.@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

Perspective Publications (P) ... vs State Of Maharashtra on 19 November, 1968

Equivalent citations: 1971 AIR 221, 1969 SCR (2) 779
Author: A Grover
Bench: Grover, A.N.
PETITIONER:
PERSPECTIVE PUBLICATIONS (P) LTD. & ANR.

Vs.

RESPONDENT:
STATE OF MAHARASHTRA

DATE OF JUDGMENT:
19/11/1968

BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
SHAH, J.C.
RAMASWAMI, V.

CITATION:
1971 AIR 221 1969 SCR (2) 779
CITATOR INFO :
R 1971 SC1132 (53)
R 1972 SC 989 (8,10,11)
E&R 1978 SC 727 (42)
F 1978 SC 921 (12,15)
RF 1992 SC 904 (9)

ACT:
Contempt of Court--Difference between defamation of judge
and contempt of court---Judge's brother having financial
interest in a firm--If sufficient to establish legal bias.

HEADNOTE:
One T filed a suit claiming Rs. 3 lacs damages for
libel
against a newspaper. The suit was decreed by a Judge of the
Bombay High Court. Thereafter, an article was published in a
publication brought out by the first appellant and of which
the second appellant was the editor, printer and publisher.
The article contained insinuations that there was a
connection between a loan of Rs. 10 lacs, granted to a firm
in which the Judge's brother was a partner, and the judgment
m the defamation case; and that the Judge knew, about the
loan having been granted to the firm.The appellants were
found guilty of contempt of court.
In appeal to this Court, it was contended that: (1) In the
article no aspersion was cast on the integrity of the Judge
nor was any imputation of dishonesty made; (2)
Proceedings
for contempt for scandallzing a Judge have
become
obsolete, the proper remedy being for the/judge to take
action for libel; (3) The allegations were made in the bona
fide belief that they were truthful and there was
no
evidence that the Judge did not know about the
transaction;
and (4) The statements, if at all, amounted to a charge of
bias against the Judge and could not be regarded
as
contempt.
HELD: (1 ) The obvious implications and institutions made in
the various paragraphs of the article, read as a whole,
create a strong judicial impact on the mind of the
reader
about the Jack of honesty, integrity and impartiality on the
part of the Judge in deciding the defamation suit. [785
C---D]
It is open to anyone to express fair, reasonable and
legitimate criticism of any act or conduct of a Judge in his
judicial capacity or even to make a proper and fair comment
on any decision given by him. But, if an
article
attributes improper motives to the Judge, it not only
transgresses the limits of fair and bona fide criticism but
has a clear tendency to affect the dignity and prestige of
the court and would amount to contempt of court. [785 A, 791
F]
(2) It will not be right to say that committals
for
contempt of court for scandalizing the court have
become
obsolete. [791 D]
(a) But such summary jurisdiction by way of contempt must
be exercised with great care and caution and only when its
exercise is necessary for the proper administration
of law and justice. [791 E]
 (b) There is a distinction between a mere libel
or
defamation of a judge and what amounts to contempt
of
court. The tests are: (i) Is the impugned publication a
mere defamatory attack. on the Judge or is it calculated
to
interfere with the due course of Justice or the
proper
administration of law by his court? and (ii) Is the
wrong
done to the Judge personally or is it done to the public?
The publication of a disparaging
780
statement will-be an injury to the public if it tends to
create an apprehension in the minds of the people regarding
the integrity, ability or fairness of the Judge or to deter
actual and prospective litigants from placing complete
reliance upon the courts administration of justice, or if it
is likely to cause embarrassment in the mind of the Judge
himself in the discharge of his judicial duties. [791 G--H;
792 A--C]
B.R. Reddy v. State of Madras, [1952] S.C.R. 425, Re:
The Editor. Printer and Publisher of the 'Times of India'
and in re: Aswini Kumar Ghose v. Arabinda Bose,
[1953]
S.C.R. 215, Brahm Prakash Sharma v. State of U.P., [1953]
S.C.R. 1169; Re: Hira Lal Dixit & Ors. [1955] 1 S.C.R. 677
and State of M.P. v. Revashankar [1959] S.C.R.
1367,
followed.
Re: Read and Huggonson, 2 Atk. 471, In the matter of
a
Special Reference from the Bahama Islands [1893] A.C.
138,
McLeod v. St. Aubyn, [1899] A.C. 549, Reg. v. Gray, [1900] 2
Q.B.D. 36; Rex v. Editor of the New Statesman (1928)
44
T.L.R. 301; Ambard v. Attorney-General for Trinidad
and
Tobago, (.1936) A.C. 322, Debi Prasad Sarma .v. The
'King
Emperor. 70 I.A. 216 and Reg. v. Commissioner of Police
the Metropolis, Ex parte Blackburn, (1968) 2 W.L.R. 1206,
referred to.
(3) Assuming good faith can be held to be a defence in a
proceeding for contempt, in the present case, no
attempt
was made to substantiate 'that the facts stated in the
article were true or were rounded on correct data. On
the
other hand, it was established that some of the material
allegations were altogether wrong and incorrect. [792 E-F]
B.R. Reddy's case, [1952] S.C:R. 425, referred to.
(4) The mere fact that his brother happened to have
a
pecuniary interest in the firm could not per se establish
that the Judge would also have a financial interest therein
so as to constitute legal bias. [792 H; 793 A]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.159 of 1966.

Appeal by special leave from the judgment and order dated November 24, 1965 of the
Bombay High Court in Criminal Misc. "Application No. 323 of 1965.

S.C. A garwala, for the appellant.

M.S.K. Sastri and S.P. Nayar, for the respondent. The Judgment of the Court was
delivered by Grover, J. This is an appeal from the judgment of the Bombay High Court
passed in exercise of ordinary original civil jurisdiction by which the ,appellants were
found guilty of having committed contempt of Mr. Justice Tarkunde in his judicial
capacity and of the court. Appellant No. 2 D.R. Goel, who is the Editor, Printer and
Publisher of Perspective Publications (P) Ltd. --appellant No. 1, was sentenced to simple
imprisonment for one month together with fine amounting to Rs. 1,000/-, in default of
payment of fine he was to undergo further simple imprisonment for the same period. The
appellants were also directed to pay the costs incurred by the State. On behalf of the first
appellant it has been stated at the bar that the appeal is not being pressed.

The background in which the impugned article was published' on April 24, 1965, in a
weekly periodical called "Mainstream" which is a publication brought out by the first
appellant may be set out. In the year 1960 a suit was filed by one Krishnaraj Thackersey
against the weekly newspaper "Blitz" and its Editor and others claiming Rs. 3 lacs as
damages for libel. The hearing in that suit commenced on the original side of the Bombay
High Court on June 24, 1964. The delivery of the judgment commenced on January 19,
1965 and continued till February 12, 1965. After June 24, 1964, that suit was heard from
day to day by Mr. Justice Tarkunde. The suit was decreed in the sum of Rs. 3 lacs. An
appeal is pending before a division bench of the High Court against that judgment.

The impugned article is stated to have been contributed by a person under the name of
"Scribbler" but appellant No. 2 has taken full responsibility for its publication. Its heading
was "STORY OF A LOAN and Blitz Thackersey Libel Case". It is unnecessary to
reproduce the whole article which appears verbatim in the judgment of the High Court.
The article has been ingeniously and cleverly worded. The salient matters mentioned in
the article are these: After paying a tribute to the Indian judiciary the writersays that
according to the report in "Prajatantra" a Gujarati paper architects Khare-Tarkunde
Private Limited of Nagpur, hereinafter called "Khare-Tarkunde" (which is described a
Firm in the article) got a loan facility of Rs. 10 lacs from the Bank of India on December
7, 1964. The partners of Khare-Tarkunde included the father, two brothers and some
other relations of Justice Tarkunde who awarded a decree for Rs. 3 lacs as damages
against Blitz and in favour of Thackersey. It is pointed out that the date on which Rs. 10
lacs loan facility was granted by the Bank of India was about five and a half months after
the Thackersey-Blitz libel suit had begun and just over six weeks before Justice Tarkunde
began delivering his "marathon judgment" on January 19, 1965. It is then said that for Rs.
10 lacs loan facility granted to Khare-Tarkunde, the New India Assurance Co. stood
guarantee and that the two Directors of the Bank of India who voted in favour of the
credit of Rs. 10 lacs being granted to Khare-Tarkunde were Thackersey and Jaisinh
Vithaldas (believed to be a relative of Thackersey). Next it is stated that one of the
Directors of the New India Assurance that stood guarantee for the loan facility was N.K.
Petigara, who was also a senior partner of M/s. Mulla & Mulla Craigie Blunt & Caroe,
Solicitors of Thackersey in the Blitz-Thackersey Libel Case before Justice Tarkunde 4
Sup. CI/69--17 Emphasis is laid on the fact that Khare-Tarktunde had a capital of Rs. 5
lacs only and the balance sheet of the firm of June 1964 revealed indebtedness to various
financiers to the tune of Rs. 14 lacs. Thus Khare-Tarkunde is stated to be "lucky to get
against all this a handsome loan of Rs. 10 lacs from the Bank of India". The writer refers
to the Code among college teachers and university professors of not examining papers
when their own children and near relatives sit for examination and adds that Justice
Tarkunde himself will recognize the rightness of such a Code. Referring to the
unimpeachable integrity and reputation of judges of the Bombay High Court, the writer
proceeds to say "there must not be allowed to be raised even the faintest whisper of any
misgiving on that score." Paragraph 24 deserves to be reproduced :-

"If Sri Krishna Thackersey did not lay it bare at the time of the suit that he was one of the
sponsors of a contract of which the judge's relations were the beneficiaries, it is up to the
Chief Justice of the Supreme Court and the Bombay High Court including Justice
Tarkunde as also the ever vigilant members of the Bar to consider all the implications of
these disclosures which have distressed a common citizen like me, so that the finest
traditions of our judiciary may be preserved intact."

A petition was filed before the Bombay High Court by the State of Maharashtra pointing
out that the aforesaid article contained scandalous allegations and was calculated to
obstruct the administration of justice and constituted gross contempt of court. The article
purported to state certain facts relating to the transaction between Khare-Tarkunde and
the Bank which were false and there were several mis- statements and suppression of
facts some of which were:

(a) The article wrongly stated that the father of Mr. Justice Tarkunde was a partner in
Khare Tarkunde; and
(b) The article falsely described the transaction as a 'loan' by the Bank to Khare-
Tarkunde. In fact the said transaction was only a guarantee given by the Bank which
undertook to pay to the Govt. any amount not exceeding Rs. 10 lacs in the event of
Khare- Tarkunde being unable to perform its obligations. The Bank was secured by a
further guarantee given by the New India Assurance Co. Ltd. undertaking to secure the
Bank in the event of the Bank having to pay the said amount or any part thereof.

Appellant No. 2 who also happens to be a Director and Principal Officer of the first
appellant, filed a reply raising some objec-

tions of a legal and technical nature ,and took up the position that the impugned article
was based on a report published in "Prajatantra" from which all the facts stated in the
article were incorporated. It was asserted that certain 'major facts' had been verified by the
appellant and found to be true. It was admitted that upon reading the petition for taking
contempt proceedings it was found by appellant No. 2 that there were certain incorrect
statements in the article. It was claimed that the article had been published in a bona fide
belief that whatever was stated in the article in "Prajatantra" was true. The intention was
to convey to the public at large that it was incumbent on the plaintiff Thackersey and
Pettigara, one of the partners of Mulla & Mulla etc., his attorneys to inform Justice
Tarkunde that the plaintiff had voted for a resolution of the Board of Directors of the
Bank of India which, without reasonable doubt, would help Khare-Tarkunde in which
Tarkunde happened to be a brother of the Judge. The High Court analysed the
implications of the facts stated in each paragraph of the impugned article in great detail
and observed :--

" ............ reading the article as a whole, taking care not to read into it anything more than
its plain language implies and making every allowance for literary style and rhetorical
flourish expressions which were often used in the arguments for the. respondents it is
impossible to avoid the conclusions that this article exceeds the bounds of fair and
reasonable criticism. In so far as it suggests that there is some sort of casual connection
between the granting of the loan to M/s. Khare-Tarkunde Pvt. Ltd., and the judgment of
Mr. Justice Tarkunde in the Blitz- Thackersey case, it clearly attempts to lower the
learned judge in his judicial capacity not to mention the fact that it would also tend to
shake the confidence of the lay public in the High Court and impair the due
administration of justice in that Court. In so far as there is a suggestion made be it ever so
faint that Mr. Justice Tarkunde knew or must have known of the loan to his brother's firm
before he delivered the judgment in the case, the article is malicious and 'not in good
faith."

The High Court also examined the misstatements and inaccuracies in the impugned
article and held that there was no foundation for the suggestion that Khare-Tarkunde was
an impecunious concern and therefore was "lucky" to get the handsome loan nor for the
suggestion that either Thackersey and his co-Directors in the Bank of India or
Thackersey's solicitor and his co-Directors in the New India Assurance Co. went out of
their way to grant accom-

modation to Khare-Tarkunde. The High Court found no basis for the insinuation that
there was any connection between the loan and the judgment in the Blitz-Thackersey case
or that Justice Tarkunde knew or might have Known about any loan having been granted
to his brother's firm. No attempt was made to justify these suggestions in the return or in
the argument before the High Court and all that was urged was that the words used by
contestable did not give rise to the said imputations or innuendos and that the contemnor
was only trying to communicate to the public at large what has been stated before. It is
needless to refer to the other points raised before and decided by the High Court because
none of them has been argued before us.

In this appeal, counsel for appellant no. 2 has made some attempt to establish that no
aspersion was cast on the integrity of Justice Tarkunde in the article nor was any
imputation of dishonesty made. His second contention is that proceedings for contempt
for scandalising a Judge have become obsolete and the proper remedy in such a situation
is for the Judge to institute action for libel. Thirdly, it is said that there was no evidence
before the High Court that Justice Tarkunde did not know about the transaction or the
dealings between the firm in which his brother was a partner and the bank of which
Thackersey was a director. If, it is submitted, the allegations made in the article were
truthful or had been made bona fide in the belief that they were truthful the High Court
ought not to have found appellant no. 2 guilty of contempt. At any rate, according to
counsel, the statements contained in the article only made out a charge of bias against the
Judge and if such a charge is made it cannot be regarded as contempt. On the first point
our attention has been invited to the paragraphs in the article containing expression of
high opinion held by the writer of the judiciary in India. It is suggested that his attempt
was only to make a fair and legitimate criticism of the proceedings in the Thackersey suit
against the "Blitz" weekly. It has been emphasised in the article that the damages which
were awarded to the tune of Rs. 3 lakhs were almost punitive and that it was a rare
phenomenon that the plaintiff (Thackersey) did not step into the witness box and also a
permanent injunction had been granted preventing Blitz from printing anything based on
the subject matter of litigation. The law involving freedom of press fully warranted such
criticism of a judgment or of the proceedings in a suit in a court of law.

It is true that the writer of the article could exercise his right of fair and reasonable
criticism and the matters which have been mentioned in some of the paragraphs may not
justify any proceedings being taken for contempt but the article read as a whole leaves no
doubt that the conclusions of the High Court were unexceptionable. It was a skillful
attempt on the part of the writer to impute dishonesty and lack of integrity to Justice
Tarkunde in the matter of Thackersey-Blitz suit, the imputation being indirect and mostly
by innuendo that it was on account of the transaction and the dealings mentioned in the
article that the suit of Thackersey was decreed in the sum of Rs. 3 lakhs which was the
full amount of damages claimed by Thackersey. It may be that the article also suggests
that Thackersey and his ,attorneys were to blame inasmuch as they did not inform the
Judge about the transactions of Khare Tarkunde with the Bank of India with which
Thackersey was associated in his capacity as a director but that cannot detract from the
obvious implications and insinuations made in various paragraphs of the article which
immediately create a strong prejudicial impact on the mind of the reader about the lack of
honesty, integrity and impartiality on the part of Justice Tarkunde in deciding the
Thackersey-Blitz suit. On the second point counsel for appellant no. 2 has relied a great
deal on certain decisions of the Privy Council- and the Australian and American courts. In
the matter of a Special Reference from the Bahama Islands(1) a letter was published in a
colonial newspaper containing sarcastic allusions to a refusal by the Chief Justice to
accept 'a gift of pineapples. No judgment was given by the Privy Council but their
lordships made a report to Her Majesty that the impugned letter though it might have
been made subject of proceedings for libel was not, in the circumstances, calculated to
obstruct or interfere with the course of justice or the due administration of ,law and,
therefore, did ,not constitute contempt of court. In that case there was no question of
scandalising the court nor had any imputation been made against the Chief Justice in
respect of any judicial proceedings pending before him or disposed of in his court. It is
the next decision of the Privy Council in McLeod v. St.Aubyn(2) on which a great deal of
argument has been built up before us that the courts, at least in England, have stopped
committing anyone for contempt for publication of scandalising matter respecting the
court after adjudication as well as pending a case before it. That case came by way of an
appeal from an order of the Acting Chief Justice St. Aubyn of the Supreme Court of St.
Vincent committing one McLeod to prison for 14 days for alleged contempt of court. It
was said inter alia in the impugned publication that in Mr. Trifford the public had no
confidence and his locus tenons, Mr. St. Aubya was reducing the judicial character to the
level of a clown. There were several other sarcastic and libelous remarks made about the
Acting Chief Justice. While recognizing publication of scandalous matter of the court
itself ,as a head of contempt of court as (1) [1893] A.C. 138.

(2) [1899] A.C. 549.

laid down by Lord Hardwicke in Re: Read and Huggonson(1), Lord Morris proceeded to
make the oft-quoted observation "committals for contempt of Court 'by itself have
become obsolete in this country even though in small colonies consisting principally of
coloured population committals might be necessary in proper cases". Only a year later
Lord Russel of Killowen C.J., in The Queen v. Gray(2) reaffirmed that any act done or
writing published calculated to bring a court or a judge of the court in contempt, or to
lower his authority, was a contempt of court. The learned Chief Justice made it clear that
judges and courts were alike open to criticism and if reasonable argument or
expostulation was offered against any judicial act as contrary to law or the public good no
court could or would treat that as contempt of court but it was to be remembered that the
liberty of the press was not greater and no less than the liberty of every subject. In that
case it was held that there was personal scurrilous abuse of a judge and it constituted
contempt. All the three cases which have been discussed 'above were noticed by the Privy
Council in Debi Prasad Sharma & Ors. v. The King Emperor(3) where contempt
proceedings had been taken in respect of editorial comments published in a newspaper
based or a news item that the Chief Justice of Allahabad High Court in his administrative
capacity had issued a circular to judicial officers enjoining on them to raise contributions
to the war fund and it was suggested that he had done a thing which would lower the
prestige of the court in the eyes of the public. This is what was said at page 224 :-

"In In re a Special Reference from the Bahama Islands [1893] A.C. 138, the test applied
by the very strong Board which heard the reference was whether the words complained of
were in the circumstances calculated to obstruct or interfere with the course of justice and
the due, administration of the law. In Reg. v. Gray [1900] 2Q.B. 36 it was shown that the
offence of scandalising the court itself was not obsolete in this country.

A very scandalous attack had been made on a judge for his judicial utterances while
sitting in a criminal case on circuit, and it was with the foregoing opinions on record that
Lord Russel of Killowen C.J. adopting the expression of Wilmot C.J. in his opinion in
Rex v. Almon (1765) Wilmot's Notes of Opinions 243, which is the source of much of the
present law on the subject, spoke of the article complained of as calculated to lower the
authority of the judge."

It is significant that their lordships made a distinction between a case where there had
been criticism of the administrative act of (1) 2 Ark. 471.

(2) [1900] 2 Q.B.D. 36.

(3) 70 I.A. 216.

a Chief Justice and an imputation on him for having done or omitted to have done
something in the administration of justice. It is further noteworthy that the law laid down
in McLeod v. St. Aubyn(1) was not followed and it was emphasised that Reg. v. Gray(2)
showed that the offence of scandalising the court itself was not obsolete in England. In
Rex v. Editor of the New Statesman(3) an article had been published in the New
Statesman regarding the verdict by Mr. Justice Savory given in a libel action brought by
the Editor of the "Morning Post" against Dr. Marie Slopes (the well known advocate of
birth control) in which it was said, inter alia, "the serious point in this case, however, is
that an individual owning to such views as those of Dr. Marie Stores cannot 'apparently
hope for a fair hearing in a Court presided over by Mr. Justice Avory--and there are so
many Avorys". On behalf of the contemnor McLeod v. St. A ubyn(1) was sought to be
pressed into service. The Lord Chief Justice in delivering the judgment of the Court said
that the principle applicable to such cases was the one stated in Reg. v. Gray(2) and relied
on the observations of Lord Russel at p. 40. It was observed that the article imputed
unfairness and lack of impartiality to a judge in the discharge of his judicial duties. The
gravamen of the offence was that by lowering his authority it interfered with the
performance of his judicial functions. Again in Ambard v. Attorney General for Trinidad
and Tobago(4) the law enunciated in Reg. v. Gray(2) by Lord Russel of Killowen was
applied and it was said at page 335:
"But whether the authority and position of an individual judge, or the due administration
of justice, is concerned, no wrong is committed by any member of the public who
exercises the ordinary right of criticising, in good faith, in private or public, the public act
done in the seat of justice. The path of criticism is a public way; the wrong headed are
permitted to err therein; provided that members of the public abstain from imputing
improper motives to those taking part in the administration of justice, and are genuinely
exercising a right of criticism, and not acting in malice, or attempting to impair the
administration of justice, they are immune. Justice is not a cloistered virtue; she must be
allowed to suffer the scrutiny and respectful, even though spoken, comments of ordinary
men."

It was, however, held that there was no evidence upon which the court could find that the
alleged contemnor had exceeded fair and temperate criticism and that he had acted with
untruth or malice (1) [1899] A .C. 549.

(2) [1900] 2 Q.B.D. 36.

(3) [1928] 44 T.L.R. 301.

(4) [1936] A.C. 322.

and with the direct object of bringing the administration of justice into disrepute.

Lord Denning M.R. in Reg v. Commissioner of Police of the Metropolis, Ex parte

Blackburn (No..2)(1) made some pertinent observations about the right of every man, in
Parliament or out of it, in the Press or over the broadcast, to make fair and even
outspoken comment on matters of public interest. In the words of the Master of Rolls,
"those who comment can deal faithfully with all that is done in a court of justice. They
can say that we are mistaken, and our decisions erroneous, whether they are subject to
appeal or not. All we would ask is that those who criticise us will remember that, from the
nature of our office, we cannot reply to their criticism. We cannot enter into public
controversy. Still less into political controversy. We must rely on our conduct itself to be
its own vindication." In that case Mr. Quintin Hogg had written an article in "Punch" in
which he had been critical of the Court of Appeal and had even made some erroneous
statements. But reading of the article the salient passage of which is set out in the
judgment of the Master of the Rolls makes it quite clear that there was no attempt to
scandalise the Court and impute any dishonourable or dishonest motives or to suggest any
lack of integrity in any particular Judge. Oswald in his book on the Contempt of Court
has expressed the view that it would be going a great deal too far to say that commitments
for contempt of court by scandalising the Court itself have become obsolete, and that
there does not seem to be any good reason for ignoring the principles which govern the
numerous early cases on the subject.

The American and the Australian cases viz., John D. Pennekamp and The Miami Herald
Publishing Co. v. State of Florida(2) and Bell v. Stewart(a) to which reference h.as been
made on be- half of appellant No. 2 can hardly be of much assistance because in this
country principles have become crystallized by the decisions of the High Courts and of
this Court in which the principles followed by English Courts have been mostly adopted.
We would now advert to the decisions of this Court. It was held in Bathina Ramakrishna
Reddy v. The State of Madras(4) that the fact that the defamation of a Judge of a
subordinate court constitutes an offence under s. 499 of the Indian Penal Code did not
oust the jurisdiction of the High Court to take cognizance of the act as a contempt of
court. In that .case in an article in a Telugu weekly it was alleged that the Stationary Sub-
Magistrate of Kovvur was known to the people of the locality for harassing (1) [1968].2
W.L.R. 1206.

(2) 328 U.S. 331.

(3 ) 28 Com. L.R. 419.

(4) [1952] S.C.R. 425.

litigants in various ways etc. Mukherjea, J., (as he then was) who delivered the judgment
described the article as a scurrilous attack on the integrity and honesty of a judicial
officer. It was observed that if the allegations were false, they could not undermine the
confidence of the public in the administration of justice and bring the judiciary into
disrepute. The .appellant there had taken the sole responsibility regarding the publication
of the article and was not in a position to substantiate by evidence any of the allegations
made therein. It was held that he could not be said to have acted bona fide, "even if good
faith can be held to be a defence at all in a proceeding for contempt". The decision in Re:
The Editor, Printer and Publisher of "The Times of India" and In re Aswini Kumar Ghose
and Anr. v. Arabinda Bose & Anr.(1) is very apposite and may be.next referred to. In a
leading article in "The Times of India" on the judgment of this Court in Aswini Kumar
Ghose v. Arabinda Bose & Ant.(2) the burden was that if in a singularly oblique and
infelicitous manner the Supreme Court had by a majority decision tolled the knell of the
much maligned dual system prevailing in the Calcutta and Bombay High Courts by
holding that the right to practise in any High Court conferred on advocates of the
Supreme Court had made the rules in force in those High Courts requiring advocates
appearing on the original side to be instructed by attorneys inapplicable to them. This is
what was said by Mahajan, J., (as he then was) speaking for the Court:

"No objection could have been taken to the article had it merely preached to the courts of
law the sermon of divine detachment. But when it proceeded to attribute improper
motives to the Judges, it not only transgressed the limits of fair and bona fide criticism
but had a clear tendency 'to affect the dignity and prestige of this Court. The article in
question was thus a gross contempt of court. It is obvious that if an impression is created
in the minds of the public that the judges in the highest Court in the land act on
extraneous considerations in deciding cases, the confidence of the whole community in
the administration of justice is bound to be undermined and no greater mischief than that
can possibly be imagined."

The Editor, Printer and Publisher of the newspaper tendered an apology which was
accepted; but this Court concurred in the expression of views in Ambard v. Attorney
General of Trinidad(3), a passage from which has already been extracted. The guiding
principles to be followed by courts in contempt proceedings were enunciated in Brahma
Prakash Sharma & Ors. v. The State of (1) [1953] S.C.R. 215.
(2) [1953] S.C.R. 1.

(3) [1936] A.C. 322.

Uttar Pradesh(1). The judgment again was delivered by Mukherjea, J., (as he then was)
and the English decisions including those of the Privy Council were discussed. It is
necessary to refer only to the principles laid down for cases of the present kind i.e.
scandalising the court. It has been observed that there are two primary considerations
which should weigh with the court when it is called upon to exercise summary power in
cases of contempt committed by "scandalising" the court itself. In the first place, the
reflection on the conduct or character of a Judge in reference to the discharge of his
judicial duties would not be contempt, if such reflection is made in the exercise of the
right of fair and reasonable criticism which every citizen possesses in respect of public
acts done in the seat of justice. Secondly, when .attacks or comments are made on a Judge
or Judges disparaging in character and derogatory to their dignity, care should be taken to
distinguish between what is a libel on a judge and what really amounts to contempt of
court. If, however, the publication of the disparaging statement is calculated to interfere
with the due course of justice or proper administration of law by such court, it can be
punished summarily as contempt. "it will be 'an injury to the public if it tends to create an
apprehension in the minds of the people regarding the integrity, ability or fairness of the
judge or to deter actual and prospective litigants from placing complete reliance upon the
court's administration of justice, or if it is likely to cause embarrassment in the mind of
the judge himself in the discharge of his judicial duties. It is well established that it is not
necessary to prove affirmatively that there has been an actual interference with the
administration of justice by reason of such defamatory statement; it is enough if it is
likely, or tends is ,any way, to interfere with the proper administration of law." In that
case it was held that the contempt was of a technical nature. This was based apparently on
the reason that the Members of the Bar who had passed a resolution attributing
incompetency, lack of courtesy etc. and had referred to complaints against two officers,
one a Judicial Magistrate and the other a Revenue Officer and had sent those complaints
to the District Magistrate, Commissioner and the Chief Secretary in the State and
secondly because very little publicity had been given to the statement.

In Re: Hira Lal Dixit & two Ors.(2) the above principles were ,applied and reaffirmed. In
that case words which had been used in a poster which was published had the necessary
implication that the judges who decided in favour of the Government were rewarded by
the Government with appointments to this Court. Although this case was not one of
scandalizing of the court but the question that was posed was whether the offending
passage was of such character and import or made in such circum- (1) [1953] S.C.R.
1169.

(2) [1955] 1 S.C.R. 677.

stances as would tend to hinder or obstruct or interfere with the due course of
administration of justice by this Court and it was answered in the affirmative and the
contemnor was held guilty of Contempt of Court. In State of Madhya Pradesh v.
Revashankar(1) an application was made under s. 528 of the Code of Criminal Procedure
in certain criminal proceedings containing serious aspersions against a Magistrate, Mr.
N.K. Acharya. Reliance was once again placed on Brahm Prakash Sharma's(2) case and
the principles laid therein. It was held that the aspersions which had been made amounted
to something more than a mere intentional personal insult to the Magistrate; they
scandalised the court itself and impaired the administration of justice and that
proceedings under the contempt of court could 'be taken against the contemnor.

There can be no manner of doubt that in this country the principles which should govern
cases of the present kind are now fully settled by the previous decisions of this Court. we
may re; state the result of the discussion of the above cases on this head of contempt
which is by no means exhaustive.

(1 ) It will not be right to say that committals for contempt for scandalizing the court have
become obsolete.

(2) The summary jurisdiction by way of contempt must be exercised with great care and
caution and only when its exercise is necessary for the proper administration of law and
justice.

(3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or
conduct of a judge in his judicial capacity or even to make a proper and fair comment on
any decision given by him because "justice is not a cloistered virtue and she must be
allowed to suffer the scrutiny and respectful, even though outspoken, comments of
ordinary men".

(4) A distinction must be made between .a mere libel or defamation of a judge and what
amounts to a contempt of the court.

The test in each case would be whether the impugned publication is a mere defamatory
attack on the judge or whether it is calculated to interfere with the due course of justice or
the proper administration of law by his court. It is only in the latter case that it wilt be
punishable as Contempt.

(1) [1959] S.C.R. 1367.

(2) [1953] S.C.R. 1169.

(5 ) Alternatively the test will be whether the wrong is done to the judge personally or it
is done to the public. To borrow from the language of Mukherjea, J. (as he then was)
(Brahma Prakash Sharma's case)(1) the publication of a disparaging statement will be an
injury to the public if it tends to create an apprehension in the minds of the people
regarding the integrity, ability or fairness of the judge or to deter actual and prospective
litigants from placing complete reliance upon the court's administration of justice or if it
is likely to cause embarrassment in the mind of the judge himself in the discharge of his
judicial duties.

As regards the third contention no attempt was made before the High Court to
substantiate that the facts stated in the article were true or were rounded on correct data. It
may be that truthfulness or factual correctness is a good defence in an action for libel, but
in the law of contempt there are hardly any English or Indian cases in which such defence
has been recognized. It is true that in the case of Bathina Ramakrishna Reddy(2) there
was some discussion about the bona fides of the person responsible for the publication
but that was apparently done to dispose of the contention which had been raised on the
point. It is quite clear that the submission made was considered on the assumption that
good faith can be held to be a defence in a proceeding for contempt. The words "even if
good faith can be held to be a defence at all in a proceeding for contempt" show that this
Court did not lay down affirmatively that good faith can be set up as a defence in
contempt proceedings. At any rate, this point is merely of academic interest because no
attempt was made before the High Court to establish the truthfulness of the facts stated in
the article. On the other hand, it was established that some of the material allegations
were altogether wrong and incorrect.

Lastly the submission that the statements contained in the article made out only a charge
of bias against the judge and this cannot constitute contempt has to be stated to be
rejected. It is a new point and was never raised before the High Court. Moreover the
suggestion that the charge in the article was of legal bias which meant that Justice
Tarkunde had some sort of pecuniary interest in Khare-Tarkunde which had the
transactions with the bank of which Thackersey was a Director is wholly baseless.
Counsel had to agree that Justice Tarkunde was neither a shareholder nor was there
anything to show that he had any other interest m Khare- Tarkunde. The mere fact that his
brother happens (1) [1953] S.C.R. 1169.

(2) [1952] S.C.R. 425., to have a holding in it cannot per se establish that Justice
Tarkunde would also have some financial or pecuniary interest therein. It is not possible
to accept nor has such extreme position been taken by the counsel for appellant no. 2 that
there is any bar to a brother or 'a near relation of a judge from carrying on any business,
profession or avocation. The entire argument on this point is wholly without substance.

The appellant No. 2 showed no contrition in the matter of publication of the impugned
article. lie never even tendered an unqualified apology. The High Court, in these
circumstances, was fully justified in punishing him for contempt of court and in awarding
the sentence which was imposed. In the impugned article there was a clear imputation of
impropriety, lack of integrity and oblique motives to Justice Tarkunde in the matter of
deciding the Thackersey-Blitz suit which, on the principles already stated, undoubtedly
constituted contempt of court. The appeal fails and is hereby dismissed.

V.P.S. Appeal dismissed.

Narmada Bachao Andolan vs Union Of India And Ors on 15 October, 1999

Bench: Dr. A.S. Cj, S.P. Bharucha, B.N. Kirpal
CASE NO.:
Writ Petition (civil) 319 of 1994

PETITIONER:
NARMADA BACHAO ANDOLAN

RESPONDENT:
UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 15/10/1999

BENCH:
DR. A.S. ANAND CJ & S.P. BHARUCHA & B.N. KIRPAL

JUDGMENT:

JUDGMENT 1999 Supp(4) SCR 5 The following Orders of the Court were delivered:

DR. A.S, ANAND, C.J. This petition has been filed by the State of Gujarat bringing to
the notice of the Court how the petitioner-Narmada Bachao Andolan-had been reacting to
the interim order of this Court permitting the increase of the height of the dam to RL 85
meters and about the threats of protests, public meetings and of undertaking Satyagrahas
etc., on account of that order. Reference is made particularly to the interview of Ms.
Medha Patkar which appeared in the Hindustan Times of 27.6.1999 and some other
newspaper reports and press releases issued by the petitioner. Our attention has also been
drawn to an article which appeared in the Weekly News Magazine `Outlook1 and to some
portions of a Book titled "The Greater Common Good" by Ms. Arundhati Roy.

On 22nd July, 1999, we made the following order :

At the outset, our attention has been drawn to certain statements, press releases,
interviews, etc., given by the petitioners themselves or by some others under the aegis of
the petitioner-Narmada Bachao Andolan. Copies of some of those statements, etc., have
been filed along with I.A. No. 14 by the State of Gujarat.

Our attention has also been drawn to an article in the weekly news magazine "Outlook"
dated May 24, 1999 under the title "The Greater Common Good" by Ms. Arundhati Roy.
A book under the same title, i.e., "The Greater Common Good" by Arundhati Roy, which
appears to have been dedicated to "The Narmada, and all the life she sustains and
Shripad, Nandini, Sylvie, Alok, Medha, Baba Amte and their colleagues in the NBA", has
also been brought to our notice.

We have gone through the statements, the press releases, the article and certain portions
of the book referred to above. Prima facie it appears to us that there is a deliberate attempt
to undermine the dignity of the Court and to influence the course of justice. These
writings, which present a rather one sided and distorted picture have appeared in spite of
our earlier directions restraining the parties from going to the press, etc., during the
pendency of the proceedings in this Court.

However, before we decide to proceed any further, we consider it proper to appoint an

amicus to advise the Court about the action, if any, which is required to be taken in this
respect as also in respect of the writ petition itself.

We request Mr. K.K. Venugopal, Senior Advocate, President of the Supreme Court Bar
Association, to act as amicus and advise the court.

After hearing learned amicus as well as other learned counsel appearing in the case, who
all rose above the case of their clients to assist the Court, we are of the opinion that the
petitioner-NBA and its leader Ms. Medha Patkar have knowingly made comments on
pending proceedings and have prima facie disobeyed the interim injunctions issued by
this Court on 11.4.1997 and 5.11.1998. Prima facie the threats held out by the petitioners
and its leaders also appear to be an attempt to prejudice or interfere with the due course of
judicial proceedings. Litigants must realise that Courts cannot be forced by pressure
tactics to decide pending cases in the manner in which the concerned party desires. It will
be a negation of the Rule of Law if the Courts were to act under such pressure.

Some of the objectionable passages in the Book, " The Greater Common Good" by Ms.
Arundhati Roy are as follows:

I stood on a hill and laughed out loud.

I had crossed the Narmada by boat from Jalsindhi and climbed the headland on the
opposite bank from where I could see, ranged across the crowns of law, bald hills, the
tribal hamlets of Sikka, Surung, Neemgavan and Domkhedi. 1 could see their airy, fragile
homes. 1 could see their fields and the forests behind them. I could see little children with
littler goats scuttling across the landscape like motorised peanuts, I knew I was looking at
a civilisation older than Hinduism, slated-sanctioned (by the highest court in the land) -to
be drowned this monsoon when the waters of the Sardar Sarovar reservoir will rise to
submerge it."

"Why did I laugh?

Because I suddenly remembered the tender concern with which the Supreme Court
Judges in Delhi (before vacating the legal stay on further construction of the Sardar
Sarovar dam) had enquired whether tribal children in the resettlement colonies would
have children's park to play in. The lawyers representing the Government had hastened to
assure them that indeed they would, and what's more, mat there were seesaws and slides
and swings in every park. I looked up at the endless sky and down at the river rushing
past and for a brief, brief moment the absurdity of it all reversed my rage and I laughed. I
meant no disrespect."

"Who owns this land? Who owns its rivers? Its forests? Its fish? These are huge
questions. They are being taken hugely seriously by the State. They are being answered in
one voice by every institution at its command -the army, the police, the bureaucracy, the
courts. And not just answered, but answered unambiguously, in bitter, brutal ways".

"According to the Land Acquisition Act of 1894 (amended in 1984) the Government is

not legally bound to provide a displaced person anything but a cash compensation.
Imagine that. A cash compensation, to be paid by an Indian government official to an
illiterate tribal man (the women get nothing) in a land where even the postman demands a
tip for a delivery! Most Tribal people have no formal title to their land and therefore
cannot claim compensation anyway. Most tribal people-or let's say most small farmers-
have as much use for money as a Supreme Court Judge has for a bag of fertiliser"

Ms. Arundhati Roy is not a party to the proceedings pending in this Court. She has,
however, made comments on matters connected with the case being fully alive to the
pendency of the proceedings in this Court. The comments made by her are prima facie a
misrepresentation of the proceedings in this Court. Judicial process and institution cannot
be permitted to be scandalised or subjected to contumacious violation in such a blatant
manner in which it has been done by her.

While hypersensitivity and peevishness have no place in judicial proceedings-vicious

stultification and vulgar debunking cannot be permitted to pollute the stream of justice.
Indeed under our Constitution there are positive values like right to life, freedom of
speech and expression, but freedom of speech and expression does not include freedom to
distort orders of the Court and present incomplete and a one side picture deliberately,
which has the tendency to scandalise the Court. Whatever may be the motive of Ms.
Arundhati Roy, it is quite obvious that she decided to use her literally fame by
misinforming the public and projecting in a totally incorrect manner, how the proceedings
relating to Resettlement and Rehabilitation had shaped in this Court and distorting
various directions given by the Court during the last about 5 years. The writings referred
to above have the tendency to create prejudice against this Court. She seems to be wholly
ignorant of the task of the Court. The manner in which she has given twist to the
proceedings and orders of the Court is in bad taste and not expected from any citizen, to
say the least.

We wish to emphasise that under the cover of freedom of speech and expression no party
can be given a licence to misrepresent the proceedings and orders of the Court and
deliberately paint an absolutely wrong and incomplete picture which has the tendency to
scandalise the Court and bring it into disrepute or ridicule. The right of criticising, in
good faith in private or public, a judgment of the Court cannot be exercised, with malice
or by attempting to impair the administration of justice. Indeed, freedom of speech and
expression is "life blood of democracy" but his freedom is subject to certain
qualifications. An offence of scandalising the Courtier se is one such qualification, since
that offence exists to protect the administration of justice and is reasonably justified and
necessary in a democratic society. It is not only an offence under the contempt of Courts
act but is sui generis. Courts are not unduly sensitive to fair comment or even outspoken
comments being made regarding their judgments and orders made objectively, fairly and
without any malice, but no one can be permitted to distort orders of the Court and
deliberately give a slant to its proceedings, which have the tendency to scandalise the
Court or bring it to ridicule, in the larger interest of protecting administration of justice.
The action of the petitioner and its leaders Ms. Medha Patkar as well as writings of Ms.
Arundhati Roy have caused us much anguish and when we express our displeasure of the
action of Ms. Arundhati Roy in making distorted writings or the manner in which the
leaders of the petitioner Ms. Medha Patkar and Mr. Dharmadhikari have, after giving
assurances to this Court, acted in breach of the injunctions, we do so out of anguish and
not out of anger. May be the parties were over-zealous in projecting their point of view on
a matter involving a large segment of tribal population, but they should not have given to
themselves the liberty of acting in the objectionable manner as already noticed. We are
unhappy at the way the leaders of NBA and Ms. Arundhati Roy have attempted to
undermine the dignity of the Court. We expected better behaviour from them.

After giving this matter our thoughtful consideration and keeping in view the importance
of the issue of Resettlement and Rehabilitation of the PAFs, which we have been
monitoring for the last five years, we are not inclined to initiate contempt proceedings
against the petitioner, its leaders or Ms. Arundhati Roy. We are of the opinion, in the
larger interest of the issues pending before us, that we need not pursue the matter any
further. We, however, hope that what we have said above would serve the purpose, and
the petitioner and its leaders would hereafter desist from acting in a manner which has the
tendency to interfere with the due administration of justice or which violates the
injunctions issued by this Court from time to time.

After 22nd of July, 1999 when learned amicus was appointed, nothing has come to our
notice which may show that Ms. Arundhati Roy has continued with her objectionable
writings insofar as the judiciary is concerned. She may have by now realised her mistake.
We, therefore, consider it appropriate to now let the matter rest here and not to pursue it
any further. The application (LA. 14) is accordingly disposed of.

Before parting with this order we wish to place on record our deep appreciation for the
assistance rendered to us by the amicus, Shri K.K. Venugopal, Senior Advocate and all
other learned counsel appearing in the case.

Let the main Writ Petition be now placed for directions on 4th Nov. 1999 at 2 P.M.

While I record my disapproval of the statements that are complained of, I am not inclined
to take action in contempt against Medha Patkar, Shripad Dharmadhikari and Arundhati
Roy because the Court's shoulders are broad enough to shrug off their comments and
because the focus should not shift from the resettlement and rehabilitation of the oustees,
I acknowledge with gratitude the assistance rendered to the Court by the learned amicus
curiae and by learned counsel for the parties.

The LA. (no. 14) is, accordingly, disposed of.

Supreme Court Bar Association vs Union Of India & Anr on 17 April, 1998
Author: D Anand.
Bench: S.C. Agrawal, G.N. Ray, A.S. Anand, S.P. Bharucha, S. Rajendra Babu
PETITIONER:
SUPREME COURT BAR ASSOCIATION

Vs.

RESPONDENT:
UNION OF INDIA & ANR.

DATE OF JUDGMENT: 17/04/1998

BENCH:
S.C. AGRAWAL, G.N. RAY, A.S. ANAND, S.P. BHARUCHA,S. RAJENDRA
BABU

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T DR. ANAND. J.

In Re: Vinay Chandra Mishra, (1995) 2 SCC 584, this Court found the Contemner, an
advocate, guilty of committing criminal contempt of Court for having interfered with and
"obstructing the course of justice by trying to threaten, overawe and overbear the court by
using insulting, disrespectful and threatening language", While awarding punishment,
keeping in view the gravity of the contumacious conduct of the contemner, the Court
said:
" The facts and circumstances of the Present Case justify our invoking the power
under Article 129 read with Article 142 of the Constitution to award to the contemner a
suspended sentence of imprisonment together with suspension of his practice as and
advocate in the manner directed herein. We accordingly sentence the contemner for his
conviction for the offence of the criminal contempt as under:
(a) The contemner Vinay Chandra Mishra is hereby sentenced to undergo simple
imprisonment for a period of six weeks. However, in the circumstances of the case, the
sentence will remain suspended for a period of four years and may be activated in case
the contemner is convicted for any other offence of contempt of court within the said
period; and
(b) The contemner shall stand suspended from practising as an advocate fro a period of
three years from today with the consequence that all held by him in his capacity as an
advocate, shall stand vacated by him forthwith.

Aggrieved by the direction that the "Contemner shall stand suspended from practising as
an Advocate for a period of three years" issued by this Court by invoking powers under
Articles 129 and 142 of the Constitution, the Supreme Court Bar Association, through its
Honorary Secretary, has filed this petition under Article 32 of the Constitution of India,
seeking the following relief:

" Issue and appropriate writ, direction, or declaration, declaring that the disciplinary
committees of the Bar Councils set up under the Advocates Act, 1961, alone have
exclusive jurisdiction to inquire into and suspend or debar an advocate from practising
law for professional or other misconduct, arising out of punishment imposed for contempt
of court or otherwise and further declare that the Supreme Court of India or any High
Court in exercise of its inherent jurisdiction has no such original jurisdiction, power or
authority in that regard notwithstanding the contrary view held by this Hon'ble Court in
Contempt Petition (Crl.) No. 3 of 1994 dated 10.3.1995."

On 21.3.1995, while issuing Rule in the writ petition, following order was made by the
Division Bench:

" The question which arises is whether the Supreme Court of India can while dealing with
Contempt Proceedings exercise power under Article 129 of the Constitution or
under Article 129 read with Article 142 of the Constitution or under Article 142 of the
Constitution can debar a practicing lawyer from carrying on his profession as a lawyer for
any period whatsoever, We direct notice to issue on the Attorney General of India and on
the respondents herein. Notice will also issue on the application for interim stay. Having
regarding to the importance of the aforesaid question we further direct that this petition be
placed before a Constitution Bench of this Court."

That is how this Writ petition has been placed before this Constitution Bench.

The only question which we are called upon to decide in this petition is whether the
punishment for established contempt of Court committed by an Advocate can include
punishment to debar the concerned advocate from practice by suspending his licence
(sanad) for a specified period, in exercise of its powers under Article 129 read
with Article 142 of the Constitution of India.

Dealing with this issue, the three judge Bench in vinay Chandra Mishra's case (Supra),
opined:

"The question now is what punishment should be meted out to the contemner. We have
already discussed the contempt jurisdiction of this Court under Article 129 of the
Constitution. That jurisdiction is independent of the statutory law of contempt enacted by
Parliament under Entry 77 of List I of Seventh Schedule of the Constitution. The
jurisdiction of this Court, under Article 129 is sui generis. The jurisdiction to take
cognizance of the contempt as well as to award punishment for it being constitutional, it
cannot be controlled by any statute. Neither, therefore, the Contempt of Courts Act, 1971
nor the Advocates Act, 1981 can be pressed into service to restrict the said jurisdiction.

The Court repelled the arguments advanced on behalf of the contemner, the U.P. Bar
Association and the U.P. Bar Council, that the Court cannot while publishing the
contemner with any of the "traditional" or "accepted" punishments for contempt, also
suspend his licence to practice as an advocate. Since that power is specifically entrusted
by the Advocates Act, 1961 to the disciplinary committees of the State Bar Council
and/or the Bar Council of India. The Bench opined:

What is further, the jurisdiction and powers of this Court under Article 142 which are
supplementary in nature and are provided to do complete justice in any matter, are
independent of the jurisdiction and powers of this Court under Article 129 which cannot
be trammeled in any way by any statutory provision including the provisions of
the Advocates Act or the contempt jurisdiction of the court including of this Court and the
contempt of Courts Act, 1971 being a statute cannot denude, restrict or limit the powers
of this Court to take action for contempt under Article 129.

Mr. Kapil Sibal, learned senior counsel appearing for the Supreme Court Bar Association,
and Dr. Rajiv Dhawan, senior advocate appearing for the Bar Council of U.P. and Bar
Council of India assailed the correctness of the above findings and submitted that powers
conferred on this Court by Article 142, though very wide in their aptitude, can be
exercised only to "do complete justice in any case or cause pending before it " and since
the issue of 'professional misconduct' is not the subject matter of "any cause" pending
before this court while dealing with a case of contempt of court, it could not make any
order either under Article 142 or 129 to suspend the licence of an advocate contemner, for
which punishment, statutory provisions otherwise exist. According to the learned counsel,
a court of record under Article 129 of the Constitution does not have any power to
suspend the licence of a lawyer to practice because that is not a punishment which can be
imposed under its jurisdiction to punish for contempt of Court and that Article 142 of the
Constitution cannot also be pressed into aid to make an order which has the effect of
assuming "jurisdiction which expressly vests in another statutory body constituted under
the Advocates Act, 1961. The learned Solicitor General submitted that under Article
129 read with Article 142 of the Constitution, this Court can neither create a
"jurisdiction" nor created a "punishment" not otherwise permitted by law and that since
the power to punish an advocate (for "professional misconduct") by suspending his
licence vests exclusively in a statutory body constituted under the Advocates Act, this
Court cannot assume that jurisdiction under Article 142 or 129 or even under Section
38 of the Advocates Act, 1961.

To appreciate the submissions raised at the bar, let us first notice Article 129 of the
Constitution, it reads:

" 129. Supreme Court to be a court of record.-

The Supreme Court shall be a court of record and shall have all the power of such a court
including the power of punish for contempt of itself".

The Article on its plain language vests this Court with all the powers of a court of record
including the power to punish for contempt of itself.

The expression Court of Record has not been defined in the Constitution of India. Article
129 however, declares the Supreme Court to be a Court of Record, while Article
216 declares a High Court also to be a Court of Record.

A court of record is a court, the records of which are admitted to be of evidentiary value
and are not to be questioned when produced before any court. The power that courts of
record enjoy to punish for contempt is a part of their inherent jurisdiction and is essential
to enable the courts to administer justice according to law in a regular, orderly and
effective manner and to uphold the majesty of law and prevent interference in the due
administration of justice.

According to Jowitt, Dictionary of English Law, First Edition (p. 526) a court of record
has been defined as:

" A Court whereof the acts and judicial proceedings are enrolled for a perpetual memory
and testimony, and which has power to fine and imprison for contempt of its authority.
Wharton's Law Lexicon, explains a court of record as:- " Record, courts of, those whose
judicial acts and proceedings are enrolled on parchment, for a perpetual memorial and
testimony; which rolls are called the Records of the Courts, and are of such high and
supereminent authority that their truth is not to be called in question. Courts of Record are
of two classes - Superior and Inferior. Superior Courts of Record include the House of
Lords, the judicial Committee, the Court of Appeal, the High Court, and a few others.
The Mayor's Court of London, the Country Courts, Coroner's Courts, and other are
Inferior Courts , Coroner's Courts, and other are Inferior Courts, Coroner's Courts, and
other are Inferior Courts of Record, of which the Country Courts are the most important.
Every superior court of record has authority to fine and imprison for contempt of its
authority; an inferior court of record can only commit for contempts committed in open
courts, in facie curice."

(Emphasis Provided) Nigel Lowe and Brenda Sufrin in their treatise on the Law of
Contempt (Third Edition) (Butterworths 1996), while dealing with the jurisdiction and
powers of a Courts of Record in respect of criminal contempt say:
" The contempt jurisdiction of courts of record forms part of their inherent jurisdiction.
The power that courts of record enjoy to punish contempts is part of their inherent
jurisdiction. The juridical basis of the inherent jurisdiction has been well described by
Master Jacob as being:
'the authority of the judiciary to uphold, to protect and to fulfil the judicial function of
administering justice according to law in a regular, orderly and effective manner.' Such a
power is not derived from statute nor truly from the common law but instead flows from
the very concept of a court of law."
----------------
All courts of record have an inherent jurisdiction to punish contempts committed in their
face but the inherent power to punish contempts committed outside the court resides
exclusively in superior courts of record.
------------------------ Superior Courts of records have an inherent superintendent
jurisdiction to punish contempts committed in connection with proceedings before
inferior courts."

(emphasis ours) Entry 77 of List I of the Seventh Schedule of the Constitution provides
for:

" Constitution, organisation, jurisdiction and powers of the Supreme Court (including
contempt of such Court), and the fees taken therein; persons entitled to practice before the
supreme Court."

Entry 14 III of the Seventh Schedule provides for legislation in respect of :

"Contempt of Court, but not including contempt of the Supreme Court."

The language of entry 77 of List I and entry 14 of List III of the Seventh Schedule
demonstrate that the legislative power of the Parliament and of the State legislature
extends to legislate with respect to matters connected with contempt of court by the
Supreme Court or the High Court, subject however, to the qualification that such
legislation cannot denude, abrogate or nullify, the power of the Supreme Court to punish
for contempt under Articles 129 or vest that power in some other Court.

Besides, Articles 129, the power to punish for contempt is also vested in the Supreme
court by virtue of Article 142(2).

Article 142 of the Constitution reads:-

" 142. Enforcement of decrees and orders of Supreme Court and orders as to discovery,
etc. - (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or
make such order as is necessary for doing complete justice in any cause or matter pending
before, it, and any decree so passed or order so made shall to enforceable throughout the
territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner as the President
may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme
Court Shall, as respects the whole of the territory of India, have all and every power to
make any order for the purpose of securing the attendance of any person, the discovery or
production of any documents, or the investigation or punishment of any contempt of
itself.

It is, thus, seen that the power of this court in respect of investigation or punishment of
any contempt including contempt of itself, is expressly made 'subject to the provisions of
any law made in this behalf by the parliament' by Article 142(2). However, the power to
punish for contempt being inherent in a court of record, it follows that no act of
parliament can take away that inherent jurisdiction of the Court of Record to punish for
contempt and the Parliament's power of legislation on the subject cannot, therefore, be so
exercised as to stultify the status and dignity of the Supreme Court and/or the High
Courts, though such a legislation may serve as a guide for the determination of the nature
of punishment which this court may impose in the case of established contempt.
Parliament has not enacted any law dealing with the powers of the Supreme Court with
regard to investigation and punishment of contempt of itself. (We shall refer to Section
15 of t he Contempt of Courts Act, 1971, later on) and this Court, therefore exercises the
power to investigate and punish for contempt of itself by virtue of the powers vested in it
under Articles 129 and 142(2) of the Constitution of India.

The first legislation to deal with contempt of courts in this country was the contempt of
courts Act, 1926. it was enacted with a view to define and limit the powers of certain
courts for punishing contempts of court. The preamble to that Act stated:

" Whereas doubts have arisen as to the powers of a High Court of judicature to punish
contempt of courts and whereas it is expedient to resolve these doubts and to define and
limit the powers exercisable by High Courts and Chief Courts in punishing contempts of
Court: It is hereby enacted as follows:"
Section 2 says :-
"Subject to the provisions of sub-section (3), the High Courts of Judicature established by
Letters patent shall have and exercise the same jurisdiction, powers and authority in
accordance with the same procedure and practice, in respect of contempts of courts
subordinate to them as they have and exercise in respect of contempts of themselves."

Since, the Act was enacted with a view to 'remove doubts about the powers of the High
Court to Punish for contempt', it made no distinction between one Letters Patent High
Court and another though it did distinguish between the Letter Patent High Courts and the
Chief Courts. The doubt, as a result of conflict of judicial opinion, whether the High
Court punish for contempt of a court subordinate to it, was removed by enactment
of Section 2 of the Act (supra). The Contempt of Courts Act, 1926 was replaced by the
contempt of Courts act, 1952. The 1952 Act made the significant departures from the
1926 Act, First, the expression "High Court" was defined to include the courts of judicial
Commissioner which had been excluded from the purview of the 1926 Act and secondly,
the High Courts, including the Court of Judicial commissioner which had been excluded
from the purview of the 1920 Act and Secondly, the High Courts including the court of
Judicial Commissioner which had been excluded from the purview of the 1926 Act and
secondly, the High Courts, including the court of a judicial Commissioner, were
conferred jurisdiction to inquire into and try contempt of itself or if any court subordinate
to it. irrespective of whether the contempt was alleged to have been committed within of
outside the local limits of its jurisdiction and irrespective of whether the person alleged to
be guilty of committing contempt was within or outside such limits. In the matter of
imposition of punishment for contempt of courts, Section 4 of the 1952 Act Provided, "
Sec.4 Limit of punishment for contempt of Court. save as otherwise expressly provided
by any law for the time being in force. A contempt of court may be punished with simple
imprisonment for a term which may extend to six months, or with fine which may extend
to two thousand rupees, or with both:

Provided that the accused may be discharged or the punishment awarded may be remitted
on apology being made to the satisfaction of the Court:

Provided further that not withstanding anything elsewhere contained in any law for the
time being in force, no High Court shall impose a sentence in excess of that specified in
this Section for any contempt either in respect of itself or of a court subordinate to it."

Thus, under the existing legislation dealing with contempt of court, the High Courts and
Chief Courts were vested with the power to try a person for committing contempt of court
and to punish him for established contempt. The legislation itself prescribed the nature
and type, as well as the extent of, punishment which could be imposed on a contemner by
the High Courts or the Chief Courts. The second proviso to Section 4 of the 1952 Act
(supra) expressly restricted the powers of the Courts not to "impose any sentence in
excess of what is specified in the section" for any contempt either of itself or of a court
subordinate to it.

After the Constitution of India was promulgated in 1950, it appears that on 1st of April,
1960, a Bill was introduced in the Lok Sabha 'to consolidate and amend the law relating
to contempt of Court'. The Bill was examined by the Government which felt that law
relating to contempt of courts was "uncertain, undefined and unsatisfactory" and that in
the light of the constitutional changes which had taken place in the country, it was
advisable to have to entire law on the subject scrutinised by a special committee to be set
up for the purpose. Pursuant to that decision, the Ministry of Law on July 29, 1961 set up
a Committee under the Chairmanship of Shri H.N. Sanyal, Additional Solicitor General
of India. The Committee came to be known as Sanyal Committee and it was required:

(i) to examine the law relating to contempt of courts generally, and in particular, the law
relating to the procedure for the punishment thereof:

(ii) to suggest amendments therein with a view to clarifying and reforming the law
wherever necessary; and

(iii) to make recommendations, for codification of the law in the light of the examination
made."

The committee inter-alia opined that Parliament or the concerned legislature has the
power to legislate in relation to the substantive law of contempt of the Supreme Court and
the High Courts Subject only to the qualification that the legislature cannot take away the
powers of the Supreme Court or the High Court, as a Court of Record, to punish for
contempt nor vest that power in some other court.

After the submission of the Sanyal Committee Reports, the contempt of Courts Act, 1952
was repealed and replaced by the contempt of Courts Act, 1971 which Act was enacted to
"define and limit the powers of certain courts in punishing contempt of courts and to
regulate their procedure in relation thereto". It would be proper to notice some of the
relevant provisions of the 1971 Act at this stage.

Section 2 (a), (b) and (c) of the Contempt of Courts Act, 1971 define contempt of court as
follows:-

"2. Definitions. - In this Act, unless the context otherwise requires,-

(a) 'contempt of court' means
civil contempt or criminal
contempt;
(b) 'Civil contempt' means
willful disobedience to an
judgment, decree, direction, order, writ or other process of a court or willful breach of an
under taking given to a court;
(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 to 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
proceedings;
or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the
administration of justice in any other manner."
Section 10 provides :-
" Sec. 10. Power of High Court to punish contempts of subordinate courts. - Every High
Court shall have and exercise the same jurisdiction, powers ad authority, in accordance
jurisdiction, powers and authority, in accordance with the same procedure and practice, in
respect of contempts of courts subordinate to it as it has and exercises in respect of
contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged to have been
committed in respect of a court subordinate to it where such contempt is an offence
punishable under the Indian Panel Code, 1860 (45 of 1860)." The punishment for
committing contempt of court is provided in Section 12 of the 1971 Act which reads:-
"12. Punishment for contempt of court. -(1) Save as otherwise expressly provided in this
Act or in any other law, a contempt of court may be punished with simple imprisonment
for a term which may extend to six months, or with fine which may extend to two
thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded my be remitted
on apology being made to the satisfaction of the court.
Explanation.- An apology shall not be rejected merely on the ground that it is qualified or
conditional if the accused makes it bona fide.
(2) Notwithstanding any thing contained in any law for the time being in force, no court
shall impose a sentence in excess of that specified in sub-section (1) for any contempt
either in respect of itself or of a court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of
a civil contempt, the court, if it considers that a fine will not meet the ends of justice and
that a sentence of imprisonment is necessary, shall, instead of sentencing him to simple
imprisonment, direct that he be detained in a civil prison for such period not exceeding
six months as it may think fit.
(4) Where the person found guilty of contempt of court in respect of any undertaking
given to a court is a company, every person who, at the time the contempt was
committed, was in charge of, and was responsible to, the company for the conduct of the
business of the company, as well as the company, shall be deemed to be guilty of the
contempt and the punishment may be enforced, with the leave of the court, by the
detention in civil prison of each such person:-
Provided that nothing contained in this sub-section shall render any such person liable to
such punishment if he proves that the contempt was committed without his knowledge or
that he exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub-section (4), where the contempt of court
referred to therein has been committed by a company and it is proved that the contempt
has been committed with the consent or connivance of, or is attributable to any neglect on
the part of, any director, manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be deemed to be guilty of the
contempt and the punishment may be enforced, with the leave of the court, by the
detention in civil prison of such director, manager, secretary or other officer.
-------------------
-------------------
An analysis of the above provision shows that sub-

section (1) of Section 12 provides that in a case of established contempt, the contemner
may be punished:

(a) with simple imprisonment by detention in a civil prison; or

(b) with fine, or

(c) with both.

A careful reading of sub-section (2) of Section 12 reveals that the Act places an embargo
on the court not to impose a sentence in excess of the sentence prescribed under sub-
section (1). A close scrutiny of sub-section (3) of Section 12 demonstrates that the
legislature intended that in the case of civil contempt a sentence of fine alone should be
imposed except where the court considers that the ends of justice make it necessary to
pass a sentence of imprisonment also. Dealing with imposition of punishment
under Section 12 (3) of the Act, in the case of Smt. Pushpaben and another vs. Narandas
V. Badiani and another. (1979) 2 SCC 394, this Court opined:

" A close and careful interpretation of the extracted section (Section 12(3)) leaves no
room for doubt that the legislature intended that a sentence of fine alone should be
imposed in normal circumstances. The statute, however, confers special power on the
Court to pass a sentence of imprisonment if it thinks that ends of justice so require. Thus
before a Court passes the extreme sentence of imprisonment, it must give special reasons
after a proper application of its mind that a sentence of imprisonment along is called for
in a particular situation. Thus, the sentence of imprisonment is an exception while
sentence of fine is the rule."

Section 10 of the 1971 Act like Section 2 of the 1926 Act and Section 4 of the 1952 Act
recognises the power which a High Court already possesses as a Court of Record for
punishing for contempt of itself, which jurisdiction has now the sanction of the
Constitution also by virtue of Article

215. The Act, however, does not deal with the powers of the Supreme Court to try or
punish a contemner for committing contempt of the Supreme Court or the courts
subordinate to it and the constitutional provision contained in Articles 142(2) and 129 of
the Constitution alone deal with the subject.

In S.K. Sarkar, Member, Board of Revenue vs. Vinay chandra Misra, (1981) 1 SCC 436,
this court opined:

" Articles 129 and 215 preserve all the powers of the Supreme Court and the High Court,
respectively, as a Court of Record which include the power to punish the contempt of
itself. As pointed out by this Court in Mohd. Ikram Hussain v. State of U.P. (AIR 1964
SC 1625), there are no curbs on the power of the High Court to punish for contempt of
itself except those contained in the Contempt of courts Act. Articles 129 and 215 do not
define as to what constitutes contempt of court. Parliament has, by virtue of the aforesaid
entries in List I and List III of the Seventh Schedule, Power to define and limit the powers
of the Courts in punishing contempt of court and to regulate their procedure in relation
thereto. Indeed, this is what is stated in the preamble of the Act of 1971".
(Emphasis supplied) In Sukhdev Singh v. Hon'ble C.J.S. Teja Singh & Ors.

AIR 1954 SCR 454, while recognising that the power of the High Court to institute
proceedings for contempt and punish the contemner when found necessary is a special
jurisdiction which is inherent in all courts of Record, the Bench opined that "the
maximum punishment is now limited to six month's simple imprisonment or a fine of Rs.
2,000/- or both" because of the provision of Contempt of Courts Act.

In England, according to Halsbury's laws of England 4th Edn. Para 97:

" There is no statutory limit to the length of the term of imprisonment which may be
imposed for contempt of court by the court of Appeal, High Court or Crown Court.
Similarly the statutory provisions relating to the suspension of sentences of imprisonment
have no application to committals for contempt. Although there is no limit to the length
of the term which may be imposed, the punishment should be commensurate to the
offence. Thus, where contempt is committed owing to a mistaken view of the rights of the
offender, the punishment, where imprisonment is deemed necessary, should be for a
definite period and should not be severe."
Paras 99 and 100 to 105 of Halsbury's Laws deal with the other punishments which may
be imposed for contempt of court.
"99. Fines and security for good behavior. The Court may, as an alternative or in addition
to committing a contemner, impose a fine or require security for good behavior.
As in the case of
imprisonment, there is no
statutory limit to the amount of a fine which the court can impose.
100. Other remedies. As a further alternative to ordering committal, the court may, in its
discretion, adopt the more lenient course of granting an injunction to restrain repetition of
the act of contempt. The court may also penalise a party in contempt by ordering him to
pay the costs of the application.
103. Fine. The court may, as an alternative to committal or sequestration, impose a fine
for civil contempt.
In assessing the amount of the fine, account should be taken of the seriousness of the
contempt and damage done to the public interest.
104. Other remedies. The court may, in its own discretion, grant an injunction, in lieu of
committal or sequestration, to restrain the commission or repetition of a civil contempt.
The court may in lieu of any other penalty require the contemner to pay the costs of the
motion on a common fund basis.
105. Costs. The costs of an application for committal are in the discretion of the court,
and should be asked for on the hearing of the application. The respondent can as a general
rule only be ordered to pay costs if he has been guilty of contempt. An action is
maintainable in the Queen's Beach Division to enforce an order made in the chancery
Division to pay the costs of a motion for committal."

(emphasis supplied) Thus, the recognised and accepted punishments for civil or criminal
contempt of court in English Law, which have been followed and accepted by the courts
in this country and incorporated in the Indian law in so far as, civil contempt, is
concerned are:

i) Sequestration of assets:

ii) fine;

iii) committal to prison The object of punishment being both curative and corrective these
coercions are meant to assist an individual complainant to enforce his remedy and there is
also an element of public policy for punishing civil contempt, since the administration of
justice would be undermined if the order of any court of law is to be disregarded with
impunity. Under some circumstances, compliance of the order may be secured without
resort to coercion, through the contempt power. For example, disobedience of an order to
pay a sum of money may be effectively countered by attaching the earnings of the
contemner. In the same manner, committing the person of the defaulter to prison for
failure to comply with an order of specific performance of conveyance of property, may
be met also by the court directing that the conveyance be completed by an appointed
person. Disobedience of an undertaking may in the like manner be enforced through
process other than committal to prison as for example where the breach of undertaking is
to deliver possession of property in a landlord tenant dispute. Apart from punishing the
contemner the Court to maintain the Majesty of Law may direct the police force to be
utilised for recover of possession and burden the contemner with costs, exemplary or
otherwise.

In so far as criminal contempt of court is concerned, which charge is required to be

established like a criminal charge, it is punishable by

(i) fine; or

(ii) by fixed period of simple imprisonment or detention in a civil prison for a specified
period; or

(iii) both.

In deciding whether a contempt is serious enough to merit imprisonment, the court will
take into account the likelihood of interference with the administration of justice and the
culpability of the offender. The intention with which the act complained of is done is a
material factor in determining what punishment, in a given case, would be appropriate.

The nature and types of punishment which a court of record can impose, in a case of
established contempt, under the common law have now been specifically incorporated in
the contempt of Courts Act, 1971 in so far as the High Courts are concerned and therefore
to the extent the contempt of Courts Act 1971 identifies the nature of types of
punishments which can be awarded in the case of established contempt, it does not
impinge upon the inherent powers of the High Court under Article 215 either. No new
type of punishment can be created or assumed. As already noticed, the parliament by
virtue of Entry 77, List I is competent to enact a law relating to the powers of the
Supreme Court with regard to contempt of itself and such a law may prescribe the nature
of punishment which may be imposed on a contemner by virtue of the provisions
of Article 129 read with Article 142(2). Since, no such law has been enacted by the
parliament, the nature of punishment prescribed, under the Contempt of Courts Act, 1971,
may act as a guide for the Supreme Court but the extent of punishment as prescribed
under that Act can apply only to the High Courts, because the 1971 Act ipso facto does
not deal with the contempt jurisdiction of the Supreme Court, except that Section 15 of
the Act prescribes procedural mode for taking cognizance of criminal contempt by the
supreme Court also. Section 15, however, is not a substantive provision conferring
contempt jurisdiction. The judgment in Sukhdev Singh's case (supra) as regards the extent
of "maximum punishment" which can be imposed upon a contemner must, therefore, be
construed as dealing with the powers of the High Courts only and not of this Court in that
behalf. We are, therefore, doubtful of the validity of the argument of the learned solicitor
General that the extent of punishment which the supreme Court can impose in exercise of
its inherent powers to punish for contempt of itself and/or of subordinate courts can also
be only to the extent prescribed under the contempt of Courts Act, 1971. We, however, do
not express any final opinion on that question since that issue strictly speaking, does not
arise for our decision in this case. The question regarding the restriction or limitation on
the extent of punishment, which this Court may award while exercising its contempt
jurisdiction may be decided in a proper case, when so raised.

Suspending the licence to practice of any professional like a lawyer, doctor, chartered
accountant etc. When such a professional is found guilty of committing contempt of
court, for any specified period, is not a recognised or accepted punishment which a court
of record either under the common law or under the statutory law can impose, on a
contemner, in addition to any of the other recognised punishments.

The suspension of an Advocate from practice and his removal from the State roll of
advocates are both punishments specifically provided for under the Advocates Act, 1961,
for proven "professional misconduct' of an advocate. While exercising its contempt
jurisdiction under Article 129, the only cause or matter before this Court is regarding
commission of contempt of court. There is no cause of professional misconduct, properly
so called, pending before the Court. This Court, therefore, in exercise of its jurisdiction
under Article 129 cannot take over the jurisdiction of the disciplinary committee of the
Bar Council of the State or the Bar Council of India to punish an advocate by suspending
his licence, which punishment can only be imposed after a finding of 'professional
misconduct' is recorded in the manner prescribed under the Advocates Act and the Rules
framed thereunder.

When this Court is seized of a matter of contempt of court by an advocate, there is no

"case, cause or matter" before the Supreme Court regarding his "professional misconduct"
even though, in a given a case, the contempt committed by an advocate may also amount
to an abuse of the privilege granted to an advocate by virtue of the licence to practice law
but no issue relating to his suspension from practice is the subject matter of the case. The
powers of this Court, under Article 129 read with Article 142 of the Constitution, being
supplementary powers have "to be used in exercise of its jurisdiction" in the case under
consideration by this Court. Moreover, a case of contempt of court is not stricto senso a
cause or a matter between the parties inter se. It is a matter between the court and the
contemner. It is not, strictly speaking, tried as an adversarial litigation. The party, which
brings the contumacious conduct of the contemner to the notice of the court, whether a
private person or the subordinate court, is only an informant and does not have the status
of a litigant in the contempt of Court case.

The contempt of court is a special jurisdiction to be exercised sparingly and with caution,
whenever an act adversely effects the administration of justice or which tends to impede
its course or tends to shake public confidence in the judicial institutions. This jurisdiction
may also be exercised when the act complained of adversely effects the Majesty of Law
or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and
dignity of the Courts of law. It is an unusual type of jurisdiction combining "the jury, the
judge and the hangman" and it is so because the court is not adjudicating upon any claim
between litigating parties. This jurisdiction is not exercised to protect the dignity of an
individual judge but to protect the administration of justice from being maligned. In the
general interest of the community it is imperative that the authority of courts should not
be imperiled and there should be no unjustifiable interference in the administration of
justice. It is a matter between the court and the contemner and third parties cannot
intervene. it is exercised in a summary manner in aid of the administration of justice, the
majesty of law and the dignity of the courts. No such act can be permitted which may
have the tendency to shake the public confidence in the fairness and impartiality of the
administration of justice.

The power of the Supreme Court to punish for contempt of court, though quite wide, is
yet limited and cannot be expanded to include the power to determine whether an
advocate is also guilty of "Professional misconduct" in a summary manner, giving a go
bye to the procedure prescribed under the Advocates Act. The power to do complete
justice under Article 142 is in a way, corrective power, which gives preference to equity
over law but it cannot be used to deprive a professional lawyer of the due process
contained in the Advocates Act 1961 by suspending his licence to practice in a summary
manner, while dealing with a case of contempt of court.

In Re: V.C. Mishra's case (supra), while imposing the punishment of suspended simple
imprisonment, the Bench, as already noticed, punished the contemner also by suspending
his licence to practice as an advocate for a specified period. The Bench dealing with that
aspect opined:

It is not disputed that suspension of the advocate from practice and his removal from the
State roll of advocates are both punishments.
There is no restriction or limitation on the nature of punishment that this Court may
award while exercising its contempt jurisdiction and the said punishments can be the
punishments the Court may impose while exercising the said jurisdiction.

( Emphasis supplied) In taking this view, the Bench relied upon Articles 129 and 142 of
the Constitution besides Section 38 of the Advocates Act, 1961. The Bench observed:

" Secondly, it would also mean that for any act of contempt of court, if it also happens to
be an act of professional misconduct under the Bar Council of India Rules, the courts
including this Court, will have no power to take action since the Advocates Act confers
exclusive power for taking action for such conduct on the disciplinary committees of the
State Bar Council and the Bar Council of India, as the case may be. Such a proposition of
law on the face of it observes rejection for the simple reason that the disciplinary
jurisdiction of the State Bar council and the Bar Council of India to take action for
professional misconduct is different from the jurisdiction of the Courts to take action
against the advocates for the contempt of Court. The said jurisdiction co- exist court. The
said jurisdiction co-exist "dependently of each other. The action taken under one
jurisdiction does not bar an action under the other jurisdiction.
The contention is also misplaced for year another and equally, if not more, important
reason. In the matter of disciplinary under the Advocates Act, this Court is constituted as
the fina' Appellate authority under Section 38 of the Act as pointed out earlier. In that
capacity this court can impose any of the punishments mentioned in Section 35(3) of the
Act including that of removal of the name of the Advocate from the State roll and of
suspending him from practice. If that be so, there is no reason why his court while
exercising its contempt jurisdiction under Article 129 read with Article 142 cannot
impose any of the said punishments. The punishments so imposed will not only be not
against the provisions of any statute, but in conformity with the substantive provisions of
the advocates Act and for conduct which is both a professional misconduct as well as the
contempt of Court. The argument has, therefore, to be rejected."

(Emphasis supplied) These observations, as we shall presently demonstrate and we say so

with utmost respect, are too widely stated and do not bear closer scrutiny. After
recognising that the disciplinary jurisdiction of the State Bar Council and the Bar Council
of India to take action for professional misconduct is different from the jurisdiction of the
courts to take action against the advocates for the contempt of court, how could the court
invest itself with the jurisdiction of the disciplinary committee of the Bar Council to
punish the concerned Advocate for "professional misconduct" in addition to imposing the
punishment of suspended sentence of imprisonment for committing contempt of court.

The plenary powers of this court under Article 142 of the Constitution are inherent in the
court and are complementary to those powers which are specifically conferred on the
court by various statutes though are not limited by those statutes. These powers also exist
independent of the statutes with a view to do complete justice between the parties. These
powers also exists independent of the statutes with a view to do complete justice between
the parties. These powers are of very wide amplitude and are in the nature of
supplementary powers. This power, exists as a separate and independent basis of
jurisdiction, apart from the statutes. It stands upon the foundation, and the basis for its
exercise may be put on a different and perhaps even wider footing, to prevent injustice in
the process of litigation and to do complete justice between the parties. This plenary
jurisdiction is, thus, the residual source of power which this Court may draw upon as
necessary whenever it is just and equitable to do so and in particular to ensure the
observance of the due process of law, to do complete justice between the parties. This
plenary jurisdiction is, thus, the residual source of power which this court may draw upon
as necessary whenever it is just and equitable to do so and in particular to ensure the
observance of the due process of law, to do complete justice between the parties, while
administering justice according to law. There is no doubt that it is an indispensable
adjunct to all other powers and is free from the restraint of jurisdiction and operates as a
valuable weapon in the hands of the court to prevent "clogging or obstruction of the
stream of justice". It, however, needs to be remembered that the powers conferred on the
court by Article 142 being curative in nature cannot be construed as powers which
authorise the court to ignore the substantive rights of a litigant while dealing with a cause
pending before it. this power cannot be used to "supplant" substantive law applicable to
the case or cause under consideration of the court. Article 142, even with the width of its
amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring
express statutory provisions dealing with a subject and thereby to achieve something
indirectly which cannot be achieved directly. Punishing a contemner advocate, while
dealing with a contempt of court case by suspending his licence to practice, a power
otherwise statutorily available only to the Bar Council of India, on the ground that the
contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction
under Article 142. The construction of Article 142 must be functionally informed by the
salutary purpose of the Article viz. to do complete justice between the parties. It cannot
be otherwise. As already noticed in a case of contempt of court, the contemner and the
court cannot be said to be litigating parties.

The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make
such order as is necessary for doing complete justice " between the parties in any cause or
matter pending before it." The very nature of the power must lead the court to set limits
for itself within which to exercise those powers and ordinarily it cannot disregard a
statutory provision covering a subject, except perhaps to balance the equities between the
conflicting claims of the litgating parties by "ironing out the creases" in a cause or matter
before it. Indeed this Court is not a court of restricted jurisdiction of only dispute settling.
it is well recognised and established that this court has always been a law maker and its
role travels beyond merely dispute settling. It is a "problem solver in the nebulous areas".
(See. K. Verraswami vs. Union of India (1991 (3) SCC

655) but the substantive statutory provisions dealing with the subject matter of a given
case, cannot be altogether ignored by this court, while making an order under Article

142. Indeed, these constitutional powers can not, in any way, be controlled by any
statutory provisions but at the same time these powers are not meant to be exercised when
their exercise may come directly in conflict with what has been expressly provided for in
statute dealing expressly with the subject.

In Bonkya @ B.S. Mane & Ors. Vs. State of Maharashtra (1995 (6) SCC 447) a bench of
this court observed.

" The amplitude of powers available to this Court under Article 142 of the Constitution of
India is normally speaking not conditioned by any statutory provision but it cannot be lost
sight of that this Court exercises jurisdiction under Article 142 of the Constitution with a
view to do justice between the parties but not in disregard of the relevant statutory
provisions."

Dealing with the powers of this court under Article 142, in Prem Chand Garg vs. Excise
Commissioner, U.P., Allahabad, (1963) Supp. 1. S.C.R. 885) it was said by the
Constitution Bench:

" In this connection, it may be pertinent to point out that the wide powers which are given
to this court for doing complete justice between the parties, can be used by this court for
instance, in adding parties to the proceedings pending before it, or in admitting additional
evidence, or in remanding the case, or in allowing a new point to be taken for the first
time. It is plain that in exercise these and similar other powers, this Court would not be
bound by the relevant provisions of procedure if it is satisfied that a departure from the
said procedure is necessary to do complete justice between the parties.
That takes us to the second argument urged by the Solicitor- General that Art.
142 and Art. 32 should be reconciled by the adoption of the rule of harmonious
construction. In this connection, we ought to bear in mind that though the powers
conferred on this Court by Art. 142(1) are very wide, and the same can be exercised for
doing complete justice in any case, as we have already observed this Court cannot even
under Art. 142(1) make an order plainly inconsistent with the express statutory provisions
of substantive law, much less, inconsistent with any Constitutional provision. There can,
therefore be no conflict between Art. 142(1) and Art. 32. In the case of K.M. Nanavati v.
The State of Bombay (1961) 1 S.C.R.
497) on which the solicitor-General relies, it was conceded, and rightly, that under Art.
142(1) this Court had the power to grant bail in cases brought before it, and so, there was
obviously a conflict between the power vested in this court under the said Article and that
vested in the Governor of the State under Art.
161. The possibility of a conflict between these powers necessitated the application of the
rule of harmonious construction. The said rule can have no application of the present
case, because on a fair construction of Art. 142(1), this Court has no power to
circumscribe the fundamental right guaranteed under Art. 32. The existence of the said
power is itself in dispute, and so, the present is clearly distinguishable from the case of
K.M. Nanavati."

(Emphasis ours) In Re: Vinay Chandra Mishra's case (supra), the three the three judge
Bench did notice the observations in Prem Chand Garg's case (supra) but opined:

" In view of the observations of the latter Constitution Bench on the point, the
observations made by the majority in Prem Chand Garg's case (supra) are no longer a
good law. This is also pointed out by this Court in the case of Mohammed Anis Vs. union
of India & Ors. (1994 (Supp.1) SCC 145) by referring to the decisions of Delhi judicial
Services Vs. State of Gujarat (supra) and Union Carbide Corporation Vs. Union of India
(supra) by observing that statutory provisions cannot override the constitutional
provisions and Article 142(1) being a constitutional power it cannot be limited or
conditioned by any statutory provision. The Court has then observed that it is, therefore,
clear that the power of the Apex Court under Article 142(1) of the Constitution Cannot be
diluted by statutory provisions and the said position in law is now well settled by the
Constitution Bench decision in Union Carbide's case (supra)."

(Emphasis supplied) Commenting upon the observations in Prem Chand Garg's case
(supra) the Bench further opined:

" Apart from the fact that these observations are made with reference to the powers of this
Court under Article 142 which are in the nature of supplementary powers and not with
reference to this Court's power under Article 129, the said observation have been
explained by this Court in its latter decisions in Delhi Judicial services Association v.
State of Gujarat (supra) and Union Carbide corporation v. Union of India (1991) 4 SCC
574). In paragraph 51 of the former decision, it has been, with respect, rightly pointed out
that the said observations were made in the context of fundamental rights. Those
observations have no bearing on the present issue. No doubt, it was further observed there
that those observations have no bearing on the question in issue in that case as there was
no provision in any substantive law restricting this Court's power to quash proceedings
pending before subordinate courts. But it was also added there that this Court's power
under Article 142(1) to do complete justice was entirely of different leave and of a
different quality."

As we shall presently see, there is nothing said in either Delhi Judicial Service
Association's case (supra) or the Union Carbide's case supra) from which it may be
possible to hold that the law laid down in Prem Chand Garg's case (supra) is "no longer a
good law". Besides, we also find that in Mohd. Anis case referred to by the Bench, there
is no reference made to Prem Chand Garg's case at all.

In Delhi Judicial Service Association Tis Hazari vs. State of Gujarat & Ors. etc. etc.
(1991 (3) SCR 936) the following questions fell for determination.

" (a) whether the Supreme Court has inherent jurisdiction or power to punish for
contempt of subordinate or inferior courts under Article 129 of the Constitution, (b)
whether the inherent jurisdiction and power of the Supreme Court is restricted by
the Contempt of Courts Act, 1971, (c) whether the incident interfered with the due
administration of justice and constituted contempt of court, and
(d) what punishment should be awarded to the contemners found guilty of contempt."
The Court observed:
"Article 142(1) of the constitution provides that Supreme Court in exercise of its
jurisdiction may pass such decree or make such order as is necessary for doing complete
justice in any 'cause' or 'matter' pending before it. The expression 'cause' or 'matter' would
include any proceeding pending in court and it would cover almost every kind of
proceeding in court including civil or criminal . The inherent power of this Court
under Article 142 coupled with the plenary and residuary powers under Articles 32 and
136 embraces power to quash criminal proceedings pending before any court to do
complete justice in the matter before this Court."
-----------------------
-----------------------
Mr. Nariman urged that Article 142(1) does not contemplate any order contrary to
statutory provisions. He placed reliance on the Courts observations in Prem Chand Garg
Vs. Excise Commissioner, U.P. Allahabad 91963 Supp. 1 SCR 885 at 889) and A.R.
Anthulay Vs. R.S. Nayak and Anr. (1988 (2) SCC
602) where the Court observed that though the powers conferred on this Court
under Article 142(1) are very wide, but in exercise of that power the court cannot make
any order plainly inconsistent with the express statutory provisions of substantive law. It
may be noticed that in prem Chand Garg's and Antulay's case (supra) observations with
regard to the extent of this Court's power under Article 142(1) were made in the context
of fundamental rights. Those observations have no bearing on the question in issue as
there is no provision in any substantive law restricting this Court's power to quash
proceedings pending before subordinate court. This Court's power under Article 142(1) to
do "complete justice" is entirely of different level and of a different quality. Any
prohibition or restriction contained in ordinary laws cannot act as a limitation on the
constitutional power of this Court. Once this Court has selling of a cause or matter before
it, it has power to issue any order or direction to do "complete justice" in the matter. This
constitutional power of the Apex Court cannot be limited or restricted by provisions
contained in statutory law." The Bench went on to say:
"No enactment made by Central or State Legislature can limit or restrict the power of this
Court under Article 142 of the constitution, the court must take into consideration the
statutory provisions regulating the matter in dispute. What would be the need of
"complete justice" in a cause or matter would depend upon the facts and circumstances of
each case and while exercising that power the court would take into consideration the
express provisions of a substantive statute. Once this Court has taken seisin of a case,
cause or matter, it has power to pass any order or issue direction as may be necessary to
do complete justice in the matter. This has been the consistent view of this Court as
would appear from the decisions of this court in State of U.P. Vs. Poosu & Anr. (1976 (3)
SCR 1005; Ganga Bishan & Ors. Vs. Jai Narain (1986 (1) SCC 75; Navnit R. Kamani &
Ors. Vs. Jai Narain (1988 (4) SCC 387); B.N. Nagarajan & Ors. vs. State of Mysore &
Ors. (1986 (3) SCR 682): Special Reference No. 1 of 1964, (supra), and Harbans Singh
vs. State of U.P. Ors. (supra) ."

(emphasis supplied) In AR Antulay Vs. Nayak and Anr. (1988 (2) SCC 602) a seven
Judge Bench of this Court said:

" The reliance placed in this context on the provisions contained in Articles 140 and 142
of the Constitution and Section 401 read with Section 386 of the Cr. P.C. does not also
help. Article 140 is only a provision enabling parliament to confer supplementary powers
on the Supreme Court to enable it to deal more effectively to exercise the jurisdiction
conferred on it by or under the Constitution. Article 142 is also not of much assistance. In
the first place, the operative words in that article, again are "in the exercise of its
jurisdiction" . The Supreme Court was hearing an appeal from the order of discharge and
connected matters. There was no issue or controversy or discussion before it as to the
comparative merits of a trial before a Special judge vis-a-vis one before the High Court.
there was only an oral request said to have been made, admittedly, after the judgment was
announced. Wide as the powers under Article 141 are, they do not in my view, envisage
an order of the type presently in question. The Nanavati case, to which reference was
made by Shri Jethmalani, involved a totally different type of situation. Secondly, it is one
of the contentions of the appellant that an order of this type, far from being necessary for
doing complete justice in the cause or matter pending before the court, has actually
resulted in injustice, an aspect discussed a little later. Thirdly, however wide and plenary
the language of the article, the directions given by the Court should not be inconsistent
with, repugnant for in violation of the specific provisions of any statute. If the provisions
of the 1952 Act had with Article 139-A and Sections 406-407 on the Cr. P.C. do not
permit the transfer of the case a Special judge to the High Court, that effect cannot be
achieve indirectly."

(Emphasis supplied) In Union Carbide Corpn. Vs. Union of India, (1991) 4 SCC 584, a
constitution Bench of this Court dealt with the ambit and scope of the powers of this court
under Article 142 of the Constitution. The Bench considered the observations of the
majority in Prem Chand Garg vs. Excise Commissioner, U.P., 1963 Supp. (1) SCC 885 as
well as the observations made in A.R. Antulay vs. R.S. Nayak (1988) 2 SCC 602 and
observed:
"It is necessary to set at rest certain misconceptions in the arguments touching the scope
of the powers of this Court under Article 142(1) of the Constitution. These issues are
matters of serious public importance. The proposition that a provision in any ordinary law
irrespective of the importance of the public policy on which it is founded, operates to
limit the powers of the Apex Court under Article 142(1) is unsound and erroneous. In
both Garg as well as Antulay cases the point was one of violation of constitutional
provisions and constitutional rights. The observations as to the effect of inconsistency
with statutory provisions were really unnecessary in those cases as the decisions in the
ultimate analysis turned on the breach of constitutional rights. We agree with Shri
Nariman that the power of the Court under Article 142 insofar as quashing of criminal
proceedings are concerned is not exhausted by Section 320 or 321 or 482 Cr. P.C. or all
of them put together. The power under Article 142 is at an entirely different level and of a
different quality. Prohibitions or limitations or provisions contained in ordinary laws
cannot, ipso facto, act as prohibitions of limitations on the constitutional powers
under Article 142. Such prohibitions or limitations in the statutes might embody and
reflect the scheme of a particular law, taking into account the nature and status of the
authority or the court on which conferment of powers
- limited in some appropriate way is contemplated. The limitations may not necessarily
reflect or be based on any fundamental considerations of public policy, Shri sorabjee,
learned Attorney General , referring to Garg case, said that limitation on the powers
under Article 1425 arising from 'inconsistency' with express statutory provisions of
substantive law' must really mean and be understood as some express prohibition
contained in any substantive statutory law. He suggested that if the expression
'prohibition' is read in place of 'provision' that would perhaps convey the appropriate idea.
But we think that such prohibition should also be shown to be based on some underlying
fundamental and general issues of public policy and not merely incidental to a particular
statutory scheme or pattern. It will again be wholly incorrect to say that powers
under Article 142 are subject to such express statutory prohibitions. That would convey
the idea that statutory provisions override a constitutional provision. Perhaps, the proper
way of expressing the idea is that in exercising powers under Article 142 and in assessing
the needs of 'complete justice' of accuse of matter, the Apex Court will take note of the
express prohibitions in any substantive statutory provision based on some fundamental
principles of public policy and regulate the exercise of its power and discretion
accordingly. The proposition does not relate to the powers of the Court under Article 142,
but only to what is or is not 'complete justice' of a cause or matter and in the ultimate
analysis of the propriety of the exercise of the power. No question of lack of jurisdiction
or of nullity can arise."

(emphasis supplied) Thus, a careful reading of the judgements in Union Carbide

Corporation & Ors. Vs. Union of India & Ors. the Delhi judicial Services Association
case and Mohd. Anis Case (supra) relied upon in V.C. Mishra's case (supra) show that the
court died not actually doubt the correctness of the observations in Prem Chand Garg's
case (supra). As a matter of fact, it was observed that in the established facts of these
cases, the observations in Prem Chand Garg's case had "no relevance". This Court did not
say in any of those cases that substantive statutory provisions dealing expressly with the
subject can be ignored by this Court while exercising powers under Article 142.
As a matter of fact, the observations on which emphasis has been placed by us from the
Union Carbide's case, A. R. Antulay's case and Delhi Judicial Services Association case
(supra) go to show that they do not strictly speaking come into any conflict with the
observations of the majority made in Prem Chand Garg's case (supra). It is one thing to
say that "prohibitions or limitations in a statute" cannot come in the way of exercise of
jurisdiction under Article 142 to do complete justice between the parties in the pending
'cause or matter arising out of that statute, but quite a different thing to say that while
exercising jurisdiction under Article 142, this Court can altogether ignore the substantive
provisions of a statute, dealing with the subject and pass orders concerning an issue which
can be settled only through a mechanism prescribed in another statute. This Court did not
lay so in Union Carbide's case either expressly or by implication and on the contrary it
has been held that the apex court will take note of the express provisions of any
substantive statutory law and regulate the exercise of its power and discretion
accordingly. We are, therefore, unable to persuade ourselves to agree with the
observations of the Bench in V.C. Mishra's case that the low laid down by the majority in
Prem Chand Garg's case is "no longer a good law".

In a given case, an advocate found guilty of committing contempt of court may also be
guilty of committing "professional misconduct" depending upon the gravity or nature of
his contumacious conduct, but the two jurisdictions are separate and distinct and
exercisable by different forums by following separate and distinct procedures. The power
to punish an Advocate, by suspending his licence or by removal of his name from the roll
of the State bar Council, for proven professional misconduct, vests exclusively in the
statutory authorities created under the Advocates Act, 1961, while the jurisdiction to
punish him for committing contempt of court vests exclusively in the courts.

After the coming into force of the Advocates Act, 1961, exclusive power for punishing an
advocate for "professional misconduct " has been conferred on the concerned state Bar
Council and the Bar Council of India. That Act contains a detailed and complete
mechanism for suspending or revoking the licence of an advocate for his "professional
misconduct'. since, the suspension or revocation of licence of an advocate has not only
civil consequence but also penal consequence, the punishment being in the nature of
penalty, the provisions have to be strictly construed. Punishment by way of suspending
the licence of an advocate can only be imposed by the competent statutory body after the
charge is established against the Advocate in a manner prescribed by the Act and the
Rules framed thereunder.

Let us now have a quick look at some of the relevant provisions of the Advocates Act,
1961.

The Act, besides laying down the essential functions of the Bar Council of India provides
for the enrollment of advocates and setting up of disciplinary authorities to chastise and,
if necessary, punish members of the profession for professional misconduct. The
punishment may include suspension from practice for a specified period or reprimand or
removal of the name from the roll of the advocates. Various provisions of the Act deal
with functions of the State Bar Councils and the Bar Council of India. We need not,
however, refer to all those provisions in this judgment except to the extent their reference
is necessary.
According to Section 30, every advocate whose name is entered in the Stat roll of
advocates shall be entitled, as of right, to practice, throughout the territories to which the
Act extends, in all courts including the Supreme Court of India. Section 33 provides that
no person shall, on or after the appointed day, be entitled to practice in any court or
before any authority or person unless he is enrolled as an advocate under the Act.

Chapter V of the Act deals with the 'conduct of Advocate'. After a complaint is received
alleging professional misconduct by an advocate by the Bar Council, the Bar Council
entrusts the inquiry into the case of misconduct to the Disciplinary Committee constituted
under Section 9 of the Act. Section 35 lays down that if on receipt of a complaint or
otherwise, a state Bar Council has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee. Section 36, provides that where on receipt of a complaint or
otherwise, the Bar Council of India has reason to believe that any advocate whose name
is entered on any State roll is guilty of professional or other misconduct, it shall refer the
case to the disciplinary Committee. Section 37 provides for an appeal to the Bar Council
of India against an order made by the disciplinary committee of a state Bar Council. Any
person aggrieved by an order made by the disciplinary committee of the Bar Council of
India may prefer an appeal to the Supreme Court of India under Section 38 of the Act.

Section 42(1) of the Act confers on the Disciplinary Committee of the Bar Council,
powers of a civil court under the code of Civil procedure and section 4292) enacts that its
proceedings shall be "deemed" to be judicial proceeding for the purpose mentioned
therein.

Section 49 of the Act lays down that the Bar Council of India may make rules for
discharging its functions under the Act and in particular such Rules may prescribe inter-
alia the standards of professional conduct to be observed by the advocates and the
procedure to be followed by the Disciplinary Committees of the Bar Council while
dealing with a case of professional misconduct of an advocate. The Bar Council of India
has framed rules called 'The Bar Council of India Rules' (hereinafter referred to as the
Rules) in exercise of its rule making power under the Advocate Act 1951.

Part VII of the Rules deals with disciplinary proceedings against the advocates. In chapter
I of the part VII provisions have been made to deal with complaints of professional
misconduct received against advocates as well as for the procedure to be followed by the
Disciplinary committees of the State Bar Council and the Bar Council of India to deal
with such complaints received under Sections 35 and 36 of the Act. Rule 1 of Chapter I of
part VII of the Rules provides that a complaint against an advocate shall be in the form of
a petition duly signed and verified as required under the code of Civil procedure, and
shall be accompanied by the fees as prescribed by the Rules. On the complaint being
found to be in order the same shall be registered and place before the Bar Council for
such order as it may deem it to pass. Sub-rule (2) provides that before referring a
complaint made under Section 35(1) of the Act, to one of its disciplinary committees the
Bar Council may require the complainant to furnish better particulars and the Bar Council
"may also call for the comments from the advocate complained against ."
Rules 3 and 4 of Chapter I and VII provide for the procedure to be followed in dealing
with such complaints. These rules read:

" 3.(1) After a complaint has been referred to a Disciplinary Committee by the Bar
Council, the registrar shall expeditiously send a notice to the Advocate concerned
requiring him to show cause within a specified date on the complaint made against him
and to submit the statement of defence, documents and affidavits in support of such
defence, and further informing him that in case of his non-appearance on the date of
hearing fixed, the matter shall be heard and determined in his absence. Explanation:
Appearance includes, unless otherwise directed, appearance by an Advocate or through
duly authorised representative.
(2) If the Disciplinary Committee requires or termites, a complainant may file a
replication within such time as may be fixed by the committee.
(3) The Chairman of the Disciplinary Committee Hall fix the date, hour and place of the
enquiry which shall not ordinarily be later than thirty days from the receipt of the
reference. The Registrar shall give notice of such date, hour and piece to the complainant
or other person aggrieved. The advocate concerned and the Attorney General or He
Additional Solicitor General of India or the Advocate General as the case may be, and
shall also serve on them copies of the complaint and such other documents mentioned in
Rule 24 of this Chapter as the Chairman of the Committee may direct at least ten days
before the date fixed for the enquiry.

Rules 5, 6 and 7 deal with the manner of service of notice, summoning of witnesses and
appearance of the parties before the disciplinary committee. At any stage of the
proceedings, the disciplinary committee may appoint an advocate to appear as amicus
curiae and in case either of the parties absent themselves, the committee may; proceed ex
parte against the absenting party and decide the case.

Sub-rule (1) of Rule 8 provides:

" This Disciplinary Committee shall hear the Attorney General or the Additional Solicitor
General of India or the Advocate General, as the Case may be or their Advocate, and
parties or their Advocates, if they desire to be heard, and determine the matter on
documents and affidavits unless it is of the opinion that it should be in the interest of
justice to permit cross examination of the deponents or to take oral evidence, in which
case the procedure for the trial of civil suits shall as far as possible be followed."

Rules 9 and 10 deal with the manner of recording evidence during the enquiry into a
complaint of professional misconduct and the maintenance of record by the committee.

Rule 14(1) lays down as follows:

"The finding of the majority of the numbers of the Disciplinary Committee shall be the
finding of the Committee. The reason given in support of the finding may be given in the
form of a judgement, and in the case of a difference of opinion, any member dissinting
shall be entitled to record his dissent giving his own reason. It shall be competent for the
Disciplinary Committee to award such costs as it thinks fit. "
Rule 16 provides:

" 16(1). The Secretary of a State Bar Council shall send to the Secretary of the Bar
Council India quarterly sentiments complaints received and the stage of the proceedings
before the state Bar Council and Disciplinary Committees in such manner as may be
specified from time to time.

(2) The Secretary of the Bar Council of India may however call for such further
statements and particulars as he considers necessary."

An appeal from the final order of the disciplinary committee of the Bar Council of a State
is provided to the Bar Council of India under Section 37 of the Act and the procedure for
filing such an appeal is detailed in Rules 19(2) to 31.

The object of referring to the various provisions of the Advocates Act, 1961 and the
Rules framed thereunder is to demonstrate that an elaborate and detailed procedure,
almost akin to that of a regular trial of a case by a court, has been prescribed to deal with
a complaint of professional misconduct against an advocate before he can be punished by
the Bar Council by revoking or suspending his licence or even for reprimanding him.

In Bar Council of Maharashtra Vs. M.V. Dabholkar & Ors. (1975 (2) SCC 702) a seven
judge Bench of this Court analysed the scheme of the Advocates Act 1961 and inter alia
observed:

" The scheme and the provisions of the Act indicate that the constitution of State Bar
Councils and Bar Council of India is for one of the principal purposes to see that the
standards of professional conduct and etiquette laid down by the Bar Council of India are
observed and preserved.
The Bar Councils therefore entertain cases of misconduct against advocates. The Bar
Councils are to safeguard the rights, privilege and interests of advocates. The Bar
Councils is a body corporate. The disciplinary committees are constituted by the Bar
Council. The Bar Council is not the same body as its disciplinary committee. One of the
principal functions of the Bar Council in regard to standards of professional conduct and
etiquette of advocates is to receive complaints against advocates and if the Bar Council
has reason to believe that any advocate has been guilty of professional or other
misconduct it shall refer the case for disposal to its disciplinary committee. The Bar
Councils of a State may also of its own motion if it has reason to believe that any
advocate has been guilty of professional or other misconduct it shall refer the case for
disposal to its disciplinary committee. It is apparent that a state Bar Council not only
receives a complaint but is required to apply its mind to find out whether there is any
reason to believe that any advocate has been guilty of professional or other misconduct.
The Bar Council has very important part to play, first in the reception of complaints,
second, in forming reasonable belief of quilt of professional or other misconduct and
finally in making reference of the case to its disciplinary committee. The initiation of the
proceeding before the disciplinary committee is by the Bar Council of a State. A most
significant feature is that no litigant and no member of the public can straightway
commence disciplinary proceedings against an advocate. It is the Bar Council of a State
which initiates the disciplinary proceedings.
Thus, after the coming into force of the Advocates Act, 1961 with effect from 19th May
1961, matters connected with the enrollment of advocates as also their punishment for
professional misconduct is governed by the provisions of that Act only. Since, the
jurisdiction to grant licence to a law graduate to practice as an advocate vests exclusively
in the Bar Councils of the concerned State, the jurisdiction to suspend his licence for a
specified term or to revoke it also vests in the same body.

The Letters Patent of the Chartered High Courts as well of the other High Courts to admit
an advocate to practice. The power of suspending from practice being incidental to that of
admitting to practice being incidental to that of admitting to practice also vested in the
High Courts. However, by virtue of Section 50 of the Advocates Act, with effect from the
date when a State Bar Council is constituted under the Act, the provisions of the Letters
patent of any High Court and of any other law" in so far as they related to the admission
and enrollment of a legal practitioner or confer on the legal practitioner the right to
practice in any court or before any authority or a person as also the provisions relating to
the "suspension or removal" of legal practitioners, whether under the letters patent of any
High Court or of any other law, have been repealed. These powers now vest exclusively,
under the Advocates Act, in the Bar Council of the Concerned State. Even in England the
Courts of justice are now relieved from disbarring advocates from practice after the
power of calling to the Bar has been delegated to the Inns of Court. The power to disbar
the advocate also now vests exclusively in the Inns of Court and a detailed procedure has
been laid therefor.

In Re. V.C. Misra's case, the Bench relied upon its appellate jurisdiction under Section
38 (supra) also to support its order of suspending the licence of the contemner.

Dealing with the right of appeal, conferred by Sections 37 and 38 of the Act, the
Constitution Bench in M.V. Dabholkar's case (supra) observed.

"Where a right of appeal to courts against an administrative or judicial decision is created

by statute, the right is invariably confined to a person aggrieved or a person who claims to
be aggrieved. The meaning of the words "a person aggrieved" may very according to the
context of the statute. One of the meanings is that a person will be held to be aggrieved by
a decision if that decision is materially adverse to him. Normally, one is required to
establish that one has been denied or deprived of something to which one is legally
entitled in order to make one "a person aggrieved". Against a person is aggrieved if a
legal burden is imposed on him, the meaning of the words " a person aggrieved" is
sometimes given a restricted meaning in certain statutes which provide remedies for the
protection of private legal rights. The restricted meaning requires denial or deprivation of
legal rights. A more liberal approach is required in the background of statutes which do
not deal with property rights but deal with professional conduct and morality. The role of
the Bar Council under the Advocates Act is comparable to the role of a guardian in
professional ethics.
The words "persons aggrieved is sections 37 and 38 of the Act are of wide import and
should not be subjected to a restricted interpretation of possession or denial of legal rights
or burdens or financial interests. The test is whether the words "person aggrieved" include
"a person who has a genuine grievance because an order has been made which
prejudicially affects his interests". It has, therefore, to be found out whether the Bar
Council has a grievance in respect of an order or decision affecting the professional
conduct and etiquette."
(Emphasis supplied) In O.N. Mohindroo Vs. The District Judge, Delhi & Anr.

(1971 (3) SCC 5), it has been held that an appeal to the Supreme Court under  Section
38 of the Act is not a restricted appeal. It is not an appeal on a question of law alone but
also on questions of fact and under that Section the Supreme court has the jurisdiction to
pass any order it deems fit on such an appeal but 'no order of the Bar Council of India
shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved
without giving him a reasonable opportunity of being heard.

This Court is indeed the final appellate authority under Section 38 of the Act but we are
not persuaded to agree with the view that this Court can in exercise of its appellate
jurisdiction, under Section 38 of the Act, impose one of the punishments, prescribed
under that Act, while punishing a contemner advocate in a contempt case. 'Professional
misconduct' of the advocate concerned is not a matter directly in issue in the contempt of
court case. while dealing with the contempt of court case, this court is obliged to examine
whether the conduct complained of amounts to contempt of court and if t he answer is in
the affirmative, than to sentence the contemner for contempt of court by imposing any of
the recognised and accepted punishments for committing contempt of court. Keeping in
view the elaborate procedure prescribed under the Advocates Act 1961 and the Rules
framed thereunder it follows that a complaint of professional misconduct is required to be
tried by the disciplinary committee of the Bar Council, like the trial of a criminal case by
a court of law and an advocate may be punished on the basis of evidence led before the
disciplinary committee of the Bar Council after being afforded an opportunity of hearing.
The delinquent advocate may be suspended from the rolls of the advocates or imposed
any other punishment as provided under the Act. The enquiry is a detailed and elaborate
one and is not of a summary nature. It is therefore, not permissible for this court to punish
an advocate for "professional misconduct" in exercise of the appellate jurisdiction by
convening itself as the statutory body exercising "original jurisdiction". Indeed, if in a
given case the concerned Bar Council on being apprised of the contumacious and blame
worthy conduct of the advocate by the High Court or this Court does not take any action
against the said advocate, this court may well have the jurisdiction in exercise of its
appellate powers under Section 38 of the Act read with Article 142 of the Constitution to
proceed suo moto and send for the records from the Bar Council and pass appropriate
orders against the concerned advocate. in an appropriate case, this Court may consider the
exercise of appellate jurisdiction even suo moto provided there is some cause pending
before the concerned Bar Council, and the Bar Council does "not act" or fails to act, by
sending for the record of that cause and pass appropriate orders.

However, the exercise of powers under the contempt jurisdiction cannot be confused with
the appellate jurisdiction under Section 38 of the Act. The two jurisdictions are separate
and distinct. We are, therefore, unable to persuade ourselves to subscribe to the contrary
view expressed by the Bench in V.C. Mishra's case because in that case the Bar Council
had not declined to deal with the matter ad take appropriate action against the concerned
advocate. Since there was no cause pending before the Bar Council, this court could not
exercise its appellate jurisdiction in respect of a matter which was never under
consideration of the bar councils.
Thus, to conclude we are of the opinion that this court cannot in exercise of its
jurisdiction under Article 142 read with Article 129 of the Constitution, while punishing a
contemner for committing contempt of court, also impose a punishment of suspending his
licence to practice, where the contemner happens to be an Advocate. Such a punishment
cannot even be imposed by taking recourse to the appellate powers under Section 38 of
the Act while dealing with a case of contempt of court (and not an appeal relating to
professional misconduct as such). To that extent, the law laid down in Re: Vinay Chandra
Mishra, (1995) 2 S.C.C. 584 is not good law and we overrule it.

An Advocate who is found guilty of contempt of court may also, as already noticed, be
guilty of professional misconduct in a given case but it is for the Bar Council of the State
or Bar Council of India to punish that Advocate by either debarring him from practice or
suspending his licence, as may be warranted, in the facts and circumstances of each case.
The learned Solicitor General informed us that there have been cases where the Bar
Council of India taking note of the contumacious and objectionable conduct of an
advocate, had initiated disciplinary proceedings against him and even punished him for
"professional misconduct", on the basis of his having been found guilty of committing
contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar
Council of India, as the case may be, when apprised of the established contumacious
conduct of an advocate by the High Court or by this Court, would rise to the occasion ,
and take appropriate action against such an advocate. Under Article 144 of the
Constitution "all authorities civil and judicial, in the territory of India shall act in aid of
the Supreme Court". The Bar Council which performs a public duty and is charged with
the obligation to protect the dignity of the profession and maintain professional standards
and etiquette is also obliged to act "in aid of the Supreme Court". It must, whenever, facts
warrant rise to the occasion and discharge its duties uninfluenced by the position of the
contemner advocate. It must act in accordance with the prescribed procedure, whenever
its attention is drawn by this Court to the contumacious and unbecoming conduct of an
advocate which has the tendency to interfere with due administration of justice. It is
possible for the High Courts also to draw the attention of the Bar Council of the State to a
case of professional misconduct of a contemner advocate to enable the State Bar Council
to proceed in the manner prescribed by the Act and the rules framed thereunder. There is
no justification to assume that the Bar Councils would not rise to the occasion, as they are
equally responsible to uphold the dignity of the courts and the majesty of the and prevent
any interference in the administration of justice. Learned counsel for the parties present
before us do not dispute and rightly so that whenever a court of record, records its
findings about the conduct of an Advocate while finding him guilty of committing
contempt of court and desires or refers the matter to be considered by the concern Bar
Council, appropriate action should be initiated by the concerned Bar Council in
accordance with law with a view to maintain the dignity of the courts and to uphold the
majesty of law and professional standards and etiquette. Nothing is more destructive of
public confidence in the administration of justice than incivility, rudeness or disrespectful
conduct on the part of a counsel towards the court or disregard by the court of the
privileges of the bar. In case the Bar Council, even after receiving 'reference' from the
court, fails to take action against the concerned advocate, this court might consider
invoking its powers under Section 38 of the Act by sending for the record of the
proceedings from the Bar Council and passing appropriate orders. Of Course the appellate
powers under Section 38 would be available to this Court only and not to the High
Courts. We, however hope that such a situation would not arise.

In a given case it may be possible, for this Court or the High Court, the prevent the
contemner advocate to appear before it till he purges himself of the contempt but that is
much different from suspending or revoking his licence or debarring him to practice as an
advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct
of an Advocate-on-Record, this court possesses jurisdiction, under the Supreme Court
Rules itself, to withdraw his privilege to practice as an Advocate-an-Record because that
privilege is conferred by this court and the power to grant the privilege includes the
power to revoke or suspend it. The withdrawal of that privilege, however, does not
amount to suspending or revoking his licence to practice as an advocate in other courts or
Tribunals.

We are conscious of the fact that the conduct of the contemner of VC Misra's case was
highly contumacious and even atrocious. It was unpardonable. the contemner therein had
abused his professional privileges while practising as an advocate. he was holding a very
senior position in the Bar Council of India and was expected to act in a more reasonable
way. He did not. these factors appear to have influenced the bench in that case to itself
punish him by suspending his licence to practice also while imposing a suspending
sentence of imprisonment for committing contempt of court but while doing so this court
vested itself with a jurisdiction where none exists. The position would, have been
different had a reference been made to the Bar Council and the Bar Council did not take
any action against the concerned advocate. In that event, as already observed, this court in
exercise of its appellate jurisdiction under Section 38 of the Act read with Article 142 of
the Constitution of India, might have exercised suo moto powers and sent for the
proceedings from the Bar Council and passed appropriate orders for punishing the
contemner advocate for professional misconduct after putting him on notice as required
by the proviso to Section 38 which reads thus:-

" Provided that no order of the disciplinary committed of the Bar Council of India shall be
varied by the Supreme Court so as to prejudicially affect the person aggrieved without
giving him a reasonable opportunity of being heard."

but it could not have done so in the first instance.

In V.C. Mishra's case, the Bench, relied upon its inherent powers under Article 142, to
punish him by suspending his licence, without the Bar Council having been given any
opportunity to deal with his case under the Act. We cannot persuade ourselves to agree
with that approach. It must be remembered that wider the amplitude of its power
under Article 142, the greater is the need of care for this Court to see that the power is
used with restraint without pushing back the limits of the constitution so as to function
within the bounds of its own jurisdiction. To the extent, this Court makes the statutory
authorities and other organs of the State perform their duties in accordance with law, its
role is unexceptionable but it is not permissible or the Court to "take over" the role of the
statutory bodies or other organs of the State and "perform" their functions.
Upon the basis of what we have said above, we answer the question posed in the earlier
part of this order, in the negative. The writ petition succeeds and is ordered accordingly.

Pushpaben & Anr vs Narandas V. Badiani & Anr on 29 March, 1979

Equivalent citations: 1979 AIR 1536, 1979 SCR (3) 636
Author: S M Fazalali
Bench: Fazalali, Syed Murtaza
PETITIONER:
PUSHPABEN & ANR.

Vs.

RESPONDENT:
NARANDAS V. BADIANI & ANR.

DATE OF JUDGMENT29/03/1979

BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
KOSHAL, A.D.

CITATION:
1979 AIR 1536 1979 SCR (3) 636
1979 SCC (2) 394

ACT:
Contempt of Courts Act-Section 12(3)-Scope of-Sentence
of imprisonment-When should be awarded in civil contempt.

HEADNOTE:
Respondent No. 1 filed a complaint under s. 420 IPC
against the appellants alleging that a loan taken by them
from him had not been repaid. While the complaint
was
pending before a Magistrate the parties entered into
a
compromise under which the appellants undertook to repay the
loan before a stipulated date. The Magistrate accordingly
allowed the parties to compound the case.
When the appellants failed to repay the loan
in
accordance with the undertaking given before the
Magistrate
the respondent moved the High Court for taking
action
against the appellants for contempt of court. On the view
that the appellants had committed a willful disobedience of
the undertaking the High Court held that they were guilty of
civil contempt and sentenced them to one month's
simple
imprisonment.
Allowing the appeal in part,
^
HELD: 1. The appellants had committed
willful
disobedience of the court of the Magistrate by
committing
serious breach of the undertaking given to it on the basis
of which alone they had been acquitted. The High Court was,
therefore, right in holding that the appellants were guilty
of civil contempt under s. 2(b) of the Contempt of Courts
Act. [638 A]
2. Having regard to the circumstances of the case
the
present case falls within the first part of s. 12(3) of the
Act and a sentence of fine alone should have been awarded by
the High Court. By enacting the section the
legislature
intended that a sentence of fine alone should be imposed in
normal circumstances. Special power is, however, conferred
on the court to pass a sentence of imprisonment if it
thought that ends of justice so required. Therefore, before
a court passed a sentence of imprisonment it must
give
special reasons for passing such a sentence. [638 G]
In the present case there are no special reasons why
the appellants should be sent to jail

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 43 of 1975.

From the Judgment and Order dated 9-1-1973 of the Bombay High Court in Criminal
Application No. 681/72.

V. S. Desai, P. H. Parekh, C. B. Singh, M. Mudgol, B. L. Verma and J.C. Rajani, for the
Appellants.

M. N. Shroff for the Respondents.

The Judgment of the Court was delivered by FAZAL ALI, J.-This is an appeal under S.
19 of the Contempt of Courts Act (hereinafter called the Act) against an order of the High
Court of Bombay convicting the appellants for a Civil Contempt and sentencing them to
one month's simple imprisonment. The facts of the case have been fully detailed by the
High Court and it is not necessary for us to repeat the same all over again. It appears that
Respondent No. 1 had given a loan of Rs. 50,000/- to the appellants on certain conditions.
Somehow or other, the loan could not be paid by the appellants as a result of which
Respondent No. 1 filed a complaint under S. 420 I.P.C. against the appellants. While the
complaint was pending before the Court of the Magistrate, the parties entered into a
compromise on 22-7-1971 under which the appellants undertook to pay the loan of Rs.
50,000/- with simple interest @ 12% per annum on or before 21-7-1972. An application
was filed before the Court for allowing the parties to compound the case and acquit the
accused. The Court after hearing the parties, passed the following order:-

"The accused given an undertaking to the court that he shall repay the sum of Rs. 50,000/-
to the complainant on or before 21-7-1972 with interest as mentioned on the reverse. In
view of the undertaking, I permit the compromise and acquit the accused".

It is obvious, therefore, that the Court permitted the parties to compound the case only
because of the undertaking given by the appellants.

Thereafter, it appears, that the undertaking was violated and the amount of loan was not
paid to the Respondent No. 1 at all. The respondent, therefore, moved the High Court for
taking action for contempt of Court against the appellants as a result of which the present
proceedings were taken against them. The High Court came to the conclusion that the
appellants had committed a wilful disobedience of the undertaking given to the Court and
were, therefore, guilty of civil contempt as defined in S. 2(b) of the Act. Hence, this
appeal before us.

Mr. V. S. Desai appearing in support of the appeal has raised two short points before us.
He has submitted that there is no doubt that the appellants had violated the undertaking
but in the circumstances it cannot be said that the appellants had committed a wilful
disobedience of the orders of the Court. So far as this point is concerned, we fully agree
with the High Court. In the circumstances, the appellants undoubtedly committed wilful
disobedience of the order of the court by committing a serious breach of the undertaking
given to the Court on the basis of which alone, the appellants had been acquitted. For
these reasons, the first contention put forward by Mr. Desai, is overruled.

It is, then, contended that under S. 12(3), normally the sentence that should be given to an
offender who is found guilty of civil contempt, is fine and not imprisonment, which
should be given only where the Court is satisfied that ends of justice require the
imposition of such a sentence. In our opinion, this contention of learned counsel for the
appellants is well-founded and must prevail. Sub-section 3 of S. 12 reads thus :-

"Notwithstanding anything contained in this section, where a person is found guilty of a

civil contempt, the Court, if it considers that a fine will not meet the ends of justice and
that a sentence of imprisonment is necessary shall, instead of sentencing him to simple
imprisonment, direct that he be detained in a civil prison for such period not exceeding
six months as it may think fit".

A close and careful interpretation of the extracted section leaves no room for doubt that
the Legislature intended that a sentence of fine alone should be imposed in normal
circumstances. The statute, however, confers special power on the Court to pass a
sentence of imprisonment if it think that ends of justice so require. Thus before a Court
passes the extreme sentence of imprisonment, it must give special reasons after a proper
application of its mind that a sentence of imprisonment alone is called for in a particular
situation Thus, the sentence of imprisonment is an exception while sentence of fine is the
rule.

Having regard to the peculiar facts and circumstances of this case, we do not find any
special reason why the appellants should be sent to jail by sentencing them to
imprisonment. Furthermore, respondent No. 1 before us despite service, has not appeared
to support the sentence given by the High Court. Having regard to these circumstances,
therefore, we are satisfied that the present case, squarely falls in the first part of S.
12(3) and a sentence of fine alone should have been given by the High Court. We,
therefore, allow this appeal to this extent that the sentence of imprisonment passed by the
High Court is set aside and instead the appellants are sentenced to pay a fine of Rs. 1000/-
each. In case of default, 15 days simple imprisonment. Four weeks time to pay the fine.

P.B.R. Appeal allowed in part.

Daroga Singh & Ors vs B.K. Pandey on 13 April, 2004
Author: Bhan
Bench: R.C. Lahoti, Bhan.
CASE NO.:
Appeal (crl.) 316 of 1998

PETITIONER:
Daroga Singh & Ors.

RESPONDENT:
B.K. Pandey

DATE OF JUDGMENT: 13/04/2004

BENCH:
R.C. Lahoti & Bhan.

JUDGMENT:

J U D G M E N T With Criminal Appeal No. 317 of 1998, Criminal Appeal No. 318 of
1998, Criminal Appeal No. 332 of 1998 & Criminal Appeal No. 396 of 1998 BHAN, J.

The instant criminal appeals arising from a common judgment relating to the same
incident, depict a rare, unfortunate and condemnable act of the police officials who
contrary to the duty enjoined upon them to protect and maintain law and order, indulged
in the act of attacking in a pre-planned and calculated manner Shri D.N. Barai, Ist
Additional District and Sessions Judge, in his court room and Chambers on 18th
November, 1997 at Bhagalpur in the State of Bihar.

Facts of the present case:

In Sessions trial No. 592 of 1992, the Investigating Officer (Jokhu Singh) was examined
as a witness on 7th May, 1997 in the Court of Shri D.N. Barai, Ist Additional District and
Sessions Judge, Bhagalpur. As the cross-examination could not be concluded the case
was adjourned to 26th May, 1997. Thereafter the case was adjourned to several dates but
this witness did not appear for the cross-examination. A show cause notice was issued
against Jokhu Singh through Superintendent of Police, Madhepura, requiring him to
appear on 11th June, 1997. In spite of that Jokhu Singh did not appear. On 14th July,
1997, a wireless message was sent to him through Superintendent of Police to appear in
the court on 5th August, 1997. Once again the witness did not turn up. The Court,
therefore, having no other option issued a notice to Jokhu Singh to show cause why
proceedings under the Contempt of Courts Act (hereinafter referred to as 'the Act') be not
initiated against him. Ultimately, on 27th August, 1997 the case was adjourned to 20th
September, 1997 and to procure his presence, non-bailable warrant was issued. On this
date also the witness did not turn up. He did not file reply to the show cause notice either.
On 17th November, 1997, Jokhu Singh appeared in the court in the afternoon. Having
regard to the previous order of non-bailable warrant of arrest, he was remanded to judicial
custody. A petition for bail was filed on his behalf after the court hours. It was directed
that the same be placed for hearing on the next date.

Shri K.D. Choudhary, one of the appellants who was an office bearer of the Policemen's
Association at District Level and was posted as SHO of the Police Station in the evening
of the same day went to the Chambers of Shri Barai for release of Shri Jokhu Singh on
execution of a personal bond. Shri Barai did not agree. Thereafter he approached the
District Magistrate and on the basis of his advice he met the District Judge and renewed
his demand for release of Jokhu Singh, which was declined.

On 18th November, 1997, when the bail petition of Jokhu Singh was taken up, the
learned counsel appearing on his behalf made a prayer seeking withdrawal of the bail
application. Accordingly, the bail application was dismissed as withdrawn. Soon
thereater, a large number of police officers (without uniform), armed with lathis and other
weapons and shouting slogans against Shri Barai, barged into his court room. The court
peon Shri Bishundeo Sharma who tried to shut the door was brutally assaulted. Shri Barai
apprehending danger to his life, rushed to his Chambers and managed to bolt the door.
Unruly mob forcibly broke open the door, overpowered the bodyguard and assaulted Shri
Barai. They reiterated their demand for unconditional release of Jokhu Singh. Due to the
manhandling Shri Barai felt dizziness and became unconscious. It was due to timely
arrival of a team of doctors that his life was saved.

The police personnel after assaulting Shri Barai and his court staff, took away certain
records and damaged the doors and grills of the gate. They also assaulted some of the
lawyers and damaged their furniture and motor vehicles parked inside the court
compound. Since at the relevant time the District & Sessions Judge, Bhagalpur had gone
to Banka for holding camp court and Shri Barai was not in a position to send any report,
the 5th Additional District & Sessions Judge sent a report to the High Court narrating the
incident. On the next day, on return from Banka, District & Sessions Judge also enquired
into the matter and submitted a detailed report. In the report the names of police officials
who were identified by the court staff, Shri Barai and the lawyers were also disclosed.
They are (i) A. Natarajan, the then Superintendent of Police, Bhagalpur (ii) Harihar
Prasad Choudhary, the then Deputy Superintendent of Police, Bhagalpur, (iii) K.D.
Choudhary, the then Inspector of Police, Kotwali P.S., (iv) Ms. Shashi Lata Singh, the
then S.I., (v) Daroga singh, the then S.I. (vi) P.K. Singh, the then S.I., (vii)Rajib Rajan
Dayal alias Bhagat, the then S.I., (viii) Gurubachan Singh, the then S.I., (ix) Krishna
Ram, the then Inspector of Police, (x) C.D. Jha, the then A.S.I., (xi) K.N. Singh, the then
Officer Incharge of Harijan P.S. Bhagalpur and (xii) Ranjit Pandey, the then Sergeant
Major, Police Line, Bhagalpur.

On 19th November, 1997, on the basis of the report sent by the 5th Additional District
and Sessions Judge, Bhagalpur dated 18th November, 1997, Original Criminal
Miscellaneous Case No. 24 of 1997 was registered and placed before a Bench of the High
Court for admission. Along with the said case Civil Writ Petition C.W.J.C. No. 10625 of
1997 filed on behalf of the Young Lawyers' Association was also listed. On perusal of the
report and after hearing the three Presidents of the High Court Associations and the
Advocate General, the Court arrived at the conclusion that a prima facie case of criminal
contempt was made out against the contemners. Accordingly proceedings under
the Contempt of Courts Act were initiated and a direction was issued to the Registry to
issue notices to the above referred persons along with a copy of the report, containing
allegations against the concerned persons, calling upon them to show cause as to why
suitable action be not taken against them for the alleged misconduct. The show cause was
made returnable by 25th November, 1997. The Chief Secretary and the Director General
of Police were directed to affirm on affidavits regarding the steps taken by the State
Government in the matter relating to the incident.

On 25th November, 1997, all the contemners appeared through their respective
advocates. On a request made the hearing was postponed to 10th December, 1997 to
enable them to file their detailed replies to the show cause notice. Chief Secretary filed
his affidavit indicating that the Director General-cum-Inspector General of Police after
holding a detailed inquiry, had in his report, disclosed names of nine police officials
namely (i) K.D. Choudhary, the then Officer Incharge, Kotwali, (ii) Ranjit Pandey, the
then Sergeant Major, Bhagalpur, (iii) Ms. Shashi Lata Singh, the then S.I., (iv) K.B.
Singh, the then Thana Incharge, Harijan P.S. Bhagalpur, (v) Gurubachan singh, the then
S.I., (vi) Daroga Singh, the then S.I., (vii) Prem Kumar Singh, the then S.I. (Officer
Incharge Kajraili), (viii) Rajeev Ranjan Bhagar, the then S.I., and (ix) C.D. Jha, the then
ASI Bhagalpur.

The Director General of Police found the officers, named above, guilty for the alleged
incident and condemned the police officials for their act. It was also mentioned in the
affidavit that the State Government, acting on the basis of the report of the Director
General of Police, had issued different orders, suspending all such officials from service.
Keeping in view the gravity of the situation, a Commission of Inquiry was also set up
under the provisions of the Commission of Inquiries Act, 1952.

Besides the departmental proceedings, different criminal cases were also lodged against
them.

On behalf of some of the contemners a request was made to keep the contempt matter in
abeyance until the conclusion of the proceedings initiated under various provisions of the
Indian Penal Code, the departmental proceedings and the report of the Commission
constituted under the Commission of Inquiry Act. The request was declined by the High
Court. It was held that the pendency of a criminal case or judicial inquiry could not
constitute a bar to the continuation of the contempt proceedings. But before adjourning
the proceedings to the next date and having noticed that all the contemners and their
advocates were present and every body was condemning the occurrence, the Court
expressed the desire that some of the responsible officers like Superintendent of Police,
Deputy Superintendent of Police, Inspector of Police Kotwali Shri K.D. Choudhary and
Sub-Inspector of Police Ms. Shashi Lata Singh and Sergeant Major of Police Line Ranjit
Pandey should disclose details of the occurrence which had taken place in the court
premises on 18th November, 1997 and if possible, identify more names of such persons,
who, according to them, had taken part at the time of occurrence. On the adjourned date
of hearing, the Court recorded the statement of (i) A. Natarajan, the then S.P., (ii) Harihar
Choudhary, the then DSP, (iii) K.D. Choudhary, the then Inspector of Police, Kotwali
P.S., (iv) Ms. Shashi Lata Singh, the then S.I., and (v) Ranjit Pandey, the then Sergeat
Major, Bhagalpur. The Superintendent of Police in his statement fairly narrated a part of
the incident and identified certain more names, like Awadhesh Singh, Subodh Kumar
Yadav and Aswan, Vice-President of the Association who, according to him, had also
taken part in the alleged assault. The court issued notices to these three persons also
calling upon them to show cause why they be also not proceeded for the criminal
contempt. The officials whose statements had been recorded were directed to file their
additional or supplementary replies to the show cause on the next date of hearing.

On 10th December, 1997, all the contemners appeared and filed additional or
supplementary replies to show cause notice. The Superintendent of Police in his
supplementary reply disclosed names of 14 more police officials and constables, who, as
per his inquiry, had also taken part along with the main persons named earlier. They are
(i) Ram suresh Singh 'Nirala', SI, (ii) Sriram Singh, ASI, (iii) Ram Rekha Pandey, SI, (iv)
Shivji Singh, SI, (v) B.N. Singh, ASI, Kotwali, (vi) Sukh Narain Sharma, SI,

(vii) D.D. Singh Officer Incharge, Tatarpur P.S., (viii) Gopalji Prasad, SI,

(ix) Madhusudhan Sharma O/c Sultanganj P.S., (x) Awadesh Singh, Constable, (xi)
Subodh Kumar Yadav, Constable, (xii) Ram Prakash Paswan, Constable, (xiii) Dilip
Ojha, Treasure, Policemen's Association, Bhagalpur, and (xiv) Anil Kumar Soren,
General Secretary, Policemen's Association.

Notices were issued to the above-named persons as well along with copies of the report
calling upon them to show cause by 8th January, 1998 as to why they be also not
proceeded with the criminal contempt. On 9th January, 1998 all the contemners including
those fourteen against whom notices were issued on 10th December, 1997 appeared and
filed their replies to the show cause notice.

At the same time, affidavits were also filed on behalf of Shri Barai, Ist Additional District
& Sessions Judge, Bhagalpur and his staff namely R. Das and B.Sharma and some of the
lawyers of the Bhagalpur Court namely Shri M.P.Singh, President Bar Association,
Bhagalpur, Shri Y.K. Rai, Secretary, Advocate Assiciation and S/Shri N.K. Choudhary,
J.K.,Gupta (Secretary, Bar Association), B.N. Mishra and S.C.Pandey, Advocates. Copies
of the affidavits filed were served on their opposites on 16th January, 1998 all the learned
advocates appearing for different parties fairly accepted that copies of all the material
brought on the record so far was properly served on the advocates appearing for the
contemners and those who were appearing in support of the contempt proceedings.

In response to the show cause all the contemners in their affidavits condemned the
incident of assault on Shri Barai and the lawlessness created in the civil court campus,
Bhagalpur. It would be relevant to notice that some of the contemners like Harihar
Choudhary, DSP, K.D. Choudhary, Inspector of Police and few others have tried to
justify the act by saying that there was a resentment amongst the police personnels for the
arrest of Jokhu Singh and removal of stars from his uniform in the court. The reply of the
Superintendent of Police also indicated that because of such steps taken by Shri Barai the
Police Officers Association led by Shri K.D. Choudhary on 17th December, 1997 met the
Inspector General (Prosecution) and the Zonal I.G. and protested against the arrest of
Jokhu Singh and the removal of stars. After showing their resentment these contemners
also criticised the unfortunate incident and assault on Shri Barai, and his staff but they
denied their presence at the time of incident in the court premises on 18th November,
1997. Show cause notice had been issued to 26 persons. Except for one or two the
remaining asserted that they were not involved in the incident and were on duty
elsewhere at the relevant time. In proof of such defence they attached their duty chart etc.
After considering the relevant evidence on the record, and after taking due care and
caution to see that innocent persons are not punished the High Court dropped the
proceedings against the contemners other than Shri K.D. Choudhary, Ms. Shashi Lata
Singh, Daroga Singh, P.K. Singh, Rajib Ranjan Bhagat (Dayal), Gurubachan Singh, C.D.
Jha, K.N. Singh and Ranjit Pandey. Shri K.D. Choudhary was found to be the ring leader
of the contemners and was imposed with the punishment of undergoing simple
imprisonment for a period of three months and the remaining eight to undergo simple
imprisonment for a period of two months. It was made clear that the discharge of rule of
contempt notice of the proceedings against the other seventeen would not absolve them of
their misconduct and guilt for their respective offences, if any. In other words, the
departmental proceedings initiated by the State Government and the criminal cases
registered against them would not be affected by the disposal of the proceedings in the
criminal contempt.

Learned counsel appearing for the State of Bihar, has fairly stated that neither the
departmental proceedings nor the criminal cases nor the Commission of Inquiry have
been concluded so far. The plea taken is that they are awaiting the result of the present
appeals.

Appellants who were convicted under the Contempt of Courts Act and visited with the
punishment of simple imprisonment have filed five different appeals. S/Shri Daroga
Singh, Chakradhar Jha, Shashi Lata Singh and P.K. Singh have filed Criminal Appeal No.
316 of 1998, Shri K.D. Choudhary has filed Criminal Appeal No. 332 of 1998, Shri
Kedar Nath Singh has filed Criminal Appeal No. 318 of 1998, Shri Ranjeet Pandey has
filed Criminal Appeal No. 317 of 1998 and Shri Gurbachan Singh and Rajib Ranjan
Dayal have filed Criminal Appeal No. 396 of 1998. Daroga Singh, P.K. Singh, C.D. Jha
have already retired from service. The remaining are still in service and posted at
different places.

Learned counsels appearing for the appellants in different appeals, apart from the merits
in individual appeals, which we shall deal with later, have raised some common points
challenging the correctness of the impugned judgment. The same are:

(i) the alleged contempt is that of a court subordinate to the High Court and the
allegations made constitute an offence under Section 228 IPC, and therefore the
jurisdiction of the High Court to take cognizance of such a case is expressly barred under
proviso to Section 10 of the Act;
(ii) that the High Court cannot take suo motu notice of the contempt of a court
subordinate to it. The procedure given in the High Court Rules and Orders for initiation
of proceedings for contempt of subordinate court having not been followed the entire
proceedings are vitiated and liable to be quashed;

(iii) the standard of proof required in the criminal contempt is the same as in a criminal
charge and therefore the charge of criminal contempt has to be proved by holding a trial
as in a criminal case. The appellants could not be convicted on the basis of evidence by
way of affidavits only. The witnesses should have been examined in Court and in any
case the appellants should have been given an opportunity to cross- examine the persons
who had deposed against them on affidavits to verify the version of the incident as
according to them there were conflicting versions of the incident;

(iv) reasonable and adequate opportunity was not afforded to the appellants either to
defend themselves or put forward their case; and

(v) affidavits of independent witnesses which were on record have not been dealt with by
the High Court.

Answer to the first point would depend upon the interpretation to be put on Section 10 of
the Act. Section 10 which deals with the power of the High Court to punish for the
contempt of subordinate courts reads:

"10. Power of High Court to punish contempts of subordinate courts.- Every High Court
shall have and exercise the same jurisdiction, powers and authority, in accordance with
the same procedure and practice, in respect of contempts of courts subordinate to it as it
has and exercises in respect of contempts of itself:

Provided that no High Court shall take cognizance of a contempt alleged to have been
committed in respect of a court subordinate to it where such contempt is an offence
punishable under the Indian Penal Code (45 of 1860)."

According to the learned counsels appearing for the appellants the proviso to Section
10 means that if the act by which a party is alleged to have committed contempt of a
subordinate court constitutes offence of any description whatsoever punishable under the
Indian Penal Code, the High Court is precluded from taking cognizance of it. According
to them in the present case the allegations made amounts to an offence under Section
228 of the Indian Penal Code and consequently the jurisdiction of the High Court is
barred.

We do not find any force in this submission. The point raised is concluded against the
appellants by a judgment of the Constitution Bench of this Court in Bathina Ramakrishna
Reddy Vs. The State of Madras, 1952 SCR 425. In that case, sub-section (3) of Section
2 of the Contempt of Courts Act, 1926 which is similar to proviso to Section 10 of the
Act was under consideration. Section 2(3) of the Contempt of Courts Act, 1926 provided
that no High Court shall take cognizance of a contempt alleged to have been committed in
respect of a court subordinate to it where such contempt is an offence punishable
under the Indian Penal Code. Interpreting this Section, it was held that sub-section (3)
excluded the jurisdiction of the High Court to take cognizance of a contempt alleged to
have been committed in respect of a court subordinate to it only in cases where the acts
alleged to constitute contempt are punishable as contempt under specific provisions of the
Indian Penal Code, but not where these acts merely amount to offences of other
description for which punishment has been provided in the Indian Penal Code.

This judgment was analyzed and followed by a Bench of three Judges of this Court in the
State of Madhya Pradesh Vs. Revashankar, 1959 SCR 1367. In this case as well the point
arose regarding the interpretation to be put to a similar provision and it was held:

"The sub-section was considered in two decisions of this Court, Bathina Ramakrishna

Reddy v. The State of Madras ([1952] S.C.R. 425) and Brahma Prakash Sharma v. The
State of Uttar Pradesh ([1953] S.C.R. 1169). In the earlier case of Ramakrishna Reddy
([1952] S.C.R. 425) the appellant was the publisher and managing editor of a Telugu
Weekly known as "Praja Rajyam". In an issue of the said paper dated February 10, 1949,
an article appeared which contained defamatory statements about the stationary Sub-
Magistrate, Kovvur, and the point for consideration was if the jurisdiction of the High
Court to take cognisance of such a case was expressly barred under section 2(3) of the
earlier Contempt of Courts Act, when the allegations made in the article in question
constituted an offence under section 499, Indian Penal Code. On behalf of the appellant it
was argued that what the sub-section meant was that if the act by which the party was
alleged to have committed contempt of a subordinate court constituted offence of any
description whatsoever punishable under the Indian Penal Code, the High Court was
precluded from taking cognizance of it. This argument was repelled and this Court said
(at page 429) :-

"In our opinion, the sub-section referred to above excludes the jurisdiction of High Court
only in cases where the acts alleged to constitute contempt of a subordinate court are
punishable as contempt under specific provisions of the Indian Penal Code but not where
these acts merely amount to offences of other description for which punishment has been
provided for in the Indian Penal Code. This would be clear from the language of the sub-
section which uses the words "where such contempt is an offence"

and does not say "where the act alleged to constitute such contempt is an offence."

On an examination of the decisions of several High Courts in India it was laid down that
the High Court had the right to protect subordinate courts against contempt but subject to
this restriction, that cases of contempt which have already been provided for in the Indian
Penal Code should not be taken cognizance of by the High Court. This, it was stated, was
the principle underlying section 2(3) of the Contempt of Courts Act, 1926. This Court
then observed that it was not necessary to determine exhaustively what were the cases of
contempt which had been already provided for in the Indian Penal Code; it was pointed
out, however, that some light was thrown on the matter by the provision of section 480 of
the Code of Criminal Procedure which empowers any civil, criminal or revenue court to
punish summarily a person who is found guilty of committing any offence under sections
175, 178, 179, 180 or section 228 of the Indian Penal Code in the view or presence of the
court. The later decision of Brahma Prakash Sharma ([1953] S.C.R. 1169) explained the
true object of contempt proceedings.
Mukherjea J. who delivered the judgment of the Court said (at page 1176) :

"It would be only repeating what has been said so often by various Judges that the object
of contempt proceedings is not to afford protection to Judges personally from imputations
to which they may be exposed as individuals; it is intended to be a protection to the public
whose interests would be very much affected if by the act or conduct of any party, the
authority of the court is lowered and the sense of confidence which people have in the
administration of justice by it is weakened."

It was also pointed out that there were innumerable ways by which attempts could be
made to hinder or obstruct the due administration of justice in courts and one type of such
interference was found in cases where there was an act which amounted to "scandalising
the court itself" : this scandalising might manifest itself in various ways but in substance
it was an attack on individual Judges or the court as a whole with or without reference to
particular cases, causing unwarranted and defamatory aspersions upon the character and
ability of the Judges. Such conduct is punished as contempt for the reason that it tends to
create distrust in the popular mind and impair the confidence of the people in the courts
which are of prime importance to the litigants in the protection of their rights and
liberties."

These two judgments have been followed recently in Arun Paswan, S.I. vs. State of Bihar
& Others [2003 (10) SCALE 658]. We respectfully agree with the reasoning and the
conclusions arrived at in these cases.

"Criminal contempt" is defined in Section 2 (c) of the Act, to mean:

"(c) "criminal contempt" means the publication (whether by words, spoken or written, or
by signs, or by visible representation, or otherwise) of any matter or the doing of any
other act whatsoever which -

(i) scandalises or tends to 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;"

Section 228 of the Indian Penal Code provides:

"228. Intentional insult or interruption to public servant sitting in judicial proceeding.-

Whoever intentionally offers any insult, or causes any interruption to any public servant,
while such public servant is sitting in any stage of a judicial proceeding, shall be punished
with simple imprisonment for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both."
What is made publishable under Section 228, IPC is the offence of intentional insult to a
Judge or interruption of court proceedings but not as a contempt of Court. The definition
of criminal contempt is wide enough to include any act by a person which would either
scandalize the court or which would tend to interfere with the administration of justice. It
would also include any act which lowers the authority of the Court or prejudices or
interferes with the due course of any judicial proceedings. It is not limited to the offering
of intentional insult to the Judge or interruption of the judicial proceedings. This Court
observed in Delhi Judicial Service Association Vs. State of Gujarat & Ors. , 1991 (4)
SCC 406:

"...The public have a vital stake in effective and orderly administration of justice. The
Court has the duty of protecting the interest of the community in the due administration of
justice and, so, it is entrusted with the power to commit for contempt of court, not to
protect the dignity of the Court against insult or injury, but, to protect and vindicate the
right of the public so that the administration of justice is not perverted, prejudiced,
obstructed or interfered with. The power to punish for contempt is thus for the protection
of public justice, whose interest requires that decency and decorum is preserved in Courts
of Justice. Those who have to discharge duty in a Court of Justice are protected by the
law, and shielded in the discharge of their duties. Any deliberate interference with the
discharge of such duties either in court or outside the court by attacking the presiding
officers of the court, would amount to criminal contempt and the courts must take serious
cognizance of such conduct."

In the present case, a judicial officer of the rank of District Judge was attacked in a pre-
planned and calculated manner in his court room and when he tried to protect himself
from physical harm by retiring to his chambers, by chasing him there and causing injuries
to him. The raising of slogans and demanding unconditional bail for Jokhu Singh further
compounded the offence. The Courts cannot be compelled to give "command orders".
The act committed amounts to deliberate interference with the discharge of duty of a
judicial officer by intimidation apart from scandalizing and lowering the dignity of the
Court and interference with the administration of justice.The effect of such an act is not
confined to a particular court or a district, or the State, it has the tendency to effect the
entire judiciary in the country. It is a dangerous trend. Such a trend has to be curbed. If
for passing judicial orders to the annoyance of the police the presiding officers of the
Courts are to be assaulted and humiliated the judicial system in the country would
collapse.

The second contention raised on behalf of the appellants is that the High Court cannot on
its own motion take action of a criminal contempt of a subordinate court. According to
the learned counsels the High Court can take cognizance of a criminal contempt
under Section 15 (2) of the Act of a subordinate court only on a reference made to it by
the subordinate court or on a motion made by the Advocate General. Since the procedure
as laid down in the High Court Rules and Orders had not been followed the very initiation
of proceedings for contempt was vitiated and therefore liable to be quashed. We do not
find any force in this submission as well. This point also stands concluded against the
appellants by a decision of this Court in S.K. Sarkar, Member, Board of Revenue, U.P.
Lucknow, Vs. Vinay Chandra Misra, [1981 (1) SCC 436]. In this case an advocate filed a
petition before the High Court under the Contempt of Courts Act alleging that the
appellant therein as a Member of Revenue Board made certain contemptuous remarks,
viz., nalayak gadhe saale ko jail bhijwa dunga; kis idiot ne advocate bana diya hai and
acted in a manner which amounted to criminal contempt of the Court of Revenue Board,
in which he (the advocate) was the counsel for one of the parties. The advocate requested
the High Court to take suo motu action under the Contempt of Court Act against the
member of the Revenue Board or pass such orders as it deemed fit. The question for
determination was whether the High Court was competent to take cognizance of contempt
of a subordinate court when it was moved by a private petitioner and not in accordance
with either of the two motions mentioned in Section 15 (2). Analyzing Section 15 (2) of
the Act and in reading it in harmony with Section 10 of the Act it was held:

"16. Section 2(c) of the Act defines "criminal contempt". Section 9 emphasizes that

"nothing contained in this Act shall be construed as implying that any disobedience,
breach, publication or other act is punishable as contempt of court which would not be so
punishable apart from this Act". Section 10 runs as under :

Every High Court shall have and exercise the same jurisdiction, powers and authority, in
accordance with the same procedure and practice, in respect of contempts of courts
subordinate to it as it has and exercises in respect of contempts of itself :

Then, there is a proviso which is not material for our purpose. The provision in Section
10 is but a replica of Section 3 of the 1952 Act. The phrase "courts subordinate to it" used
in Section 10 is wide enough to include all courts which are judicially subordinate to the
High Court, even though administrative control over them under Article 235 of the
Constitution does not vest in the High Court. Under Article 227 of the Constitution the
High Court has the power of superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction. The Court of Revenue Board,
therefore, in the instant case, is a court "subordinate to the High Court" within the
contemplation of Section 10 of the Act.

17. Section 14 provides for the procedure where contempts is committed in the face of the
Supreme Court or a High Court. Section 15 is very material for our purpose. It provides
in regard to cognizance of "criminal contempt" in cases other than those falling
under Section 14. The material portion of Section 15 reads thus :

15. (1) In the case of a 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.

(2) In the case of any criminal contempt of a subordinate court, the High Court may take
action on a reference made to it by the subordinate court or on a motion made by the
Advocate General or, in relation to a union territory, by such law officer as the Central
Government may, by notification in the Official Gazette, specify in this behalf ...
The operation of sub-section (1) appears to be confined to cases of "criminal contempt"

of the Supreme Court or the High Court, itself. Criminal contempt of a subordinate court
is dealt with in sub-section (2).

18. A comparison between the two sub-sections would show that whereas in sub-section
(1) one of the three alternative modes for taking cognizance, mentioned is "on its own
motion", no such mode is expressly provided in sub-section (2). The only two modes of
taking cognizance by the High Court mentioned in sub-section (2) are : (i) on a reference
made to it by a subordinate court; or (ii) on a motion made by the Advocate General, or in
relation to a union territory by the notified Law Officer. Does the omission in Section
15(2) of the mode of taking suo motu cognizance indicate a legislative intention to debar
the High Court from taking congnizance in that mode of any criminal contempt of a
subordinate court ? If this question is answered in the affirmative, then, such a
construction of sub-section (2) will be inconsistent with Section 10 which makes the
powers of the High court to punish for contempt of a subordinate court, coextensive and
congruent with its power to punish for its own contempt not only in regard to quantum or
prerequisites for punishment, but also in the matter of procedure and practice. Such a
construction which will bring Section 15(2) in conflict with Section 10, has to be avoided,
and the other interpretation which will be in harmony with Section 10 is to be accepted.
Harmoniously construed, sub-section (2) of Section 15 does not deprive the High Court
of the power of taking cognizance of criminal contempt of a subordinate court, on its own
motion, also. If the intention of the legislature was to take away the power of the High
Court to take suo motu cognizance of such contempt, there was no difficulty in saying so
in unequivocal language, or by wording the sub-

section in a negative form. We have, therefore, no hesitation in holding in agreement with

the High Court, that sub-section (2) of Section 15, properly construed, does not restrict
the power of the High Court to take cognizance of and punish contempt of a subordinate
court, on its own motion."

[Emphasis supplied] We respectfully agree with the view taken in this judgment and hold
that the High Court could initiate proceedings on its own motion under the Contempt of
Courts Act against the appellants. On the facts of this case apart from the report sent by
the 5th Additional District & Sessions Judge of the incident, Young Lawyers Association
had also filed a writ petition. The Presidents of the three Bar Associations and the
Advocate General were present and heard before initiating the proceedings for the
criminal contempt. It has been noted by the High Court that "all the three Presidents of
the High Court Associations and the Advocate General arrived at the conclusion that a
prima facie case of criminal contempt was made out against the contemners". This shows
that the Advocate General of the State was also of the opinion that prima facie a case for
initiation of proceedings for criminal contempt was made out and he was a consenting
party to the initiation of the proceedings.

The third contention raised by the learned counsel for the appellants is that the standard of
proof required in the criminal contempt is the same as in a criminal charge and therefore
the charge of criminal contempt has to be proved beyond reasonable doubt. That the
appellants could not be convicted on the basis of the affidavits filed. That the witnesses
should have been examined in Court and in any case the appellants should have been
given an opportunity to cross-examine the persons who had deposed against them on
affidavits to verify the version of the incident as according to them there were conflicting
versions of the incident. It was emphasized that justice must not only be done, but must
be seen to be done by all concerned to establish confidence that the contemners will
receive a fair, just and impartial trial. We do not find any substance in this submission as
well. High Court in its order has noted that the learned counsels appearing for both the
parties have taken a stand that all possible fair and proper opportunities were extended to
them. In view of the statements made by the counsels for the parties it will not be open to
the counsels for the parties at this stage to take the stand that in the absence of cross-
examination of the concerned persons, reliance could not be placed on the statements
which were made on oath. Learned counsel who had appeared for the contemners before
the High Court did not claim the right of cross-examination. Only at the stage of
arguments a submission was made that opportunity to cross- examine the concerned
persons was not given which vitiated the trial. High Court rejected this contention by
holding that such a stand could not be taken at that stage of the proceedings. It has been
held in Arun Paswan case (supra) that a party which fails to avail of the opportunity to
cross- examine at the appropriate stage is precluded from taking the plea of non-
observance of principles of natural justice at a later stage. Such a plea would not be
tenable.

It has repeatedly been held by this Court (Ref: 1995 (2) SCC 584) that the procedure
prescribed either under the Code of Criminal Procedure or under the Evidence Act is not
attracted to the proceedings initiated under Section 15 of the Contempt of Courts Act. The
High Court can deal with such matters summarily and adopt its own procedure. The only
caution that has to be observed by the Court in exercising this inherent power of summary
procedure is that the procedure followed must be fair and the contemners are made aware
of the charges levelled against them and given a fair and reasonable opportunity. Having
regard to the fact that contempt proceedings are to be decided expeditiously in a summary
manner the convictions have been recorded without extending the opportunity to the
contemners to cross examine those who had deposed against them on affidavits. Though
the procedure adopted in this case was summary but adequate safeguards were taken to
protect the contemners' interest. The contemners were issued notices apprising them of
the specific allegations made against them. They were given an opportunity to counter the
allegations by filing their counter affidavits and additional counter/supplementary
affidavits as per their request. They were also given opportunity to file affidavits of any
other persons which they did. They were given opportunities to produce any other
material in their defence which they did not do. Most of the contemners had taken the
plea that at the relevant time they were on duty in their respective Police Stations though
in the same town. They also attached copies of station diaries and duty chart in support of
their alibi. The High Court did not accept the plea of alibi as all these papers had been
prepared by the contemners themselves and none of the superior officer had supported
such a plea. The evidence produced by the respondents was rejected in the face of the
reports made by the Additional District and Sessions Judge, Director General of Police
coupled with affidavits of Mr. Barasi, the Additional District and Sessions Judge, two
court's officials and affidavits of some of the lawyers who had witnessed the occurrence.
The contempt proceedings have to be decided in a summary manner. The Judge has to
remain in full control of the hearing of the case and immediate action is required to be
taken to make it effective and deterrent. Immediate steps are required to be taken to
restore order as early and quickly as possible. Dragging the proceedings unnecessarily
would impede the speed and efficiency with which justice has to be administered. This
Court while considering all these aspects held in In re: Vinay Chandra Mishra (the
alleged contemner), 1995 (2) SCC 584, that the criminal contempt no doubt amounts to
an offence but it is an offence sui generis and hence for such offence, the procedure
adopted both under the common law and the statute law in the country has always been
summary. It was observed that the need was for taking speedy action and to put the Judge
in full control of the hearing. It was emphasised that immediate steps were required to be
taken to restore order in the court proceedings as quickly as possible. To quote from the
above-referred to case "However, the fact that the process is summary does not mean that
the procedural requirement, viz., that an opportunity of meeting the charge, is denied to
the contemner. The degree of precision with which the charge may be stated depends
upon the circumstances. So long as the gist of the specific allegations is made clear or
otherwise the contemner is aware of the specific allegation, it is not always necessary to
formulate the charge in a specific allegation. The consensus of opinion among the
judiciary and the jurists alike is that despite the objection that the Judge deals with the
contempt himself and the contemner has little opportunity to defend himself, there is a
residue of cases where not only it is justifiable to punish on the spot but it is the only
realistic way of dealing with certain offenders. This procedure does not offend against the
principle of natural justice, viz., nemo judex in sua causa since the prosecution is not
aimed at protecting the Judge personally but protecting the administration of justice. The
threat of immediate punishment is the most effective deterrent against misconduct. The
Judge has to remain in full control of the hearing of the case and he must be able to take
steps to restore order as early and quickly as possible. The time factor is crucial. Dragging
out the contempt proceedings means a lengthy interruption to the main proceedings which
paralyses the court for a time and indirectly impedes the speed and efficiency with which
justice is administered. Instant justice can never be completely satisfactory yet it does
provide the simplest, most effective and least unsatisfactory method of dealing with
disruptive conduct in court. So long as the contemner's interests are adequately
safeguarded by giving him an opportunity of being heard in his defence, even summary
procedure in the case of contempt in the face of the court is commended and not faulted."

In the present case the High Court had decided to proceed with the contempt proceedings
in a summary manner. Due opportunity was afforded to all the contemners and after
verifying and cross checking the material available before it, coming from different
reliable sources the High Court convicted only nine persons out of twenty six persons
arrayed as contemners before it. The High Court took due care to ascertain the identity of
the contemners by cross-checking with the affidavits filed by the different persons. It is
also based on the independent reports submitted by the Director General of Police and
Superintendent of Police. We do not find any fault in the procedure adopted by the High
Court in conducting the proceedings in the present case. For the survival of the rule of
law the orders of the courts have to be obeyed and continue to be obeyed unless
overturned, modified or stayed by the appellate or revisional courts. The court does not
have any agency of its own to enforce its orders. The executive authority of the State has
to come to the aid of the party seeking implementation of the court orders. The might of
the State must stand behind the Court orders for the survival of the rule of the court in the
country. Incidents which undermine the dignity of the courts should be condemned and
dealt with swiftly. When a judge is attacked and assaulted in his court room and chambers
by persons on whose shoulders lay the obligation of maintaining law and order and
protecting the citizen against any unlawful act needs to be condemned in the severest of
terms. If judiciary has to perform its duties and functions in a fair and free manner, the
dignity and the authority of the courts has to be respected and maintained at all stages and
by all concerned failing which the very constitutional scheme and public faith in the
judiciary runs the risk of being lost.

It was urged with some vehemence that principles of natural justice were not observed in
as much as opportunity to cross examine the witnesses who had deposed on affidavits is
concerned it may be stated that no such opportunity was asked for in the High Court at
trial stage. It was for them to ask for such an opportunity to cross examine the parties who
had deposed against them on affidavit. Since the contemners did not avail of the
opportunity at the trial stage the plea of non-observations of principles of natural justice is
not tenable. Appellants were made aware of the procedure which was adopted by the
High Court. They were given full opportunity to put forth their point of view. Each of
them filed detailed affidavits along with evidence in support thereof. They had attached
their duty charts showing that they could not have been present at the place of occurrence
as they were on duty somewhere else. High Court has considered and discussed the entire
evidence present on the record before recording the conviction. The contention that the
affidavits of independent witnesses were not considered cannot be accepted. Only those
were convicted against whom corroboration of the fact of their presence and participation
in the incident was confirmed from more than one source.

Plea that reasonable and adequate opportunity was not afforded to the appellants is
equally untenable. We find from the record that all the material (affidavits, show cause
notice etc.) which were brought on record was properly served on the learned advocates
appearing for the contemners. The reports submitted by the 5th Additional Sessions
Judge, District Judge affidavit of Shri Barai and his staff, namely, R. Dass and B. Sharma
and the other affidavits of the advocates who had seen the occurrence and the reports
submitted by the Director General of Police and the Superintendent of Police were given
to the learned advocates who were appearing in the contemners in the High Court.
Statements of A. Natarajan, the then S.P., Harihar Chaudhary, the then Deputy
Superintendent of Police, Ranjeet Pandey, the then Sergeant Major and Shashilata Singh,
the then S.I. were recorded by the High Court in the presence of all the lawyers. The
Registry of the High Court was directed to keep their statements in a sealed cover. The
contemners were permitted to file affidavits and produced any other material in support of
the same. They were also permitted to file affidavits of any other person supporting their
version. They were all taken on record. After affording due opportunity of hearing to the
counsels appearing for the contemners the High Court recorded the order of conviction.
Thus the appellants were given the evidence which had come on the record. They were
given an opportunity to controvert the allegations made against them and produce
evidence in support thereof. Counsel appearing for the contemners were satisfied with the
opportunity provided to them by the High Court. Plea that reasonable opportunity was not
afforded to the contemners was not raised before the High Court. We are of the opinion
that due reasonable and adequate opportunity was afforded to the appellants to defend
themselves and put forth their point of view. The High Court has taken into consideration
the entire evidence and material available on the record including the evidence produced
by the contemners. It was not necessary for the High Court to discuss each and every
affidavit individually. Out of 26 persons named only 9 have been convicted by the High
Court. Since the procedure adopted was summary the High Court has taken care not to
convict a person unless direct evidence and/or circumstances with sufficient corroborative
material doubtless fastening guilt on the contemners who have been punished was
available. The High Court found only those contemners guilty against whom the element
of doubt was completely eliminated. Affidavit evidence if based on hearsay has been
excluded. Contemners against whom there was single identification were also given the
benefit of doubt. The version put forth by the appellants was not accepted as it fell short
of proof. High Court has considered the entire evidence on the record while recording a
finding of guilt against the appellants. Thus the plea that the High Court did not take into
consideration the affidavits of independent witnesses is not tenable.

Learned counsel for the appellants tried to point out that the appellants were not present at
the scene of incident as the appellants were on duty elsewhere. He made reference to their
duty charts which had been placed on record. We find that the presence of S/Shri K.D.
Choudhary, Ranjit Pandey, Ms. Shashi Lata Singh, K.B. Singh, Gurubachan Singh,
Daroga Singh, Prem Kumar Singh, Rajeev Ranjan Bhagar and C.D.Jha, appellants herein
has been confirmed by several persons. The plea of ali bi taken by the appellants has been
negatived by the High Court as the duty charts had been prepared by these officers
themselves. None of the superior officers supported their versions. Presence of most of
the appellants had been confirmed by the 5th Additional Sessions Judge, Shri Barai, the
other two Court officials, advocates, the reports of Director General of Police and the
Superintendent of Police. None of these has any interest in falsely implicating any of the
appellants.

It is unfortunate that neither the criminal proceedings nor the disciplinary proceedings or
the inquiry under the Commission of Inquiry Act have been concluded. No doubt the
appellants had been suspended initially but in due course they have been reinstated. Some
of them have retired as well. Inaction on the part of the authorities resulted in
emboldening others to commit similar acts. In Arun Paswan (supra), proceedings for
criminal contempt were initiated against the appellant therein pursuant to the complaint
lodged by the District & Sessions Judge, Sasaram addressed to the Registrar General of
the High Court of Patna. In the report it was stated, inter alia, that S.I. Arun Paswan
(contemner) was directed to produce the case diary in case No. 2000/2001 under Sections
302 and 201/34 I.P.C. As the investigation officer did not appear in the case on the date
fixed the District & Sessions Judge issued notice requesting the investigation officer to
appear personally to show cause as why he should not be prosecuted under Section
349 Criminal Procedure Code. The investigation officer produced the case diary and
replied to the show cause notice. The court was not satisfied with the cause shown for
absence and rejected the explanation. Contemnor was directed to remain present in the
court till the rising of the court at 4.30 P.M.. A group of persons in plain clothes as also in
police uniforms came on the road in front of the court room of the District & Sessions
Judge and started raising the abusive slogans against the District & Sessions Judge. One
of the slogans raised was "District Judge Murdabad, Bhagalpur Dohrana Hai".
Proceedings under the Contempt of Courts Act were initiated. They were convicted under
the Contempt of Courts Act and their conviction was upheld by this Court. What is being
emphasised is that had timely action been taken by the authorities and the criminal
proceedings concluded in time, incident, as referred to above, where slogans were raised
"District Judge Murdabad, Bhagalpur Dohrana Hai" could have been avoided.

The incident with which we are dealing with took place on 18th November 1997. The
incident which has been dealt with in the case of Arun Paswan, S.I. (supra) is dated 20th
January, 2002. Both the incidents have taken place in the State of Bihar, one in Bhagalpur
and the other in Sasaram. The manner in which the police personnel belonging to middle
level of police administration and entrusted with such responsibilities as require theirs
coming into contact with public day to day persuades us to make observation that there is
something basically wrong with the police in Bihar. Misconduct amounting to gross
violation of discipline committed not by a single individual but by so many collectively
and that too by those who have formed an association consisting of members of a
disciplined force in uniform was not promptly and sternly dealt with by the State or its
senior officials so as to take care to see that such incident, even if happened, remains
solitary incident. Faced with the initiation of contempt proceedings, the persons
proceeded against did not have the courtesy of admitting their guilt and tendering an
apology which if done could have been dealt with mercy. They decided to contest, of
course the justice administration system allows them the liberty of doing so ____ and
they had every right of doing so ____ but at the end it has been found that their pleas
were false and their denial of charges was aimed at prolonging the hearing as much as
they could. We are shocked to learn that the criminal courts seized of trial of the accused
persons on substantive charges for offences under the penal law of the land are awaiting
the decision of this appeal? Why for? Neither the High Court nor this Court has ever
directed the proceedings before the criminal Courts to remain stayed. The criminal Court
shall have to decide on the charges framed against the accused persons on the basis of the
evidence adduced in those cases and not on the basis of this judgment.

Though we have found no merit in any of the pleas raised on behalf of the appellants and
we have formed an opinion without hesitation that the appeals are to be dismissed, this is
a case the facts whereof persuade us to place on record certain observations of ours.

In the constitutional scheme the judiciary is entrusted with the task of upholding the
Constitution and the laws. Apart from interpreting the Constitution and the laws, the
judiciary discharges the function of securing maintenance of law and order by deciding
the disputes in a manner acceptable to civilised and peace loving society. In order to
maintain the faith of the society in the rule of law the role of the judiciary cannot be
undermined. In a number of cases this Court has observed that foundation of the judiciary
is the trust and confidence of the people of the nation and when such foundation or trust is
rudely shaken by means of any disrespect by the very persons who are required to enforce
the orders of the court and maintain law and order the people's perception of efficacy of
the systems gets eroded.

The Judges are ___ as a jurist calls ___ 'paper tigers'. They do not have any machinery of
their own for implementing their orders. People, while approaching the Court of law
which they regard as temple of justice, feel safe and secure whilst they are in the Court.
The police personnel is deployed in the Court campus for the purpose of maintaining
order and to see that not only the Judges can work fearlessly in a calm, cool and serene
atmosphere but also to see that anyone coming to the Court too feels safe and secure
thereat. Every participant in court proceedings is either a seeker of justice or one who
comes to assist in administration of justice. So is the expectation of the members of the
Bar who are treated as officers of the Court. We shudder to feel what would happen if the
police personnel itself, and that too in an organised manner, is found to be responsible for
disturbing the peace and order in the Court campus, for causing assault on the Judges and
thus sullying the temple of justice apart from bringing a bad name to an indispensable
organ of the executive wing of the State.

Police is the executive force of the State to which is entrusted the duty of maintaining law
and order and of enforcing regulations for the prevention and detection of crime.
(Encyclopaedia Britanica, Vol.58, p.158). The police force is considered by the society as
an organised force of civil officers under the command of the State engaged in the
preservation of law and order in the society and maintaining peace by enforcement of
laws and prevention and detection of crime. One who is entrusted with the task of
maintaining discipline in the society must first itself be disciplined. Police is an agency to
which social control belongs and therefore the police has to come up to the expectations
of the society.

We have not been able to forget the policing role of the police of British Raj wherein an
attitude of hostility between the police and the policed under the colonial rule was
understandable. It is unfortunate that in one of the largest constitutional democracies of
the world the police has not been able to change its that trait of hostility.

Long back Sardar Patel had said, after achieving independence, ____ "the police have
inherited a legacy of suspicion and dislike. For this reason, there is insufficient respect for
the police today. But, now that the country is free, both the public and the police must
change their attitude." Shri S.V.M. Tripathi, former Director General of Police has, in his
evaluation 'Indian Police After Fifty Years of Independence', said ____ "A sensitive
police officer can ensure justice and fair-play as no other public servant can. The least he
should do is to prevent injustices on the poor in the society and other areas of
administration, specially a police station. Upholding human rights, and protection of life
and property of citizens should be a matter of habit with the police rather than that of
display. The sooner we accept this premise as imperative and honestly work towards
achieving it, the better it would be for the society and the nation. The police leadership
will have to push the limits of feasibility for this purpose." (The Indian Police Journal -
Vol.XLV - Nos.1 & 2, at p.5). Citizens of democratic India expect the police as humane
and efficient, professional and disciplined. It must be remembered that the task entrusted
to police is onerous and the police cannot succeed in fulfilling their functions without
people's cooperation and public approval. Professor R. Deb, a scholar in Indian Police
Service said - "If law represents the collective conscience of Society, the Policeman, its
principal law enforcing agent ought to be the staunchest protagonist, defender and keeper
of that conscience." (Police and Law Enforcement, published by S.C. Sarkar & Sons in
1988, p.1). He quotes Shri B.N. Mallick ___ an eminent policeman of his times, as
saying, that a modern policeman ought to be an ideal citizen from every point of view.
"He must be on the side of good everywhere, and at all times. But to do good the
policeman must himself be good. To be able to induce others to obey the laws of society,
he must obey them first. With his example set before them, people will flock to his
banner not only to seek his help and protection but also to assist him in his noble task. He
must be the leader amongst men. This leadership he must earn by his integrity, kindness,
character, steadfastness, dignity, ability and self- sacrifice. He must always set the right
example". Professor R.Deb's description of an ideal police is ___ "He should never forget
that, like every other citizen he too is subject to the Rule of Law, and is legally
responsible for his actions in carrying out his duties, for he who enforces law must live by
the law. In discharging his onerous duties and responsibilities under the law the
policeman must eschew all temptations to have recourse to short- cuts and extra-legal
methods. He must also be absolutely honest, impartial and fair even to the worst legal
transgressor. In fine he must be the ideal citizen and a true servant of the people in the
performance of his duties under the law." (ibid, p.9) After all, what the learned Addl.
Sessions Judge had done. Jokhu Singh had appeared as a witness. His cross-examination
was not concluded without which his testimony was liable to be excluded from being read
in evidence. The learned Judge had exhausted practically all means for securing the
presence of the witness. He would neither attend nor make any communication to the
Court. Even the threat of initiation of proceedings under the Contempt of Courts Act did
not deter him from abstaining. To secure his presence a non-bailable warrant had to be
issued. He avoided the service of non-bailable warrant of arrest and appeared in the Court
in the late hours. He was not apologetic and felt that he was above the process of the
Court. It cannot be said that the higher authorities of police were not aware of the
behaviour of Jokhu Singh. Either they knew about it or they should have known about it.
Instead of offering the bail, Jokhu Singh was busy managing for the Judge being
approached or influenced by extra legal methods. Jokhu Singh and his confederate
decided to take the law in their own hands and assault the Judge and anyone who came in
their way. We do not think that any of the appellants deserve any sympathy or mercy.

We trust and hope that this case would set in motion the thinking process of the persons
occupying higher echelons in police administration specially in Bihar and take care to
ensure that such incidents do not recur in future.

We direct the disciplinary authorities before whom the disciplinary proceedings are
pending and the criminal Courts before whom the prosecutions are pending against the
appellants to conclude the proceedings and the trial at the earliest. The Commission
holding the enquiry under the Commissions of Enquiry Act, 1952 would also do well to
conclude its proceedings at the earliest. We request Hon'ble the Chief Justice of the High
Court of Patna to watch and if necessary monitor the proceedings of the Commission of
Inquiry and issue directions to the criminal courts to expeditiously conclude the pending
criminal cases. If the commission of enquiry faces non-cooperation or any obstruction in
its progress, the Secretary of the Commission may send a communication to the Registrar
General of this Court pointing out the difficulties, if any, faced by the Commission and
contributing to the delay in proceedings and any communication so received shall be
placed by the Registrar General before the Court for directions on judicial side. The result
of disciplinary proceedings, the judgment of the criminal Courts and the findings of
Commission of Enquiry shall be communicated forthwith to the Registrar General of this
Court and in any case before expiry of a period of six months from today. Copies of this
judgment shall be circulated to the Registrar General, High Court of Patna and the Chief
Secretary of the State of Bihar for being brought to the notice of all concerned. Non-
compliance with the directions given herein may be treated as disobedience of the order
of this Court liable to be dealt with accordingly.

The appeals are dismissed. The appellants who are on bail shall forthwith surrender to
their bail bonds and taken into custody to serve out the sentences as passed by the High
Court of Patna. The Director General of Police, Bihar is directed to ensure compliance
with this order by securing presence of all the appellants to serve out the sentences passed
on them by the High Court.

We place on record our appreciation for the invaluable assistance rendered to the Court
by Ms. Meenakshi Arora, who appeared as Amicus Curiae at our request.

Vinay Chandra Mishra (The ... vs Unknown on 10 March, 1995

Equivalent citations: AIR 1995 SC 2348, 1995 (1) ALT Cri 674, 1995 CriLJ 3994,
(1995) 2 GLR 992, JT 1995 (2) SC 587, 1995 (2) SCALE 200, (1995) 2 SCC 584, 1995
2 SCR 638, 1995 (2) UJ 93 SC
Author: P Sawant
Bench: K S Verma, P Sawant

ORDER P.B. Sawant, J.

1. On 10th March, 1994; Justice S.K. Keshote of the Allahabad High Court addressed a
letter to the Acting Chief Justice of that Court as follows :

No. SKK/ALL/8/94 10.3.94 Dear brother Actg. Chief Justice, Though on 9.3.94 itself I
orally narrated about the misbehavior of Sh. B.C. Misra with me in the Court but I
thought it advisable to give you same in writing also.

On 9.3.94 I was sitting with Justice Anshuman Singh in Court No. 38. In the list of fresh
cases of 9.3.94 at Sr. No. 5 FAFO Record No. 22793 M/s. Bansal Forgings Ltd. v. U.P.F.
Corp. filed by Smt. S.V. Misra was listed. Sh. B.C. Misra appeared in this case when the
case was called.

Brief facts of that case M/s. Bansal Forgings Ltd. took loan from U.P. Financial
Corporation and it made default in payment of instalment of the same. Corporation
proceeded against the Company Under Section 29 of the U.P. Financial Corporation Act.
The company filed a Civil Suit against the Corporation and it has also field an application
for grant of temporary injunction. Counsel for the Corporation suo moto put appearance
in the matter before Trial Court and prayed for time for filing of reply. The learned trial
court passed an order on the said date that the Corporation will not seize the factory of the
Company. The company shall pay the amount of instalment and it will furnish also
security for the disputed amount. The court directed to furnish security on 31.1.94 and
case was fixed on 15.3.94.

Against said order of the trial court this appeal has been filed and arguments have been
advanced that Court has no jurisdiction to pass the order for payment of instalment of
loan and further no security could have been ordered.
I put a question to Shri Misra under which provision this order has been passed. On
putting of question he started to shout and said that no question could have been put to
him. He will get me transferred or see that impeachment motion is brought against me in
Parliament. He further said that he has turned up many Judges. He created a good scene
in the court. He asked me to follow the practice of this Court. In sum and substance it is a
matter where except to abuse me of mother and sister he insulted me like anything. What
he wanted to convey to me was that admission is as a course and no arguments are heard,
at this stage.

It is not the question of insulting of a Judge of this institution but it is a matter of

institution as a whole. In case dignity of Judiciary is not being maintained then where this
institution will stand. In case a senior Advocate, President of Bar and chairman of Bar
Council of India behaves in Court in such manner what will happen to other advocates.

Since the day I have come here I am deciding the cases on merits. In case a case has
merits it is admitted but not as a matter of course. In this Court probably advocates do not
like the consideration of cases on their merits at the stage of admission. In case dignity of
Judiciary is not restored then it is very difficult for the Judges to discharge their Judicial
function without fear and favour.

I am submitting this matter to you in writing to bring this misshaping in the Court with
the hope that you will do something for restoration of dignity of Judiciary.

Thanking you, Yours sincerely, Sd/-

(Jus. S.K. Keshote).

The Acting Chief justice Shri V.K. Khanna forwarded the said letter to the then Chief
Justice of India by his letter of 5th April, 1994. The learned Chief Justice of India
constituted this Bench to hear the matter on 15th April, 1994.

On 15th April, 1994, this Court took the view that there was a prima fade case of criminal
contempt of court committed by Shri Vinay Chandra Mishra [hereinafter referred to as
the "contemner"] and issued a notice against him to show cause why contempt
proceedings be not initiated against him. By the same order, Shri D.P. Gupta, the learned
Solicitor General of India was requested to assist the Court in the matter. Pursuant to the
notice, the contemner filed his reply by affidavit dated 10th May, 1994 and also an
application seeking discharge of show cause notice, and in the alternative for an inquiry
to be held into the incident referred to by Justice Keshote in his letter which had given
rise to the contempt proceedings. It is necessary at this stage to refer to the material
portions of both the affidavit and the application filed by the contemner. After referring to
his status a Senior Advocate of the Allahabad High Court and his connections with the
various law organisations in different capacities to impress upon the Court that he had a
deep involvement in the purity, integrity and solemnity of judicial process, he has
submitted in the affidavit that but for his deep commitments to the norms of judicial
processes as evidenced by his said status and connections, he would have adopted the
usual expedient of submitting his unconditional regrets. But the facts and circumstances
of this case were such which induced him to "state the facts and seek the verdict of the
Court" whether he had committed the alleged contempt or whether it could be "a judge
committing contempt of his own court". He has then stated the facts which according to
him form the "genesis" of the present controversy. They are as follows :-

A. A Private Ltd. Co. had taken an instalment loan from U.P. Financial Corporation,
which provides under its constituent Act (Sec. 29) for some sort of self help in case of
default of instalments.

B. A controversy arose between the said Financial Corporation and the borrower as a
result of which, the borrower had to file a civil suit seeking an injunction against the
Corporation for not opting for the non-judicial sale of their assets.

C. The Civil Court granted the injunction against putting the assets to sale, but at the
same time directed furnishing security for the amount due.

D. Being aggrieved by the condition of furnishing security, which in law would be

tantamount to directing a mortgager to furnish security for payment of mortgage loan,
even when he satisfies the Court that a stay is called for - the property mortgaged being a
pre-existing security for its payment.

E. The Company filed an FAFO being No. 229793/94 against the portion of the order
directing furnishing of security.

F. The said FAFO came for preliminary hearing before Hon'ble Justice Anshuman Sing
and the Applicant of this petition on 9th March, 1994. In which I argued for the debtor
Company.

G. When the matter was called on Board, the Applicant took charge of the court
proceedings and virtually foreclosed attempts made by the senior Judge to intervene. The
Applicant Judge inquired from me as to under what law the impugned order was passed
to which I replied that it was under various rules of Order 39, CPC. That Applicant
therefore conveyed to me that he was going to set aside the entire order, against a portion
of which I had come in appeal, because in his view the Lower Court was not competent to
pass such an order as Order 39 did not apply to the facts.

H. I politely brought to the notice of the Applicant Judge that being the appellant I had
the dominion over the case and it could not be made worse, just because I had come to
High Court.

I. The Applicant Judge apparently lost his temper and told me in no unconcealed term
that he would set aside the order in toto, disregarding what I had said.

J. Being upset over, what I felt was an arbitrary approach to judicial process I got
emotionally perturbed and my professional and institutional sensitivity got deeply
wounded and I told the Applicant Judge that it was not the practice in this Court to
dismiss cases without hearing or to upset judgments or portions of judgments, which have
not been appealed against. Unfortunately the Applicant judge took it unsparingly and
apparently lost his temper and directed the stenographer to take down the order for setting
aside of the whole order.

K. At this juncture, the Hon'ble Senior Judge intervened, whispered something to the
Applicant Judge and directed the case to be listed before some other Bench. It was duly
done and by an order of the other Court dated 18th March, 1994 Hon'ble Justices B.M.
Lal and S.K. Verma, the points raised by me before the Applicant Judge were accepted. A
copy of the said order is reproduced as Annexure I to this affidavit.

L. I find it necessary to mention that the exchange that took place between me and the
Applicant Judge got a little heated up. In the moment of heat the Applicant Judge made
the following observations :-

I am from the Bar and if need be I can take to goondaism.

Adding in English -

I never opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not know
why the Chief Justice of India disregarded my options and transferred me to this place,
which I never liked.

Provoked by this I asked him whether he was creating a scene to create conditions for
getting himself transferred as also talked earlier.

After narrating the above incident, contemner has gone on to deny that he had referred to
any impeachment, though according to him he did mention that "a judge got himself
transferred earlier on account of his inability to command the goodwill of the Bar due to
lack of mutual reverence".

The contemner has further denied the allegations made by Justice Keshote that as soon as
the case was called out, he [i.e., Justice Keshote] asked him the provision under which the
impugned order was passed and that he had replied that the Court had no jurisdiction to
ask the same and should admit and grant the stay order. According to him, such a reply
could only be attributed to one who is "mad" and that considering his practice of thirty
five years at the Bar and his responsible status as a member of the Bar, it is unbelievable
that he would reply in such a "foolish manner". The contemner has further denied that he
had abused the learned judge since according to him he had never indulged in abusing
anybody. With regard to the said allegations against him, the contemner has stated that
the same are vague and, therefore, "nothing definite is warranted to reply".

He has further contended in his affidavit that if the learned Judge was to be believed that
he had committed the contempt, the senior Judge who was to direct the court proceedings
would have initiated proceedings under "Article 129 of the Constitution" for committing
contempt in facie curiae. He has also stated that the learned Judge himself did not direct
such proceeding against him which he could have. He has found fault that instead of
doing so, the learned Judge had "deferred the matter for the next day and adopted a
devious way of writing to the Acting Chief Justice for doing something about it". He has
then expressed his "uncomprehension" with the learned Judge should have come to the
Supreme Court when he had ample and sufficient legal and constitutional powers to
arraign him at the Bar for what was attributed to him.

The contemner has then gone on to complain that the "language used" by the learned
Judge "in the Court extending a threat to resort to goondaism is acting in a way which is
professionally perverse and approximating to creating an unfavourable public opinion
about the awesomeness of judicial process, lowering or tending to lower the authority of
any Court" which amounted to contempt by a Judge punishable under Section 16 of the
Contempt of Courts Act, 1971. He has then gone on to submit "under compulsion of his
"institutional and professional conscience" and for upholding professional standards
expected of both the Bench and the Bar of this Court" that this Court may order a
thorough investigation into the incident in question to find out whether a contempt has
been committed by him punishable under "Article 215" of the Constitution Or by the
Judge under Section 16 of the Contempt of Courts Act.

He has further stated that the entire Bar at Allahabad knows that he has unjustly
"roughed" by the Judge and was being punished for taking a "fearless and non-servile
stand" and that he is being prosecuted for asserting the right of audience and using "the
liberty to express his views" when a Judge takes a course "which in the opinion of the bar
is irregular". He has also contended that any punishment meted out to the "outspoken
lawyer" will completely emasculate the freedom of the profession and make the Bar "a
subservient tail wagging appendage to the judicial branch, which is an anathema to a
healthy democratic judicial system".

He has made a complaint that he was feeling handicapped in not being provided with the
copy of the letter/report of the Acting Chief Justice of the Allahabad High Court and he
has also been unable to gauge the "rationale of the applicant in not having initiated
proceedings" against him either immediately or a day following, when he chose to
address a letter to the Acting Chief Justice. He has then contended that he wanted to make
it clear that he was seeking a formal inquiry not for any vindication of any personal hurt
but to make things safe for profession which in a small way by a quirk of destiny come to
his keeping also. He has also stated that he would be untrue and faithless to his office if
he subordinated the larger interests of the profession and dignity of the judicial process
for a small thing of seeking his little safety. The contemner goes on to state that he did not
opt for filing a contempt against the learned judge as in normal course of arguments,
sometimes, altercations take place between a Judge and the arguing advocate, which may
technically be contempt on either side but there being no intention, provisions of
contempt are not attracted. In support of his said case, he has reproduced an extract form
Oswald's Contempt of Court, III Edition, By Robertson. The said extract is as follows :

An advocate is at liberty, when addressing the Court in regular course, to combat and
contest strongly any adverse views of the Judge or Judges expressed on the case during its
argument, to object to and protest against any course which the Judge may take and
which the advocate thinks irregular or detrimental to the interests of his client, and to
caution juries against any interference by the Judge with their functions, or with the
Advocate when addressing them, or against any strong view adverse to his client
expressed by the presiding Judge upon the facts of a case before the verdict of the jury
thereon. An advocate ought to be allowed freedom and latitude both in speech and in the
conduct of his client's case. It is said that a Scotch advocate was arguing before a Court in
Scotland, when one of the Judges, not liking his manner, said to him, "It seems to me, Mr.
Blank, that you are endeavoring in every way to show your contempt for the Court."
"No," was the quick rejoinder, "I am endeavouring in every way to conceal it.

In the end, he has stated that he had utmost respect and regard for the courts and he never
intended nor intends not to pay due respect to the courts which under the law they are
entitled to and it is for this reason that instead of defending himself through an advocate,
he had left to the mercy of this Court to judge and decide the right and wrong. He has also
stated that it is for this reason that he had not relied upon the provisions of the
Constitution under Articles 129 and 215 and Section 16 of the Contempt of Court Act and
to save himself on the technicality and jurisdictional competence.

Lastly, he has reiterated that he had always paid due regard to the Courts and he was
paying the same and will continue to pay the same and he "neither intended not intends to
commit contempt of any Court".

2. Along with the aforesaid affidavit was forwarded by the contem-ner, a petition stating
therein that he had not gone beyond the legitimate limits of fearless, honest and
independent obligations of an advocate and it was Justice Keshote himself who had lost
him temper and extended threats to him which was such as would be punishable
under Section 16 of the Contempt of Courts Act, 1971[hereinafter referred to as the
"Act"]. He has prayed that the notice issued to him be discharged and if in any case, this
Court does not feel inclined to discharge the notice, he "seeks his right to inquiry and
production of evidence directly or by affidavits" as this Court may direct. He has further
stated in that petition that he is moving an independent application for contempt
proceedings to be drawn against the learned judge and it would be in the interest of
justice and fairplay if the two are heard together. It has to be noted that the contemner has
throughout this affidavit as well as the petition referred to Justice Keshote as "applicant",
although he knew very well that contempt proceedings had been initiated suo moto by
this Court on the basis of the letter written by Justice Keshote to the Acting Chief Justice
of the High Court. His manner of reference to the learned Judge also reveals the respect in
which he holds the learned Judge.

The contemner has also filed another petition on the same day as stated in the aforesaid
petition wherein he has prayed that on the facts staled in the reply affidavit to the show
cause notice for contempt proceedings against him. this Court be pleased to draw
proceedings under Section 16 of the Act against the learned judge for committing
contempt of his own court and hold an inquiry. In this petition, he has stated that in his
reply to the contempt notice, he has brought the whole truth before this Court which
according to him was witnessed by the senior judge of the Bench, Justice Anshuman
Singh and a large number advocates. Once again referring to Justice Keshote as the
applicant, he has stated that the learned Judge in open court conveyed to him [i.e., the
contemner] that he can take to goondaism if need arises, that he also talked disparagingly
against the Chief justice of India for not transferring him to the place for which he had
opted and in a manner unworthy of a Judge and also attempted to gag the contemner from
discharging his duties as an advocate. The contemner has further contended that as a
common law principle relating to contempt of courts, a Judge is liable for contempt of his
own Court as much as any other person associated with judicial proceedings and outside,
and that the aforesaid principle has been given statutory recognition under Section 16 of
the Act. He has further contended that the behavior of the learned judge was so unworthy
that the senior colleague on the Bench apart from "disregarding with the desire of the
applicant to dismiss the entire order" against a part of which an appeal had been filed,
released the case from the board and did not think of taking recourse to the obvious and
well-known procedure of initiating contempt proceedings against him for the alleged
contempt committed in the face of the Court. He has further contended that the adoption
of devious way of reaching the Acting Chief Justice by letter and reportedly coming to
Delhi for meeting meaningful people" is "itself seeking about the infirmity of the case" of
the Judge. He has in the end reiterated his prayer for an inquiry into the behavior of the
learned Judge if the notice of contempt was not discharged against him in view of the
denial by him of the conduct alleged against him.

3. This Court gave four weeks' time as desired by the contemner to file an additional
affidavit giving more facts and details. The Court also made clear that the cause title of
the proceedings was misleading since Justice Keshote had not initiated the proceedings.
The proceedings were initiated mo moto by this Court. A direction was given to the
Registry to correct the cause title.

On 30th June, 1994, the contemner filed his supplementary/additional counter affidavit.
In this affidavit, he raised objections to the maintainability "of initiating contempt
proceedings" against him. His first objection was to the assumption of jurisdiction by the
Court to punish for an act of contempt committed in respect of another Court of record
which is invested with identical and independent power for punishing for contempt of
itself. According to him, this Court can take cognisance only of contempt committed in
respect of itself. He has also demanded that in view of the point of law raised by him, the
matter be placed before the Constitution Bench and that notice be issued to the Attorney
General of India and all the Advocate General of the States. He has then gone on to deny
the statements made by the learned Judge in the letter written to the Acting Chief Justice
of the High Court and in view of the said denial by him, he has asked for the presence of
the learned Judge in the Court for being cross-examined by him, i.e., the contemner. He
has further stated that if the contempt proceedings are taken against him, the statement of
Justice Anshuman Singh who was the senior Judge on the Bench before which the
incident took place, would also be necessary. He has also taken exception to Justice
Keshote's speaking in the Court except through the senior Judge on the Bench which,
according to him had been the practice in the Allahabad High Court, and has alleged that
the learned Judge did not follow the said convention. In the end, he has reiterated that he
has utmost respect and regard for the courts and he has never intended nor intends not to
pay due regard to the Courts.

On 15th July, 1994, this Court passed an order wherein it is recorded that on 15th April,
1994, the court had issued a notice to the contemner to show cause as to why criminal
contempt proceedings be not initiated against him and notice was issued on its own
motion. The Court heard the contemner in person as well as his learned Counsel. The
Court perused the counter affidavit and the additional affidavit of the contemner and was
of the view that it was a fit case where criminal contempt proceedings be initiated against
the contemner. Accordingly, the Court directed that the proceedings be initiated against
him. The contemner was given an opportunity to file any material in reply or in defence
within another eight weeks. He was also allowed to file the affidavit of any other person
apart from himself in support of his defence. Shri Gupta, learned Solicitor General was
appointed as the prosecutor to conduct the proceedings. The affidavits filed by the
contemner were directed to be sent to Justice Keshote making it clear that he might offer
his comments regarding the factual averments in the said affidavits.

4. In view of the said order, the Court dismissed the contemner's application No. 2560/94
praying for discharge of the notice. The contemner thereafter desired to withdraw his
application No. 2561/94 seeking initiation of proceedings against the learned judge for
contempt of his own Court, by stating that he was doing so "at this stage reserving his
right to file a similar application at a later stage". The Court without any comment on the
statement made by the Contemner, dismissed the said application as withdrawn.

5. Justice Keshote by a letter of 20th August, 1994 forwarded his comments on the
counter affidavit and the supplementary/additional counter affidavit filed by the
contemner. The learned Judge denied that he took charge of the court proceedings and
virtually foreclosed the attempts made by the senior Judge to intervene, as was alleged by
the contemner. He stated that being a member of the Bench, he put a question to the
contemner as to under which provision, the order under appeal had been passed by the
trial court, and upon that the contemner started shouting and said that he would get him
transferred or see to it that impeachment motion was brought against him in Parliament.
According to the learned Judge, the contemner said many more things as already
mentioned by him in his letter dated 10th March, 1994. He further stated that the
contemner created a scene which made it difficult to continue the court proceedings and
ultimately when it became difficult to hear all the slogans, insulting words and threats, he
requested his learned brother on the Bench to list that case before another Bench and to
retire to the chamber. Accordingly, the order was made by the other learned member of
the Bench and both of them retired to their chambers.

The learned Judge also stated that the Contemner has made wrong statement when he
states "that applicant, therefore, conveyed to me that he was going to set aside the entire
order, against portion of which I had come in appeal because in his view, the lower court
was not competent to pass such order as Order 39 did not apply to the facts". The learned
Judge stated that he neither made any such statement nor conveyed to the contemner as
suggested by him. He reiterates that except one sentence, viz., "that under which
provision this order had been made by the trial court" nothing was said by him.
According to the learned Judge, it was a case where the contemner did not permit the
court proceedings to be proceeded and both the Judges ultimately had to retire to the
chambers. The learned Judge alleges that the counter affidavit manufactures a defence.
He has denied the contents of paragraph 6[H] and [I] of the counter affidavit by stating
that nothing of the kind as alleged therein had happened. According to the learned Judge,
it was a case where the contemner lost his temper on the question being put to him by
him, i.e., the learned Judge. He has stated that instead of losing his temper and creating a
scene and threatening and terrorising him, the contemner should have argued the matter
and encouraged the new junior Judge. The learned Judge has further denied the following
averment, viz., "unfortunately, the applicant Judge took it unsparingly and apparently lost
his temper and directed the stenographer to take down the order for setting aside of the
whole order" made in paragraph 6[J] of the counter affidavit, as wrong. He has pointed
out that in the Division Bench, it is the senior member who dictates order/judgments. He
has also denied the statements attributed to him in other paragraphs of the affidavit and in
particular, has stated that he did not make the following observations: "I am from the Bar
and if need be I can take to goondaism" and has alleged that the said allegations are
absolutely wrong. He has also denied that he ever made the statements as follows : "I
never opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not know
why the Chief justice of India disregarded my options and transferred me to this place
which I never liked". According to him, the said allegations are manufactured with a view
to create a defence. He has denied the allegations made against him in the
additional/supplementary affidavits as wrong and has stated that what actually happened
in the Court was stated in his letter of 10th March, 1994.

On 7th October, 1994, the contemner filed his unconditional written apology in the
following words:

1. In deep and regretful realization of the fact that a situation like the one which has given
rise to the present proceedings, and which in an ideal condition should never have arisen,
subjects me to deep anguish and remorse and a feeling of moral guilt. The feeling has
been compounded by the fact of my modest association with the profession as the senior
advocate for some time and also being the President of the High Court Bar Association
for multiple terms (from which I have resigned a week or ten days back), and also being
the Chairman of the Bar Council of India for the third five - year term. The latter two
being elective posts convey with its holding an element of trust by my professional
fraternity which expectations of setting up an example of an ideal advocate, which
includes generating an intra- professional culture between the Bar and the Bench, under
which the first looks upon the second with respect and resignation, the second upon the
first with courtesy and consideration. It also calls for cultivation of a professional attitude
amongst the lawyers to learn to be good and sporting losers.

2. Guilty realizing my failure at approximating these standards resulting in the present

proceedings, nolo contender I submit my humble and unconditional apologies for the
happenings in the Court of Justice S.K. Keshote at Allahabad High Court on March 9,
1994, and submit myself at the Hon. Courts sweet will.

3. I hereby withdraw from record all my applications, petitions, counter affidavits, and
prayers made to the court earlier to the presented [sic] of this statement. I, also, withdraw
all submissions made at the bar earlier and rest my matter with the present statement
alone, and any submissions that may be made in support of or in connection with
statement.

On that day, the matter was adjourned to 24th November, 1994 to enable the learned
Counsel for the parties to make further submissions on the apology and to argue the case
on all points, since the Court stated that it may not be inclined to accept the apology as
tendered. The learned Counsel for all the parties including the contemner, Bar Council of
India and the State Bar Council of U.P. [who were allowed to intervene] were heard and
the matter was reserved for judgment.
6. Thereafter, the State Bar Council of U.P., also submitted its written submissions on
26th November, 1994 alongwith an application for intervention. We have perused the
said submissions.

7. We may first deal with the preliminary objection raised by the Contemner and the State
Bar Council, viz., that the Court cannot take cognisance of the contempt of the High
Courts. The contention is based on two grounds. The first is that Article 129 vests this
Court with the power to punish only for the contempt of itself and not of the High Courts.
Secondly, the High Court is also another court of record vested with identical and
independent power of punishing for contempt of itself.

The contention ignores that the Supreme Court is not only the highest Court of record, but
under various provision of the Constitution, is also charged with the duties and
responsibilities of correcting the lower courts and tribunals and of protecting them from
those whose misconduct tends to prevent the due performance of their duties. The latter
functions and powers of this Court are independent of Article 129 of the Constitution.
When, therefore, Article 129 vest this Court with the powers of the court of record
including the power to punish for contempt of itself, it vests such powers in this Court in
its capacity as the highest court of record and also as a court charged with the appellate
and superintending powers over the lower courts and tribunals as detailed in the
Constitution. To discharge its obligations as the custodian of the administrations of justice
in the country and as the highest court imbued with supervisory and appellate jurisdiction
over all the lower courts and tribunals, it is inherently deemed to have been entrusted with
the power to see that the stream of justice in the country remains pure, that its course is
not hindered or obstructed in any manner, that justice is delivered without fear or favour
and for that purpose all the courts and tribunals are protected while discharging their
legitimate duties. To discharge this obligation, this Court has to take cognisance of the
deviation from the path of justice in the tribunals of the land, and also of attempts to
cause such deviations and obstruct the course of justice. To hold otherwise would mean
that although this Court is charged with the duties and responsibilities enumerated in the
Constitution, it is not equipped with the power to discharge them.

This subject has been dealt with elaborately by this Court in All India Judicial Service
Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors. . We may do no better
than quote from the said decision the relevant extracts :

18. There is therefore no room for any doubt that this Court has wide power to interfere
and correct the judgment and orders passed by any court or tribunal in the country. In
addition to the appellate power, the Court has special residuary power to entertain appeal
against any order of any court in the country. The plenary jurisdiction of this Court to
grant leave and hear appeals against any order of a court or tribunal, confers power of
judicial superintendence over all the courts and tribunals in the territory of India including
subordinate courts of Magistrate and District Judge. This Court has, therefore,
supervisory jurisdiction over all courts in India.

19. Article 129 provides that the Supreme Court shall be a court of record and shall have
all the power of such a court including the power to punish for contempt of itself.  Article
215 contains similar provision in respect of High Court. Both the Supreme court as well
as High Courts are courts of record having powers to punish for contempt including the
power to punish for contempt of itself. The Constitution does not define "Court of
Record'. This expression is well recognised in juridical world. In Jowitt's Dictionary of
English Law, "Court of record" is defined as :

A court whereof the acts and judicial proceedings are enrolled for a perpetual memorial
and testimony, and which has power to fine an imprison for contempt of its authority.

In Wharton's Law Lexicon, Court of record is defined as :

Courts are either of record where their acts and judicial proceedings are enrolled for a
perpetual memorial and testimony and they have power to fine and imprison, or not of
record being courts of inferior dignity, and in a less proper sense the King's Courts-and
these art not entrusted by law with any power to fine or imprison the subject of the realm,
unless by the express provision of some Act of Parliament. These proceedings are not
enrolled or recorded In words and Phrases (Permanent Edition Vol.10 page 429) "Court
of Record" is defined as under :

Court of Record is a court where acts and judicial proceedings are enrolled in parchment
for a perpetual memorial and testimony, which rolls are called the 'record' of the court,
and are of such high and supereminent authority that their truth is not to be questioned.

Halsbury's Law of England, 4th Edn., Vol.10, para 709, page 319, states :

Another manner of division is into courts of record and courts not of record. Certain
courts are expressly declared by statute to be courts of record. In the case of courts not
expressly declared to be courts of record, the answer to the question whether a court is a
court of record seems to depend in general upon whether it has power to fine or imprison,
by statute or otherwise, for contempt of itself or other substantive offences; if it has such
power, it seems that it is a court of record.... The proceedings of a court of record
preserved in its achieves are called records, and are conclusive evidence of that which is
recorded therein.

xxxxx

23. The question whether in the absence of any express provision a Court of Record has
inherent power in respect of contempt of subordinate or inferior courts, has been
considered by English and Indian courts.

xxxxx ...These authorities show that in England the power of the High Court to deal with
the contempt of inferior court was based not so much on its historical foundation but on
the High Court's inherent jurisdiction being a court of record having jurisdiction to correct
the orders of those courts.

xxxxx

24. In India prior to the enactment of the Contempt of Courts Act, 1926, High Court's
jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the
principles of Common Law of England. The High Courts in the absence of statutory
provision exercised power of provision exercised power of contempt to protect the
subordinate courts on the premise of inherent power of a Court of record."

26. The English and the Indian authorities are based on the basic foundation of inherent
power of a Court of Record, having jurisdiction to correct the judicial order of
subordinate courts. The King's Bench in England and High Courts in India being superior
Courts of Record and having judicial power to correct orders of subordinate courts
enjoyed the inherent power of contempt to protect the subordinate courts. The Supreme
Court being a Court of Record under Article 129 and having wide power of judicial
supervision over all the courts in the country, must possess and exercise similar
jurisdiction and power as the High Courts and prior to contempt Legislation in 1926.
Inherent powers of a superior Court of Record have remained unaffected even after
codification of Contempt Law."

xxxxx

28. ...The Parliament's power to legislate in relation to law of contempt relating to

Supreme Court is limited, therefore the Act does not impinge upon this Court's power
with regard to the contempt of subordinate courts under Article 129 of the Constitution.g

29. Article 129 declares the Supreme Court a court of record and it further provides that
the Supreme Court shall have all the powers of such a court including the power to punish
for contempt of itself. The expression used in Article 129 is not restrictive instead it is
extensive in nature. If the Framers of the Constitution intended that the Supreme Court
shall have power to punish for contempt of itself only, there was no necessity of inserting
the expression "including the power to punish for contempt of itself". The Article confers
power on the Supreme Court to punish for contempt of itself and in addition, it confers
some additional power relating to contempt as would appear from the expression
"including". The expression "including" has been interpreted by courts, to extend and
widen the scope of power. The plain language of Article 129 clearly indicates that this
Court as a court of record has power to punish for contempt of itself and also something
else also which could fall within the inherent jurisdiction of a court of record. In
interpreting the constitution, it is not permissible to adopt a construction which would
render any expression superfluous or redundant. The courts ought not to accept any such
construction. While construing Article 129, it is not permissible to ignore the significance
and impact of the inclusive power conferred on the Supreme Court. Since the Supreme
Court is designed by the Constitution as a court of record and as the Founding Fathers
were aware that a superior court of record has inherent power to indict a person for the
contempt of itself as, well as of courts inferior to it, the expression "including" was
deliberately inserted in the article. Article 129 recognised the existing inherent power of a
court of record in its full plenitude including the power to punish for the contempt of
inferior courts. If Article 129 is susceptible to two interpretations, we would prefer to
accept the interpretation which would preserve the inherent jurisdiction of this Court
being the superior court of record, to safeguard and protect the subordinate judiciary,
which forms the very backbone of administration of justice. The subordinate courts
administer justice at the grassroot level, their protection is necessary to preserve the
confidence of people in the efficacy of courts and to ensure unsullied flow of justice at its
base level.

xxxxxx

31. We have already discussed a number of decisions holding that the High Court being a
court of record has inherent power in respect of contempt of itself as well as of its
subordinate courts even in the absence of any express provision in any Act. A fortiori the
Supreme Court being the Apex Court of the country and superior court of record should
possess the same inherent jurisdiction and power for taking action for contempt of itself
as well as for the contempt of subordinate and inferior courts. It was contended that since
High Court has power of superintendence over the subordinate courts under Article
227 of the Constitution, therefore, High Court has power to punish for the contempt of
subordinate courts. Since the Supreme Court has no supervisory jurisdiction over the
High Court or other subordinate courts, it does not possess powers which High Courts
have under Article 215. This submission is misconceived. Article 227 confers supervisory
jurisdiction on the High Court and in exercise of that power High Court may correct
judicial orders of subordinate courts, in addition to that, the High Court has administrative
control over the subordinate courts. Supreme Court's power to correct judicial orders of
the subordinate courts under Article 136 is much wider and more effective than that
contained under Article 227. Absence of administrative power of superintendence over
the High Court and subordinate court does not affect this Court's wide power of judicial
superintendence of all courts in India. Once there is power of judicial superintendence, all
the courts whose orders are amenable to corrections by this Court would be subordinate
courts and therefore this Court also possesses similar inherent power a the High Court has
under Article 215 with regard to the contempt of subordinate courts. The jurisdiction and
power of a superior Court of Record to punish contempt of subordinate courts was not
founded on the Court's administrative power of superintendence, instead the inherent
jurisdiction was conceded to superior Court of Record on the premise of its judicial
power to correct the errors of subordinate courts.

xxxxxx

36. Advent of freedom, and promulgation of Constitution have made drastic changes in
the administration of justice necessitating new judicial approach. The Constitution has
assigned a new role to the Constitutional Courts to ensure rule of law in the country.
These changes have brought new perceptions. In interpreting the Constitution, we must
have regard to the social , economic and political changes, need of the community and the
independence of judiciary. The court cannot be a helpless spectator, bound by precedents
of colonial days which have lost relevance. Time has come to have a fresh look at the old
precedents and to lay down law with the changed perceptions keeping in view the
provisions of the Constitution. "Law", to use the words of Lord Coleridge, "grows; and
though the principles of law remain unchanged yet their application is to be changed with
the changing circumstances of the time". The considerations which weighed with the
Federal Court in rendering its decision in Gauba and Jaitly case are no more relevant in
the context of the constitutional provisions.
37. Since this Court has power of judicial superintendence and control over all the courts
and tribunals functioning in the entire territory of the country, it has a corresponding duty
to protect and safeguard the interest of inferior courts to ensure the flow of the stream of
justice in the courts without any interference or attack from any quarter. The subordinate
and inferior courts do not have adequate power under the law to protect themselves,
therefore, it is necessary that this Court should protect them. Under the constitutional
scheme this Court has a special role, in the administration of justice and the powers
conferred on it under Articles 32, 136, 141 and 142 form part of basic structure of the
Constitution. The amplitude of the power of this Court under these articles of the
Constitution cannot be curtailed by law made by Central or State legislature. If the
contention raised on behalf of the contemners is accepted, the courts all over India will
have no protection from this Court. No doubt High Courts have power to persist for the
contempt of subordinate courts but that does not affect or abridge the inherent power of
this Court under Article 129. The Supreme Court and the High Court both exercise
concurrent jurisdiction under the constitutional scheme in matters relating to fundamental
rights under Articles 32 and 226 of the Constitution, therefore this Court's jurisdiction and
power to take action for contempt of subordinate courts would not be inconsistent to any
constitutional scheme. There may be occasions when attack on Judges and Magistrates of
subordinate courts may have wide repercussions throughout the country, in that situation
it may not be possible for a High Court to contain the same, as a result of which the
administration of justice in the country may be paralysed, in that situation the Apex Court
must intervene to ensure smooth functioning of courts. The Apex Court is duty bound to
take effective steps within the constitutional provisions to ensure a free and fair
administration of justice throughout the country, for that purpose it must wield the
requisite power to take action for contempt of subordinate courts. Ordinarily, the High
Court would protect the subordinate court from any onslaught on their independence, but
in exceptional cases, extraordinary situation may prevail affecting the administration of
public justice or where the entire judiciary is affected, this Court may directly take
cognisance of contempt of subordinate courts. We would like to strike a note of caution
that this Court will sparingly exercise its inherent power in taking cognisance of the
contempt of subordinate courts, as ordinarily matters relating to contempt of subordinate
courts must be dealt with by the High Courts. The instant case is of exceptional nature, as
the incident created a situation where functioning of the subordinate courts all over the
country was adversely affected, and the administration of justice was paralysed, therefore,
this Court took cognisance of the matter.

38. ...It is true that courts constituted under a law enacted by the Parliament or the State
legislature have limited legislature and they cannot assure jurisdiction in a matter, not
expressly assigned to them, but that is not so in the case of a superior court of record
constituted by the Constitution. Such a court does not have a limited jurisdiction instead it
has power to determine its own jurisdiction. No matter is beyond the jurisdiction of a
superior court of record unless it is expressly shown to the so, under the provisions of the
Constitution. In the absence of any express provision in the Constitution the Apex Court
being a court of record has jurisdiction in every matter and if there be any doubt, the
Court has power to determine its jurisdiction. If such determination is made by High
Court, the same would be subject to appeal to this Court, but if the jurisdiction is
determined by this Court is would be final.
xxxxxx ...We therefore hold that this Court being the Apex Court and a superior court of
record has power to determine its jurisdiction under Article 129 of the Constitution and as
discussed earlier it has jurisdiction to initiate or entertain proceedings for contempt of
subordinate courts. This view does not run counter to any provision of the Constitution.

The propositions of law laid down and the observations made in this decision
conclusively negate the contention that this Court cannot take cognisance of the contempt
committed of the High Court.

8. The contemner has also contended that notwithstanding the decision in Delhi Judicial
Service Association Case [supra], the matter should be referred to a larger Bench because
according to him, the decision does not lay down the correct proposition of law when it
gives this Court the jurisdiction under Article 129 of the Constitution to take cognisance
of the contempt of the High Court. Neither the contemner nor the learned Counsel
appearing on his behalf has pointed out to us any specific infirmity in the said decision.
We are not only in complete agreement with the law laid down on the point in the said
decision but are also unable to see how the legal position to the contrary will be
consistent with this Court's wide ranging jurisdiction and its duties and responsibilities as
the highest Court of the land as pointed out above. Hence, we reject the said request.

9. The contemner has further contended that it will be necessary to hold an inquiry into
the allegations made by the learned Judge by summoning the learned judge for
examination to verify the version of the incident given by him as against that given by the
contemner. According to him, in view of the conflicting versions of the incident given by
him and the learned Judge, it would be necessary for him to cross-examine the learned
Judge. As the facts reveal, the contempt alleged is in the face of the Court. The learned
judge or the Bench could have itself taken action for the offence on the spot. Instead, the
learned Judge probably thought that it would not be proper to be a prosecutor, a witness
and the judge himself in the matter and decided to report the incident to the learned
Acting Chief Justice of his Court. There is nothing unusual in the course the learned
Judge adopted, although the procedure adopted by the leaned Judge has resulted in some
delay in taking action for the contempt. (See Balogh v. Crown Court at St. Albans [1975]
QB 73 [1974] 3 All ER 283). The criminal contempt of court undoubtedly amounts to an
offence but it is an offence sui generis and hence for such offence, the procedure adopted
both under the common law and the statute law even in this country has always been
summary. However, the fact that the process is summary does not mean that the
procedural requirement, viz., that an opportunity of meeting the charge, is denied to the
contemner. The degree of precision with which the change may be stated depends upon
the circumstances. So long as the gist of the specific allegations is made clear or
otherwise the contemner is aware of the specific allegation, it is not always necessary to
formulate the charge in a specific allegation. The consensus of opinion among the
judiciary and the jurists alike is that despite the objection that the judge deals with the
contempt himself and the Contemner has little opportunity to defend himself, there is a
residue of cases where not only it is justifiable to punish on the spot but it is the only
realistic way of dealing with certain offenders. This procedure does not offend against the
principle of natural justice, viz., Nemo judex in ma causa since the prosecution is not
aimed at protecting the Judge personally but protecting the administration of justice. The
threat of immediate punishment is the most effective deterrent against misconduct. The
judge has to remain in full control of the hearing of the case and he must be able to take
steps to restore order as early and quickly as possible. The time factor is crucial. Dragging
out the contempt proceedings means a lengthy interruption to the main proceedings which
paralyses the court for a time and indirectly impedes the speed and efficiency with which
justice is administered. Instant justice can never be complete satisfactory yet it does
provide the simplest, most effective and least unsatisfactory method of dealing with
disruptive conduct in Court. So long as the contemner's interest are adequately
safeguarded by giving him an opportunity of being heard in his defence, even summary
procedure in the case of contempt in the face of the Court is commended and not faulted.

10. In the present case, although the contempt is in the face of the court, the procedure
adopted is not only not summary but has adequately safeguarded the contemner's interest.
The contemner was issued a notice intimating him the specific allegation against him. He
was given an opportunity to counter the allegations by filing his counter affidavit and
additional counter/supplementary affidavit as per his request, and he has filed the same.
He was also given an opportunity to file an affidavit of any other person that he chose or
to produce any other material in his defence, which he has not done. However, in the
affidavit which he has filed, he has requested for an examination of the learned Judge. We
have at length dealt with the nature of in facie curiae contempt and the justification for
adopting summary procedure and punishing the offender on the spot. In such procedure,
there is no scope for examining the Judge or Judges of the court before whom the
contempt is committed. To give such a right to the contemner is to destroy not only the
raison d'etre for taking action for contempt committed in the face of the court but also to
destroy the very jurisdiction of the Court to adopt proceedings for such conduct. It is for
these reasons that neither the common law nor the statute law countenances the claim of
the offender for examination of the Judge or Judges before whom the contempt is
committed. Section 14 of our Act, i.e., the Contempt of Courts Act, 1971 deals with the
procedure when the action is taken for the contempt in the face of the Supreme Court and
the High Court. Sub-section [3] of the said Section deals with a situation where in facie
curiae contempt is tried by a Judge other than the Judge or judges in whose presence or
hearing the offence is alleged to have been committed. The provision in specific terms
and for obvious reasons, states that in such cases it shall not be necessary for the Judge or
Judges in whose presence or hearing the offence is alleged to have been committed, to
appear as a witness and the statement placed before the Chief Justice shall be treated as
the evidence in the case. The statement of the learned Judge has already been furnished to
the contemner and he has replied to the same. We have, therefore, to proceed by treating
the statement of the learned Judge and the affidavits filed by the contemner and the reply
given by the learned Judge to the said affidavits, as evidence in the case.

11. We may now refer to the matter in dispute to examine whether the contemner is guilty
of the contempt of court under the common law definition, "contempt of court" is defined
as an act or omission calculated to interfere with the due administration of justice. This
covers criminal contempt [that is, acts which so threaten the administration of justice that
they require punishment] and civil contempt [disobedience of an order made in a civil
cause]. Section 2[a][b] and [c] of the Act defines the contempt of court as follows :

2. Definitions. - In this Act, unless the context otherwise requires, -

[a] "contempt of court" means civil contempt or criminal contempt;

[b] "civil contempt" means willful disobedience to any judgment, decree, direction, order,
writ or other process of a court or wilful breach of an undertaking given to a court;

[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 to 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 proceedings; or [iii] interferes or tends to interfere with, or obstructs or tends to
obstruct, the administration of justice in any other manner;

From the facts which have been narrated above it is clear that the allegations against the
contemner, if true, would amount to criminal contempt as defined under Section 2[c] of
the Act. It is in the light of this definition of the "criminal contempt" that we have to
examine the facts on record.

The essence of the contents of Justice Keshote's letter is that when he put a question to the
contemner as to under which provision the order was passed by the lower court, the
contemner "started to shout and said that no question could have been put to him". The
contemner further said that he would get the learned judge transferred or see that
impeachment motion was brought against him in Parliament. He also said that he had
"turned up many judges". He also created a scene in the Court. The learned Judge has
further stated in his letter that in sum and substance it was a matter where "except to
abuse him of mother and sister", he insulted him "like anything". The contemner,
according to the learned Judge, wanted to convey to him that admission was a matter of
course and no argument were to be heard at that stage. The learned Judge has given his
reaction to the entire episode by pointing out that this is not a question of insulting a
Judge but the institution as a whole. In case the dignity of the judiciary was not
maintained then he "did not know where the institution would stand, particularly when
contemner who is a senior advocate, President of the Bar and Chairman of the Bar
Council of India behaved in the court in such manner which will have its effect on other
advocates as well". He has further stated that in case the dignity of the judiciary is not
restored, it would be very difficult for the judges to discharge the judicial function
without fear or favour. At the end of this letter, he has appealed to the learned Acting
Chief Justice for "restoration of dignity of the judiciary".

The contemner, as pointed out above, by filing an affidavit has denied the version of the
episode given by the learned Judge and has stated that when the matter was called on, the
learned Judge [he has referred to him as the 'applicant'] took charge of the court
proceedings and virtually foreclosed the attempts made by the senior Judge to intervene.
The learned judge inquired from the contemner as to under which law the impugned order
was passed to which the latter replied that it was under various rules of Order 39, CPC.
The learned Judge then conveyed to the contemner that he was going to set aside the
entire order although against a portion of it only he had come in appeal. According to the
contemner, he then politely brought to the notice of the learned Judge that being the
appellant, he had the dominion over the case and it could not be made worse just because
he had come to High Court. According to the contemner, the learned Judge then
apparently lost his temper and told him that he would set aside the order in toto
disregarding what he had said. The contemner has then proceeded to state that "being
upset over what" he felt was an arbitrary approach to judicial process he "got emotionally
perturbed" and "his professional and institutional sensitivity got deeply wounded" and he
told the applicant-Judge that "it was not the practice" of that Court to dismiss case
without hearing or to upset judgments or portions of judgments which have not been
appealed against. According to the contemner, "unfortunately the applicant - Judge took it
unsparingly and apparently lost his temper and directed the Stenographer to take down
the order for setting aside the whole order. The contemner has then stated that he "found
it necessary to mention that the exchange that took place between him and the applicant-
Judge got a little heated up". In the moment of heat the applicant-Judge made the
following observations : "I am from the bar and if need be I can take to goondaism. I
never opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not know
why the Chief Justice of India disregarded my options and transferred me to this place,
which I never liked". According to the Contemner, he was "provoked by this" and asked
the learned Judge "whether he was creating a scene to create conditions for getting
himself transferred as also talked earlier". The contemner has denied that he had referred
to any impeachment although according to him, he did say that "a Judge got himself
transferred earlier on account of his inability to command the goodwill of the Bar due to
lack of mutual reverence". He has also denied that when the learned judge asked him as to
under which provision the order was passed, he had replied that the Court had no
jurisdiction to ask the same and should admit and grant the stay order. He has added that
such a reply could only be attributed to one who is made and it is unbelievable that "he
would reply in such a foolish manner". He has also denied that he had abused the learned
Judge and the allegation made against him in that behalf were vague. According to the
contemner, if he had committed the contempt, the senior member of the Bench would
have initiated proceedings under "Article 129" of the Constitution for committing
contempt in facie curiae. He has also stated that even the learned Judge himself could
have done so but he did not do so and deferred the matter for the next day and "adopted a
devious way of writing to the acting Chief Justice for doing something about it" which
shows that the version of the episode was not correct. The contemner has also then
expressed his "uncomprehension" why the learned Judge should have come to this Court
when he had ample and sufficient legal and constitutional powers to arraign the
contemner at the "Bar for what was attributed" to him.

12. Before we refer to the other contentions raised by the contemner, the question is
which of the two versions has to be accepted as correct. The contemner has no doubt
asked for an inquiry and an opportunity to produce evidence. For reasons stated earlier,
we declined his request for such inquiry, but gave him ample opportunity to produce
whatever material he desired to, including the affidavits of whomsoever he desired. Our
order dated 15th July, 1994 is clear on the subject. Pursuant to the said order, the
contemner has not filed his further affidavit or material or the affidavit of any other
person. Instead he tendered a written apology dated 7th October, 1994 which will be
considered at the proper place. In his earlier counter additional counter, he has stated that
it is not he who had committed contempt but it is the learned Judge who had committed
contempt of his own court. According to him, the learned Judge had gagged him from
discharging his duties as an advocate and the statement of senior member of the bench
concerned was necessary. He has taken exception to the learned Judge speaking in the
Court except through the senior Judge of the Bench which according to him, had been the
practice in the said High Court and has also alleged that the learned judge did not follow
the said convention.

13. Normally, no Judge takes action for in facie curiae contempt against the lawyer unless
he is impelled to do so. It is not the heat generated in the arguments but the language
used, the tone and the manner in which it is expressed and the intention behind using it
which determine whether it was calculated to insult, show disrespect, to overbear and
overawe the court and to threaten and obstruct the course of justice. After going through
the report of the learned Judge and the affidavits and the additional affidavits filed by the
contemner and after hearing the learned Counsel appearing for the contemner, we have
come to the conclusion that there is every reason to believe that notwithstanding his
denials, and disclaimers, the contemner had undoubtedly tried to browbeat, threaten,
insult and show disrespect personally to the learned Judge. This is evident from the
manner in which even in the affidavits filed in this Court, the contemner has tried to
justify his conduct. He has started narration of his version of the incident by taking
exception the learned Judge's taking charge of the court proceedings. We are unable to
understand what exactly he means thereby. Every member of the Bench is on par with the
other member or members of the Bench and has a right to ask whatever questions he want
to, to appreciate the merits or demerits of the case. It is obvious that the contemner was
incensed by the fact that the learned Judge was asking the questions to him. This is clear
from his contention that the learned Judge being a junior member of the Bench, was not
supposed to ask him any question and if any questions were to be asked, he had to ask
them through the senior member of the Bench because that was the convention of the
Court. We are not aware of any such convention in any court at least in this country.
Assuming that there is such a convention, it is for the learned Judges forming the Bench
to observe it inter se. No lawyer or a third party can have any right or say in the matter
and can make either an issue of it or refuse to answer the questions on that ground. The
lawyer or the litigant concerned has to answer the questions put to him by any member of
the Bench. The contemner has sought to rely on the so-called convention and to spell out
his right from it not to have been questioned by the learned Judge This contention
coupled with his grievance that the learned Judge had taken charge of the proceedings,
shows that th contemner was in all probability perturbed by the fact that the learned Judge
was asking him questions. The leaned Judge's version, therefore, appear to be correct
when he states that the contemner lost his temper when he started asking him questions.
The contemner has further admitted that he got "emotionally perturbed" and his
"professional and institutional sensitivity got deeply wounded" because the learned Judge,
according to him, apparently lost his temper and told him in no unconcealed terms that he
would set aside the order in toto disregarding what he had said. The learned Judge's
statement that the contemner threatened him with transfer and impeachment proceedings
also gets corroboration from the contemner's own statement in the additional affidavit that
he did tell the learned Judge that a Judge got himself transferred earlier on account of his
inability to command the goodwill of the Bar due to lack of mutual reverence. No one
expects a lawyer to be subservient to the Court while presenting his case and not to put
forward his arguments merely because the Court is against him. In fact, that is the
moment when he is expected to put forth his best effort to persuade the Court. However,
if, in spite of it, the lawyer finds that the court is against him, he is not expected to be
discourteous to the court or to fling hot words or epithets or use disrespectful, derogatory
or threatening language or exhibit temper which has the effect of overbearing the court.
Cases are won and lost in the court daily. One or the other side is bound to lose. The
remedy of the losing lawyer or the litigant is to prefer an appeal against the decision and
not to indulge in a running battle of words with the court. That is the least that is expected
of a lawyer. Silence on some occasions is also an argument. The lawyer is not entitled to
indulge in unbecoming conduct either by showing his temper or using unbecoming
language.

The incident had undoubtedly created a scene in the court since even according to the
contemner, the exchange between the learned Judge and him was "a little heated up" and
the contemner asked the learned Judge "whether he was creating scene to create
conditions for getting himself transferred as also talked earlier". He had also to remind the
learned Judge that "a Judge got himself transferred earlier on account of his inability to
command the goodwill of the Bar due to lack of mutual reverence". He has further stated
in his affidavit that "the entire Bar at Allahabad" knew that he was unjustly "roughed" by
the Judge and was being punished for taking "a fearless and non-servile stand" and that he
was being prosecuted for "asserting" a right of audience and "using the liberty to express
his views when a Judge takes a course which in the opinion of the Bar is irregular". He
has also stated that any punishment meted out to the "outspoken" lawyer will completely
emasculate the freedom of the profession and make the Bar a subservient tail wagging
appendage to the judicial branch which is an anathema to a healthy democratic judicial
system. He has further stated in his petition for taking contempt action against the learned
Judge that the incident was "witnessed by a large number of advocates".

We have reproduced the contents of the letter written by the learned judge and his reply
to the affidavits filed by the contemner The learned Judge's version is that when he put
the question to the contemner as to under which provision, the lower court had passed the
order in question, the contemner started shouting and said that no question could have
been put to him. The contemner also stated that he would get him transferred or see that
impeachment motion was brought against him in Parliament. He further said that he had
"turned up" many judges and created a good scene in the Court. The contemner further
asked him to follow the practice of the Court. The learned Judge has stated that in sum
and substance, it was a matter where except "to abuse of his mother and sister", he had
insulted him "like anything". The learned Judge has further stated that the contemner
wanted to convey to him that admission of every matter was as a matter of course and no
arguments were heard at the admission stage. He has reiterated the said version in his
reply to the affidavits and in particular, has denied the allegations made against him by
the contemner. He has defended his asking the question to the contemner since he was a
member of the Bench. The learned judge has stated that the contemner I took exception to
his asking the said question as if he had committed some wrong and started shouting. He
has further stated that he had asked only the question referred to above and the contemner
had created the scene on account of his putting the said question to him, and made it
difficult to continue the court's proceedings. Ultimately when it became impossible he
hear all the slogans and insulting words and threats, he requested the senior learned
member of the Bench to list the case before another Bench and to retire to the chamber.
Accordingly, an order was made by the senior member of the Bench and both of them
retired to the chamber. The learned Judge has denied that he had conveyed to the
contemner that he was going to set aside the entire order against a portion of which the
contemner had come in appeal. He has stated that it was a case where the contemner did
not permit the court proceedings to be proceeded and both the members of the Bench had
ultimately to retire to the chambers. The learned Judge has stated that the defence of the
conduct of the contemner in the counter affidavit "was a manufactured" one. He has then
dealt with each paragraph of the contemner's counter affidavit. He has also stated that
there was no question of his having directed the stenographer to take down the order for
setting aside of the whole order since that function was performed by the senior member
of the Bench. He has also stated that the contemner has made absolutely wrong
allegations when he states that he had made the following remarks : "I am from the bar
and if need be I can take to goondaism". He has also denied that he had said : "I never
opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not know why
the Chief Justice of India disregarded my options and transferred me to this place, which I
never liked". He has stated that the contemner has made false allegations against him.

We have, by referring to the relevant portions of the affidavit and the counter affidavit
filed by the contemner, pointed out the various statements made in the said affidavits
which clearly point to the veracity of the version given by the learned Judge and the
attempted rationalisation of his conduct by the contemner. The said averments also lend
force and truthfulness to the content of the learned Judge's letters. We are, taking into
consideration all the circumstances on record, of the view that the version of the incident
given by the learned Judge has to be accepted as against that of the contemner.

To resent the questions asked by a Judge, to be disrespectful to him, to question his

authority to ask the questions, to shout at him, to threaten him with transfer and
impeachment, to use insulting language and abuse him, to dictate the order that he should
pass, to create scenes in the Court, to address him by losing temper, are all acts calculated
to interfere with and obstruct the course of justice. Such act tend to overawe the court and
to prevent it form performing its duty to administer justice. Such conduct brings the
authority of the court and the administration of justice into disrespect and disrepute and
undermines and erodes the very foundation of the judiciary by shaking the confidence of
the people in the ability of the court to deliver free and fair justice.

The stance taken by the contemner is that he was performing his duty as an outspoken
and fearless member of the Bar. He seems to be labouring under a grave
misunderstanding. Brazenness is not outspokenness and arrogance is not fearlessness.
Use of intemperate language is not assertion of right nor is a threat an argument. Humility
is not servility and courtesy and politeness are not lack of dignity. Self-restraint and
respectful attitude towards the Court, presentation of correct facts and law with a
balanced mind and without overstatement, suppression, distortion or embellishment are
requisites of good advocacy. A lawyer has to be a gentlemen first. His most valuable asset
is the respect and goodwill he enjoys among his colleagues and in the Court.

The rule of law is the foundation of the democratic society. The judiciary is the guardian
of the rule of law. Hence judiciary is not only the third pillar, but the central pillar of the
democratic State. In a democracy like ours, where there is a written Constitution which is
above all individuals and institutions and where the power of judicial review is vested in
the superior courts, the judiciary has a special and additional duty to perform, viz., to
oversee that all individuals and institutions including the executive and the legislature act
within the framework of not only the law but also the fundamental law of the land. This
duty is apart from the function of adjudicating the disputes between the parties which is
essential to peaceful and orderly development of the society. If the judiciary is to perform
its duties and functions effectively and true to the spirit with which they are sacredly
entrusted to it, the dignity and authority of the courts have to be respected and protected
at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way
and with it will disappear the rule of law and the civilized life in the society. It is for this
purpose that the courts are entrusteddis-service with the extra-ordinary power of
punishing those who indulge in acts whether inside or outside the courts, which tend to
undermine their authority and bring them in disrepute and disrespect by scandalising
them and obstructing them from discharging their duties without fear or favour. When the
court exercises this power, it does not do so to vindicate the dignity and honour of the
individual judge who is personally attacked or scandalised, but to uphold the majesty of
the law and of the administration of justice. The foundation of the judiciary is the trust
and the confidence of the people in its ability to deliver fearless and impartial justice.
When the foundation itself is shaken by acts which tend to create disaffection and
disrespect for the authority of the court by creating distrust in its working, the edifice of
the judicial system gets eroded.

It cannot be disputed and was not disputed before us that the acts indulged into by the
contemner in the present case as stated by the learned Judge per se amount to criminal
contempt of court. What was disputed, was their occurrence. We have held above that we
are satisfied that the contemner did indulge in the said acts.

As held by this Court in the matter of Mr. 'G', a Senior Advocate of the Supreme Court
[1955] 1 SCR 490;

...the Court, in dealing with cases of professional misconduct is not concerned with
ordinary legal rights, but with the special and rigid rules of professional conduct expected
of and applied to a specially privileged class of persons who, because of their privileged
status, are subject to certain disabilities which do not attach to other men and which do
not attach even to them in a non-professional character....He (a legal practitioner) is
bound to conduct himself in a manner befitting the high and honourable profession to
whose privileges he has so long been admitted; and if he departs from the high standards
which that profession has set for itself and demands of him in professional matters, he is
liable to disciplinary action.

In L.M. Das v. Advocate General, Orissa [1957] SCR 167, this Court observed :-

A member of the Bar undoubtedly owes a duty to his client and must place before the
Court all that can fairly and reasonably be submitted on behalf of his client. He may even
submit that a particular order is not correct and may ask for a review of that order. At the
same time, a member of the Bar is an officer of the Court and owes a duty to the court in
which he is appearing. He must uphold the dignity and decorum of the Court and must
not do anything to bring the Court itself into disrepute. The appellant before us grossly
overstepped the limits of propriety when he made imputations of partiality and unfairness
against the Munsif in open Court. In suggesting that the Munsif followed no principle in
his orders, the appellant was adding insult to injury, because the Munsif had merely
upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees,
which order had been upheld by the High Court in revision. Scandalising the Court in
such manner is really polluting the very fount of justice; such conduct as the appellant
indulged in was not a matter between an individual member of the Bar and a member of
the judicial service; it brought into disrepute the whole administration of justice. From
that point of view, the conduct of the appellant was highly reprehensible.

The contemner has obviously misunderstood his function both as a lawyer representing
the interests of his client and as an officer of the court. Indeed, he has not tried to defend
the said acts in either of his capacities. On the other hand, he has tried to deny them.
Hence, much need not be said on this subject to remind him of his duties in both the
capacities. It is, however, necessary to observe that by indulging in the said acts, he has
positively abused his position both as a lawyer and as an officer of the Court, and has
done distinct disservice to the litigants in general and to the profession of law and the
administration of justice in particular. It pains us to note that the contemner is not only a
senior member of the legal profession, but holds the high offices of the Chairman of the
Bar Council of India, Member of the Bar Council of U.P., Chairman and Member,
Executive Council and Academic Council of the National Law School University of India
at Bangalore and President of the High Court Bar Association, Allahabad. Both as a
senior member of the profession and as holder of the said high offices, special and
additional duties were cast upon him to conduct himself as a model lawyer and officer of
the court and to help strengthen the administration of justice by upholding the dignity and
the majesty of the court. It was in fact expected of him to be zealous in maintaining the
rule of law and in strengthening the people's confidence in the judicial institutions. To our
dismay, we find that he has acted exactly contrary to his obligations and has in reality set
a bad example to others while at the same time contributing to weakening of the
confidence of the people in the courts.

The contemner has no doubt tendered an unconditional apology on 7th October, 1994 by
withdrawing from record all his applications, petitions, counter affidavits, prayers and
submissions made at the Bar and to the court earlier. We have reproduced that apology
verbatim earlier. In the apology he has pleaded that he has deeply and regretfully realised
that the situation, meaning thereby the incident, should never have arisen and the fact that
it arose has subjected him to anguish and remorse and a feeling of moral guilty. That
feeling has been compounded with the fact that he was a senior advocate and was holding
the elective posts of the President of the High Court Bar Association and the Chairman of
the Bar Council of India which by their nature show that he was entrusted by this
professional fraternity to set up an example of an ideal advocate. He has guiltily realised
his failure to approximate to this standard resulting in the present proceedings and he was,
therefore, submitting his unconditional apology for the incident in question, we have not
accepted this apology, firstly because we find that the apology is not a free and frank
admission of the misdemeanor he indulged in the incident in question. Is there a sincere
regret for the disrespect he showed to the learned Judge and the Court, and for the harm
that he has done to the judiciary. On the other hand, the apology is couched in a
sophisticated and garbed language exhibiting more an attempt to justify his conduct by
reference to the circumstances in which he had indulged in it and to exonerate himself
from the offence by pleading that the condition in which the "situation" had developed
was not an ideal one and were it ideal, the 'situation' should not have arisen. It is a clever
and disguised attempt to refurbish his image and get out of a tight situation by not only
not exhibiting the least sincere remorse for his conduct but by trying to blame the so-
called circumstances which led to it. At the same time, he has attempted to varnish and
re-establish himself as a valiant defender of his "alleged duties" as a lawyer. Secondly,
from the very inception his attitude has been defiant and belligerent. In his affidavits and
application, not only he has not shown any respect for the learned Judge, but has made
counter-allegations against him and has asked for initiation of contempt proceedings
against him. He has even chosen to insinuate that the learned Judge by not taking
contempt action on the spot and instead writing the letter to the Acting Chief Justice of
the High Court, had adopted a devious way and that he had also come to Delhi to meet
"meaningful" people. These allegations may themselves amount to contempt of court.
Lastly, to accept any apology for a conduct of this kind and to condone it, would
tantamount to a failure on the part of this Court to uphold the majesty of the law, the
dignity of the court and to maintain the confidence of the people in the judiciary. The
Court will be failing in its duty to protect the administration of justice from attempts to
denigrate and lower the authority of the judicial officers entrusted with the sacred task of
delivering justice. A failure on the part of this Court to punish the offender on an occasion
such as this would thus be a failure to perform one of its essential duties solemnly
entrusted to it by the Constitution and the people. For all these reasons, we unhesitatingly
reject the said so called apology tendered by the contemner.

14. The question now is what punishment should be meted out to the contemner. We have
already discussed the contempt jurisdiction of this Court under Article 129 of the
Constitution. That jurisdiction is independent of the statutory law of contempt enacted by
the Parliament under Entry 77 of List I of VII Schedule of the Constitution. The
jurisdiction of this Court under Article 129 is sui generis. The jurisdiction to take
cognisance of the contempt as well as to award punishment for it being constitutional, it
cannot be controlled by any statute. Neither, therefore, the Contempt of Courts Act, 1971
nor the Advocates Act, 1961 can be pressed into service to restrict the said jurisdiction.
We have during the course of the proceedings indicated that if we convict the contemner
of the offence, we may also suspend his licence to practise as a lawyer. The learned
Counsel for the contemner and the interveners and also the learned Solicitor General
appointed amicus curiae to assist the Court were requested to advance their arguments
also on the said point. Pursuant to it, it was sought to be contended on behalf of the
contemner an the U.P. Bar Association and the U.P. Bar Council that the Court cannot
suspend the licence which is a power entrusted by the Advocates Act, 1961 specially
made for the purpose, to the disciplinary committees of the State Bar Councils and of the
Bar Council of India. The argument was that even the constitutional power under Articles
129 and 142 was circumscribed by the said statutory provisions and hence in the exercise
of our power under the said provisions, the licence of an advocate was not liable either to
be cancelled or suspended. A reference was made in this connection to the provisions
of Sections 35 and 36 of the Advocates Act, which show that the power to punish the
advocate is vested in the disciplinary committees of the State Bar Council and the Bar
Council of India. Under Section 37 of the Advocates Act, an appeal lies to the Bar
Council of India, when the order is passed by the disciplinary committee of the State Bar
Council. Under Section 38, the appeal lies to the Court when the order is made by the
disciplinary committee of the Bar Council of India, either under Section 36 or in appeal
under Section 37. The power to punish includes the power to suspend the Advocate from
practice for such period as the disciplinary committee concerned may deem fit
under Section 35[3](c) and also to remove the name of the advocate from the State roll of
the Advocates under Section 35[3](d). Relying on these provisions, it was contended that
since the Act has vested the powers of suspending and removing the advocate from
practice inclusively in the disciplinary committees of the State Bar Council and the Bar
Council of India, as the case may be, the Supreme Court is denuded of its power to
impose such punishment both under Articles 129 and 142 of the Constitution. In support
of this contention, reliance was placed on the observations of the majority of this Court
in Prem Chand Garg v. Excise Commission, U.P., Allahabad [1963] Supp. 1 S.C.R. 885
relating to the powers of this Court under Article 142 which are as follows :

In this connection, it may be pertinent to point out that the wide powers which are given
to this Court for doing complete justice between the parties, can be used by this Court for
instance, in adding parties to the proceedings pending before it, or in admitting additional
evidence, or in remanding the case, or in allowing an new point to be taken for the first
time. It is plain that in exercising these and similar other powers, this Court would not be
bound by the relevant provisions of procedure if it is satisfied that a departure from the
said procedure is necessary to do complete justice between the parties.

That takes us to the second argument urged by the Solicitor-General that Article

142 and Article 32 should be reconciled by the adoption of the rule of harmonious
construction. In this connection, we ought to bear in mind that though the powers
conferred on this Court by Article 142(1) are very wide, and the same can be exercised
for doing complete justice in any case, as we have already observed, this Court cannot
even under Article 142(1) make an order plainly inconsistent with the express statutory
provisions of substantive law, much less, inconsistent with any Constitutional provisions.
There can, therefore, be no conflict between Article 142(1) and Article 32. In the case
of KM. Nanavati v. The State of Bombay on which the Solicitor-General relies, it was
conceded, and rightly, that under Article 142(1) this Court had the power to grant bail in
cases brought before it, and so, there was obviously a conflict between the power vested
in this Court under the said Article and that vested in the Governor of the State
under Article 161. The possibility of a conflict between these powers necessitated the
application of the rule of harmonious construction. The said rule can have no application
to the present case, because on a fair construction of Article 142(1), this Court has no
power to circumscribe the fundamental right guaranteed under Article 32. The existence
of the said power is itself in dispute, and so, the present case is clearly distinguishable
from the case of KM. Nanavati.

15. Apart form the fact that these observations are made with reference to the powers of
this Court under Article 142 which are in the nature of supplementary powers and not
with reference to this Court's power under Article 129, the said observations have been
explained by this Court in its latter decisions in Delhi Judicial Services Association v.
State of Gujarat [supra] and Union Carbide Corporation v. Union of India [1991] SCC
584. In paragraph 51 of the former decision, it has been, with respect, rightly pointed out
that the said observations were made with regard to the extent of this Court's power
under Article 142[1] in the context of fundamental rights. Those observations have no
bearing on the present issue. No doubt, it was further observed there that those
observations have no bearing on the question in issue in that case as there was no
provision in any substantive law restricting this Court's power to quash proceedings
pending before subordinate courts. But it was also added there that this Court's power
under Article 142[1] to do complete justice was entirely of different level and of a
different quality. Any prohibition or restriction contained in ordinary laws cannot act as a
limitation on the constitutional power of this Court. Once this Court is in seisin of a
matter before it, it has power to issue any order or direction to do complete justice in the
matter. A reference was made in that connection to the concurring opinion of Justice A.N.
Sen in Harbans Singh v. State of U.P. , where the learned Judge observed as follows :

Very wide powers have been conferred on this Court for due and proper administration of
justice. Apart from the jurisdiction and powers conferred on this Court under Articles 32
and 136 of the Constitution I am of the opinion that this Court retains and must retain, an
inherent power and jurisdiction for dealing with any extra-ordinary situation in the larger
interests of administration of justice and for preventing manifest injustice being done.
This power must necessarily be sparingly used only in exceptional circumstances for
furthering the ends of justice.

The Court has then gone on to observe there that no enactment made by Central or State
legislature can limit or restrict the power of this Court under Article 142 of the
Constitution, though the Court under Article 142 of the Constitution, though the Court
must take into consideration the statutory provisions regulating the matter in dispute.
What would be the need of complete justice in a cause or matter, would depend upon the
facts and circumstances of each case.

In the latter case, i.e., the Union Carbide's case [supra], the Constitution Bench in
paragraph 83 stated as follows:

It is necessary to set at rest certain misconceptions in the arguments touching the scope of
the powers of this Court (sic) Article 142(1) of the Constitution, These issues are matter
of serious public importance. The proposition that a provision in any ordinary law
irrespective of the importance of the public policy on which it is founded, operates to
limit the powers of the apex Court under Article 142(1) is unsound and erroneous. In both
Garg as well as Antulay cases the point was one of violation of constitutional provisions
and constitutional rights. The observations as to the effect of inconsistency with statutory
provisions were really un-necessary in those cases as the decisions in the ultimate
analysis turned on the breach of constitutional rights. We agree with Shri Nariman that
the power of the Court under Article 142 insofar" as quashing of criminal proceedings are
concerned is not exhausted by Section 320 or 321 or 482 Cr.P.C. or all of them put
together. The power under Article 142 is at an entirely different level and of a different
quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso
facto, act as prohibitions or limitations on the constitutional powers under Article
142. Such prohibitions or limitations in the statutes might embody and reflect the scheme
of a particular law, taking into a Count the nature and status of the authority or the court
on which conferment of powers - limited in some appropriate way - is contemplates. The
limitations may not necessarily reflect or be based on any fundamental considerations of
public policy. Shri Sorabjee, learned Attorney General, referring to Garg Case, said that
limitation on the powers under Article 142 arising form "inconsistency with express
statutory provisions of substantive law" must really mean and be understood as some
express prohibition contained in any substantive statutory law. He suggested that if the
expression 'prohibition' is read in place of 'provision' that would perhaps convey the
appropriate idea. But we think that such prohibition should also be shown to be based on
some underlying fundamental and general issues of public policy and not merely
incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to
say that powers under Article 142 are subject to such express statutory prohibitions. That
would convey the idea that statutory provisions override a constitutional provision.
Perhaps, the proper way of expressing the idea is that in exercising powers under Article
142 and in assessing the needs of "complete justice" of a cause or matter, the apex Court
will take note of the express prohibitions in any substantive statutory provision based on
some fundamental principles of public policy and regulate the exercise of its power and
discretion accordingly. The proposition does not relate to the powers of the Court
under Article 142, but only to what is or is not 'complete justice' of a cause or matter and
in the ultimate analysis of the propriety of the exercise of the power. No question of lack
of jurisdiction or of nullity can arise.

In view of these observations of the latter Constitution Bench on the point, the
observations made by the majority in Prem Chand Garg's case [supra] are no longer a
good law. This is also pointed out by this Court in the case of Mohammed Anis v. Union
of India and Ors. [1994] Suppl.1 SCC 145 by referring to the decision of Delhi Judicial
Services v. State of Gujarat (supra) and Union Carbide Corporation v. Union of
India (supra) by observing that statutory provisions cannot override the constitutional
provisions and Article 142[1] being a constitutional power it cannot be limited or
conditioned by any statutory provision. The Court has then observed that it is, therefore,
clear that the power of the Apex Court under Article 142[1] of the Constitution cannot be
diluted by statutory provisions and the said position in law is now well settled by the
Constitution Bench decision in Union Carbide's case [supra].

16. The consequence of accepting the said contention advanced on behalf of the
contemner and the other parties, will be two-fold. This Court while exercising its power
under Article 142(1) would not even be entitled to reprimand the Advocate for his
professional misconduct which includes exhibition of disrespect to the Court as per Rule
2 of Section 1 of Chapter II of Part VI of the Bar Council of India Rules made under
the Advocates Act, which is also a contempt of court, since the reprimand of the advocate
is a punishment which the disciplinary committees of the State Bar Council and of the
Bar Council of India are authorised to administer under Section 35 of the Advocates Act.
Secondly, it would also mean that for any act of contempt of court, if it also happens to be
an act of professional misconduct under the Bar Council of India Rules, the courts
including this Court, will have no power to take action since the Advocates Act confers
exclusive power for taking action for such conduct on the disciplinary committees of the
State Bar Council and the Bar Council of India, as the case may be. Such a proposition of
law on the face of it deserves rejection for the simple reason that the disciplinary
jurisdiction of the State Bar Council and the Bar Council of India to take action for
professional misconduct is different from the jurisdiction of the courts to take action
against the advocates for the contempt of court. The said jurisdiction co-exist
independently of each other. The action taken under one jurisdiction does not bar an
action under the other jurisdiction.

17. The contention is also misplaced for yet another and equally, if not more, important
reason. In the matter of disciplinary jurisdiction under the Advocates Act, this Court is
constituted as the final Appellate authority under Section 38 of the Act as pointed out
earlier. In that capacity this Court can impose any of the punishments mentioned
in Section 35(3) of the Act including that of removal of the name of the Advocate from
the State roll and of suspending him from practice. If that be so, there is no reason why
this Court while exercising its contempt jurisdiction under Article 129 read with Article
142 cannot impose any of the said punishments. The punishment so imposed will not only
be not against the provisions of any statute, but in conformity with the substantive
provisions of the Advocates Act and for conduct which is both a professional misconduct
as well as the contempt of court. The argument has, therefore, to be rejected.

18. What is further, the jurisdiction and powers of this Court under Article 142 which are
supplementary in nature and are provided to do complete justice in any matter, are
independent of the jurisdiction and powers of this Court under Article 129 which cannot
be trammeled in any way by any statutory provision including the provisions of
the Advocates Act or the Contempt of Courts Act. As pointed out earlier, the Advocates
Act has nothing to do with the contempt jurisdiction of the court including of this Court
and the Contempt of Courts Act, 1971 being a statute cannot denude, restrict or limit the
powers of this Court to take action for contempt under Article 129. It is not disputed that
suspension of the advocate from practice and his removal from the State roll of advocates
are both punishments. There is no restriction or limitation on the nature of punishment
that this Court may award while exercising its contempt jurisdiction and the said
punishments can be the punishments the Court may impose while exercising the said
jurisdiction.

Shri P.P. Rao, learned Counsel appearing for the High Court Bar Association of
Allahabad contended that Article 19[1](a) and 19(2), and 19[1](g) and 19[6] have to be
read together and thus read the power to suspend a member of the legal profession from
practice or to remove him from the roll of the State Bar Council is not available to this
Court under Article 129. We have been unable to appreciate this contention. Article 19[1]
(a) guarantees freedom of speech and expression which is subject to the provisions
of Article 19[2] and, therefore, to the law in relation to the contempt of court as
well, Article 19[1](g) guarantees the right to practise any profession or to carry on any
occupation, trade or business and is subject to the provisions of Article 19[6] which
empowers the State to make a law imposing reasonable restrictions, in the interests of
general public, on the exercise of the said right and, in particular, is subject to a law
prescribing technical or professional qualifications necessary for practising the profession
or carrying on the occupation, trade or business. On our part we are unable to see how
these provisions of Article 19 can be pressed into service to limit the power of this Court
to take cognisance of and punish for the contempt of court under Article 129. The
contention that the power of this Court under Article 129 is subject to the provisions of
Articles 19[1](a) and 19[1](g), is unexceptional. However, it is not pointed out to us as to
how the action taken under Article 129 would be violative of the said provisions, since
the said provisions are subject to the law of contempt and the law laying down technical
and professional qualifications necessary for practising any profession, which includes
the legal profession. The freedom of speech and expression cannot be used of committing
contempt of court nor can the legal profession be practised by committing the contempt
of court. The right to continue to practise, is subject to the law of contempt. The law does
not mean merely the statute law but also the constitutional provisions. The right,
therefore, is subject to the restrictions placed by the law of contempt as contained in the
statute - in the present case, the Contempt of Courts Act, 1971 as well as to the
jurisdiction of this Court and of the High Court to take action under Articles 129 and 215
of the Constitution respectively. We, therefore, do not see any conflict between the
provisions of Articles 129 and 215, and Article 19[1](a) and Article 19(1)(g) read with
Articles 19[2] and 19[6] respectively.

19. When the Constitution vests this Court with a special and specific power to take
action for contempt not only of itself but of the lower courts and tribunals, for discharging
its constitutional obligations as the highest custodian of justice in the land, that power is
obviously coupled with a duty to protect all the limbs of the administration of justice from
those whose actions create interference with or obstruction to the course of justice.
Failure to exercise the power on such occasions, when it is invested specifically for the
purpose, is a failure to discharge the duty. In this connection, we may refer to the
following extract from the decision of this Court in Chief Controlling Revenue Authority
and Superintendent of Stamps v. Maharashtra Sugar Mills Ltd. [1950] SCR 536.

...But when a capacity or power is given to a public authority there may be circumstances
which couple with the power a duty to exercise it. To use the language of Lord Cairns in
the case of Julius v. Bishop of Oxford: There may be something in the nature of the thing
empowered to be done, something in the object for which it is to be done, something in
the conditions under which it is to be done, something in the title of the person or persons
for whose benefit the power is to be exercised, which may couple the power with a duty,
and make it the duty of the person in whom the power is reposed to exercise that power
when called upon to do so'.

20. For the reason discussed above, we find the contemner, Shri Vinay Chandra Mishra,
guilty of the offence of the criminal contempt of the Court for having interfered with and
obstructed the course of justice by trying to threaten, overawe and overbear the court by
using insulting, disrespectful and threatening language, and convict him of the said
offence. Since the contemner is a senior member of the Bar and also adorns the high
offices such as those of the Chairman of the Bar Council of India, the President of the
U.P. High Court Bar Association, Allahabad and others, his conduct is bound to infect the
members of the Bar all over the country. We are, therefore, of the view that an exemplary
punishment has to be meted out to him.

21. The facts and circumstances of the present case justify our invoking the power
under Article 129 read with Article 142 of the Constitution to award to the contemner a
suspended sentence of imprisonment together with suspension of his practice as an
advocate in the manner directed herein. We accordingly sentence the contemner for his
conviction for the offence of criminal contempt as under :
(11.1) The contemner is sentenced to undergo simple imprisonment for a period of six
weeks. However, in the circumstances of the case, the sentence will remain suspended for
a period of four years and may be activated in case the contemner is convicted for any
other offence of contempt of court within the said period, (11.2) The contemner shall
stand suspended from practising as an advocate for a period of three years from today
with the consequence that all elective and nominated offices/posts at presents held by him
in his capacity as an advocate, shall stand vacated by him forthwith.

The contempt petition is disposed of in the above terms.

Pravin C. Shah vs K.A. Mohd. Ali & Anr on 9 October, 2001

Author: Thomas
Bench: K.T.Thomas, S.N.Variava
CASE NO.:
Appeal (civil) 3050 of 2000

PETITIONER:
PRAVIN C. SHAH

Vs.

RESPONDENT:
K.A. MOHD. ALI & ANR.

DATE OF JUDGMENT: 09/10/2001

BENCH:
K.T.Thomas, S.N.Variava

JUDGMENT:

THOMAS, J.

We thought that the question involved in this appeal would generate much interest to the
legal profession and hence we issued notices to the Bar Council of India as well as the
State Bar Council concerned. But the Bar Council of India did not respond to the notice.
We therefore requested Mr. Dushyant A. Dave, Senior Advocate, to help us as amicus
curiae. The learned senior counsel did a commendable job to help us by projecting a wide
screen focussing on the full profiles of the subject with his usual felicity. We are
beholden to him.

When an advocate was punished for contempt of court can he appear thereafter as a
counsel in the courts, unless he purges himself of such contempt? If he cannot, then what
is the way he can purge himself of such contempt. That question has now come to be
determined by the Supreme Court.

This matter concerns an advocate practising mostly in the courts situated within
Ernakulam District of Kerala State. He was hauled up for contempt of court on two
successive occasions. We wish to skip the facts in both the said cases which resulted in
his being hauled up for such contempt as those facts have no direct bearing on the
question sought to be decided now. (The detailed facts leading to the said proceedings
have been narrated in the two decisions of the High Court of Kerala reported in C.N.
Presannan vs. K.A. Mohammed Ali 1991 Criminal Law Journal 2194 and 1991 Criminal
Law Journal 2205). Nonetheless it is necessary to state that the High Court of Kerala
found the respondent-advocate guilty of criminal contempt in both cases and convicted
him under Section 12 of the Contempt of Courts Act, 1971, and sentenced him in one
case to a fine of Rs.10,000/- (to be credited, if realised, to the funds of Kerala Legal Aid
Board). In the second case he was sentenced to pay a fine of Rs.2,000/-. Though he
challenged the conviction and sentence imposed on him by the High Court, he did not
succeed in the Supreme Court except getting the fine of Rs.2,000/- in one case deleted.
The apology tendered by him in this Court was not accepted, for which a two Judge
Bench made the following observation: We regretfully will not be able to accept his
apology at this belated juncture, but would rather admonish the appellant for his conduct
under our plenary powers under the constitution, which we do hereby.

The above conviction and sentence and refusal to accept the apology tendered on his
behalf did not create any ripple in him, so far as his resolve to continue to appear and
conduct cases in the courts was concerned. The present appellant (who represents an
association Lalan Road Residents Association, Cochin) brought to the notice of the Bar
Council of Kerala that the delinquent advocate continued to conduct cases before the
courts in Ernakulam District in spite of the conviction and sentence.

The Bar Council of Kerala thereupon initiated disciplinary proceedings against the
respondent-advocate and finally imposed a punishment on him debarring him from acting
or pleading in any court till he gets himself purged of the contempt of court by an order of
the appropriate court. The respondent-advocate challenged the order of the State Bar
Council in an appeal filed before the Bar Council of India. By the impugned order the Bar
Council of India set aside the interdict imposed on him.

This appeal, in challenge of the aforesaid order of the Bar Council of India, is preferred
by the same person at whose instance the State Bar Council initiated action against the
respondent-advocate.

While imposing the interdict on the advocate the Disciplinary Committee of the Bar
Council of the State took into account Rule 11 of the Rules framed by the High Court of
Kerala under Section 34(1) of the Advocates Act, 1961, regarding conditions and practice
of Advocates (hereinafter referred to as the Rules). Rule 11 reads thus:

No advocate who has been found guilty of contempt of Court shall be permitted to
appear, act or plead in any Court unless he has purged himself of the contempt.

The above rule shows that it was not necessary for the Disciplinary Committee of the Bar
Council to impose the said interdict as a punishment for misconduct. Even if the Bar
Council had not passed proceedings (which the Disciplinary Committee of the Bar
Council of India has since set aside as per the impugned order) the delinquent advocate
would have been under the disability contained in Rule 11 quoted above. It is a self-
operating rule for which only one stipulation need be satisfied i.e. the advocate concerned
should have been found guilty of contempt of court. The termini of the period of
operation of the interdict is indicated by the next stipulation i.e. the contemnor purges
himself of the contempt. The inhibition will therefore start operating when the first
stipulation is satisfied, and it would continue to function until the second stipulation is
fulfilled. The latter condition would remain eluded until the delinquent advocate himself
initiates steps towards that end.

Regarding the first condition there is no difficulty whatsoever in the present case because
it is an admitted fact that respondent-advocate has been found guilty of contempt of court
by the High Court of Kerala in two cases successively. For the operation of the interdict
contained in Rule 11 it is not even necessary that the advocate should have been
sentenced to any punishment after finding him guilty. The difficulty arises in respect of
the second condition mentioned above.

The Disciplinary Committee of the Bar Council of India seems to have approached the
question from a wrong angle by posing the following question:

The fundamental question arising for consideration in this appeal is whether Rule 11 of
the Rules framed by the Honourable High Court of Kerala under Section 34(1) of the
Advocates Act, 1961, is binding on the Disciplinary Committee of the State Bar Council
and if not whether the Disciplinary Committee was justified in ordering that on account
of the disqualification under Rule 11 the appellant could not be allowed to appear, act or
plead till he gets himself purged of the contempt by an order of the appropriate court.

There is no question of Rule 11 being binding on the Disciplinary Committee or any other
organ of the Bar Council. There is nothing in the said rule which would involve the Bar
Council in any manner. But there is nothing wrong for the Bar Council informing a
delinquent advocate of the existence of a bar contained in Rule 11 and remind him of his
liability to abide by it. Hence the question formulated by the Disciplinary Committee of
the Bar Council of India, as aforequoted, was unnecessary and fallacious.

In the impugned order the Disciplinary Committee rightly stated that the exercise of the
disciplinary powers over the advocates is exclusively vested with the Bar Council and this
power cannot be taken away by the High Court either by a judicial order or by making a
rule. This is precisely the legal position adumbrated by the Constitution Bench of this
Court in Supreme Court Bar Association vs. Union of India and anr. {1998 (4) SCC 409}
In fact the relevant portions of the said decision have been quoted in the impugned order
in extenso. But having informed themselves of the correct legal position regarding the
powers of the Bar Council the members of the Disciplinary Committee of the Bar Council
of India embarked on a very erroneous concept when it observed the following: But to
say that an advocate who had been found guilty of contempt of court shall not be
permitted to appear, act or plead in a court unless he has purged himself of the contempt
would amount to usurpation of powers of Bar Council.

After examining Rule 11 of the Rules the Disciplinary Committee of the Bar Council of
India held that there cannot be an automatic deprivation of the right of an advocate to
appear, act or plead in a court, since such a course would be unfair and even violative of
the fundamental rights guaranteed under Articles 14, 19(1)(g) and 21 of the Constitution
of India. In the end the Disciplinary Committee of the Bar Council of India made an
unwarranted proposition on a misplaced apprehension as follows:

The independence and autonomy of the Bar Council cannot be surrendered to the
provisions contained in Rule 11 of the Rules made by High Court of Kerala under S.34(1)
of the Advocates Act.

By giving expression to such a proposition the Bar Council of India has obviously
overlooked the legal position laid down by the Constitution Bench in Supreme Court Bar
Association vs. Union of India (supra). In paragraph 57 of the decision the Bench said
thus: In a given case, an advocate found guilty of committing contempt of court may also
be guilty of committing professional misconduct, depending upon the gravity or nature of
his contumacious conduct, but the two jurisdictions are separate and distinct and
exercisable by different forums by following separate and distinct procedures. The power
to punish an advocate by suspending his licence or by removal of his name from the roll
of the State Bar Council for proven professional misconduct vests exclusively in the
statutory authorities created under the Advocates Act, 1961, while the jurisdiction to
punish him for committing contempt of court vests exclusively in the courts.

Thereafter in paragraph 80, the Constitution Bench said the following:

In a given case it may be possible, for this Court or the High Court, to prevent the
contemnor advocate to appear before it till he purges himself of the contempt but that is
much different from suspending or revoking his licence or debarring him to practise as an
advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct
of an Advocate-on- Record, this Court possesses jurisdiction, under the Supreme Court
Rules itself, to withdraw his privilege to practice as an Advocate-on-Record because that
privilege is conferred by this Court and the power to grant the privilege includes the
power to revoke or suspend it. The withdrawal of that privilege, however, does not
amount to suspending or revoking his licence to practice as an advocate in other courts or
tribunals.

Rule 11 of the Rules is not a provision intended for the Disciplinary Committee of the
Bar Council of the State or the Bar Council of India. It is a matter entirely concerning the
dignity and the orderly functioning of the courts. The right of the advocate to practise
envelopes a lot of acts to be performed by him in discharge of his professional duties.
Apart from appearing in the courts he can be consulted by his clients, he can give his
legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any
other documents, he can participate in any conference involving legal discussions etc.
Rule 11 has nothing to do with all the acts done by an advocate during his practice except
his performance inside the court. Conduct in court is a matter concerning the court and
hence the Bar Council cannot claim that what should happen inside the court could also
be regulated by Bar Council in exercise of its disciplinary powers. The right to practise,
no doubt, is the genus of which the right to appear and conduct cases in the court may be
a specie. But the right to appear and conduct cases in the court is a matter on which the
court must have the major supervisory power. Hence the court cannot be divested of the
control or supervision of the court merely because it may involve the right of an advocate.

When the rules stipulate that a person who committed contempt of court cannot have the
unreserved right to continue to appear and plead and conduct cases in the courts without
any qualm or remorse, the Bar Council cannot overrule such a regulation concerning the
orderly conduct of court proceedings. Courts of law are structured in such a design as to
evoke respect and reverence to the majesty of law and justice. The machinery for
dispensation of justice according to law is operated by the court. Proceedings inside the
courts are always expected to be held in a dignified and orderly manner. The very sight of
an advocate, who was found guilty of contempt of court on the previous hour, standing in
the court and arguing a case or cross-examining a witness on the same day, unaffected by
the contemptuous behaviour he hurled at the court, would erode the dignity of the court
and even corrode the majesty of it besides impairing the confidence of the public in the
efficacy of the institution of the courts. This necessitates vesting of power with the High
Court to formulate rules for regulating the proceedings inside the court including the
conduct of advocates during such proceedings. That power should not be confused with
the right to practise law. While the Bar Council can exercise control over the latter, the
High Court should be in control of the former.

In the above context it is useful to quote the following observations made by a Division
Bench of the Allahabad High Court in Prayag Das vs. Civil Judge, Bulandshahr and ors.
(AIR 1974 Allahabad 133): The High Court has a power to regulate the appearance of
advocates in courts. The right to practise and the right to appear in courts are not
synonymous. An advocate may carry on chamber practice or even practise in courts in
various other ways, e.g. drafting and filing of pleadings and Vakalatnama for performing
those acts. For that purpose his physical appearance in courts may not at all be necessary.
For the purpose of regulating his appearance in courts the High Court should be the
appropriate authority to make rules and on a proper construction of Section 34(1) of the
Advocates Act it must be inferred that the High Court has the power to make rules for
regulating the appearance of Advocates and proceedings inside the courts. Obviously the
High Court is the only appropriate authority to be entrusted with this responsibility.

In our view, the legal position has been correctly delineated in the above statements made
by the Allahabad High Court. The context for making those statements was that an
advocate questioned the powers of the High Court in making dress regulations for the
advocates while appearing in courts.
Lord Denning had observed as follows in Hadkinson vs. Hadkinson {1952 (2) All
England Law Reports 567}: I am of the opinion that the fact that a party to a cause has
disobeyed an order of the court is not of itself a bar to his being heard, but if his
disobedience is such that, so long as it continues, it impedes the course of justice in the
cause, by making it more difficult for the court to ascertain the truth or to enforce the
orders which it may make, then the court may in its discretion refuse to hear him until the
impediment is removed or good reason is shown why it should not be removed.

The observations can apply to the courts in India without any doubt and at the same time
without impeding the disciplinary powers vested in the Bar Councils under the Advocates
Act.

We have already pointed out that Rule 11 of the Rules is a self-operating provision. When
the first postulate of it is completed (that the advocate has been found guilty of contempt
of court) his authority to act or plead in any court stands snapped, though perhaps for the
time being. If he does such things without the express permission of the court he would
again be guilty of contempt of court besides such act being a misconduct falling within
the purview of Section 34 of the Advocates Act. The interdict as against him from
appearing in court as a counsel would continue until such time as he purges himself of the
contempt.

Now we have to consider the crucial question - How can a contemnor purge himself of
the contempt? According to the Disciplinary Committee of the Bar Council of India,
purging oneself of contempt can be done by apologising to the court. The said opinion of
the Bar Council of India can be seen from the following portion of the impugned order:
Purging oneself of contempt can be only by regretting or apologising in the case of a
completed action of criminal contempt. If it is a case of civil contempt, by subsequent
compliance with the orders or directions the contempt can be purged off. There is no
procedural provision in law to get purged of contempt by an order of an appropriate court.

Purging is a process by which an undesirable element is expelled either from ones own
self or from a society. It is a cleansing process. Purge is a word which acquired
implications first in theological connotations. In the case of a sin, purging of such sin is
made through the expression of sincere remorse coupled with doing the penance required.
In the case of a guilt, purging means to get himself cleared of the guilt. The concept of
purgatory was evolved from the word purge, which is a state of suffering after this life in
which those souls, who depart this life with their deadly sins, are purified and render fit to
enter into heaven where nothing defiled enters. (vide Words and Phrases, Permanent
Edn., Vol.35A, page

307). In Blacks Law Dictionary the word purge is given the following meaning: To
cleanse; to clear or exonerate from some charge or imputation of guilt, or from a
contempt. It is preposterous to suggest that if the convicted person undergoes punishment
or if he tenders the fine amount imposed on him the purge would be completed.

We are told that a learned single Judge of the Allahabad High Court has expressed a view
that purging process would be completed when the contemnor undergoes the penalty
(vide Dr. Madan Gopal Gupta vs. The Agra University and ors., AIR 1974 Allahabad 39).
This is what the learned single Judge said about it:

In my opinion a party in contempt purged its contempt by obeying the orders of the court
or by undergoing the penalty imposed by the court.

Obeying the orders of the court would be a mode by which one can make the purging
process in a substantial manner when it is a civil contempt. Even for such a civil contempt
the purging process would not be treated as completed merely by the contemnor
undergoing the penalty imposed on him unless he has obeyed the order of the court or he
has undone the wrong. If that is the position in regard to civil contempt the position
regarding criminal contempt must be stronger. Section 2 of the Contempt of Courts Act
categorises contempt of court into two categories. The first category is civil contempt
which is the willful disobedience of the order of the court including breach of an
undertaking given to the court. But criminal contempt includes doing any act whatsoever
which tends to scandalise or lowers the authority of any court, or tends to interfere with
the due course of a judicial proceeding or interferes with, or obstructs the administration
of justice in any other manner.

We cannot therefore approve the view that merely undergoing the penalty imposed on a
contemnor is sufficient to complete the process of purging himself of the contempt,
particularly in a case where the contemnor is convicted of criminal contempt. The danger
in giving accord to the said view of the learned single Judge in the afore-cited decision is
that if a contemnor is sentenced to a fine he can immediately pay it and continue to
commit contempt in the same court, and then again pay the fine and persist with his
contemptuous conduct. There must be something more to be done to get oneself purged
of the contempt when it is a case of criminal contempt.

The Disciplinary Committee of the Bar Council of India highlighted the absence of any
mode of purging oneself of the guilt in any of the Rules as a reason for not following the
interdict contained in Rule 11. Merely because the Rules did not prescribe the mode of
purging oneself of the guilt it does not mean that one cannot purge the guilt at all. The
first thing to be done in that direction when a contemnor is found guilty of a criminal
contempt is to implant or infuse in his own mind real remorse about his conduct which
the court found to have amounted to contempt of court. Next step is to seek pardon from
the court concerned for what he did on the ground that he really and genuinely repented
and that he has resolved not to commit any such act in future. It is not enough that he
tenders an apology. The apology tendered should impress the court to be genuine and
sincere. If the court, on being impressed of his genuineness, accepts the apology then it
could be said that the contemnor has purged himself of the guilt.

This Court has held in M.Y. Shareef and anr. vs. Honble Judges of the Nagpur High
Court and ors. (AIR 1955 SC 19) that an apology is not a weapon of defence to purge the
guilty of their offence, nor is it intended to operate as a universal panacea, but it is
intended to be evidence of real contriteness. Ahmadi, J (as the learned Chief Justice then
was) in M.B. Sanghi, Advocate vs. High Court of Punjab and Haryana and ors. {1991(3)
SCC 600}, while considering an apology tendered by an advocate in a contempt
proceeding has stated thus:
And here is a member of the profession who has repeated his performance presumably
because he was let off lightly on the first occasion. Soft justice is not the answer not that
the High Court has been harsh with him what I mean is he cannot be let off on an apology
which is far from sincere. His apology was hollow, there was no remorse no regret it was
only a device to escape the rigour of the law. What he said in his affidavit was that he had
not uttered the words attributed to him by the learned Judge; in other words the learned
judge was lying adding insult to injury and yet if the court finds him guilty (he contested
the matter tooth and nail) his unqualified apology may be accepted. This is no apology, it
is merely a device to escape.

A four Judge Bench of this Court in Mulk Raj vs. State of Punjab {1972 (3) SCC 839}
made the following observations which would throw considerable light on the question
before us:

Apology is an act of contrition. Unless apology is offered at the earliest opportunity and
in good grace apology is aborn of penitence. If apology is offered at a time when the
contemnor finds that the court is going to impose punishment it ceases to be an apology
and it becomes an act of a cringing coward. The High Court was right in not taking any
notice of the appellants expression of apology without any further word. The High Court
correctly said that acceptance of apology in the case would amount to allow the offender
to go away with impunity after having committed gross contempt.

Thus a mere statement made by a contemnor before court that he apologises is hardly
enough to amount to purging himself of the contempt. The court must be satisfied of the
genuineness of the apology. If the court is so satisfied and on its basis accepts the apology
as genuine the court has to make an order holding that the contemnor has purged himself
of the contempt. Till such an order is passed by the court the delinquent advocate would
continue to be under the spell of the interdict contained in Rule 11 of the Rules.

Shri Sadrul Anam, learned counsel for the respondent- advocate submitted first, that the
respondent has in fact apologised before this Court through the counsel engaged by him,
and second is that when this Court observed that this course should set everything at rest
it should be treated as the acknowledgement made by this Court that the contemnor has
purged himself of the guilt.

We are unable to accept either of the said contentions. The observation that this course
should set everything at rest in the judgment of this Court cannot be treated as anything
beyond the scope of the plea made by the respondent in that case. That apart, this Court
was certainly disinclined to accept the apology so tendered in this Court which is clearly
manifested from the outright repudiation of that apology when this Court said thus: We
regretfully will not be able to accept his apology at this belated juncture, but would rather
admonish the appellant for his conduct under our plenary powers under the constitution,
which we do hereby.

The respondent-advocate continued to appear in all the courts where he was earlier
appearing even after he was convicted by the High Court for criminal contempt without
being objected by any court. This is obviously on account of the fact that presiding
officers of the court were not informed of what happened. We, therefore, direct that in
future, whenever an advocate is convicted by the High Court for contempt of court, the
Registrar of that High Court shall intimate the fact to all the courts within the jurisdiction
of that High Court so that presiding officers of all courts would get the information that
the particular advocate is under the spell of the interdict contained in Rule 11 of the Rules
until he purges himself of the contempt.

It is still open to the respondent-advocate to purge himself of the contempt in the manner
indicated above. But until that process is completed respondent-advocate cannot act or
plead in any court situated within the domain of the Kerala High Court, including the
subordinate courts thereunder. The Registrar of the High Court of Kerala shall intimate
all the courts about this interdict as against the respondent-advocate.

This appeal is disposed of accordingly.

al Thackrey vs Harish Pimpalkhute & Ors on 29 November, 2004

Author: Y.K.Sabharwal
Bench: Y.K. Sabharwal, D.M. Dharmadhikari, Tarun Chatterjee
CASE NO.:
Appeal (crl.) 149-150 of 1997

PETITIONER:
Bal Thackrey

RESPONDENT:
Harish Pimpalkhute & Ors.

DATE OF JUDGMENT: 29/11/2004

BENCH:
Y.K. Sabharwal, D.M. Dharmadhikari & Tarun Chatterjee

JUDGMENT:

J U D G M E N T [With Crl.A.No.168 of 1997 & Crl.A.No.169 of 1997] Y.K.Sabharwal,

J.

Action for contempt is divisible into two categories, namely, that initiated suo motu by
the Court and that instituted otherwise than on the court's own motion. The mode of
initiation in each case would necessarily be different. While in the case of suo motu
proceedings, it is the Court itself which must initiate by issuing a notice, in the other
cases initiation can only be by a party filing an application. [Pallav Sheth v. Custodian
and Others (2001) 7 SCC 549].
The main issue for determination in these appeals is whether contempt proceedings were
initiated against the appellant suo motu by the court or by respondents. First we may note
the background under which these matters were referred to a larger Bench.

Delhi High Court in the case of Anil Kumar Gupta v. K.Suba Rao & Anr. [ILR (1974) 1
Del.1] issued following directions :

"The office is to take note that in future if any information is lodged even in the form of a
petition inviting this Court to take action under the Contempt of Courts Act or Article
215 of the Constitution, where the informant is not one of the persons named in Section
15 of the said Act, it should not be styled as a petition and should not be placed for
admission on the judicial side. Such a petition should be placed before the Chief Justice
for orders in Chambers and the Chief Justice may decide either by himself or in
consultation with the other judges of the Court whether to take any cognizance of the
information."

In P.N.Duda v. P.Shiv Shanker & Ors. [(1988) 3 SCC 167] this Court approving the
aforesaid observation of Delhi High Court directed as under:

"...the direction given by the Delhi High Court sets out the proper procedure in such cases
and may be adopted, at least in future, as a practice direction or as a rule, by this Court
and other High Courts."

Challenging the conviction of the appellant for offence under Section 15 of the Contempt
of Courts Act, 1971 (for short 'the Act') it was, inter alia, contended that the directions in
P.N.Duda's case (supra) were not followed by the High Court inasmuch as the
informative papers styled as contempt petitions were not placed before the Chief Justice
of the High Court for suo motu action and, therefore, the exercise was uncalled for and
beyond legal sanctity. This aspect assumed significant importance because admittedly the
contempt petitions were filed in the High Court without the consent of the Advocate-
General and, therefore, not competent except when the court finds that the contempt
action was taken by the court on its own motion. The two-judge bench hearing the
appeals expressed the view that the aforesaid directions approved by this Court in
P.N.Duda's case are of far-reaching consequences. The Bench observed that the power
under Section 15 of the Act to punish contemners for contempt rests with the court and in
Duda's case, they seem to have been denuded to rest with the Chief Justice on the
administrative side. Expressing doubts about the correctness of the observations made in
Duda's case, and observing that the same require reconsideration, these appeals were
directed to be referred for decision by a larger Bench. Under this background, these
matters have been placed before us. For determination of the main issue in these appeals
including the aforesaid aspect arising out of Duda's case, it is necessary to briefly note the
object of the power of the Court to punish a person for contempt. Every High Court
besides powers under the Act has also the power to punish for contempt as provided
in Article 215 of the Constitution of India. Repealing the Contempt of Courts Act, 1952,
the Act was enacted, inter alia, providing definition of civil and criminal contempt and
also providing for filtering of criminal contempt petitions. The Act laws down 'contempt
of court' to mean civil contempt or criminal contempt. We are concerned with criminal
contempt. 'Criminal contempt' is defined in Section 2(c) of the Act. It, inter alia, means
the publication (whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act whatsoever
which scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any
court. The procedure for initiating a proceeding of contempt when it is committed in the
face of the Supreme Court or High Court has been prescribed in Section 14 of the Act. In
the case of criminal contempt, other than a contempt referred to in Section 14 the manner
of taking cognizance has been provided for in Section 15 of the Act. This section, inter
alia, provides that action for contempt may be taken on court's 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.

The contempt jurisdiction enables the Court to ensure proper administration of justice and
maintenance of the rule of law. It is meant to ensure that the courts are able to discharge
their functions properly, unhampered and unsullied by wanton attacks on the system of
administration of justice or on officials who administer it, and to prevent willful defiance
of orders of the court or undertakings given to the court [Commissioner, Agra v. Rohtas
Singh (1998) 1 SCC 349]. In Supreme Court Bar Association v. Union of India & Anr.
[(1998) 4 SCC 409] it was held that "The purpose of contempt jurisdiction is to uphold
the majesty and dignity of the courts of law. It is an unusual type of jurisdiction
combining "the jury, the judge and the hangman" and it is so because the court is not
adjudicating upon any claim between litigating parties. This jurisdiction is not exercised
to protect the dignity of an individual judge but to protect the administration of justice
from being maligned. In the general interest of the community it is imperative that the
authority of courts should not be imperiled and there should be no unjustifiable
interference in the administration of justice." Dealing with the nature and character of the
power of the courts to deal with contempt in the case of Pritam Pal, v. High Court of
Madhya Pradesh, Jabalpur Through Registrar, [(1993) Supp. (1) SCC 529], this Court
observed :

"15. Prior to the Contempt of Courts Act, 1971, it was held that the High Court has
inherent power to deal with a contempt of itself summarily and to adopt its own
procedure, provided that it gives a fair and reasonable opportunity to the contemnor to
defend himself. But the procedure has now been prescribed by Section 15 of the Act in
exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the
Constitution. Though the contempt jurisdiction of the Supreme Court and the High Court
can be regulated by legislation by appropriate legislature under Entry 77 of List I and
Entry 14 of List III in exercise of which the Parliament has enacted the Act of 1971, the
contempt jurisdiction of the Supreme Court and the High Court is given a constitutional
foundation by declaring to be 'Courts of Record' under Articles 129 and 215 of the
Constitution and, therefore, the inherent power of the Supreme Court and the High Court
cannot be taken away by any legislation short of constitutional amendment. In
fact, Section 22 of the Act lays down that the provisions of this Act shall be in addition to
and not in derogation of the provisions of any other law relating to contempt of courts. It
necessarily follows that the constitutional jurisdiction of the Supreme Court and the High
Court under Articles 129 and 215 cannot be curtailed by anything in the Act of 1971"
The nature and power of the Court in contempt jurisdiction is a relevant factor for
determining the correctness of observations made in Duda's case (supra). Dealing with the
requirement to follow the procedure prescribed by law while exercising powers
under Article 215 of the Constitution to punish for contempt, it was held by this Court
in Dr. L.P. Misra v. State of U.P. [(1998) 7 SCC 379] that the High Court can invoke
powers and jurisdiction vested in it under Article 215 of the Constitution of India but such
a jurisdiction has to be exercised in accordance with the procedure prescribed by law. The
exercise of jurisdiction under Article 215 of the Constitution is also governed by laws and
the rules subject to the limitation that if such laws/rules stultify or abrogate the
constitutional power then such laws/rules would not be valid. In L.P.Misra's case (supra)
it was observed that the procedure prescribed by the Rules has to be followed even in
exercise of jurisdiction under Article 215 of the Constitution. To the same effect are the
observations in Pallav Sheth's case (supra).

For determination of the issues involved, it would also be useful to note the observations
made in the case of S.K.Sarkar, Member, Board of Revenue, U.P., Lucknow v. Vinay
Chandra Misra, [(1981) 1 SCC 436] to the following effect:

"Section 15 does not specify the basis or the source of information on which the High
Court can act on its own motion. If the High Court acts on information derived from its
own sources, such as from a perusal of the records of a subordinate court or on reading a
report in a newspaper or hearing a public speech, without there being any reference from
the subordinate court or the Advocate General, it can be said to have taken cognizance on
its own motion. But if the High Court is directly moved by a petition by a private person
feeling aggrieved, not being the Advocate General, can the High Court refuse to entertain
the same on the ground that it has been made without the consent in writing of the
Advocate General? It appears to us that the High Court, has, in such a situation, a
discretion to refuse to entertain the petition, or to take cognizance on its own motion on
the basis of the information supplied to it in that petition."

In P.N.Duda's case (supra), it was held that :-

"54. A conjoint perusal of the Act and rules makes it clear that, so far as this Court is
concerned, action for contempt may be taken by the court on its own motion or on the
motion of the Attorney General (or Solicitor General) or of any other person with his
consent in writing. There is no difficulty where the Court or the Attorney General chooses
to move in the matter. But when this is not done and a private person desires that such
action should be taken, one of three courses is open to him. He may place the information
in his possession before the court and request the court to take action (vide C. K.
Daphtary v. O. P.

Gupta and Sarkar v. Misra); he may place the information before the Attorney General
and request him to take action; or he may place the information before the Attorney
General and request him to permit him to move to the court."

The direction issued and procedure laid down in Duda's case is applicable only to cases
that are initiated suo motu by the Court when some information is placed before it for suo
motu action for contempt of court.
A useful reference can also be made to some observations made in J.R.Parashar,
Advocate, and Others v. Prasant Bhushan, Advocate and Others [(2001) 6 SCC 735]. In
that case noticing the Rule 3 of the Rules to regulate proceedings for contempt of the
Supreme Court, 1975 which like Section 15 of the Act provides that the Court may take
action in cases of criminal contempt either (a) suo motu; or (b) on a petition made by
Attorney-General or Solicitor-General, or (c) on a petition made by any person and in the
case of a criminal contempt with consent in writing of the Attorney-General or the
Solicitor-General as also Rule 5 which provides that only petitions under Rules 3(b) and
(c) shall be posted before the Court for preliminary hearing and for orders as to issue of
notice, it was observed that the matter could have been listed before the Court by the
Registry as a petition for admission only if the Attorney-General or Solicitor-General had
granted the consent. In that case, it was noticed that the Attorney-General had specifically
declined to deal with the matter and no request had been made to the Solicitor-General to
give his consent. The inference, therefore, is that the Registry should not have posted the
said petition before the Court for preliminary hearing. Dealing with taking of suo motu
cognizance in para 28 it was observed as under:-

"Of course, this Court could have taken suo motu cognizance had the petitioners prayed
for it.

They had not. Even if they had, it is doubtful whether the Court would have acted on the
statements of the petitioners had the petitioners been candid enough to have disclosed that
the police had refused to take cognizance of their complaint. In any event the power to act
suo motu in matters which otherwise require the Attorney-General to initiate proceedings
or at least give his consent must be exercised rarely. Courts normally reserve this exercise
to cases where it either derives information from its own sources, such as from a perusal
of the records, or on reading a report in a newspaper or hearing a public speech or a
document which would speak for itself. Otherwise sub-section (1) of Section 15 might be
rendered otiose"

The whole object of prescribing procedural mode of taking cognizance in Section 15 is to
safeguard the valuable time of the court from being wasted by frivolous contempt
petition. In J.R. Parashar's case (supra) it was observed that underlying rational of clauses
(a), (b) and (c) of Section 15 appears to be that when the court is not itself directly aware
of the contumacious conduct, and the actions are alleged to have taken place outside its
precincts, it is necessary to have the allegations screened by the prescribed authorities so
that Court is not troubled with the frivolous matters. To the similar effect is the decision
in S.R.Sarkar's case (supra). In the light of the aforesaid, the procedure laid and directions
issued in Duda's case are required to be appreciated also keeping in view the additional
factor of the Chief Justice being the master of the roster. In State of Rajasthan v. Prakash
Chand and Others [ (1998) 1 SCC 1] it was held that it is the prerogative of the Chief
Justice of the High Court to distribute business of the High Court both judicial and
administrative. He alone has the right and power to decide how the Benches of the High
Court are to be constituted; which Judge is to sit alone and which cases he can and is
required to hear as also to which Judges shall constitute a Division Bench and what work
those Benches shall do. The directions in Duda's case when seen and appreciated in the
light of what we have noticed hereinbefore in respect of contempt action and the powers
of the Chief Justice, it would be clear that the same prescribe the procedure to be
followed by High Courts to ensure smooth working and streamlining of such contempt
actions which are intended to be taken up by the court suo motu on its own motion. These
directions have no effect of curtailing or denuding the power of the High Court. It is also
to be borne in mind that the frequent use of suo motu power on the basis of information
furnished in a contempt petition otherwise incompetent under Section 15 of the Act may
render the procedural safeguards of Advocate-General's consent nugatory. We are of the
view that the directions given in Duda's case are legal and valid. Now, the question is
whether in these matters the High Court initiated contempt action on its own motion or on
motions made by the respondents. It is not in dispute that the two contempt petitions
(Contempt Petition No.12 and Contempt Petition No.13 of 1996) were filed in the High
Court against the appellant under Section 15 of the Act for having committed contempt of
court as postulated under Section 2(c) of the Act for having made a public speech.
According to the petitions, the appellant scandalised the court or at least the offending
speech had the tendency to scandalise or lower the authority of the Court. The contempt
petitions were filed without obtaining the consent of the Advocate-General. In one of the
petitions consent had not even been sought for and besides the prayer for holding the
appellant guilty of contempt, further prayers were also made for suitable inquiry being
made in the allegations made by the appellant in the speech and for issue of directions to
him to appear before Court and reveal the truth and for prosecuting him. The applicant
before the High Court, it seems clear from the averments made in the contempt petition
was in an opposite political camp. The petition was based on utterances made by
appellant in public meetings held on 21st October, 1996.

It is well settled that the requirement of obtaining consent in writing of the Advocate-
General for making motion by any person is mandatory. A motion under Section 15 not
in conformity with the requirements of that Section is not maintainable. [State of Kerala
v. M.S.Mani and Others [(2001) 8 SCC 82].

In Contempt Petition No.12 an application dated 22nd October, 1996 was submitted to
the Advocate-General along with proposed contempt petition stating that the applicant
wanted to file petition by 2nd December, 1996 and, therefore, the permission may be
granted before that date and further stating that if no answer is received from the
Advocate-General it would be presumed that permission has been granted and the
applicant will proceed with the intended contempt proceedings. Such a course is not
permissible under Section 15 of the Act. There is no question of any presumption. In fact,
Contempt Petition No.12 was filed on 2nd December, without the consent of the
Advocate-General. It further appears that the application seeking permission of the
Advocate-General was received by him on 26th November, 1996. It also appears that the
Advocate-General appeared before the Court on 3rd February, 1997 and stated that he can
decide the question of consent within a reasonable time. The impugned judgment holding
appellant guilty of contempt and inflicting simple imprisonment for a period of one week
and fine of Rs.2000/- was passed on 7th February, 1997.

A perusal of record including the notices issued to the appellant shows that the Court had
not taken suo motu action against the appellant. In contempt petitions, there was no
prayer for taking suo motu action for contempt against the appellant. The specific
objection taken that though suo motu action could be taken under Section 15 of the Act
on any information or newspaper but not on the basis of those contempt petitions which
were filed in regular manner by private parties, was rejected by the High Court observing
that being Court of Record it can evolve its own procedure, which means that the
procedure should provide just and fair opportunity to the contemner to defend effectively
and that the contemner has not expressed any prejudice or canvassed any grievance that
he could not understand the charge involved in the proceeding which he had been called
upon to defend. It is, however, not in dispute that the charge against the appellant was not
framed.

In these matters, the question is not about compliance or non- compliance of the
principles of natural justice by granting adequate opportunity to the appellant but is about
compliance of the mandatory requirements of Section 15 of the Act. As already noticed
the procedure of Section 15 is required to be followed even when petition is filed by a
party under Article 215 of the Constitution, though in these matters petitions filed were
under Section 15 of the Act. From the material on record, it is not possible to accept the
contention of the respondents that the Court had taken suo motu action. Of course, the
Court had the power and jurisdiction to initiate contempt proceedings suo motu and for
that purpose consent of the Advocate-General was not necessary. At the same time, it is
also to be borne in mind that the Courts normally take suo motu action in rare cases. In
the present case, it is evident that the proceedings before the High Court were initiated by
the respondents by filing contempt petitions under Section 15. The petitions were
vigorously pursued and strenuously argued as private petitions. The same were never
treated as suo motu petitions. In absence of compliance of mandatory requirement
of Section 15, the petitions were not maintainable. As a result of aforesaid view, it is
unnecessary to examine in the present case, the effect of non-compliance of the directions
issued in Duda's case by placing the informative papers before the Chief Justice of the
High Court.

For the foregoing reasons we set aside the impugned judgment and allow the appeals.
Fine, if deposited by the appellant shall be refunded to him.

Before parting, it is necessary to direct framing of necessary rule or practice direction by

the High Courts in terms of Duda's case. Accordingly, we direct Registrar-General to
send a copy of this judgment to the Registrar-Generals of the High Courts so that
wherever rule and/or practice direction on the line suggested in Duda's case has not been
framed, the High Courts may now frame the same at their earliest convenience.

An Advocate vs Bar Council Of India And Anr. on 29 September, 1988

Equivalent citations: AIR 1989 SC 245, JT 1988 (4) SC 376, 1988 (2) SCALE 1362,
1989 Supp (2) SCC 25, 1988 Supp 3 SCR 361
Author: M Thakkar
Bench: M Thakkar, B Ray

JUDGMENT M.P. Thakkar, J.

1. A hast of questions of seminal significance, not only for the Advocate who has been
suspended from practising his profession for 3 years on the charge of having withdrawn a
suit (as settled) without the instructions from his client, but also for the members of the
legal profession in general have arisen in this appeal (Appeal under Section 38 of the
Advocates Act, 1961):

(1) Whether a charge apprising him specifically of the precise nature and character of the
professional misconduct ascribed to him needs to be framed?

(2) Whether in the absence of an allegation or finding of dishonesty or mens rea a finding
of guilt and a punishment of this nature can be inflicted on him?

(3) Whether the allegations and the finding of guilt require to be proved beyond
reasonable doubt?

(4) Whether the doctrine of benefit of doubt applies?

(5) Whether an Advocate acting bona fide and in good faith on the basis of oral
instructions given by some one purporting to act on behalf of his client, would be guilty
of professional misconduct or of an unwise or imprudent act, or negligence simpliciter, or
culpable negligence punishable as professional misconduct?

2. The suit was a suit for recovery of Rs. 30,098 (Suit No. 65/81 on the file of Additional
City Civil Judge, Bangalore). It appears that the complainant had entrusted the brief to the
appellant which he in his turn had entrusted to his junior colleague (respondent No. 2
herein) who was attached to his Office and was practising along with him at his office at
the material time. At the point of time when the suit was withdrawn, respondent No. 2
was practising on his own having set up his separate office. On the docket of the brief
pertaining to the suit, the appellant made an endorsement giving instructions to withdraw
the suit as settled. A sketch was drawn on the back of the cover to enable the person
carrying the brief to the junior colleague to locate his office in order to convey the
instructions as per the endorsement made by the appellant. The allegations made by the
complainant against the appellant are embodied in paragraphs 1 & 2 of his complaint:

1. The petitioner submits that he entrusted a matter to the Second Respondent to file a
case against Shri S. Anantaraju for recovery of a sum of Rs. 30,098 with Court costs and
current interest in Case No. O.S. 1965/81 on the file of the City Civil Judge at Bangalore.
The Petitioner submits that the said suit was filed by the first respondent who was then a
Junior of the Second respondent. The petitioner submits that the matter in dispute in the
suit was not settled at all and the first respondent without the knowledge and without the
instructions of the petitioner has filed a memo stating that the matter is settled out of
Court and got the suit dismissed and he has also received half of the institution court fee
within 10 days since the date of the disposal of the suit. The petitioner submits that he has
not received either the suit amount or the refund of court fee and he is not aware of the
dismissal of the suit as settled out of court.

2. The petitioner submits that when the case was posted for filing of written statement
itself the first respondent has filed such a memo stating that the suit was settled out of
Court. The petitioner submits that in fact, the respondents did not even inform the
petitioner about the dates of hearing and when the petitioner asked the dates of hearing
the respondents informed the petitioner stating that his presence is not required in the
Court since the case was posted for filing of written statement and therefore, the
petitioner did not attend the Court on that day. The petitioner submits that when he
enquired about the further date of hearing the respondents did not give the date and said
that they would verify the next date of hearing since they have not attended the case since
the case was posted for filing written statement by the defendant. The petitioner submits
that when he himself went to the Court and verified he found to his great surprise that the
suit is dismissed as settled out of court and latter learnt that even the half of the institution
court fee is also taken by the first respondent within 10 days.

The version of the appellant may now be unfolded:

(1) One Gautam Chand (R. W. 3) has been a longstanding client of the appellant. Gautam
Chand had business dealings with the plaintiff Haradara and the Defendant Anantaraju.
Besides, Anantaraju executed an agreement dated 9.8.1980 to sell his house property to
Gautam Chand. He received earnest money in the sum of rupees 35,000 from Gautam
Chand. Anantaraju, however, did not execute the sale deed within the stipulated period
and during the extended period. It was in these circumstances that Gautam Chand (RW 3)
approached the appellant for legal advice.

(2) It is the common case of parties that Gautam Chand introduced the complainant
Haradara to the appellant and his colleague Advocate respondent No. 2.

(3) The appellant caused the issue of notice dated 1.6,1981 (Ex. R/15) on behalf of
Gautam Chand addressed to the seller Anantaraju calling upon him to execute the sale
dead. On the same date, a notice was separately issued on behalf oF the complainant
Haradara addressed to Anantaraju demanding certain amounts due on the three 'self
bearer cheques aggregating Rs. 30,098 issued by Anantaraju in course of their mutual
transactions. This notice was issued by the Advocate respondent No. 2 acting on behalf of
the complainant Haradara.

(4) Gautam Chand (RW 3) and Haradara (PW 1) were friends. Anantaraju was their
common adversary. There was no conflict of interests as between Gautam Chand and
Haradara. Gautam Chand instructed the appellants and his colleague respondent No. 2.
Ashok, that he was in possession of the said cheques issued by Anantaraju and that no
amount was actually due from Anantaraju to the complainant Haradara. Gautam Chand
was desirous of stops to induce Anantaraju to execute the sale deed in his favour.

(5) A suit being O.S. No. 1965 of 1981 was instituted on behalf of the complainant
Haradara claiming on amount of Rs. 30,000 and odd, from the defendant Anantaraju on
the basis of the aforesaid cheques. It was instituted on 30.6.1981. An interlocutory
application was moved on behalf of Haradara by respondent No. 2 as his Advocate
seeking the attachment before judgment of the immovable property belonging to the
defendant Anantaraju. The property was in fact the subject of an agreement to sell
between Anantaraju and Gautam Chand (RW 3). The Court initially declined to grant an
order of attachment. In order to persuade the Court, certain steps were taken through the
said Gautan Chand. He caused the publication of a notice stating that the property in
question was the subject matter of an agreement between Anantaraju and himself and it
should not be dealt with by anyone. The publication of this notice was relied upon
subsequently on behalf of the complainant Haradara by his advocate (respondent No. 2).
Ashok in seeking an order of attachment. The Court accepted his submissions and passed
the order of attachment.

(6) Subsequently the defendant Anantaraju executed the sale deed dated 27th Nov., 1981
in favour of Gautam Chand. The object of the suit was achieved. The sale deed was in
fact executed during the subsistence of the order of attachment concerning the same
property. The plaintiff Haradara has not objected to it at any time. Consistently, the
appellant had reasons to believe the information of settlement of dispute conveyed by the
three parties together on 9.12.1981.

(7) Gautam Chand (RW 3) and the complainant Haradara acted in interest and scoured
the attachment of property which was the subject matter of an agreement to sell in favour
of Gautam Chand. The suit instituted in the name of the complainant Haradara was only
for the benefit of Gautam Chand by reference to his interest in the property.

(8) The appellant conveyed information of the settlement of dispute by his note made on
the docket. He drew a diagram of the location of residence of the respondent No. 2 Ashok
Advocate.(Ex. R-1A at page 14 Additional Documents). The papers were delivered to
respondent No. 2 Ashok Advocate by Gautam Chand (PW 3).

(9) After satisfying himself, respondent No. 2 Ashok advocate appeared in Court on
10.12.81 and filed a Memo prepared in his handwriting recording the fact of settlement of
dispute and seeking withdrawal of the suit. The Court passed order dated 10.12.1981
dismissing the suit, O.S. No. 1965 of 1981.

(10) Even though the plaintiff Haradara gained knowledge of the disposal of suit, he did
not meet the appellant nor did he address him for over 1-1/2 years until May, 1983. He
did not also immediately apply for the restoration of suit. An application for restoration
was filed on the last date of limitation on 11.1.1982. The application Misc. 16 of 1982
was later allowed to be dismissed for default on 30.7.1982. It was later sought to be
revived by application Misc. No. 581 of 1982. Necessary orders were obtained on
16.7.1988. Thus Misc. 16 of 1982 (Application for restoration of suit) is pending in Civil
Court.

On a survey of the legal landscape in the area of disciplinary proceedings this scenario
emerges:

(1) In exercise of powers under Section 35 contained in Chapter V entitled "conduct of

Advocates", on receipt of a complaint against an Advocate (or suo motu) if the State Bar
Council has 'reason to believe' that any Advocate on its role has been guilty of
"professional or other misconduct". Disciplinary proceeding may be initiated against him.

(2) Neither Section 35 nor any other provision of the Act defines the expression 'legal
misconduct' or the expression 'misconduct'.

(3) The Disciplinary Committee of the State Bar Council is authorised to inflict
punishment, including removal of his name from the rolls of the Bar Council and
suspending him from practise for a period deemed fit by it, after giving the Advocate
concerned and the 'Advocate General' of the State an opportunity of hearing.

(4) While under Section 42(1) of the Act the Disciplinary Committee has been conferred
powers vested in a Civil Court in respect of certain matters including summoning and
enforcing attendance of any person and examining him on oath, the Act which enjoins the
Disciplinary Committee to "afford an opportunity of hearing' (Vide Section 35) to the
Advocate does not prescribe the procedure to be followed at the hearing.

(5) The procedure to be followed in an Enquiry under Section 35 is outlined in Part VII of
the Bar Council of India Rules (Published in Gazette of India on September 6, 1975 in
Part III Section 4, (pages 1671 to 1697)) made under the authority of Section 60 of the
Act.

(6) Rule 8(1) of the said Rules enjoins the Disciplinary Committee to hear the concerned
parties that is to say the complainant and the concerned Advocate as also the Attorney
General or the Solicitor General or the Advocate General. It also enjoins that if it is
considered appropriate to take oral evidence the procedure of the trial of civil suits shall
as far as possible be followed (2).

3. At this juncture it is appropriate to articulate some basic principles which must inform
the disciplinary proceedings against members of the legal profession in proceedings
under Section 35 of the Advocates Act, read with the relevant Rules:

(i) essentially the proceedings are quasi-criminal in character inasmuch as a Member of

the profession can be visited with penal consequences which affect his right to practice
the profession as also his honour; under Section 35(3)(d) of the Act, the name of the
Advocate found guilty of professional or other misconduct can be removed from the State
Roll of Advocates. This extreme penalty is equivalent of death penalty which is in vogue
in criminal jurisprudence. The Advocate on whom the penalty of his name being removed
from the roll of Advocates is imposed would be deprived of practising the profession of
his choice, would be robbed of his means of livelihood, would be stripped of the name
and honour earned by him in the past and is liable to become a social aparthied. A
disciplinary proceeding by a statutory body of the Members of the profession which is
statutorily empowered to impose a punishment including a punishment of such immense
proportions in quasi-criminal in character;

(ii) as a logical corollary it follows that the Disciplinary Committee empowered to

conduct the enquiry and to inflict the punishment on behalf of the body, in forming an
opinion must be guided by the doctrine of benefit of doubt and is under an obligation to
record a finding of guilt only upon being satisfied beyond reasonable doubt. It would be
impermissible to reach a conclusion on the basis of preponderence of evidence or on the
basis of surmise, conjuncture or suspicion. It will also be essential to consider the
dimension regarding menssrea;

4. This proposition is hardly open to doubt or debate particularly having regard to the
view taken by this Court in L.D. Jaisinghani v. Naraindas N. Punjabi [1976] 3 SCR 354,
wherein Ray, CJ., speaking for the Court has observed:
In any case, we are left in doubt whether the complainant's version, with which he had
come forward with considerable delay was really truthful. We think that, in a case of this
nature, involving possible disbarring of the advocate concerned, the evidence should be
of a character which should leave no reasonable doubt about guilt. The Disciplinary
Committee had not only found the appellant guilty but had disbarred him permanently.

(Emphasis added)

(iii) in the event of a charge of negligence being levelled against an Advocate, the
question will have to be decided whether negligence simpliciter would constitute
misconduct. It would also have to be considered whether the standard expected from an
Advocate would have to answer the test of a reasonably equipped prudent practitioner
carrying reasonable workload. A line will have to be drawn between tolerable negligence
and culpable negligence in the sense of negligence which can be treated as professional
misconduct exposing a Member of the profession to punishment in the course of
disciplinary proceedings. In forming the opinion on this question the standards of
professional conduct and etiquette spelt out in Chapter 2 of Part VI of the Rules
governing Advocates, framed under Section 60(3) and Section 49(1)(g) of the Act, which
form a part of the Bar Council of India Rules may be consulted. As indicated in the
preamble of the Rules, an Advocate shall, at all times compose himself in a manner
befitting his status as an Officer of the Court, a privileged member of the community and
a gentleman bearing in mind what may be lawful and moral for one who is not a member
of the bar may still be improper for an Advocate and that his conduct is required to
conform to the rules relating to the duty to the Court, the duty to the client, to the
opponent, and the duty to the colleagues, not only in letter but also in spirit.

It is in the light of these principles the Disciplinary Committee would be required to

approach the question as regards the guilt or otherwise of an Advocate in the context of
professional misconduct levelled against him. In doing so apart from conforming to such
procedure as may have been outlined in the Act or the Rules, the Disciplinary Authority
would be expected to exercise the power with full consciousness and awareness of the
paramount consideration regarding principles of natural justice and fair play.

5. The State Bar Council, after calling for the comments of the appellant in the context of
the complaint, straightaway proceeded to record the evidence of the parties. No charge
was framed specifying the nature and content of the professional misconduct attributed to
the appellant. Nor were any issues framed or points for determination formulated. The
Disciplinary Committee straightaway proceeded to record evidence. As the case could not
be concluded within the prescribed time limit the matter came to be transferred to the Bar
Council of India which has heard arguments and rendered the order under appeal.

The questions which have surfaced are:

(1) Whether a specific charge should have been framed apprising the appellant of the true
nature and content of the professional misconduct ascribed to him?
(2) Whether the doctrine of benefit of doubt and the need for establishing the basic
allegations were present in the mind of the Disciplinary Authority in recording the finding
of guilt or in determining the nature and extent of the punishment inflicted on him?

(3) Whether in the absence of the charge and finding of dishonesty against him the
appellant could be held guilty of professional misconduct even on the assumption that he
had acted on the instructions of a person not authorised to act on behalf of his client if he
was acting in good faith and in a bona fide manner. Would it amount to lack of prudence
or non-culpable negligence or would it constitute professional misconduct?

Now so far as the procedure followed by the State Bar Council at the Enquiry against the
appellant, is concerned it appears that in order to enable the concerned Advocate to
defend himself properly, an appropriate specific charge was required to be framed. No
doubt the Act does not outline the procedure and the Rules do not prescribe the framing
of a charge. But then even in a departmental proceeding in an enquiry against an
employee, a charge is always framed. Surely an Advocate whose honour and right to earn
his livelihood are at stake can expect from his own professional brethern, what an
employee expects from his employer? Even if the rules are silent, the paramount and
overshadowing considerations of fairness would demand the framing of a charge. In a
disciplinary proceeding initiated at the level of this Court even though the Supreme Court
Rules did not so prescribe, in re: Shri 'M' an Advocate of the Supreme Court of India
[1956] SCR page 811 (814) this Court framed a charge after making these observations:

We treated the enquiry in Chambers as a preliminary enquiry and heard arguments on

both sides with reference to the matter of that enquiry. We came to conclusion that this
was not a case for discharge at that stage. We accordingly reframed the charges framed by
our learned brother, Bhagwati J., and added a fresh charge. No objection has been taken
to this course. But it is as well to mention that, in our opinion, the terms of Order IV, Rule
10 of the Supreme Court Rules do not preclude us from adopting this course, including
the reframing of, or adding to, the charges specified in the original summons, where the
material at the preliminary enquiry justifies the same. The fresh enquiry before us in
Court has proceeded with reference to the following charges as reframed and added to by
us.

It would be extremely difficult for an Advocate facing a disciplinary proceeding to

effectively defend himself in the absence of a charge framed as a result of application of
mind to the allegations and to the question as regards what particular elements constituted
a specified head of professional misconduct.

6. The point arising in the context of the non-framing of issues has also significance. As
discussed earlier Rule 8(1) enjoins that "the procedure for the trial of Civil suits, shall as
far as possible be followed." Framing of the issues based on the pleadings as in a Civil
suit would be of immense utility. The controversial matters and substantial questions
would be identified and the attention focussed on the real and substantial factual and legal
matters in contest. The parties would then become aware of the real nature and content of
the matters in issue and would come to know (1) on whom the burden rests (2) what
evidence should be adduced to prove or disprove any matter (3) to what end cross
examination and evidence in rebuttal should be directed. When such a procedure is not
adopted there exists inherent danger of miscarriage of justice on account of virtual denial
of a fair opportunity to meet the case of the other side. We wish the State Bar Council had
initially framed a charge and later on framed issues arising out of the pleadings for the
sake of fairness and for the sake of bringing into forefront the real controversy.

7. In the light of the foregoing discussion the questions arising in the present appeal may
now to be examined. In substance the charge against the appellant was that he had
withdrawn a suit as settled without the instructions from the complainant. It was not the
case of the complainant that the appellant had any dishonest motive or that he had acted
in the matter by reason of lack of probity or by reason of having been won over by the
other side for monetary considerations or otherwise. The version of the appellant was that
the suit which had been withdrawn had been instituted in a particular set of circumstances
and that the complainant had been introduced to the appellant for purposes of the
institution of the suit by an old client of his viz. RW 3 Gautam Chand. The appellant was
already handling a case on behalf of RW 3 Gautam Chand against RW 4 Anantharaju.
The decision to file a suit on behalf of the complainant against RW 4 Anantharaju was
taken in the presence of RW 3 Gautam Chand. It was at the instance and inspiration of
RW 3 Gautam Chand that the suit had been instituted by the complainant, but really he
was the nominee of Gautam Chand and that the complainant himself had no real claim on
his own. It transpires from the records that it was admitted by the complainant that he was
not maintaining any account books in regard to the business and he was not an Income-
tax assessee. In addition, the complainant (PW 1) Haradara himself has admitted in his
evidence that it was Gautam Chand who had introduced him to the appellant, and that he
was in fact taken to the office of the appellant for filing the said suit, by Gautam Chand. It
was this suit which was withdrawn by the appellant. Of course it was withdrawn without
any written instructions from the complainant. It was also admitted by the complainant
that he knew the defendant against whom he had filed the suit for recovery of Rs. 30,000
and odd through Gautam Chand and that he did not know the defendant intimately or
closely. He also admitted that the cheques used to be passed in favour of the party and
that he was not entitled to the entire amount. He used to get only commission.

8. Since even on the admission of the complainant himself he was taken to the office of
the appellant for instituting the suit, by RW 3 Gautam Chand, and old client of the
appellant whose dispute with the defendant against whom the complainant had filed the
suit existed at the material time and was being handled by the appellant. The defence of
the appellant that he had withdrawn the suit in the circumstances mentioned by him
required to be considered in the light of his admissions. The defence of the appellant
being that the suit was withdrawn under the oral instructions of the complainant in the
presence of RW 3 Gautam Chand and RW 4 Anantharaju and inasmuch as RWs 3 and 4
supported the version of the appellant on oath, the matter was required to be examined in
this background. Assuming that the evidence of the appellant corroborated by RWs 3 and
4 in regard to the presence of the complainant was not considered acceptable, the question
would yet arise as to whether the withdrawal on the part of the appellant as per the oral
instructions of RW 3 Gautam Chand who had taken the complainant to the appellant for
instituting the suit, would amount to professional misconduct. Whether the appellant had
acted in a bona fide manner under the honest belief that RW 3 Gautam Chand was giving
the instructions on behalf of the complainant required to be considered. If he had done so
in a bona fide and honest belief would it constitute professional misconduct, particularly
having regard to the fact that no allegation regarding corrupt motive was attributed or
established? Here it has to be mentioned that the appellant had acted in an open manner in
the sense that he had in his own hand made endorsement for withdrawing the suit as
settled and sent the brief to his junior colleague. If the appellant had any oblique motive
or dishonest intention, he would not have made the endorsement in his own hand.

9. No doubt Rule 19 contained in Section 2 captioned 'Duty to the clients' provides that an
Advocate shall not act on the instructions of any person other than his client or his
authorised agent. If, therefore, the appellant had acted under the instructions of RW 3
Gautam Chand bona fide believing that he was the authorised agent to give instructions
on behalf of the client, would it constitute professional misconduct? Even if RW 3 was
not in fact an authorised agent of the complainant, but if the appellant bona fide believed
him to be the authorised agent having regard to the circumstances in which the suit came
to be instituted, would it constitute professional misconduct? Or would it amount to only
an imprudent and unwise act or even a negligent act on the part of the appellant? These
were questions which directly arose to which the Committee never addressed itself. There
is also nothing to show that the Disciplinary Committee has recorded a finding on the
facts and the conclusion as regards the guilt in full awareness of the doctrine of benefit of
doubt and the need to establish the facts and the guilt beyond reasonable doubt. As has
been mentioned earlier, no charge has been formulated and framed, no issues have been
framed. The attention of the parties was not focussed on what were the real issues. The
appellant was not specifically told as to what constituted professional misconduct and
what was the real content of the charge regarding the professional misconduct against
him.

10. In the order under appeal the Disciplinary Committee has addressed itself to three
questions viz.

(i) Whether the complainant was the person who entrusted the brief to the appellant and
whether the brief was entrusted by the complainant to the appellant?

(ii) Whether report of settlement was made without instruction or knowledge of the
complainant?

(iii) Who was responsible for reporting settlement and instructions of the complainant?

In taking the view that the appellant had done so probably with a view to clear the cloud
of title of RW 3 as reflected in paragraph 22 quoted herein, the Disciplinary Committee
was not only making recourse to conjuncture, surmise and presumption on the basis of
suspicion but also attributing to the appellant a motive which was not even attributed by
the complainant and of which the appellant was not given any notice to enable him to
meet the charge:

It is not possible to find out as to what made PW 2 to have done like that. As already
pointed out the house property which was under attachment had been purchased by RW 3
during the subsistence of the attachment. Probably with a view to clear the cloud of title
of RW 3, PW 2 might have done it. This is only our suspicion. Whatever it might be, it is
clear that RW 2 had acted illegally in directing RW 1 to report settlement.
11. In our opinion the appellant has not been afforded reasonable and fair opportunity of
showing cause inasmuch as the appellant was not apprised of the exact content of the
professional misconduct attributed to him and was not made aware of the precise charge
he was required to rebut. The conclusion reached by the Disciplinary Committee in the
impugned order further shows that in recording the finding of facts on the three questions,
the applicability of the doctrine of benefit of doubt and need for establishing the facts
beyond reasonable doubt were not realised. Nor did the Disciplinary Committee consider
the question as to whether the facts established that the appellant was acting with bona
fides or with mala fides, whether the appellant was acting with any oblique or dishonest
motive, whether there was any mens rea, whether the facts constituted negligence and if
so whether it constituted culpable negligence. Nor has the Disciplinary Committee
considered the question as regards the quantum of punishment in the light of the aforesaid
considerations and the exact nature of the professional misconduct established against the
appellant. The impugned order passed by the Disciplinary Committee, therefore cannot be
sustained. Since we do not consider it appropriate to examine the matter on merits on our
own without the benefit of the finding recorded by the Disciplinary Committee of the
apex judicial body of the legal profession, we consider it appropriate to remit the matter
back to the Disciplinary Committee. As observed by this Court in O.N. Mohindroo v. The
District Judge, Delhi and Anr. Supreme Court Bar Association , in paragraph 23 quoted
hereinbelow, we have no doubt that the Disciplinary Committee will approach the matter
with an open mind:

From this it follows that questions of professional conduct are as open as charges of
cowardice against Generals for reconsideration of the conviction of persons convicted of
crimes. Otherwise how could the Hebron brothers get their conviction set aside after
Charles Peace confessed to the crime for which they were charged and held guilty?

We must explain why we consider it appropriate to remit the matter back to the Bar
Council of India. This matter is one pertaining to the ethics of the profession which the
law has entrusted to the Bar Council of India. It is their opinion of a case which must
receive due weight because in the words of Hidayatullah, CJ, in Mohindroo's case:

This matter is one of the ethics of the profession which the law has entrusted to the Bar
Council of India. It is their opinion of a case which must receive due weight.

It appears to us that the Bar Council of India must have an opportunity to examine the
very vexed and sensitive question which has arisen in the present matter with utmost care
and consideration, the question being of great importance for the entire profession. We
are not aware of any other matter where the apex body of the profession was required to
consider whether the bona fide act of an Advocate who in good faith acted under the
instructions of someone closely connected with his client and entertained a bona fide
belief that the instructions were being given under the authority of his client, would be
guilty of misconduct. It will be for the Bar Council of India to consider whether it would
constitute an imprudent act, an unwise act, a negligent act or whether it constituted
negligence and if so a culpable negligence, or whether it constituted a professional
misconduct deserving severe punishment, even when it was not established or atleast not
established beyond reasonable doubt that the concerned Advocate was acting with any
oblique or dishonest motive or with mala fides. This question will have to be determined
in the light of the evidence and the surrounding circumstances taking into account the
doctrine of benefit of doubt and the need to record a finding only upon being satisfied
beyond reasonable doubt. In the facts and circumstances of the present case, it will also
be necessary to re-examine the version of the complainant in the light of the foregoing
discussion keeping in mind the admission made by the complainant that he was not
maintaining any books of accounts and he was not an Income-tax assessee and yet he was
the real plaintiff in the suit for Rs. 30,000 and odd instituted by him, and in the light of
the admission that it was RW 3 Gautam Chand who had introduced him to the appellant
and that he was in fact taken to the office of the appellant, for filing the suit, by RW 3
Gautam-Chand. The aforesaid question would arise even if the conclusion was reached
that the complainant himself was not present and had not given instructions and that the
appellant had acted on the instructions of RW 3 Gautam Chand who had brought the
complainant to the appellant's office for instituting the suit and who was a close associate
of the complainant. Since all these aspects have not been examined at the level of the Bar
Council, and since the matter raises a question of principle of considerable importance
relating to the ethics of the profession which the law has entrusted to the Bar Council of
India, it would not be proper for this Court to render an opinion on this matter without the
benefit of the opinion of the Bar Council of India which will accord close consideration to
this matter in the light of the perspective unfolded in this judgment both on law and on
facts. We are reminded of the high degree of fairness with which the Bar Council of India
had acted in Mohindroo's case. The Advocate concerned was suspended from practice for
four years. The Bar Council had dismissed the appeal. Supreme Court had dismissed the
Special Leave Petition summarily. And yet the whole matter was reviewed at the instance
of the Bar Council and this Court was persuaded to grant the review. A passage extracted
from Mohindroo's case deserves to be quoted in this connection:

37. We find some unusual circumstances facing us. The entire Bar of India are of the
opinion that the case was not as satisfactorily proved as one should be and we are also of
the same opinion. All processes of the Court are intended to secure justice and one such
process is the power of review. No doubt frivolous reviews are to be discouraged and
technical rules have been devised to prevent persons from reopening decided cases. But
as the disciplinary committee themselves observed there should not be too much
technicality where professional honour is involved and if there is a manifest wrong done,
it is never too late to undo the wrong. This Court possesses under the Constitution a
special power of review and further may pass any order to do full and effective justice.
This Court is moved to take action and the Bar Council of India and the Bar Association
of the Supreme Court are unanimous that the appellant deserves to have the order
disbarring him from practice set aside.

12. We have therefore no doubt that upon the matter being remitted to the Bar Council of
India it will be dealt with appropriately in the light of the aforesaid perspective. We
accordingly allow this appeal, set aside the order of the Bar Council in so far as the
appellant is concerned and remit the matter to the Bar Council of India. We, however,
wish to make it clear that it will not be open to the complainant to amend the complaint or
to add any further allegation. We also clarify that the evidence already recorded will
continue to form part of the record and it will be open to the Bar Council of India to hear
the matter afresh on the same evidence. It is understood that an application for restoration
of the suit which has been dismissed for default in the City Civil Court at Bangalore has
been made by the complainant and is still pending before the Court. It will be open to the
Bar Council of India to consider whether the hearing of the matter has to be deferred till
the application for restoration is disposed of. The Bar Council of India may give
appropriate consideration to all these questions.

13. We further direct that in case the judgment rendered by this Court or any part thereof
is reported in Law Journals or published elsewhere, the name of the appellant shall not be
mentioned because the matter is still subjudice and fairness demands that the name should
not be specified. The matter can be referred to as an Advocate v. The Bar Council or in
re. an Advocate without naming the appellant.

14. The appeal is disposed of accordingly. No order regarding costs.

salil Dutta vs T.M. And M.C. Private Ltd on 5 February, 1993

Equivalent citations: 1993 SCR (1) 794, 1993 SCC (2) 185
Author: B Jeevan Reddy
Bench: Jeevan Reddy, B.P. (J)
PETITIONER:
SALIL DUTTA

Vs.

RESPONDENT:
T.M. AND M.C. PRIVATE LTD.

DATE OF JUDGMENT05/02/1993

BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
REDDY, K. JAYACHANDRA (J)

CITATION:
1993 SCR (1) 794 1993 SCC (2) 185
JT 1993 (4) 528 1993 SCALE (1)451

ACT:
Code of Civil Procedure, 1908:
Order 9, Rule 13-Setting aside ex-parte decree
against
defendant-Cause for non-appearance-Improper
advice of
advocate-Whether a sufficient cause-Held: Cannot as a rule
be accepted-party cannot disown its advocate and seek
relief.

HEADNOTE:
The suit flied by the appellant for ejecting the respondents
limited company, from the suit premises, was decreed ex-
parte by the trial court since neither the advocate nor the
respondent-tenant, appeared when the case came up for final-
hearing. Thereafter, the respondent-company flied an
application to set aside the ex-parte decree, stating that
the non-appearance of the respondent-tenant was due to the
advice tendered by the advocate-on-record to the effect that
the respondent-tenant need not be present at the hearing of
the suit till the disposal of the two
interlocutory
applications filed by the respondent-tenant According to it,
there was sufficient cause to set aside the ex-parte decree
within the meaning of Order 9 Rule 13 C.P.C. The trial court
dismissed the said application. The appeal against the
trial court's order was also dismissed by a Division Bench
of the High Court. However, before the judgment was signed
by the learned Judges, an application was moved by
the
respondent-tenant for alteration or modification
and/or
reconsideration of the judgment on the ground that the
respondents' counsel could not bring to the notice of the
Court, the decision of the Supreme Court in the case of
Rafiq and Anr. v. Munshilal and Anr., AIR 1981 SC 1400 which
supported respondent-tenant's case. This was opposed by the
appellant on the ground that once the judgment was
pronounced in open court, it was final and that matter could
not be reopened, just because a relevant decision was not
brought to the notice of the court. However, the
Division
Bench reopened the case on the ground that technicalities
should not be allowed to stand in the way of doing justice
to the parties and allowed the appeal,
794
795
relying on the decision.
In the appeal before this Court on behalf of the appellant
It was contended that the decision in the case of Rafiq did
not support the respondents' case and the High Court had
erred in holding otherwise, Inasmuch as the
respondent-
tenant in the Instant case was a private limited company,
managed by persons who were not only well-educated but were
practical businessmen, unlike the appellant In the case of
Rafiq, who was a rustic innocent villager, placing his
entire trust In his advocate.
On behalf of the respondent-tenant it was submitted that
when the High Court had applied and acted upon a decision of
this Court, it would not be proper to set aside their order
under Article 136 of the Constitution, and that
the
respondent-company implicitly trusted their advocate and
acted according to his advice and should not be penalised
therefore.
Allowing the appeal, this Court,
HELD : 1.1. The advocate is the agent of the party. His
acts and statements made within the limits of authority
given to him, are the acts and statements of the principal,
i.e., the party who engaged him. It is true that in certain
situations, the Court may, in the interest of justice, set
side a dismissal order or an ex-parte decree notwithstanding
the Negligence and/or misdemeanour of the advocate where It
finds that the client was an innocent litigant, but there is
no such absolute rule that a party can disown its advocate
at any time and seek relief No such absolute immunity can be
recognised. Such an absolute rule would make the working of
the system extremely difficult. [801G]
1.2. The instant case was an on-going suit posted for final
hearing after a lapse of seven years of its institution. It
was not a second appeal riled by a villager residing away
from the city, where the Court is located. The respondent
is also not a justice ignorant villager but a private
limited company with its head-office at the place where the
court is located and managed by educated businessmen who
know where their interest lies. It is evident that when
their interlocutory applications were not disposed of before
taking up the suit for final hearing, they felt piqued and
refused to appear before the court. May be, it was part of
their delaying tactics as alleged by the appellant. May be
not. But one thing is clear they chose to non-cooperate
with the court. Having adopted such a stand towards the
796
Court, the respondent has no right to ask its
Indulgence.
Putting the entire blame upon the advocate and trying
to
make It out as if they were totally unaware of the nature or
significance of the proceedings Is a theory which cannot be
accepted and ought not to have been accepted. [802A-C]
1.3. It is difficult. to believe that the
respondents
implicitly believed their advocate's advice. Being educated
businessmen they would have known that non-participation at
the final hearing of the suit would necessarily result In an
adverse decision. This Court is not prepared to
believe
that such an advice was in fact tendered by the advocate.
No advocate worth his salt would give such advice to his
client. Secondly, there are several contradictions in
his
deposition. Therefore, the story set up by the
respondent-
company in its application under Order 9 Rule 13 is
an
after-thought and ought not to have been accepted by the
Division Bench, more particularly, when it had rejected the
very case in its earlier judgment [800G-H, 801AE]
Rafiq and Anr. v. Munshilal and Anr., A.I.R. 1981 S.C. 1400,
distinguished.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 429 of 1993. From the
Judgment and Order dated 3.3.92 of the Calcutta High Court in A.O.O. No. 1036 of 1990.

A.K. Ganguli and H.K. Puri for the Appellant. N.S. Hegde, Anil Agrawala and L.P.
Agrawala for the Respondents.

The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J. Heard the
counsel for the parties. Leave granted.

The appeal is preferred by the plaintiff against the judgment and order of a Division
Bench of the Calcutta High Court allowing the appeal preferred by the
respondent/defendant. The appeal before the High Court was directed against an order of
the City Civil Court, Calcutta dismissing an application filed by the defendant to set aside
the ex-parte decree passed against him, under Order 9 rule 13 of the Civil Procedure
Code.

The relevant facts may be noticed briefly. The plaintiff/appellant filed a suit for ejecting
the defendant-tenant on the ground of default in paying rent and also on the ground that
the such premises are required for his own use and occupation. The suit was posted for
final hearing on June 9, 1988 seven years after its institution. On an earlier occasion, the
defendant had filed two interlocutory applications, one under Order 14 rule 5 and the
other under Order 6 rule 16 C.P.C. On 19th May, 1988 the City Civil Court had passed an
order on the said applications observing that the said applications shall be considered at
the final hearing of the suit. According to the defendant (as per his statement made in the
application filed by him for setting aside the ex-parte decree) his advocate advised him
that he need not be present at the hearing of the suit on 9.6.1988, and thereafter till the
applications filed by him under Order 14 rule 5 and Order 6 rule 16 C.P.C. are disposed
of Be that as it may, on 9th June, 1988, the advocate for the defendant prayed for an
adjournment till the next day. It was adjourned accordingly. On 10th June, neither the
advocate for the defendant nor the defendant appeared, with the result the defendant was
set ex-parte. Hearing of the suit was com- menced and concluded on 11th June, 1988. The
suit was posted for delivery of judgment to 13th June, 1988. On 11th June, 1988, an
application was made on behalf of the defendant stating the circumstances in which his
advocate had to retire from the case. This application, however, contained no prayer
whatsoever. The suit was decreed ex- parte on 13th June, 1988. Thereafter the defendant
filed the application to set aside the ex-parte decree. In this application he referred to the
fact of his filing two inter- locutory applications aforesaid, the order of the court thereon
passed on 19th May, 1988 and then stated "due to the advice of the learned advocate on-
record that your petitioner need not be present at the hearing of the suit on 9.6.1988 and
thereafter till the disposal of the application filed under Order 6 rule 16 and Order 14 rule
5 read with Section 151 of the Code of Civil Procedure in the above suit," the defendant
did not appear before the Court. It was stated that Mr. Ravindran the Principal Officer of
the defendant Company was out of town on that date. It was submitted that because the
defendant had acted on the basis of the advice given by the advocate-on-record of the
defendant, there was sufficient cause to set aside the ex- parte decree within the meaning
of Order 9 rule 13 C.P.C. The Trial Court dismissed the said application against which an
appeal was preferred by the defendant to the Calcutta High Court. The appeal was heard
by a Division Bench and judgment pronounced in open court on 8.7.1991 dismissing the
appeal. However, it appears, before the judgment was signed by the learned Judges
constituting the Division Bench, an application was moved by the defendant for alteration
or modification and/or reconsidera- tion of the said judgment mainly on the ground that
the defendants' counsel could not bring to the notice of the Division Bench the decision of
this Court in Rafiq and another v. Munshilal and another, AIR 1981 SC 1400 and that the
said decision clearly supports the defendants, case. The counsel for the plaintiff opposed
the said request. He submitted that once the judgment was pronounced in open court, it
was final and that matter cannot be reopened just because a relevant decision was not
brought to the notice of the Court. After hearing the counsel for both the parties, the
Division Bench reopened the appeal on the ground that "technicalities should not be
allowed to stand in the way of doing justice to the parties.' The Bench observed that when
they disposed of the appeal, their attention was not invited to the decision of this Court
in Rafiq v. Munshilal and that in view of the said judgment they were inclined to reopen
the matter. The Division Bench was of the opinion that "after a judgment is delivered by
the High Court ignoring the decision of the Supreme Court or in disobedience of a clear
judgment of the Supreme Court, it would be treated as nonest and absolutely without
jurisdiction....... when our attention has been drawn that our Judgment is per incuriam, it
is our duty to apply this decision and to hold that our Judgment was wrong and liable to
be recalled." (We express no opinion on the correctness of the above premise since it is
not put in issue in this appeal). Accordingly, the Division Bench heard the counsel for the
parties and by its Judgment and Order dated 3rd March, 1992 allowed the appeal mainly
relying upon the decision of this Court in Rafiq. In this appeal Shri Ganguli, learned
counsel for the appellant/plaintiff submitted that the decision in Rafiq does not support
the defendant's case and that the Calcutta High Court has erred in holding otherwise. It is
submitted that the defendant in this case is a private limited company, managed by
persons who are not only well-educated but are practical businessmen unlike the
appellant in Rafiq who was a rustic innocent villager placing his entire trust in his
advocate. On the other hand, Shri Santosh Hegde, the learned counsel for the
defendant/respondent submitted that when the High Court has applied and acted upon a
decision of this Court, it would not be proper to set aside their order under Article 136 of
the Constitution. He submitted that the defendant/company implicitly trusted their
advocate and acted according to his advice and should not be penalised therefore.
Since the judgment under appeal is exclusively based upon the decision of this Court in
Rafiq it is necessary to ascertain what precisely does the said decision say. The appellant
Rafiq had preferred a second appeal in the Allahabad High Court through an advocate.
His advocate was not present when the second appeal was taken up for hearing with the
result it was dismissed for default. The appellant then moved an application to set aside
the order of dismissal for default which was dismissed by the High Court. The correctness
of the said order was questioned in this Court. The matter came up before a Bench
comprising D.A. Desai and Baharul Islam, JJ. D.A. Desai J. speaking for the Bench
observed thus:

"The disturbing feature of the case is that under our present adversary legal system where
the parties generally appear through their advocates, the obligation of the parties is to
select his advocate, brief him, pay the fees demanded by him and then trust the learned
advocate to do the rest of the things. The party may be a villager or may belong to a rural
area and may have no knowledge of the Court's procedure. After engaging a lawyer, the
party may remain supremely confident that the lawyer will look after his interest. At the
time of the hearing of the appeal the personal appearance of the party is not only not
required but hardly useful. Therefore, the party having done everything in his power to
effectively participate in the proceedings can rest assured that he has neither to go to the
High Court to inquire as to what is happening in the High Court with regard to his appeal
nor is he to act as a watch-dog of the advocate that the latter appears in the matter when it
is listed. it is no part of his job.' It was then argued by the counsel for the respondent in
that appeal that a practice has grown up in the High Court of Allahabad among the
lawyers to remain absent when they did not like a particular bench and that the absence of
the appellant's advocate in the High Court was in accordance with the said practice, which
should not be encouraged.

While expressing no opinion upon the existence or justification of such practice, the

learned Judge observed that if the dismissal order is not set aside "the only one who
would suffer would not be the lawyer who did not appear but the party whose interest he
represented," and then made the following further observations:

"The problem that agitates us is whether it is proper that the party should suffer for the
inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in
the negative. May be that the learned advocate absented himself deliberately or
intentionally. We have no material for ascertaining that aspect of the matter. We say
nothing more on that aspect of the matter. However, we cannot be a party to an innocent
party suffering injustice merely because his chosen advocate defaulted."

The question is whether the principle of the said decision comes to the rescue of the
defendant respondent herein. Firstly, in the case before us it was not an appeal preferred
by an outstation litigant but a suit which was posted for final hearing seven years after the
institution of the suit. The defendant is a private limited company having its registered
office at Calcutta itself. The persons incharge of the defendant-company are not rustic
villagers nor they are innocent illiterates unaware of Court procedures. Prior to the suit
coming up for final hearing on 9th June, 1988 the defendant had filed two applications
whereupon the Court ordered that they will be considered at the time of the final hearing
of the suit. The plaintiff's case no doubt is that the said applications were part of delaying
tactics being adopted by the defendant-tenants with a view to protract the suit. Be that as
it may, the defendant thereafter refused to appear before the court. According to the
defendant, their advocate advised them that until the interlocutory applications filed by
them are disposed of, the defendant need not appear before the Court which means that
the defendants need not appear at the final hearing of the suit. It may be remembered that
the Court proposed to consider the said interlocutory applications at the final hearing of
the suit. It is difficult to believe that the defendants implicitly believed their advocate's
advice. Being educated businessmen they would have known that non-participation at the
final hearing of the suit would necessarily result in an adverse decision. Indeed. we are
not prepared to believe that such an advice was in fact tendered by the advocate. No
advocate worth his salt would give such advice to his client. Secondly, the several
contradictions in his deposition which are pointed out by the Division Bench in the
impugned order go to show that the whole story is a later fabrication. The following are
the observations made in the Judgment of the Division Bench with respect to the conduct
of the said advocate: "we found that the said learned advocate conducted the proceedings
in a most improper manner and that his absence on 10th June, 1988 and on subsequent
date was not only discourteous but possibly a dereliction of duty to his client........ the
learned advocate had forgotten his professional duty in not making inquiry to the Court as
to what happened on 10th, 11th and 13th June, 1988........ the learned advocate acted in a
most perfunctory manner in the matter and the learned advocate dealt with the matter in a
most unusual manner. We have also found that the said learned advocate had made
serious contradiction in the deposition before the court below. The learned advocate in his
deposition stated that he did not file an application for adjournment on 9th June, 1988.
But from the record it was evident that it was on the basis of the application filed on 9th
June, 1988, the case was adjourned for cross-examination of the witnesses whose
examination was called on the next date." The above facts stated in the deposition of the
advocate show that he indeed made an application for adjournment on the 9th June, 1988
to enable him to cross examine the witnesses on the next date. Therefore, his present
stand that he advised his client not to participate in the trial from and including 9th June,
1988 onwards is evidently untrue. We are, therefore, of the opinion that the story set up
by the defendant in his application under Order 9 rule 13 is an after-thought and ought not
to have been accepted by the Division Bench in its order dated 3rd March, 1992 more
particular when it had rejected the very case in its earlier Judgment dated 8.7.1991.

The advocate is the agent of the party. His acts and statements, made within the limits of
authority given to him, are the acts and statements of the principal i.e. the party who
engaged him. It is true that in certain situations, the Court may, in the interest of justice,
set a side a dismissal order or an ex-parte decree notwithstanding the negligence and/or
misdemeanour of the advocate where it finds that the client was an innocent litigant but
there is not such abso lute rule that a party can disown its advocate at any time and seek
relief. No such absolute immunity can be recognised. Such an absolute rule would make
the working of the system extremely difficult. The observations made in Rafiq must be
understood in the facts and circumstances of that case and cannot be understood as an
absolute proposition. As we have mentioned hereinabove, this was an on-going suit
posted for final hearing after a lapse of seven years of its institution. It was not a second
appeal filed by a villager residing away from the city, where the Court is located. The
defendant is also not a rustic ignorant villager but a private limited company with its
head-office at Calcutta itself and managed by educated businessmen who know where
their interest lies. It is evident that when their applications were not disposed of before
taking up the suit for final hewing they felt piqued and refused to appear before the court.
May be, it was part of their delaying tactics as alleged by the plaintiff. May be not. But
one thing is clear they 'chose to non-cooperate with the court. Having adopted such a
stand towards the Court, the defendant has no right to ask its indulgence. Putting the
entire blame upon the advocate and trying to make it. out as if they were totally unaware
of the nature or significance of the proceedings is a theory which cannot be accepted and
ought not to have been accepted.

For the above reasons, the appeal is allowed. The order of the Division Bench of the
Calcutta_High Court dated 33.1992 is set aside and its order dated 8.7.1991 is restored.
The company-defendant shall bear the costs of the appellant in this appeal which are
assessed at Rs. 5,000.

N.P.V. Appeal allowed.

State of Maharashtra v. Budhikota Subbarao (Dr) (1993) 3 SCC 71 R.M. SAHAI, J. - Strictures of ‘sharp
practice’, suppression of facts, obtaining orders by playing fraud upon the court against State by Mr
Justice Saldanha of the Bombay High Court, while deciding criminal miscellaneous petition filed by
the opposite party, accused of leaking official secrets and violating provisions of the Atomic Energy
Act, 1962 and awarding Rs 25,000 as compensation, for consultancy loss, suffered by him, due to ex
parte order obtained by the State against order of the trial Judge permitting the opposite party to go
abroad, compelled the State to file this appeal and assail the order not only for legal infirmities but
factual inaccuracies. 2. Reasons to quote the learned Judge which, ‘compelled the conscience of
court to pass’ the impugned order were, ‘the unfortunate proceedings that bristled(s) with mala
fides’. Basis for these inferences was, the conclusion by the learned Judge, that the State,
deliberately, procured the interim order by another learned Judge by filing a separate writ petition,
when it knew that the main petition for quashing of the proceedings was pending before the
Division Bench (Puranik and Saldanha, JJ). The learned Judge felt, strongly, against the public
prosecutor as she being aware of the proceedings before the Division Bench failed in her duty of
apprising the learned Judge of correct facts. 3. Was this so? Did the State procure the order by
concealing facts? Was the public prosecutor guilty of violating professional ethics or her duty as
responsible officer of the court? What led to all this was an application filed by the opposite party, in
the writ petition pending for quashing the charge-sheet framed under [The Indian] Official Secrets
Act, 1923 and the Atomic Energy Act, 1962, for release of his passport on which the Division Bench
of which Mr Justice Saldanha was a member, passed the order on February 13, 1991 that it may be
presented before the trial Judge. On the very next day the Additional Sessions Judge, (‘ASJ’) after
hearing the parties, directed that the passport and identity card of the opposite party be returned.
He, further, permitted the opposite party to leave India and travel abroad as per the itinerary during
the period from February 17, 1991 to February 22, 1991 on executing a personal bond of Rs 50,000.
The State was, obviously, disturbed by this order as serious charges had been levelled against the
opposite party who had been arrested, earlier, just when he was about to leave the country and
board the plane, for leakage of official secrets and whose bail had, even, been cancelled by this
Court, appeared to be in danger of leaving the country again. Since the order was passed on
February 14, 1991 and the opposite party was to fly on February 17, 1991 and February 16, 1991
was Saturday, the State challenged the correctness of the order passed by the ASJ by way of a writ
petition under Article 227 of the Constitution read with Section 482 of Criminal Procedure Code and
the learned Judge, who under the rules was entitled to hear such a petition, passed an ex parte
order on February 15, 1991 staying that part of the order which permitted the opposite party to
leave the country and directed the application to be listed for further orders on February 18, 1991.
On coming to know of this order, in the evening, the opposite party approached the Division Bench
where the main petition was pending on February 16, which after making an 186 observation that
the public prosecutor ought to have brought it to the notice of the learned Single Judge that the
main matter was pending before the Division Bench and the trial Judge had passed the order in
pursuance of the direction issued by the Division Bench, directed that the matter, being urgent, it
should be placed before the same learned Single Judge. Consequently parties appeared before the
learned Judge on February 16, who, after hearing, confirmed the interim order passed, a day earlier.
4. With confirmation of interim order the proceedings which had commenced on the application
filed by the opposite party to leave the country came to an end. But the writ petition in which the
interim order was passed remained pending. And when the revision filed by the State, directed
against the order acquitting the accused, was taken up for hearing by Mr Justice Saldanha, and
observations were made, during course of judgment dictated in open court from October 5 to 12,
1991 against the public prosecutor and the State, the opposite party appears to have made a
mention on October 10, that the writ petition filed by the State against the order of the trial Judge
releasing his passport and permitting him to travel abroad may be summoned and disposed of. The
request was accepted and on direction of the learned Judge the office listed the case before him on
October 11. When the petition was taken up, on October 11, and the public prosecutor was asked if
she had any objection to hearing it was stated by her that it did not survive. But the learned Judge
after completion of judgment in criminal revision on October 12, appears to have, taken up the writ
petition. It was pointed out by the learned senior counsel for the State that since the criminal
revision filed by the State against the order acquitting the accused had been dismissed, the writ
petition had become infructuous and orders may be passed accordingly. 5. Yet the learned Judge
passed the impugned order. What weighed with the learned Judge to infer mala fides against the
State was that the order dated February 14, 1991 having been passed in open court in presence of
the opposite party and counsel for the State, permitting the opposite party to leave the country on
February 17, 1991, the opposite party, genuinely expected and according to the learned Judge,
rightly, that any further application which the State would make could only be addressed to the
Bench, namely, the Bench of Puranik and Saldanha, JJ., before whom the petition was pending,
therefore, the opposite party, justifiably, waited and watched in the Bench, whole day for moving of
any application but the State instead of moving any such application filed a fresh writ petition and
obtained an ex parte order, the information of which was given to opposite party in the evening. The
learned Judge was of opinion that it was deliberate as it was known to the public prosecutor that the
Bench on February 13, 1991 after scrutinising the papers was of opinion that it was a genuine case in
which the passport should be released and the opposite party should be permitted to travel abroad
but due to paucity of time the Bench instead of passing the order directed the opposite party to
approach the trial Judge. The learned Judge further held that even though the public prosecutor and
the Inspector of Police knew these facts and that the opposite party was to fly on February 17, 1991
yet the notice was obtained from the learned Judge returnable on February 18, 1991 by which time
the delegation from Reliance Industries of which the accused was to be a member was to have left
the country. 187 Since the effect of the interim order and the fixing of the petition on February 18,
1991 nullified the opposite party’s going to United States of America, the court felt that the order
was obtained not only unfairly, but that it constituted a sharp practice. The motive of the public
prosecutor and the State was further attempted to be shown to be dishonest and motivated as the
averments in the petition on which the interim order was obtained were false to their knowledge.
The falsity found was that the State had deliberately tried to mislead the court by alleging that the
trial was fixed for hearing on February 18, 1991 and the same had been adjourned to February 24,
1991. The court found that the learned Single Judge was misled in passing the order as was clear
from ground No. 6 which was to the effect that the trial being fixed for February 18, 1991, the trial
Judge was not justified in issuing the orders in favour of opposite party. The learned Judge also felt
aggrieved by the conduct of the public prosecutor in not informing the learned Single Judge that the
main writ petition was already listed for hearing before the Division Bench and that the direction to
the ASJ to consider the application for return of passport had been issued by the Bench. The learned
Single Judge was not satisfied with explanation of the State that a petition under Article 227 of the
Constitution read with Section 482 of Criminal Procedure Code being maintainable before the
learned Single Judge under the High Court rules it had no option but to proceed in accordance with
law. The learned Single Judge pointed out that if the State would have pointed out to the Registry
the correct facts then the case could not have been listed before the learned Single Judge. 6. That
any party aggrieved by an order passed by a court is entitled to approach the higher court cannot be
disputed nor can it be disputed that a petition under Article 227 of the Constitution read with
Section 482 of the Criminal Procedure Code against the order of trial Judge was maintainable and
under rules of the court it could be listed before the learned Single Judge only. The State, therefore,
in filing the petition against the order of the Sessions Judge did not commit any illegality or any
impropriety. A copy of the writ petition, has been annexed to this special leave petition which, does
not show any disclosure of incorrect facts or any attempt to mislead the court. Even the learned
Single Judge did not find that the trial was not fixed for February 18, 1991. Disclosing correct facts
and then obtaining order in favour is not same as procuring an order on incorrect facts. Former is
legitimate being part of advocacy, latter is reprehensible and against profession. But if the State
persuaded the court to stay the operation of the order passed by the trial Judge while mentioning
the details about the pendency of the earlier petition before the Division Bench and issuing of
directions to the Sessions Judge to decide the application for release of passport etc. it is difficult to
imagine how any inference of obtaining order on incorrect facts could be drawn. During arguments
the opposite party attempted to highlight averments in paragraph 6 of the writ petition to the effect
that the Division Bench had dismissed the application of the opposite party when no such order was
passed. The sentence, in fact, reads as under: “The application was dismissed and directed the
respondent to move trial court and further directed the trial court to consider the same in
accordance with law.” 188 True, the application was not dismissed. But the sentence had to be read
in its entirety. No court could be misled from the use of the word dismissed as the directions issued
by the court were mentioned correctly. The inference drawn by court and the finding recorded by it
of obtaining the order by ‘suppression of facts and making positively false statements’ is factually
incorrect and legally unsound. The grief of the opposite party in missing an opportunity of going to
the United States and the grievance against functionaries of the State, namely, public prosecutor
and prosecuting Inspector can be appreciated. We can, also, visualise the vehemence and eloquence
of the opposite party, of which he is capable of, as appeared from his submission when he appeared
in person in this Court, but what has baffled us that the learned Judge was persuaded to record the
finding of suppression of facts on such weak and insufficient material. 7. Mala fides violating the
proceedings may be legal or factual. Former arises as a matter of law where a public functionary acts
deliberately in defiance of law without any malicious intention or improper motive whereas the
latter is actuated by extraneous considerations. But neither can be assumed or readily inferred. It
requires strong evidence and unimpeachable proof. Neither the order passed by the learned Single
Judge granting ex parte order of stay preventing opposite party from going abroad was against
provisions of law nor was the State guilty of acting mala fides in approaching the learned Single
Judge by way of writ petition. The order of the trial Judge could not be challenged before the
Division Bench. Under the rules of the court, the correctness of, the order could be assailed only in
the manner it was done by the State. Any party aggrieved by an order is entitled to challenge it in a
court of law. Such action is neither express malice nor malice in law. 8. The opposite party was
charged with very serious offence. He was arrested when he was about to leave the country. The
State was possessed of material that he had, even, applied for matrimonial alliance in response to an
advertisement issued from New York. The order of the trial Judge, therefore, permitting opposite
party to leave the country without trial must have created a flutter in the department. It was by all
standards a sensational and a sensitive case. The public prosecutor and the prosecuting Inspector
who were entrusted with responsibility to prosecute the opposite party must have felt worked up by
the order permitting the opposite party to leave the country. Decision must have been taken to
prevent the opposite party by approaching the High Court by way of a writ petition instead of
approaching the Division Bench. Assuming that the State took recourse to this method, as it might
have been apprehensive that it would not get any order from the Division Bench, the State could not
be accused of mala fides so long it proceeded in accordance with law. Apart from that once it was
brought to the notice of the Division Bench that the State had procured an ex parte order from the
learned Judge who was requested by the Division Bench to treat the matter urgent and hear parties
and the application was heard on February 16 and the learned Judge refused to vacate the interim
order and confirmed it, the entire basis of mala fide stood demolished. The learned Judge was not
justified in blaming the State for getting the notice returnable on February 18. That was order of the
court. In any case the opposite party having appeared on 16th yet the learned Judge having refused
to modify his order it was too much to hold the State or public prosecutor responsible for it. 189 9.
Sharp practice is not a court language. We are sorry to say so. Facts did not justify it. Legal propriety
does not countenance use of such expressions favourably. The learned Judge, to our discomfort,
used very harsh language without there being any occasion for it. A State counsel with all the aura of
office suffers dual handicap of being looked upon by the other side as the necessary devil and the
courts too at times, find it easier to frown upon him. The moral responsibility of a State counsel, to
place the facts correctly, honestly and fairly before the court, having access to State records, coupled
with his duty to secure an order in favour of his client requires him to discharge his duty responsibly
and sensibly. Even so if a State lawyer who owes a special duty and is charged with higher standard
of conduct in his zeal or due to pressure, not uncommon in the present day, adopts a partisan
approach that by itself is not sufficient to warrant a finding of unfairness or resorting to sharp
practice. In this case too not more than this appears to have happened. May be the public
prosecutor may have exhibited more zeal. But that could not be characterised as unfair. Maybe it
would have been proper and probably better to inform the learned Single Judge about the earlier
order passed by the Division Bench. But assuming the public prosecutor did not inform and
remained content with its disclosure in the body of the petition she could not be held to have acted
dishonestly. 10. We are constrained to observe our unhappiness on the manner in which the writ
petition was summoned by Mr Justice Saldanha from the office, heard and decided. As stated earlier
the writ petition was directed by the learned Judge to be listed before him, on a mention made by
the opposite party in course of dictation of judgment in criminal revision wherein he had made
observations against the public prosecutor. A Judge of the High Court may have unchallenged and
unfettered power to direct the office to list a case before him. But that by itself restricts the exercise
of power and calls for strict judicial discipline. We do not intend to make any comment but we are of
opinion that if the learned Judge would have avoided sending for and deciding the petition, which as
pointed out by the learned senior counsel for the State had become infructuous, it would have been
more in keeping with judicial culture. 11. For reasons stated above by us this appeal succeeds and is
allowed. The order dated October 28, 1991 passed in civil miscellaneous writ petition is set aside. It
shall stand dismissed as infructuous. The Intervention Application No. 943 of 1992 of the Public
Prosecutor is allowed. We make it clear that all the observations and remarks made by the learned
Judge against the State and Public Prosecutor shall stand expunged.