Gobind Ram Vs. State of Maharashtra
[1972] INSC 58 (21 February 1972)
GROVER, A.N.
GROVER, A.N.
SIKRI, S.M. (CJ) RAY, A.N.
PALEKAR, D.G.
BEG, M. HAMEEDULLAH
CITATION: 1972 AIR 989 1972 SCR (3) 536 1972
SCC (1) 740
CITATOR INFO:
D 1974 SC 710 (51,85)
ACT:
Contempt of Court Act 1952—S 3(2)--Scandalizing
the Court-Principles for determining when it amounts to contempt--Transfer
application--Allegations against judicial official--Allegations that the
Magistrate below is on friendly relations with complainants--If amounts to
contempt.
HEADNOTE:
An advocate, in a transfer application in
respect of a criminal complaint, filed before the Sessions Judge made certain
allegations against two judicial officers before whom the criminal complaint
and a civil suit, were pending.
While dismissing the transfer application,
the Additional Sessions Judge, who heard' the application, recorded an order
that a report be submitted to the High Court for considering the conduct of the
applicant as to the course adopted by him in making imputations or aspersions
in the transfer petition against the judicial officers and to take action for
contempt of court under s. 3(3) of the Contempt of Court's Act, 1952.
Paragraph 1 of the transfer application
stated that "the Magistrate below is on friendly relations with the
complainants the respondent No. 1 in the present petition and he even enjoys
the hospitality of the Respondent No. 1 sometimes alone and sometimes in
company of the Civil JudgeJ. D. Kalyan (Shri M. B. Boadkar) who is also on
friendly relations with the respondent No. 1 and who also enjoys the
hospitality of the respondent No. 1". There were other allegations in the
transfer petition. The show cause notice issued by the High Court containing
the charge of contempt was confined only to paragraph 1 of the transfer application.
The High Court held that the appellant was guilty of contempt of court and he
was sentenced accordingly.
Allowing the appeal.
HELD : (1) The show cause notice on the face
of it disclosed no such allegation which could be regarded as falling within
the rule laid down by this Court in which the head of contempt, i.e.
scandalizing the Court, had come up for examination. In Perspective
Publications (P) Ltd. v. State of Maharashtra, [1969] 2 S.C.R 779 this Court
has laid down certain principles as to the law of contempt. They are :
(i) It will not be right to say that
Committals for contempt for scandalizing the Court have become obsolete.
(ii)The summary jurisdiction by way of
contempt should be exercised with great care and caution and only when its
exercise is necessary for the proper administration of law and justice.
(iii)Any one may express fair, reasonable and
legitimate criticism of any act or conduct of a judge in his judicial capacity
or make a proper or fair comment on any decision given by him.
(iv)A distinction must be made between a mere
libel or defamation of a judge and what amounts to contempt of court.
The test in each 537 case would be whether
the impugned publication is a mere defamatory attack on the judge or whether it
is calculated to interfere with due course of justice or the proper
administration of law by the court it is only in the latter case that it will
be punishable as contempt. [542 H] (v)Alternatively, the test will be whether
the wrong is done to the judge personally or it is done to the public.
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 of fairness of the judges
or to deter actual and prospective litigants from lacing 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".
[543 E] (2)Allegations made even in a transfer application casting aspersions
on a judicial officer can constitute contempt of his court within s. 3 of the
Act. However, cases in which applications for transfer are made/ stand on a
slightly different footing from those where a party makes an allegation, either
inside or outside the court of a scandalizing nature imputing improper motives
of the judge trying the case; but even in the case of a transfer application, a
person cannot be allowed to commit contempt of court by making allegations of a
serious nature scandalizing the court and imputing improper motives to the
judge trying the case. [544-B, 546 D] In the present case, the mere statement
that a Magistrate is friendly with a party who happens to be an advocate and
enjoys his hospitality or has friendly relations with him will not constitute
contempt unless there is an imputation of some improper motives as would amount
to scandalizing the court itself and as would have a tendency to create
distrust in the popular mind and impair the confidence of the people in the
courts. [544 C] State of Madhay Pradesh v. Revashankar, [1959] S.C.R. 1367,
State v. The Editors and Publishers of Eastern Times and Prajatantra, A.I.R.
1952 Orissa 318 and Swaranamavi Panigrahi v. B. Nayak & Ors., A.I.R. 1959
Orissa 89, referred to and discussed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.51 of 1968.
Appeal by special leave from the judgment and
order dated February 2, 1968 of the Bombay High Court in Criminal Application
No. 393 of 1967.
Appellant appeared in person.
M.C. Bhandare, S. B. Wad and, B. D. Sharma,
for the respondent.
The Judgement of the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the Bombay
High Court finding the appellant who is an Advocate, guilty of contempt of
court and sentencing him to simple imprisonment for a term of four weeks and a
fine of 538 Rs. 1,000/-. It was directed that in default of payment of the fine
he would have to undergo simple imprisonment for a further period of four
weeks. He was also ordered to pay the costs of the Assistant Government Pleader
in the High Court and the Government Pleader before the Sessions Judge.
The material facts may be stated: In March
1966 a suit was filed against the appellant by D. N. Santani who is also an Advocate
for recovery of Rs. 640/in the court of the Civil Judge, Junior Division,
kalyan. The plaintiff in that suit had engaged H. I. Jagiasi as his Advocate.
In the written statement filed by the appellant he made certain allegations
against Jagiasi and alleged inter alia that the latter was responsible for the
suit. Jagiasi filed a criminal complaint for defamation in August 1966 against
the appellant in the court of Shri P. D. Sayyid, Judicial Magistrate at Kalyan.
The appellant has set out a number of incidents and matters in his petition for
special leave to appeal which it is not necessary for our purpose to mention.
It would suffice to say that on October 15,
1966 the appellant filed an application before the Judicial Magistrate saying
that he intended to apply for transfer of the case to some other court. On
October 28, 1966 he presented a transfer application in the court of the
Sessions Judge. Thana.. The transfer application was ultimately dismissed by
the Assistant, Judge and Additional Sessions Judge on March 8, 1967 before whom
it came up for disposal. Meanwhile it appears that the appellant applied for
transfer of the civil suit which had been filed by D. R. Santani to the court
of the District Judge. The suit was stayed and we have been informed that
ultimately it was transferred sometime in the year 1967 from the court of Shri
M. B. `Baadkar from whose court transfer was sought. It has further been stated
at the Bar and that statement has not been challenged that the civil suit was
ultimately dismissed in August 1969.
While dismissing the transfer application of
the appellant in the criminal complaint filed by Jagiasi in the, court of Shri
P. D. Sayyid the Additional Sessions Judge recorded an order that a report be
submitted to the High Court for "considering the conduct of the appellant
and the course adopted by him in making the transfer application and in making
amputations or aspersions against the Judicial Officers and to take action for
contempt of court under s. 3 (2) of the Contempt of Court's Act, 1952,
hereinafter called the 'Act'. This was done after reproducing three paragraphs
from the transfer application and expressing an opinion that the appellant had
attempted to attack the integrity and honesty of the courts of the Judicial
Magistrate and the Civil Judge and to scandalize and to malign the same. The
High Court made an 539 order on December 1, 1967. The following part of that
order may be reproduced "He made an application to the Sessions Judge for
transfer of the proceedings to another Court and the ground objected to by the
learned Sessions Judge is as follows :"The Magistrate below is on friendly
relations with the complainant the respondent No. 1 in the present petition and
he even enjoys the hospitality of the respondent No. 1 sometimes alone and sometimes
in company of the, Civil Judge J. D. Kalyan (Shri M. B. Baadkar) whois also on
friendly relations with the respondent No.1 and who also enjoys the hospitality
of the respondent No. 1 The learned Sessions Judge had called for report from
the Magistrate Mr. P. D. Sawed and was apparently satisfied after consideration
of all the affidavits produced before him that the allegations was baseless.
He, there-, fore,, referred the matter to this court for suitable action being
taken against the respondent-Advocate for his making such allegations and
interfering with the course of justice and scandalizing or maligning the Courts
below'.
It was further stated in that order that the
appellant had asked for an opportunity to establish the truth of the allegation
made above which had been made, both "because of his personal knowledge
and also because of information obtained from others". A list of witnesses
was furnished by the appellant whom he proposed to examine. The High Court
directed the District Judge to regard the evidence and to submit his report
along with the evidence and the reports of the two judges. It was expressly
stated that the inquiry was to be confined to the allegations which had been
quoted above. The show cause notice which was issued to the appellant by the
High Court (omitting unnecessary portions) was as follows :"Whereas"
upon reading letter No. 2434, dated 5th April, 1967 forwarded by the 2nd Addl.
Sessions Judge, Thana along with the Record
and proceedings of Cri. Transfer Application No. 108/66 on his file and the
Record and Proceedings in Cri. Case No. 2949 of 1966 of the Court of the
Judicial Magistrate, F. C. Kalyan, requesting to take action under the Contempt
of Court's Act against the Advocate Mr. G. L. Bhatia, who has made serious
allegations against the Judicial 540 Officers Shri Baadkar and Shri Sayyad in
Transfer Cri. Application No.' 108/66 in para one in the Court of the 2nd Addl.
Sessions Judge, Thana, etc., And whereas this Court has on 15th June 1967,
passed the following order :"Notice to Mr. Bhatia Advocate to show cause
why action for contempt of Court should not be taken against him. Notice to G.
P. also. A copy of D. J.'s letter to, be sent to Mr. Bhatia along with the
notice." The District Judge in accordance with the orders of the High
Court submitted a report giving his own findings on the evidence recorded by
him and. also after taking into consideration the reports of Sarvshri Baadkar
and Sayvid which had been called for from them apparently after the witnesses
produced by the appellant had given their evidence and copies of their
depositions had been sent to the two Judges. The appellant raised two
preliminary objections before the High Court. The first was that the District
Judge could only submit a record of evidence and could not give his findings
and, secondly, he could not take into consideration the reports of the two
judges which had not been shown to the appellant. Another objection raised was
that the reports of the Judicial Officers could not have been relied upon
because the appellant had no opportunity to cross-examine them. The High Court
repelled all these objections. From the statement of preliminary facts it is
clear that the High Court relied only on the allegations contained in para 1 of
the application of transfer which have already been set out before and contents
of which were that Shri Sayyid was on friendly relations with Jagiasi and that
he had even enjoyed his hospitality sometimes alone and sometimes in the
company of Shri Baadkar.
We have laid a certain amount of stress on
the aforesaid allegation made in para 1 of the transfer application because
that application consisted in substance of three paragraphs. It will be
desirable, owing to the nature of this case, to set out all the allegations
made in the transfer application 1."The Magistrate below is on friendly
relations with the complainant the Respondent No. 1 in the present petition and
he even enjoys the hospitality of the Respondent No. 1 sometimes alone and sometimes
in company of the Civil Judge J. D. Kalyan (Shri M. B. Baadkar) who is also on
friendly relations with the Respondent No. 1 and who also enjoys the
hospitality of the Respondent No. 1.
541
2. The Magistrate below is prejudiced against
the present application.
3.The Magistrate below has not taken and does
not appear to take impartial disinterested view of the case in question.
(a) Evidently the complainant was not
actuated by mere or bonafide professional interest. He was the author of false
litigation for a false and fabricated claim.
That matter Suit No. 213 of 1966 was still
pending hearing and adjudication. The complaint in question could not as such
be filed in all fairness and it ought not to have been entertained at least
without the preliminary enquiries or at any rate it ought to have been stayed.
(b) That was not done and the process was
ordained to be urgently issued and served and the socalled summons was served
on the applicant a day or two 'before the date of hearing to harass and
handicap him in his professional commitments.
(c) Even the said summons was not accompanied
by copy of the complaint as mandatorily required by S. 204(b) of the Code of
Criminal Procedure, and the applicant was left guessing as to what the said
summons related to.
(d) On 15th October 1966 when the case in
question was Sr. No. 10-12 on the Board and it was preceded by even part heard
cases the trial Magistrate did not permit this application even leave for a
while to enable him to go to Civil Court at a distance of furlong or so to
obtain leave of the Court from his professional engagements and the trial
Magistrate observed that he would "take up the case there and then and
just now" and in the next moment the complainant was in the Box ready for
"finishing" the case as though by previous understanding.
4.The applicant respectfully refrains from
entering into further details in this regard and he would do the same if called
upon. For the present suffice to say that in view of what is stated above there
is well-founded apprehension in the mind of the applicant he would not get
justice unless the case is transferred to some other Court of the competent
jurisdiction".
542 The question which immediately arises is
whether an allegation of the nature made in para (1) in the circumstances of
the present case in a 'transfer application would amount to contempt of the two
judges Sarvshri Sayyid and Baadkar. The High Court made a detailed examination
of the evidence adduced before the District Judge and also relied on the
reports of Sarvshri Sayyid and Baadkar. It came to the conclusion that the
allegations made by the appellant had not been proved. It was observed that
these allegations "in the above quoted paragraph" which means
paragraph 1 were quite serious. The High Court was also influenced by the fact
that the appellant had "pitched the case higher and tried to prove that the
two judges concerned were continuously receiving from Mr. Jagiasi presents of
large value in the shape of sarees and other articles and thus receiving bribes
so as to indiscreetly favour Mr. Jagiasi and the litigants whom he represented
in their Court". The appellant was not even willing to tender an apology
and his position as an Advocate was naturally regarded as making the contempt
all the more serious.
The appellant, who has argued the case
himself, has raised the following main contentions :
1.The Act is unconstitutional and invalid. It
violates Articles 20 and 21 of the Constitution.
2.No procedure has been provided in the Act
and therefore if is bad.
3.Even the normal procedure which should be
followed in such cases has not been followed.
4.The High Court was not entitled to call for
a report from the District Judge or to delegate its functions ,including the
examination of witnesses to the District Judge.
5.The show cause notice issued by the High
Court containing the charge of contempt was confined only to paragraph 1 of the
transfer application. The statements made in that paragraph could not by
themselves constitute contempt.
In our opinion it is wholly unnecessary to
decide points 1 to 4 because the appellant must succeed on the 5th point. This
court has, after a review of all the relevant decisions, laid down in
Perspective Publications (P) Ltd. & Anr. v. State of Maharashtra(1), inter
alia, the following principles :1.It will not be right to say that the
committals for contempt for scandalizing the, court have become obsolete.
(1) [1969] 2 S.C.R. 779.
543 2.The summary jurisdiction by way of
contempt must be exercised with great care 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.
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 will be punishable
as contempt.
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 (1953 SCR 1169) 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".
In that case it was held that the imputation
in an article of impropriety, lack of integrity and oblique motives to a judge
of the High Court in the matter of deciding a suit constituted contempt of
court.
The question whether an action can be taken
under s. 3 of the Act if in a transfer application allegations are made against
a judge which are of such nature as to constitute contempt of his court does
not appear to be res Integra. In State of Madhya Pradesh v. Revashankar(1)
aspersions of a serious nature had been made against a Magistrate in a transfer
petition., One of such aspersions was that the Magistrate in whose court the
proceedings were pending was a party to a conspiracy with certain others the
object of which was to implicate, the complainant in a false case of theft and
that a lawyer appearing for the accused persons in whose favour the Magistrate,
was inclined, had declared (1) [1959] S.C.R. 1367.
544 that he had paid a sum of Rs. 500/to the
Magistrate. It was also asserted that the applicant was sure that he would not
get impartial and legal justice from the Magistrate. It was held that the
aspersions taken at their face value amounted to what is called ' scandalizing
the court' itself and the attack on the Magistrate tended to create distrust in
the popular mind and impair the confidence of the people in the courts. This
decisions is quite apposite for the purposes of the present case. It decides
that allegations made even in a transfer application casting aspersions on a
judicial officer can constitute contempt of his court within s. 3 of the Act.
It is difficult to comprehend that the mere statement that a Magistrate is
friendly with a party who happens to be an advocate and enjoys his hospitality
or has friendly relations with him will constitute contempt unless there is an
imputation of some improper motives as would amount to scandalizing the court
itself and as would have a tendency to create distrust in the popular mind and
impair the confidence of the people in the courts. The allegations contained in
para 1 of the transfer application may or may not amount to defamation of the
two judges, namely, Sarvashri Sayyid and Baadkar but to constitute contempt the
other tests which have been discussed above must be fulfilled. As noticed
before the High Court confined the action, which was to be taken, only to the
matter stated in paragraph 1 and did not choose or decide to include or
consider paragraphs 2 or 3 either in the show cause notice or in the judgment
the following part of which may be reproduced:-.
"We have considered the whole of the
evidence on record that can be relied upon on behalf of the condemner on the
one side and by the State in support of the case for action against the
condemner. We have with some anxiety considered the arguments advanced by the
contemner in support of his case that the evidence is sufficient to prove the
allegations made by the contemner in the above quoted paragraph. We find it
impossible to hold in his favour that-he has proved that Mr. Sayyid had
friendly relations with Mr. Jagiasi and was enjoying the hospitality of Mr.Jagiasi
either alone or in company with Mr.Baadkar. He has failed to prove that Mr.Baadkar
had friendly relations with Mr.Jagiasi and enjoyed the hospitality of Mr.Jagiasi".
It is true that a party cannot make such
allegations even in a transfer application which may fall within the rule laid
down in Revashankar's(1) case or in the Perspective Publication's case(2) and
which may amount to scandalizing the court in the sense pointed out in these decisions.
In the State v. The Editors & (1) [1959] S.C.R. 1367.
(2) [1969] 2 S.C.R.779.
545 Publishers of Eastern Times and
Prajatantra(1), Jagannadhadas C.J. (as he then was) delivering the judgement of
the Division Bench, after an exhaustive examination of the decided cases where
the jurisdiction of the court for this, class of contempt had in fact been
exercised, observed "A review of the cases in which a contempt committed
by way of scandalising the court has been taken notice of, for punishment,
shows clearly that the exercise of the punitive jurisdiction is confined to
cases of very grave and scurrilous attack on the court or on the Judges in
their judicial capacity, the ignoring of which would only result in encouraging
a repetition of the same with a sense of impunity and which would thereby
result in lowering the prestige and authority of the court".
There are not many decisions in which
punishment has been inflicted for committing contempt of court by making
scurrilous allegations in an application for transfer of a case from one court
to another. Mention may, however, be made of one of such cases: Swarnamayi
Panigrahi v. B. Nayak & Ors. (2) There, during the pendency of certain rent
suits filed before the Rent Suit Collector by the landlord, who was the wife of
the Chief Justice of the Orissa High Court, the tenant filed certain transfer
applications before the Additional District Collector making statements like
these :
"1. The lower court openly identified
himself with 'the plaintiff Shrimati Swammayi Panigrahi and is so partial to
her that no justice or impartial decision can be expected from him;
2.He has gone out of the course prescribed by
law and has taken over the function of witness and court in himself in such a
way that there is no parallel to it in the history of litigation in India; and
3.That opposite party wields extraordinary influence in the State as she is the
wife of Shri Lingarai Panigrahi Chief Justice of Orissa High Court. It is being
openly talked about that the conclusions are foregone".
It was observed that though some latitude has
to 'be given in a transfer application but the question was whether or not the
applicant in that case had exceeded the limits permissible under the law. As a
rule applications for transfer were not made merely (1) A.I.R. 1952 Orissa 318.
(2) A.I.R 1959 Orissa 89.
546 because the trying judge was alleged to
be incompetent but there may be circumstances beyond the judge's control such
as the acquaintance with one of the parties or personal interest in the subject
matter of the proceedings which in law would be considered as preventing him
from giving an unbiased decision. It was held that the, applicant had exceeded
the limits and had gone out of his way not only to malign the personal
integrity and judicial honesty of the lower court but had also directly
attacked the whole administration of justice headed by the Chief Justice of the
State. It is noteworthy that on an allegation made in a transfer application
the judge against whom the allegation is made is often afforded an opportunity
of giving explanation by the higher court and he can dispel any cloud that
might have been cast on his fairness and integrity.
The higher court takes action for transfer
after full consideration of all the circumstances of the case including the
report of the judge against whom the allegations are made. In this way it can
well be said that cases in which applications for transfer are made stand on a
slightly different footing from those where a party makes an allegation, either
inside or outside the court of a scandalizing nature imputing improper motives
to the judge trying the case. The Allahabad High Court in Emperor v.
Murli Dhar & Another(1) was of the view
that where an accused person in an application for transfer of a case made an
assertion that the persons who had caused the Proceedings to be instituted were
on terms of intimacy with the officer trying the case and, therefore, he did
not expect a fair and impartial trial was not guilty of offence under s. 228,
Indian penal Code, there being no intention on the part of the applicant to
insult the court, his object being merely to procure a transfer of his case.
It is true that. in the garb of a transfer
application a person cannot be allowed to commit contempt of court by making
allegations of a serious and scurrilous nature scandalizing the court and
imputing improper motives to the judge trying the case. But then the nature of
the allegations will have to be closely examined and so long as they do not
satisfy the requirements of what May be regarded as contempt of court no
punishment can possibly be inflicted. The appellant, in the present case, is an
advocate and it is most unfortunate that though at the stage of the transfer
application be made certain allegations in para 1 about the social intimacy
between Jagiasi and Sarvashri Sayyid and Baadkar, the two judicial officers,
with the apparent object of securing a transfer of the case he proceeded to
take the highly ill-advised step of attempting to substantiate, the allegation
so made. We are, however, not concerned with any charge relating to the matters
subsequent to the notice which was issued by the High Court with regard. to the
allegations for which punishment has been (1) I.L.R. 8 All, 284.
547 imposed on the appellant. That notice on
the face of it discloses no such allegation which could be regarded as falling
within the rule laid down by this Court and by a series of decisions of the
Privy Council in which this head of contempt i.e. scandalizing court has come
up for examination. Most of those decisions have been referred to in the case
of Perspective Publications (P) Ltd.(1). In addition we may mention Debi Prasad
Sharma & Others v.
Emperor(2) in which in a newspaper report the
Chief Justice of a High Court was untruly alleged to have committed an
ill-advised act in writing to his. subordinate judges asking them to collect
subscriptions for the War Fund. According to their lordships there was no
criticism of any judicial act of the Chief Justice nor any imputation was made
for anything done or omitted to be done by him in the administration of justice
nor was there any criticism of him in his administrative capacity. In the
opinion of their lordships the proceedings in contempt were misconceived.
In our judgment the allegations contained in
para 1 of the transfer application were not such as would amount to contempt of
court. We cannot help observing that the appellant did not show the sense of
responsibility in making the allegations in question which is expected from an
advocate and in further attempting to substantiate them which he failed to do.
The appeal is allowed and the order passed by
the High Court is hereby set aside. Parties will bear their own costs in this
Court.
S.C. Appeal allowed.
(1) (1969) 2 S.C.R. 779.
(2) A.I.R. (1943) P.C. 202.
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