Vishram Singh
Raghubanshi Vs. State of U.P.
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1.
This
appeal has been preferred under Section 19 of the Contempt of Courts Act, 1971,
(hereinafter called the `Act 1971') arising out of impugned judgment and order
dated 5.5.2006 passed by the Division Bench of the Allahabad High Court in
Contempt of Court Case No. 13 of 1999.
2.
FACTS:
A. Appellant is an advocate
practising for last 30 years in the District Court, Etawah (U.P.). On 25.7.1998,
he produced one Om Prakash for the purpose of surrender, impersonating him as Ram
Kishan S/o Ashrafi Lal who was wanted in a criminal case in the court of IInd ACJM,
Etawah. There was some controversy regarding the genuineness of the person who
came to surrender and therefore, the Presiding Officer of the Court raised
certain issues. So, the appellant misbehaved with the said officer in the court
and used abusive language.
B. The Presiding Officer
of the court vide letter dated 28.9.1998 made a complaint against the appellant
to the U.P. Bar Council and vide letter dated 27.10.1998 made a reference to
the High Court for initiating contempt proceedings under Section 15 of the Act,
1971 against him. The High Court considered the matter and issued show cause notice
on 5.5.1999 to the appellant. In response to the said notice, the appellant
submitted his reply dated 24.5.1999, denying the allegations made against him,
but, tendering an apology in the form of an affidavit stating that he was keeping
the court in the highest esteem.
C. The Bar Council of U.P.
dismissed the complaint referred by the Presiding Officer vide order dated 18.3.2001,
but the Allahabad High Court did not consider it proper to accept the explanation
submitted by the appellant or accept the apology tendered by him, rather, it framed
the charges against the appellant on 27.9.2004. In response to the same, the
appellant again submitted an affidavit dated 18.10.2005 tendering an apology
similar to one in the affidavit filed earlier.
D. The Division Bench of
Allahabad High Court considered the matter on judicial side, giving full opportunity
to the appellant to defend himself. The High Court ultimately held the
appellant guilty of committing the contempt and sentenced him to undergo 3
months simple imprisonment with a fine of Rs.2,000/-. Hence this appeal.
3.
This
Court vide order dated 26.6.2006 suspended the operation of sentence and
directed the appellant to deposit the fine of Rs. 2,000/- in this Court, which
seems to have been deposited.
4.
Shri
Sanjeev Bhatnagar, learned counsel appearing for the appellant, has submitted
that he would not be in a position to defend the contemptuous behaviour of the appellant
but insisted that the appellant is aged and ailing person and had tendered absolute
and unconditional apologies several times. Thus, the apology may be accepted and
the sentence of three months simple imprisonment be quashed.
5.
On
the contrary, Shri R.K. Gupta, learned counsel appearing for the respondent, has
vehemently opposed the prayer made by Shri Bhatnagar and contended that the appellant
does not deserve any lenient treatment considering the language used by him to the
Presiding Officer of the court and such a person does not deserve to remain in
a noble profession. He further contended that the apology has not been tendered
at the initial stage. The first apology was tendered only after receiving show
cause notice dated 5.5.1999 from the High Court and under the pressure. More
so, the language of the apology is not such which shows any kind of remorse by the
appellant, thus, considering the gravity of the misbehaviour of the appellant,
no interference is wanted. Therefore, the appeal is liable to be rejected.
6.
We
have considered the rival contentions made by learned counsel for the parties
and perused the record.
7.
Admittedly,
the case of impersonification of the person to be surrendered is a serious one,
however we are not concerned as to whether the appellant had any role in such impersonification,
but being an officer of the court, if any issue had been raised in this regard either
by the court or opposite counsel, it was the duty of the appellant 4to satisfy
the Court and establish the identity of the person concerned. The conduct of
the appellant seems to have been in complete violation and in contravention of the
"standard of professional conduct and etiquette" laid in Section 1 of
Chapter 2 (Part-VI) of the Bar Council of India Rules which, inter-alia, provides
that an advocate shall maintain towards the court a respectful attitude and
protect the dignity of the judicial office. He shall use his best efforts to restrain
and prevent his client from resorting to unfair practices etc. The advocate would
conduct himself with dignity and self respect in the court etc. etc. There may
be a case, where a person is really aggrieved of misbehaviour/conduct or bias
of a judicial officer. He definitely has a right to raise his grievance, but it
should be before the appropriate forum and by resorting to the procedure prescribed
for it. Under no circumstances, such a person can be permitted to become the
law unto himself and proceed in a manner he wishes, for the reason that it would
render the very existence of the system of administration of justice at a
stake.
8.
Before
proceeding further with the case, it may be necessary to make reference to certain
parts of the complaint lodged by the Presiding Officer to the High Court
against the appellant: (i) During the course of cross examination in a criminal
case on 22.8.1998, the appellant was advised that he should ask questions peacefully
to the witness on which the appellant stepped over dias of the court and tried
to snatch the paper of statement from him and started abusing him that
"Madarchod, Bahanchod, make reference of contempt to the High Court" and
stepped out, abusing similarly from the court room. (ii) In another incident on
25.7.1998, three accused persons namely, Ram Krishan, Ram Babu and Rampal surrendered
before the court and filed an application no. 57Kha for cancellation for non-bailable
warrants, and the whole proceeding was completed by him. Aforesaid three accused
persons, namely, Ram Krishan and Ram Babu were real brothers and sons of Ashrafi
Lal. On 30.7.1998 order was passed to release them on bail but before they could
be released, it came to the knowledge of the court that right accused Ram
Krishan son of Ashrafi Lal had surrendered and sent to jail. This fact was brought
before the court by the mother of the person Om Prakash who was actually sent
to jail on 1.8.1998, of which enquiry was done and after summoning from jail
the person in the name of Ram Krishan stated in the court that his name was Om
Prakash, son of Sh. Krishan Jatav. The complainant Bhaidayal was also summoned who
also verified the above fact. Thereafter, an inquiry was conducted by the Presiding
Officer who found the involvement of the appellant in the above case of
impersonification.
9.
The
High Court examined the complaint and the reply submitted by the appellant to
show cause notice issued by the High Court. The High Court did not find the
explanation worth acceptable and, thus, vide order dated 27.9.2004, framed charges
against the appellant in respect of those allegations dated 22.8.1998 and 25.7.1998
respectively.
10.
It
is not the case of the appellant that he was not given full opportunity to
defend himself or lead evidence in support of his case. The appellant has not chosen
to defend himself on merit before the High Court, rather he merely tendered
apology thrice. Even before us, Shri Sanjeev Bhatnagar, learned counsel for the
appellant, has fairly conceded that the appellant had been insisting from the
beginning to accept his apology and let him off. Mr. Bhatnagar's case has been
that in the facts and circumstances of the case, particularly considering the age
and ailment of the appellant, apology should be accepted and sentence of three
months simple imprisonment be set aside.
11.
It
is settled principles of law that it is the seriousness of the irresponsible
acts of the contemnor and degree of harm caused to the administration of
justice, which would decisively determine whether the matter should be tried as
a criminal contempt or not. (Vide: The Aligarh Municipal Board & Ors. v.
Ekka Tonga Mazdoor Union & Ors., AIR 1970 SC 1767).
12.
The
court has to examine whether the wrong is done to the judge personally or it is
done to the public. The act 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. (See: Brahma Prakash Sharma & Ors. v. The State of
U.P., AIR 1954 SC 10; and Perspective Publications (P.) Ltd. & Anr. v. The
State of Maharashtra, AIR 1971 SC 221).
13.
In
the case of Delhi Judicial Service Association v. State of Gujarat & Ors.,
AIR 1991 SC 2176, this Court held that the power to punish for contempt is vested
in the judges not for their personal protection only, but 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.
14.
In
E.M.Sankaran Namboodiripad v. T.Narayanan Nambiar, AIR 1970 SC 2015, this Court
observed that contempt of court has various kinds, e.g. insult to Judges;
attacks upon them; comment on pending proceedings with a tendency to prejudice fair
trial; obstruction to officers of Courts, witnesses or the parties;
scandalising the Judges or the courts; conduct of a person which tends to bring
the authority and administration of the law into disrespect or disregard. Such
acts bring the court into disrepute or disrespect or which offend its dignity, affront
its majesty or challenge its authority. In a given case, such a conduct be committed
"in respect of the whole of the judiciary or judicial system". The court
rejected the argument that in particular circumstances conduct of the alleged
contemnor may be protected by Article 19(1)(a) of the Constitution i.e. right
to freedom of speech and 9expression, observing that the words of the second clause,
of the same provision bring any existing law into operation, thus provisions of
the Act 1971 would come into play and each case is to be examined on its own
facts and the decision must be reached in the context of what was done or said.
15.
Thus,
it is apparent that the contempt jurisdiction is to uphold majesty and dignity
of the law courts and the image of such majesty in the minds of the public
cannot be allowed to be distorted. Any action taken on contempt or punishment
enforced is aimed at protection of the freedom of individuals and orderly and equal
administration of laws and not for the purpose of providing immunity from
criticism to the judges. The superior courts have a duty to protect the
reputation of judicial officers of subordinate courts, taking note of the growing
tendency of maligning the reputation of judicial officers by unscrupulous practising
advocates who either fail to secure desired orders or do not succeed in browbeating
for achieving ulterior purpose. Such an issue touches upon the independence of
not only the judicial officers but brings the question of protecting the
reputation of the Institution as a whole.
16.
The
dangerous trend of making false allegations against judicial officers and
humiliating them requires to be curbed with heavy hands, otherwise the judicial
system itself would collapse. The Bench and the Bar have to avoid unwarranted
situations on trivial issues that hamper the cause of justice and are in the
interest of none. "Liberty of free expression is not to be confounded or
confused with license to make unfounded allegations against any institution, much
less the Judiciary". A lawyer cannot be a mere mouthpiece of his client
and cannot associate himself with his client maligning the reputation of judicial
officers merely because his client failed to secure the desired order from the said
officer. A deliberate attempt to scandalise the court which would shake the
confidence of the litigating public in the system, would cause a very serious damage
to the Institution of judiciary. An Advocate in a profession should be diligent
and his conduct should also be diligent and conform to the requirements of the
law by which an Advocate plays a vital role in the preservation of society and justice
system. Any violation of the principles of professional ethics by an Advocate is
unfortunate and unacceptable. (Vide: O.P. Sharma & Ors. v. High Court of
Punjab & Haryana, (2011) 5 SCALE 518).
17.
This
Court in M.B. Sanghi v. High Court of Punjab & Haryana & Ors., (1991) 3
SCC 600, observed as under: "The foundation of our system which is based
on the independence and impartiality of those who man it will be shaken if disparaging
and derogatory remarks are made against the presiding judicial officer with impunity....It
is high time that we realise that much cherished judicial independence has to be
protected not only from the executive or the legislature but also from those
who are an integral part of the system. An independent judiciary is of vital
importance to any free society".
18.
This
leads us to the question as to whether the facts and circumstances referred hereinabove
warrant acceptance of apology tendered by the appellant. The famous humorist P.G.
Wodehouse in his work "The Man Upstairs (1914)" described apology : "The
right sort of people do not want apologies, and the wrong sort take a mean
advantage of them." The apology means a regretful acknowledge or excuse for
failure. An explanation offered to a person affected by one's action that no
offence was intended, coupled with the expression of regret for any that may have
been given. Apology should be unquestionable in sincerity. It should be tempered
with a sense of genuine remorse and repentance, and not a calculated strategy to
avoid punishment
19.
Clause
1 of Section 12 and Explanation attached thereto enables the court to remit the
punishment awarded for committing the contempt of court on apology being made to
the satisfaction of the court. However, an apology should not be rejected merely
on the ground that it is qualified or tempered at a belated stage if the
accused makes it bona fide. There can be cases where the wisdom of rendering an
apology dawns only at a later stage.
20.
Undoubtedly,
an apology cannot be a defence, a justification, or an appropriate punishment
for an act which is in contempt of court. An apology can be accepted in case
the conduct for which the apology is given is such that it can be "ignored
without compromising the dignity of the court", or it is intended to be the
evidence of real contrition. It should be sincere. Apology cannot be accepted
in case it is hollow; there is no remorse; no regret; no repentance, or if it
is only a device to escape the rigour of the law. Such an apology can merely be
termed as paper apology.
21.
In
Re: Bal Thackeray, Editor Samna, (1998) 8 SCC 660, this Court accepted the apology
tendered by the contemnor as the Court came to conclusion that apology was unconditional
and it gave an expression of regret and realisation that mistake was genuine.
22.
In
L.D. Jaikwal v. State of U.P., AIR 1984 SC 1374, the court noted that it cannot
subscribe to the 'slap-say sorry- and forget' school of thought in
administration of contempt jurisprudence. Saying 'sorry' does not make the
slapper poorer. (See also: T.N. Godavarman Thirumulpad v. Ashok Khot &
Anr., AIR 2006 SC 2007) So an apology should not be paper apology and expression
of sorrow should come from the heart and not from the pen; for it is one thing
to 'say' sorry-it is another to 'feel' sorry.
23.
An
apology for criminal contempt of court must be offered at the earliest since a
belated apology hardly shows the "contrition which is the essence of the purging
of a contempt". However, even if the apology is not belated but the court finds
it to be without real contrition and remorse, and finds that it was merely tendered
as a weapon of defence, the Court may refuse to accept it. If the apology is
offered at the time when the contemnor finds that the court is going to impose
punishment, it ceases to be an apology and becomes an act of a cringing coward.
(Vide : Mulkh Raj v. The State of Punjab, AIR 1972 SC 1197; The Secretary,
Hailakandi Bar Association v. State of Assam & Anr., AIR 1996 SC 1925; C.
Elumalai and Ors. v. A.G.L. Irudayaraj and Anr., AIR 2009 SC 2214; and Ranveer Yadav
v. State of Bihar, (2010) 11 SCC 493).
24.
In
Debabrata Bandopadhyay & Ors. v. The State of West Bengal & Anr., AIR
1969 SC 189, this Court while dealing with a similar issue observed as under: ".....Of
course, an apology must be offered and that too clearly and at the earliest opportunity.
A person who offers a belated apology runs the risk that it may not be accepted
for such an apology hardly shows the contrition which is the essence of the purging
of a contempt. However, a man may have the courage of his convictions and may
stake his on proving that he is not in contempt and may take the risk. In the
present case the appellants ran the gauntlet of such risk and may be said to
have fairly succeeded."
25.
This
Court has clearly laid down that apology tendered is not to be accepted as a
matter of course and the Court is not bound to accept the same. The court is
competent to reject the apology and impose the punishment recording reasons for
the same. The use of insulting language does not absolve the contemnor on any
count whatsoever. If the words are calculated and clearly intended to cause any
insult, an apology if tendered and lack penitence, regret or contrition, does
not deserve to be accepted. (Vide: Shri Baradakanta Mishra v. Registrar of
Orissa High Court & Anr., AIR 1974 SC 710; The Bar Council of Maharashtra
v. M.V. Dabholkar etc., AIR 1976 SC 242; Asharam M. Jain v. A.T. Gupta &
Ors., AIR 1983 SC 1151; Mohd. Zahir Khan v. Vijai Singh & Ors., AIR 1992 SC
642; In Re: Sanjiv Datta, (1995) 3 SCC 619; and Patel Rajnikant Dhulabhai &
Ors. v. Patel Chandrakant Dhulabhai & Ors., AIR 2008 SC 3016). 26. In the instant
case, the appellant has tendered the apology on 24.5.1999 after receiving the
show cause notice from the High Court as to why the proceedings for criminal contempt
be not initiated against him. It may be necessary to make the reference to the said
apology, the relevant part of which reads as under: "That from the above facts,
it is evident that the deponent has not shown any dis-regard nor abused the Presiding
Officer, learned Magistrate and so far as allegations against him regarding
surrender of Om Prakash is the name of Ram Kishan are concerned, the deponent
has no knowledge regarding fraud committed by Asharfi Lal in connivance with
others and deponent cannot be blamed for any fraudulent act. That
notwithstanding mentioned in this affidavit, the deponent tenders unconditional
apology to Mr. S.C. 16 Jain, IInd Addl. Chief Judicial Magistrate, Etawah if for
any conduct of the deponent the feelings of Mr. S.C. Jain are hurt. The
deponent shall do everything and protect the dignity of judiciary. (Emphasis
added)
26.
On
24.11.2005, the appellant has submitted an affidavit saying as under: "That
the deponent expresses his unqualified remorse for the incident giving rise to the
present contempt application. The deponent tenders his unconditional apology to
this Hon'ble Court and to Shri Suresh Chandra Jain, the then A.C.J.M.-2 Etawah
for the entire incident without any qualification or pre-condition. The deponent
gives the following solemn undertaking that no such incident would occur in
future. The deponent has immense respect for this Hon'ble Court and all other
Courts of Law in the land. The deponent also expresses bona fide, genuine and heart-felt
regret for the occurrence which the deponent consider a blot on him".
27.
The
High Court considered the case elaborately examining every issue microscopically
and held that there was no reason to disbelieve the facts stated by the judicial
officer against the contemnor/appellant, the facts were acceptable, and it was clearly
proved that the contemnor was guilty of gross criminal contempt. The charges
levelled against the appellant stood proved. A Judge has to discharge his duty
and passes order in the manner as he thinks fit to the best of his capability
under the facts and circumstances of the case before him. No litigant, far less
an advocate, has any right to take the law in his own hands. The contemnor
abused the Judge in most filthy words unworthy of mouthing by an ordinary
person and that is true without any justification for him ascending the dais during
the course of the proceedings and then abusing the judicial officer in the
words "Maaderchod, Bahanchod, High Court Ko Contempt Refer Kar". The courts
certainly cannot be intimidated to seek the favourable orders. The appellant intimidated
the presiding officer of the court hurling filthiest abuses and lowered the authority
of the Court, which is tantamount to interfere with the due course of judicial proceedings.
The charge which stood proved against the appellant could not be taken lightly
and in such a fact-situation the apology tendered by him, being not bona fide,
was not acceptable.
28.
We
have considered the facts and circumstances of the case. The show cause notice
was given by the High Court on 5.5.1999. The appellant submitted his reply on
24.5.1999. The charges were framed against him on 27.9.2004 and in his first
affidavit dated 18.10.2005, the appellant had denied all the allegations made
against him. The so-called apology contained ifs and buts. Appellant is not
even sure as to whether he has committed the criminal contempt of the court or whether
the most filthy abuses could hurt the Presiding Officer. Appellant has been of
the view that the Officer was a robot and has no heart at all, thus incapable
of having the feelings of being hurt. The appellant filed second affidavit
dated 24.11.2005 tendering apology. The apology has been tendered under
pressure only after framing of the charges by the High Court in the Criminal
Contempt when appellant realised that he could be punished. The apology was not
tendered at the earliest opportunity, rather tendered belatedly just to escape the
punishment for the grossest criminal contempt committed by him. The language
used by the Advocate for a judicial officer where he practices regularly and
earns his livelihood is such that any apology would fall short to meet the requirement
of the statutory provisions. There has been no repent or remorse on the part of
the appellant at an initial stage. Had it been so, instead of making grossest
and scandalous allegations against the judicial officer, writing complaint
against him to the Administrative Judge in the High Court of Allahabad, the
appellant could have gone to the concerned judicial officer and tendered
apology in open court. The appellant instead of yielding to the court honestly and
unconditionally, advanced a well guarded defence by referring to all the facts
that led to the incident. Apology tendered by the appellant gives an impression
that the same was in the alternative and not a complete surrender before the
law. Such attitude has a direct impact on the court's independence, dignity and
decorum. In order to protect the administration of public justice, we must take
action as his conduct and utterances cannot be ignored or pardoned. The
appellant had no business to overawe the court. Thus, we are of the view that the
apology tendered by the appellant had neither been sincere nor bona fide and
thus, not worth acceptance.
29.
The
appeal lacks merit and is, accordingly, dismissed. A copy of the judgment and order
be sent to the Chief Judicial Magistrate, Etawah, for taking the appellant into
custody and send him to the jail to serve out the sentence.
....................................J.
(Dr. B.S. CHAUHAN)
....................................J.
(SWATANTER KUMAR)
New
Delhi,
June
15, 2011
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