Advocate-General of Madras vs Sri Amanullakhan, Advocate

M. Anantanarayanan, O.C.J.

The respondent in these proceedings is Sri Amanullakhan, a member of the Salem Bar, and the proceedings have been initiated by the learned

Advocate-General u/s 3 of the. Contempt of Courts Act, XXXII of 1952 and Article 215 of the Constitution of India. We may here briefly state

that the proceedings have been thus initiated upon a report by Sri K.P. Madhavacharya, Additional First Class Magistrate (I), Salem, whose

affidavit is on the record. Equally there are two affidavits on record, on behalf of the respondent, the first being that of the respondent himself, and

the second that of a member of the Salem Bar Sri P.S. Mari Chetty, who claims to have been present on the occasion of the incident which led to

the contempt proceedings.

A very brief conspectus of the facts, as set forth in the affidavit of the Magistrate, will be sufficient. The Magistrate states that, on 28th June,

1965, after he pronounced judgments in three cases convicting the concerned accused u/s 4(1)(a) and (b) of the Madras Prohibition Act, he took

up C.C. No. 2896 of 1965 for trial, in which the accused was one Kaliammal charged u/s 4(1)(a) of the Madras Prohibition Act, and defended by

the respondent (Sri Amanullakhan). The affidavits on record make it abundantly clear that one of the matters in controversy was the actual capacity

or Volume of the particular container (M.O. I) which was alleged to have contained illicit liquor; apparently, this was a point of some significance,

as impinging on the credibility of the evidence for the prosecution. It is however clear that the Sub-Inspector of Police, the Investigating Officer,

who was in Court, was permitted to make a suggestion to Court about the capacity of this receptacle, based on the measure (4 kg.) printed on the

outside. The respondent seems to have strongly objected to this, because the Magistrate was inclined to act on the suggestion of the Sub-

Inspector, by permitting a re-examination of the witness, and the point of the respondent was that it was illegal thus to permit an officer, who had

conducted the investigation, to take part in the trial. As far as we can gather from the record, the point of objection urged by the respondent had

much plausibility and force behind it, and we are satisfied that the respondent was bond fide concerned for the consequences of a procedure, with

regard to his client, which seemed to him, to be illegal.

However that might be, the further version of the Magistrate is that, at this juncture, the respondent (Sri Amanullakhan) burst forth into a violent

demonstration in Court, and also flung the container (Dalda tin) on the table of the Magisterial Clerk,and generally conducted himself in such an

undignified and disorderly manner, as to interrupt the proceedings. The respondent is then supposed to have uttered some words, which the

Magistrate has quoted and. set forth in page 3 of his affidavit. The following sentences have to be particularly stressed as, indisputably, they may

amount to insult of Court or contempt of Court, if they had been the precise words used by the respondent. They are:

We know that what is taking place and we know how to deal with your Honour.... Hereafter we know how to deal with you. We cannot tolerate

the attitude of this Court in supporting the prosecution like this.

The learned Government Pleader contended that if these words were the actual words used by the respondent, they go beyond mere insult, since

the words are levelled as accusations against the administration of justice in the Court, and are likely, by their effect, to bring that administration into

disrepute. According to the learned Government Pleader, this certainly constitutes contempt of Court, and not mere interruption of Court and insult

to the Officer, which would be a separate offence punishable u/s 228 of the Indian Penal Code. The affidavits of the respondent and the member

of the Bar who was then present, contain a flat denial of these allegations. According to those affidavits, the respondent no doubt kept the

container (tin) on the table of the Magisterial Clerk, because the respondent wanted the container to be weighed, for purposes of argument. This

the respondent did, after vehemently protesting against the illegal procedure of the Magistrate in permitting the Investigating Officer to make a

suggestion, and, to participate in the trial. We have no doubt whatever, that, at this stage, the respondent must have got heated, and that an incident

immediately followed, of the character of what is described in ordinary parlance as a '' breeze '' between the Court and the advocate. But,

according to the counter-affidavits, the respondent did not utter the words that we have earlier set forth verbatim as appearing in the affidavit of the

Magistrate. On the contrary, he merely stated, no doubt in an emphatic way, that the Magistrate ought to be fair to the defence, and ought to give

the defence every opportunity to prove the innocence of the accused.

Sri Kumaramangalam for the respondent has put forward two main arguments, each of which may be separately and briefly discussed. The first

argument is that, even assuming that the words were uttered precisely as alleged by the Magistrate, that is, that these are ipsissima verba of the

respondent correctly set forth, nevertheless, proceedings under the Contempt of Courts Act would be not merely misconceived, but barred, by the

operation of Section 3, Sub-clause (2) of that Act. Section 3(2) states categorically, 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.

Sri Kumaramangalam argues that, on the averments, the respondent could only be held to have committed the offence punishable u/s 228,

Indian Penal Code. That being the case, the learned Magistrate could have acted only under the relevant sections of the Criminal Procedure Code,

in respect of such an offence committed before him, which are Sections 480, 481 and 482, Criminal Procedure Code read along with Section

475, Criminal Procedure Code. In other words, if the Magistrate was exercising the discretion to instantly punish the person committing the offence

under Sections 480, 481, Criminal Procedure Code the alleged offending words would have been embodied in a proceeding, on the spot. If the

respondent had actually uttered them he could hardly have denied them at that stage, and he would have no option left but to throw himself on the

mercy of Court. But even, if on the contrary, the Court thought that it should make a report or complaint, that should be done very expeditiously

thereafter u/s 482, Criminal Procedure Code. The jurisdiction of the Courts under the Contempt of Courts Act being thus barred, there is no

further room for action against the respondent, according to Sri Kumaramangalam. He relies upon a very similar case, reported in State of Madhya

Pradesh Vs. Revashankar, ., where their Lordships have enunciated the principle of the bar u/s 3(2) of the Contempt of Courts Act, where what

was really committed was an offence punishable under the Indian Penal Code.

The other part of the argument of learned Counsel is that the facts have to be strictly proved, and that the affidavit of the Magistrate cannot, in

any event, be conclusive evidence of the words said to have been uttered by the respondent; here, it is stressed that the affidavit or report,

whichever it may be termed, was admittedly drawn up two days after the incident had occurred. Further, the Magistrate himself explicitly states,

I have mentioned what I am able to remember among the many other violent expressions made by him.

As against this evidence, we have the evidence of the two affidavits of the respondent and his colleague, and it is stressed that this Court cannot, by

any means, now hold that the precise expressions complained of were used, or even words to that effect.

As regards the first argument, we do not think it is substantial, if the words quoted by the Magistrate were the precise words used by the

respondent. As their Lordships observed in State of Madhya Pradesh Vs. Revashankar, , the essential ingredients of the offence punishable u/s

228, Indian Penal Code, are (1) intention, (2) insult or interruption to a public servant and (3) the fact that the servant concerned was then sitting in

any stage of a judicial proceeding. If the averments go beyond, and scandalise the Court itself and further impair the administration of justice

(''Paragraph 9 of the decision) they amount to contempt of Court and not merely to the offence punishable u/s 228, Indian Penal Code. In the

present case, we agree with the learned Government Pleader that, if the words complained of had been used, this will amount to an actual

contempt of Court, punishable under Act XXXII of 1952.

But on a careful perusal of the record, we are also satisfied that we cannot act on the conclusion that these precise words had been uttered by

the respondent. If must be borne in mind that there was a prior background to this particular incident, and that what seemed to the respondent to

be a patent illegality, though we are not judging upon the merits of this matter, had occurred just prior to the actual incident. No doubt tempers

were frayed on both sides, and it is very possible that some heated exchange of observations occurred between the Court and Counsel. Even if the

judicial officer were to later attempt to recollect in cold blood, what precisely were the words uttered by Counsel, this would be a matter of

considerable difficulty. That is all the more the case, when the officer was not making a record immediately but making a record nearly two days

after the incident. Further, there is this residue of agreement between the affidavits of both parties before us, that Counsel did, voice a protest

against what he considered to be the lack of objectivity in the Court, with regard to the case of the defence. That could have been expressed in a

way that may not at all amount to contempt of Court. If it had been expressed in the precise terms of the remarks quoted by the Magistrate, it

would be very gravely objectionable. But, in the face of the specific denials in the two affidavits, and, considering the entire circumstances, we are

inclined to give the benefit of the doubt to the respondent about the expressions said to have been used. Where there is no proof satisfactory to our

mind, that these expressions were used, we cannot hold the respondent guilty of contempt of Court or even of intentional insult of the Presiding

Officer. Upon this conclusion, we are of the view that the further proceedings should be dropped; and, the notice issued to the respondent is hence

discharged.

The decision cited by the learned Government Pleader in Ham Rustomji v. Sub-Inspector Baig AIR 1944 Lah. 196. may be incidentally noted

here, as that is also a case where, in the face of conflicting versions, the High Court pointed out that contempt proceedings of a summary nature,

were hardly the kind of proceedings that would be appropriate for the decision of difficult questions of fact, in controversy between the parties.

Finally, before taking leave of the case, we desire to add this brief observation, that Courts must see to it that confidence in their objectivity is

secured and maintained, because it is essential that justice should not merely be done, but should appear to be done and that, as a matter to be

equally stressed by us, legal practitioners are not merely agents of parties pleading a particular case, but are officers of Court, expected to assist in

the administration of justice, and to sustain unimpaired the dignity of Courts, by all means in their power.