M. Y. Shareef & ANR Vs. The
Hon'ble Judges of The High Court of Nagpur & Ors  INSC 92 (15 October
MAHAJAN, MEHAR CHAND (CJ) DAS, SUDHI RANJAN
HASAN, GHULAM BHAGWATI, NATWARLAL H.
CITATION: 1955 AIR 19 1955 SCR (1) 757
CITATOR INFO :
F 1962 SC1089 (9) RF 1991 SC1834 (12)
Contempt of Court-Advocate signing
application or pleading which scandalizes the Court-Advocate's obligations to
the Court and duty to the client-Plea of justification or in the alternative
apology -When permissible.
A section of the Bar seems to be labouring
under an erroneous impression that when an advocate is acting in the interests
of his client or in accordance with his instructions he is discharging his
legitimate duty towards him even when he signs an application or a pleading
which contains matter scandalizing the Court and that when there is conflict
between his obligations to the Court and his duty to the client, the later
It should be widely made known that an
advocate who signs an application or pleading containing matter scandalizing
the Court which tends to prevent or delay the course of justice is himself
guilty of contempt of Court unless he reasonably satisfies himself about the
prima facie existence of adequate grounds there for and that it is no duty of
an advocate to his client to take any interest in such applications ; on the
other hand, his duty is to advise his client for refraining from making
allegations of this nature in such applications.
It is well-settled that in a matter relating
to the contempt of Court there cannot be both justification and an apology. The
two things are incompatible. 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.
In border line cases where a question of
principle about the rights of an advocate and his duties has to be settled an
alternative plea merits consideration, for it is possible for a judge who hears
the case to hold that there is no contempt in which case a defence of
unqualified apology is meaningless, because that would amount to the admission
of the commission of an offence.
Every form of defence in a contempt case
cannot be regarded as an act of contumacy. It depends on the circumstances of
each case and on the general impression about a particular rule of ethics
amongst the members of the profession.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 72 of 1952.
Appeal by Special Leave from the Judgment and
Order dated the 30th November, 1950, of the High Court of Judicature at Nagpur
(Dev and Rao JJ.) in Contempt of Court Proceedings Miscellaneous Petition No.
16 of 1950.
Dr. Bakshi Tek Chand, (Hardyal, Hardy, B. R.
Mandlekar, B. D. Kathalay, Ganpat Rai and K. L. Arora, with him) for the
C. K. Daphtary, Solicitor-General for India
Naik and I. N. Shroff, with him) for
respondent No. 1.
T. L. Shevde, Advocate-General for the State
of Madhya Pradesh, (T. P. Naik and I. N. Shroff, with him) for respondent No.
B. Sen and I. N. Shroff for respondent No. 3.
October 15. The Judgment of the Court was
delivered by MEHR CHAND MAHAJAN C.J.-This appeal by special leave arises out of
contempt proceedings taken against two very senior members of the Nagpur Bar
and one of their clients.
Shri Shareef, one of the appellants, at one
time was Minister for Law and Justice in the State. Dr. Kathalay, the second
appellant, is a Doctor of Laws and an author of legal works. The matter which
resulted in the issue of the show cause notices for contempt took a protracted
course and has to a certain extent resulted in embittered feelings.
What happened was this:
Shri Zikar who was charged along with the two
appellants for contempt made an application under article 226(1) of the
Constitution for enforcement of his fundamental right, alleging that he was a
citizen Of Bharat and that the Custodian of Evacuee Property and the police were
taking wrongful action against him and treating him as a national of Pakistan
which he never was. He prayed for an interim order of prohibition against the
State from deporting him after the expiry of the permit. The High Court granted
the interim order of prohibition against the action complained.
At the hearing of the case on 11th August,
759 1950, a preliminary objection was raised on behalf of the State that Zikar
had suppressed material facts in the petition filed by him and that the
petition was therefore liable to be dismissed without going into the merits.
Shri Shareef, who was counsel for Zikar, combated this contention and further
submitted that the preliminary objection could not be adequately dealt with
without going into the merits of the case. On behalf of the State another
affidavit was filed on 17th August, 1950, stating certain facts, and Zikar was
also directed to file an affidavit in reply by the 21st August, 1950, and this
be did by that date. The relevant proceedings of that date are recorded in
these terms:" Shri Shareef for the petitioner. Shri Naik for the
respondent. He files an affidavit and copies of applications dated 25th
February, 1949 and 19th January, 1950. Shri Shareef files a statement and an
affidavit. His attention was drawn to paragraph 4 of the affidavit and he was
asked whether his client has really understood the contents which are in
English adding that he might change in the Supreme Court and say that he had
not understood them.
Shri Shareef then said that he has explained
the contents to his clients.
Paragraph 6 of the statement and the
affidavit is uncalled for as the appellant only desired to file an affidavit
with reference to paragraph 10 of the affidavit of the non-applicant: Vide
order sheet dated 17th August, 1950.
A remark was made by one of us " Whether
paragraph 6 was inserted for founding an argument before the
Supreme-Court." Shri Shareef replied he has stated facts...............
Thereafter Shri Naik continued his arguments
on the preliminary point till we rose for lunch.
When we reassembled Shri Shareef informed us
that he wants time to apply for transfer of this case to another Bench because
of the observations made by us regarding paragraphs 4 and 6 of his affidavit.
Case is therefore adjourned to 25th August, 1950 to enable Shri Shareef to make
an application in the meanwhile." On the 23rd August, 1950, an application
for the transfer of the case from the Bench hearing it to 760 another Bench of
the High Court was made on the following grounds:
1 "The observations and references to
the Supreme Court by Rao and Deo JJ. created a bona fide belief in the
applicant's mind that they were prejudiced against him and had made up their
minds and indicated that he shall have to go in appeal to the Supreme Court.
2. The observations and references to the
Supreme Court were absolutely unnecessary and left no doubt in the applicant's
mind that he would not receive justice at the hands of the Hon'ble Judges.
Prayer: In the interest of dispensation of
impartial justice, the case be transferred to another Civil Division Bench for
disposal." This application was not only signed by Zikar but also by the
two appellants as counsel for the applicant and was rejected in due course and
with that matter we are no longer concerned. The preliminary objection raised
by the State was upheld and the petition under article 226 was dismissed.
The learned Judges then ordered notices to
issue to the applicant and his two counsel to show cause why they should not
all be committed for contempt for scandalizing the Court, with a view to
perverting the due course of justice by making statements in the transfer
application impeaching the impartiality of the Judges.
Dr. Kathalay filed his written statement in
reply to the show cause notice, on the 4th October, 1950. He averred that he
could not honestly admit that he scandalized the Court and committed contempt
either in fact or in law and contended that in his whole career at the Bar for
forty years he observed the highest traditions of this learned profession,
upholding always the dignity of the Courts and that he had no animus against
the Judges of the Division Bench. He asserted that by signing the application
he did not scandalize or intend to scandalize the Court and that he bona fide
thought that an application could be made for transferring a case in the High
Court from one Bench to another and that the question did not concern him alone
but 761 the Bench and Bar generally and a question of great principle emerged,
viz., whether a counsel was guilty of contempt in signing such an application,
or whether it was his professional duty to do so if his client was under that
bona fide impression. In the last paragraph of the reply it was stated"
Whatever the circumstances, I do see how much this application for transfer
dated the 23rd August, 1950, has hurt the feelings of the Hon'ble Judges and I
very much regret that all this should have happened." Shri Shareef also
put in a similar written statement. He asserted that when the transfer
application was made he did not know or believe the law to be that it could not
be made, and rightly or wrongly he was always under the impression that an
application could be made for transferring a case in the High Court from one
Bench to another. He also expressed similar regret for what had happened.
Further written statement was filed by Shri Shareef on 16th October, 1950.
In paragraph 7 of that statement he said as
follows:-' "I was grieved to know that the accusation against me in these
proceedings should be of malice and mala fides for my taking up Zikar's brief
in connection with his application for transfer, dated the 23rd August, 1950.
If I am thus defending the proceedings, I am doing so for vindicating my
professional honour and personal self-respect, and it would be a misfortune if
this was all going to be construed as aggravating the contempt, as hinted by
the Hon'ble Court during my counsel's arguments, though remotely. But even as I
am making my defence, it is, I admit, quite likely that I committed an error of
judgment in acting as I did, causing pain to the Hon'ble Judges, which I deeply
regret, as I have already done before and so has my counsel on my behalf in the
course of his arguments." (The Judges in the Judgment under appeal have taken
exception to the last sentence of this paragraph.) Dr. Kathalay also put in a
The High Court in a very lengthy judgment in
which very large number of authorities were considered and 762 discussed, held
that the application for transfer constituted contempt because the Judges were
scandalized with a view to diverting the due course of justice. The two
advocates who signed and prosecuted the application were found guilty of
contempt. As regards the plea of error of judgment, this is what the learned
Judges said:" The attitude of defiant justification adopted by them in
spite of our pointing out at a very early stage in these proceedings that we
would be prepared to consider any mistake on their part renders it difficult
for the court to accept the belated plea of an error of judgment. Even the
expression 'error of judgment' was not so much mentioned in the argument until
the last day of the argument. We have already shown in para. 100 how it was
introduced in the two statements on 16th October, 1950, quite contrary to fact.
If the two advocates felt that there was an
error of judgment on their part, it would have been more appropriate to make a
candid and clear admission of that and make reparation for the injury done by
an adequate apology. We cannot treat the expression 'I very much regret that
all this should have happened' as an apology at all. Nor were we ever asked to
treat it as such. What is it that the two advocates regret ? -So man things
have happened since 21st August, 1950. Any expression of regret to merit
consideration must be genuine contriteness for what the contemners have
done." In the result the learned Judges passed the following order : "
We accordingly sentence Shri M. Y. Shareef to pay -a fine of Rs. 500 or in default
to undergo simple imprisonment for two weeks and we Sentence Dr. D.W. Kathalay
to pay a fine of -Rs. 1000 or in default to undergo simple imprisonment for one
month. We are not sure if the sentences we have awarded are adequate to the
gravity of the offence, but on this occasion we refrain from being stern and
bringing the full power of the court into play considering the misconceptions
about the advocate8' responsibility that seem to have so far prevailed at any
rate in a section of the Bar." 763 Leave to appeal to this Court was
refused but was granted here.
On the 12th May, 1954, when the appeal was
heard by this Court, we recorded the following order:"The appellants have
tendered an unqualified apology to this court and to the High Court, and they
are prepared to purge the contempt for which they have been convicted. In our
opinion, the apology is a sincere expression of their regret for what happened
in court at the time the transfer application was made and for the allegations
We therefore adjourn this appeal for two
months and direct that the apology tendered here be tendered to the Division
Bench before which the contempt is said to have been committed. We are sending
it to the High Court with the full confidence that the learned Judges will
consider the apology in the spirit in which it has been tendered and they will
pass appropriate orders and send an intimation to this court as to what orders
they pass." When the case went back to the High Court, it again took an
unfortunate turn. The learned Judges posed the question that they had to
consider in this form " The question is whether remission of the
punishment awarded is called for in view of the statement now filed by the
contemners," and it was answered thus:
" We are constrained to observe that the
spirit in which the apology was tendered here is not much different from that
originally shown. The idea of the contemners is that because they have filed
the apology as directed, they have a right to expect the acceptance of it by
the court. How else can the absence of any prayer or what the contemners desire
be explained ? We record that there was hardly anything apologetic the way the
apology was tendered.....................
We neither gave the extreme penalty which we
might well have given, nor did we give the maximum of the lesser penalty. But
for the manner of justification and the contumacy, there might not have been a
sentence of fine at all." 764 Having approached the matter thus, the
learned Judges referred to a large number of cases for the admitted proposition
of law that a " sincere apology does not entitle a contemner as of right
to a remission of the sentence." It was further thought that acceptance of
apology would lead to an invidious distinction being made in the case of two
advocates and Zikar. In the result the apology was not accepted and the report
concluded with the following observations :" If in the circumstances of
this case the apology were to be accepted, we would be encouraging the notion
that it is the contemners's right to get his apology accepted when he chooses
and in whatever manner he tenders even in a case where he has aggravated the
original offence. We will be unsettling established principles, and setting a
bad precedent. Above all, we would be dealing a blow to the authority of the
court, the consequence of which cannot be viewed with equanimity." When
the appeal came back to us, we asked Dr. Tek Chand who appeared for the two
advocates whether his clients were even now genuinely sorry for signing the
transfer application and whether the expression of regret made in this Court
was a genuine expression of their feelings, Dr. Tek Chand replied in the
affirmative and emphatically said " Absolutely".
In this situation, the question for
consideration in the appeal now is whether the two appellants have purged the
contempt by tendering an unqualified apology in this Court as well as to the
High Court, the genuineness of which has been again emphasized by their counsel
before us, or whether the sentence of fine awarded to them by the High Court
should necessarily be maintained for upholding the authority and dignity of the
Court The proposition is well settled and self-evident that there cannot be
both justification and an apology. The two things are incompatible. Again 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. The appellants having tendered an 765
unqualified apology, no exception can be taken to the decision of the High
Court that the application for transfer did constitute contempt because the
judges were scandalized with a view to diverting the due course of justice, and
that in signing this application the two advocates were guilty of contempt.
That decision therefore stands.
The fact however remains, as found by the
High Court, that there was at the time these events happened considerable
misconception amongst a section of the Nagpur Bar about advocates' responsibilities
in matters of signing transfer applications containing allegations of this
character. It cannot be denied that a section of the Bar is under an erroneous
impression that when a counsel is acting in the interests of his client, or in
accordance with his instructions he is discharging his legitimate duty to his
client even when he signs an application or a pleading which contains matter
scandalizing the Court. They think that when there is conflict between their
obligations to the Court and their duty to the client, the latter prevails.
This misconception has to be rooted out by a
clear and emphatic pronouncement, and we think it should be widely made known
that counsel who sign applications or pleadings containing matter scandalizing
the Court without reasonably satisfying themselves about the prima facie
existence of adequate grounds there for, with a view to prevent or delay the
course of justice, are themselves guilty of contempt of Court, and that it is
no duty of a counsel to his client to take any interest-in such applications;
on the other hand, his duty is to advise his client for refraining from making
allegations of this nature in such applications. Once the fact is recognized as
was done by the High Court here, that the members of the Bar have not fully
realized the implications of their signing such applications and are firmly
under the belief that their conduct in doing so is in accordance with
professional ethics, it has to be held that the act of the two appellants in
this case was done under a mistaken view of their rights and duties, and in
such cases even a qualified apology may well be considered by a Court.
In border 98 766 line cases where a question
of principle about the rights of counsel and their duties has to be settled, an
alternative plea of apology merits consideration; for it is possible for a
judge who hears the case to hold that there is no contempt in which case a
defence of unqualified apology is meaningless, because that would amount to the
admission of the commission of an offence. In this case the learned judges
themselves had to wade through a large volume of English and Indian case-law
before they could hold that the act of the appellants constituted contempt and
thus it could not be said that the matter was so patent that on the face of it
their act amounted to contempt. Moreover, it appears from the proceedings that
the counsel were genuinely under the belief that their professional duties
demanded that, when their client was under a bonafide belief that the Court was
prejudiced against him and decided to apply for transfer, the were bound to
take his brief and sign the application. We cannot help observing that the
admitted reference by the judges to the Supreme Court in their remarks during
the course of the hearing was unfortunate and seems to indicate an unnecessary
and indecorous sensitiveness which may well have been misunderstood by the
party and the advocates. The counsel seem to have genuinely believed that they
were right in what they did, though as a matter of fact if they had studied the
law more deeply, they would not have done so. In these circumstances it cannot
be said that what they did was willful and their conduct in getting the law
settled in this matter by raising the defence that they did was contumacious.
The authorities relied upon by the High Court have no application to cases of
this character. How else is the validity of a defence of this kind to be
settled, except by an argument that the counsel was entitled in the interests
of his client to advise a transfer and give grounds for that transfer which
were bona fide believed by the client. Every form of defence in a contempt case
cannot be regarded as an act of contumacy. It depends on the circumstances of
each case and on the general impression about a particular rule of ethics
amongst the members 767 of the profession. The learned Judges, as already said,
have themselves said that such an impression was prevalent since along time
amongst a section of the Bar in Nagpur. It was thus necessary to have that
question settled and any effort on the part of these two learned counsel to
have that point settled cannot be regarded as contumacy or a circumstance which
aggravates the contempt. We think that the expression of regret in the
alternative in this case should not have been ignored but should have been
given due consideration.
It was made in the earliest written statement
submitted by the counsel and cited above. Once however the High Court found
that they were guilty of contempt, they would have been well advised to tender
an unqualified apology to that Court forthwith. But perhaps they were still
under the delusion that they were right and the Court was in error, and that by
coming to this Court they might be able to have the question of principle
settled as they contended. As soon as we indicated to the learned counsel that
they were in error, they and their counsel immediately tendered an unqualified
apology which, as already indicated, was repeated again in absolute terms at
the second hearing. We have not been able to appreciate why the learned Judges
of the High Court should have doubted the genuineness of this apology. It
certainly was not the object and could not be the object of the learned Judges
of the High Court to humiliate senior counsel and to expect something more from
them than what they had already done in this Court. While unhesitatingly
deprecating very strongly the conduct of the appellants in scandalising the
Court by becoming parties to an unnecessary and untenable transfer application,
we still feel that in the matter of measure of punishment the High Court should
have after an unqualified apology was tendered taken a different view. We have
no doubt that whatever the learned Judges of the High Court did in this case, they
did in the firm belief that the dignity of the Court had to be maintained and
the members of the Bar, howsoever big or learned, cannot be allowed to
scandalize the judges or to divert the course of justice 768 by attempting to
take a case out from one Bench to another Bench of the Court when they find
that the Bench is expressing opinions seemingly adverse to their clients. We
have firm hope that this kind of conduct will not be repeated by counsel in any
High Court in this country, and no more test cases of this kind would have to
be fought out.
In the peculiar circumstances of this case
and in view of the circumstance that the learned Judges themselves were of the
opinion that there would not have been a sentence of fine at all if there was
no plea of justification and there was no contumacy, we are of the opinion that
the unqualified apology was sufficient to purge the contempt committed by the
two appellants as we have reached the conclusion contrary to that arrived at by
the High Court that the plea of justification in this case did not amount to
It has also to be kept in view that
condemnation for contempt by a High Court of senior members of the Bar is
itself a heavy punishment to them, as it affects them in their professional
career and is a great blot on them.
There has been nothing said in the lengthy
judgment of the High Court that these counsel in their long career at the Bar
have ever been disrespectful or discourteous to the Court in the past. This one
act of indiscretion on their part in signing the application should not have
been viewed in the very stringent manner in which the High Court viewed it in
the first instance and viewed it again after we had sent the case back to it.
It is not the practice of this Court in special leave cases and in exercise of
our overriding powers to interfere with a matter which rests in the discretion
of the High Court except in very exceptional cases. After a careful
consideration of the situation that arises in this case we have reached the decision
that the dignity of the High Court would be sufficiently upheld if the
unqualified apology tendered in this Court in the first instance and reiterated
in absolute terms by Dr. Tek Chand again at the next hearing is accepted and
that apology is regarded as sufficient to purge the contempt. The matter has
become very stale and the ends of justice do not call for maintaining the
punishment of fine on two senior 769 counsel for acting wrongly under an
erroneous impression of their rights and privileges.
For the reasons given above we allow this
appeal to the extent that the sentence of fine passed on both the appellants is
set aside, -and the unqualified apology given by them to this Court and the
High Court is accepted. We also desire to issue a strong admonition and warning
to the two counsel for their conduct. There will be no order as to costs in
these proceedings throughout.