In Re : Sant Prashad Misra, AdVocate, Kanpur Nagar Contemnor

Imtiyaz Murtaza, J.—Present petition has its genesis in the reference made by Sri Praveen Kumar Tyagi, Judicial Magistrate Court No. 1 Kanpur Dehat dated 4.9.2008 with accompanying request to initiate contempt proceeding against Sant Prasad Misra, a practising advocate of Kanpur Dehat Judgeship. The aforesaid reference has been duly forwarded by the District Judge Kanpur Dehat vide letter dated 4.9.2008.

The incident relates back to 29.8.2008 and it is stated in the reference made by the officer that on that day, an application for release of vehicle bearing registration No. UP 77 N 2083 detained in case crime No. 249 of 2008 under sections 279, 337 and 338 IPC at P.S. Gajner had been presented at about 2.30 pm. In the said case, the contemnor was appearing on behalf of the owner of the vehicle while from the other side Sri D.K. Shukla Asstt Prosecuting Officer had appeared. It is further stated that since registration papers relating to the offending vehicle were wanting, the matter was ordered to be put up on 2,9.2008 and in the meanwhile the police of police station Gajner, was asked to submit report in the matter. At about 3.30 pm while the officer was performing judicial function in the Court, the contemnor entered the Court room shouting loudly and using vulgar expletives like "Saale, Badtameez, Harami" as a result of which the working of the Court was interrupted. When the contemnor was reminded of his duties as a lawyer, instead of sobering down, he further uttered the foul language stating "Saalon Samajhte Kya Ho Sarnpooran Kanpur Janpad Me Nyayik Karya Thappa Kar Doonga Tatha Kanpur Me Aag Lag Jayegi." It is further stated that the intemperate behaviour of the contemnor was recorded in the order .sheet dated 29.8.2008. It is further stated that the wild utterances using foul language were shouted in the Court in the presence of Reader Sri Syed Sayeed Alam Rizvi, Stenographer Sri Gayatri Prakash Yadav and Sri P.K. Shukla Asstt Prosecuting officer, Sri Maharajdeen Yadav Court Moharrir and Sri Mohd Waseem and Sri Alok Shukla, class 4 employees.

After receipt of letter, the matter was processed and put up before Hon Administrative Judge Kanpur Dehat who passed the following order:

"Seen.

Lay before Appropriate Court"

Thereafter, the matter was put up before Hon C.J. who accorded approval for putting up the matter before appropriate Bench.

On 10.8.2010, showcause notice was issued asking the contemnor to be present in Court in person on 13.9.2010. The notice issued to the contemnor was returned unserved on 13.9.2010 and 16.3.2011. The matter came up again on 16.3.2011 on which date an affidavit along with an application embodying unconditional apology was filed. On 3.5.2011, charges were framed against the contemnor. On 20.7.2011, arguments were heard and judgment was reserved.

The contemnor has filed two affidavits, one counteraffidavit dated 16.3.2011 and the other one is affidavit dated 20.7.2011 containing unqualified apology. In the counteraffidavit filed by the contemnor, he has denied the allegations and also denied the manner in which the occurrence is said to have taken place. His version of incident is that on 29.8.2008, he had argued the case at about 1 pm. for release of vehicle. At 3 pm. when he again went to the Court, he found that the Presiding Officer had already passed the order directing the police to submit report. After seeing the order, he asked the Court that the application was for release of the vehicle and the goods loaded thereon was not case property at which the Presiding Officer flew into rage and used foul language such as "Badtameez" and hearing these words, he was shocked. He claimed that this incident was witnessed by number of lawyers present in the Court. It is also stated that lacerated by the words used by the Presiding Officer, he made an application to the local Bar Association which in turn referred the matter to Administrative Judge as also to the District Judge Kanpur Dehat on 30.8.2008 and 4.9.2008. It is further submitted that in the meantime, he moved application for transfer on which 1st Addl. District Judge Kanpur Dehat called for a report from the Presiding Officer. It is further submitted that by 4.9.2008, there was no order existing in the order sheet dated 29.9.2008 of making reference for initiating contempt proceeding. He has also referred to two complaints made by different advocates against the officer. In the end, he has submitted that he has not committed any act verging on contempt of Court and in case, the Hon Court is of the opinion that the opposite has committed any offence, he tenders his unqualified/unconditional apology.

In the next affidavit filed on 20th July, 2011, he has given background of his career as a lawyer stating that he had put in 21 years of practice and has never been involved in any activities verging on contempt. He has also stated that he has always held the Court in high esteem and can never dream of committing any act which may amount to contempt or may interfere with the due course of justice or lower the dignity of the Court.

We have heard Sri Rajiv Lochan Shukla appearing for the contemnor at prolix length. The learned Counsel prayed for merciful view in the matter stating that the Advocate is sufficient senior having put in 21 years of practice and that he has never been involved in any incident which may amount to showing disrespect to the Court at any point of time. He also submitted that even if it be assumed that the conduct of the contemnor was one amounting to contempt, it should be ignored regard being had to his age and long years of practice. He also submitted that the contemnor has already put in unconditional apology which deserves to be accepted by the Court.

Before we proceed further, we must make it clear that the apology is not a amulet to be worn to ward off the action looming large against the contemnor as a last resort. The apology, in order to dilute the gravity of the offence, we must say, should be voluntary, unconditional and indicative of remorse and contribution and it should be tendered at the earliest opportunity.

In the first affidavit filed by the contemnor on 16.3.2011, he gave a version which is quite distinct from the version enumerated by the officer in reference made to this Court. The contemnor has averred in para 5 of the counteraffidavit that when he drew attention of the Court that the application was for release of the vehicle only and goods loaded thereon were not the case property, he flew into rage and used foul language calling him "Badtamcez". He claimed that this incident was witnessed by number of lawyers and litigant public present in Court. In para 8, he averred that on 30.8.2008 he moved an application in which he complained about the conduct of the Presiding Officer. Copy of application is annexed as CA 4. All that is stated in the application that the behaviour of the Presiding Officer was abrasive towards him nothing beyond it. In this application, no words like "Badtameez" were said to have been uttered by the Presiding Officer. The contemnor has also not cited any name who could testify to any misconduct or overt act on the part of the Presiding Officer. The averments made in 7, 8 and 9 relate to judicial proceeding which the contemnor took assailing the order of the Court and do not relate to personal conduct of the officer. The contemnor has not alleged any mala fide. As regards the averment in para 10, it is alleged that no endorsement noting down the conduct of the contemnor was scribed in the order sheet as alleged by the judicial officer on 29.8.2008. The contemnor has annexed copy of the order sheet as Arinexure CA 6. A perusal of the order dated 29.8.2009 is eloquent of the fact that judicial order on the application of the contemnor was passed at 2.40 pm on 29.8.2009 and according to own admission of the contemnor he had gone to the Court to find out what orders had been passed at about 3 p.m. while the officer in his reference has alleged that the contemnor had entered the Court room at 3.30 p.m. The officer noted the conduct of the contemnor in the order sheet immediately after the typed order. By this reckoning, there appears to be no substance that there was no mention of any reference in the order sheet upto 4.9.2008 and that subsequently, in order to save his skin, the reference was added immediately after the judicial order. As regards the allegation that an enquiry is still underway at the end of the District Judge on the complaint by him and forwarded by local Bar Association. The District Judge has not mentioned about any such complaint or enquiry pending at his end. The contemnor has also referred to certain complaints against the Presiding Officer. No such complaints were brought to our attention nor it was shown that those complaints were acted upon on the administrative side by this Court.

It would thus crystallize that the contemnor throughout the contempt proceeding took bellicose stand in vindication of his stand and ostensibly to ward off the punishment looming large on his head, he has after deliberation tendered the apology as a last resort in the event of this Court finding him guilty of having committed contempt of Court. There could not be both justification and apology particularly when the apology tendered, is by way of a tactful move when in tight corner to ward off the action.

Before we proceed further, we would like to quip here that if the judiciary has to perform its function in a fair and free manner, the dignity and authority of the Court has to be respected by all concerned failing which the very constitutional scheme and public faith in the judiciary would run the risk of being eroded. Since the contemnor is an Advocate, the matter requires to be considered with a little more seriousness. An Advocate, we feel called to say, is not exempt from ordinary disability which the law imposes and his position is not inviolable and his privileges cannot extend to interfere with the administration of justice. On the other hand, he is expected to help in subserving the course of justice and not impede it in any manner. A legal practitioner has no doubt his duttes towards his client but at the sametime, he has equally important duty and obligation upon him to cooperate with the Court in the orderly and pure administration of justice. Any departure would be construed to be violative and neglecting his duties and obligations. A lawyer is a person educated and trained in law governed by the Advocates Act. The use of language has to be balanced and in fitness of things within the framework of the law of the land. He cannot and should not be reckless in use of language. There are barriers which must be known to a lawyer and it should not be crossed. He should not overstep the limits of decency and ethics in the matter of his behaviour towards the Court.

In Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406 the Apex Court held as under:

"The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of Court. The public have a vital stake in effective and orderly administration of justice. The Court has the duty of protecting the interest of the community in the due administration of justice and so, it is entrusted with the power to commit for contempt of Court, not to protect the dignity of the Court against insult or injury, but to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with."

In N.B. Sanghvi v. High Court of Punjab and Haryana, (1991) 3 SCC 600 the Apex Court observed as under:

"The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped in the bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalize which would shake the confidence of the litigating public in the system, the damage caused is not only to the reputation of the concerned Judge but also to the fair name of the judiciary. Veiled threats, abrasive behaviour, use of disrespectful language and at times blatant condemnatory attacks like the present one are often designedly employed with a view to taming a Judge into submission to secure a desired order. Such cases raise larger issues touching the independence of not only the concerned Judge but the entire institution. 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 Officers with impunity. It is high time that we realize that the 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. Judicial independence was not achieved overnight. Since we have inherited this concept from the British, it would not be out of place to mention the struggle strongwilled judges like Sir Edward Coke, Chief Justice of the Common Pleas, and many others had to put up with the Crown as well as the Parliament at considerable personal risk. And when a member of the profession like the appellant who should know better so lightly trifles with the much endeared concept of judicial independence to secure small gains it only betrays a lack of respect for the martyrs of judicial independence and for the institution itself. Their sacrifice would go waste if we are not jealous to protect the fair name of the judiciary from unwarranted attacks on its independence."

As stated supra, the contemnor has denied to have behaved rudely as alleged amounting to interfering with the due administration of justice. It brooks no dispute that as to the incident that happened in Court, the version of Presiding Officer is entitled to preeminence and obvious acceptance and only in rarest case, it may be disregarded. In the conspectus of facts and circumstances, it is quite possible that after the contemnor indulged in scurrilous attack, on instinct of selfpreservation, he preferred the representation levelling allegations against the officer with the avowed object of screening himself against possible action.

A Judge or Magistrate has a duty to discharge his/her judicial functions and he/she passes order in the manner as he/she likes fit to the best of his/her capability in the facts and circumstances of the case. The Courts cannot be intimidated to seek favourable orders. In the present case, the conduct of the contemnor amounts to intimidating the Court and lowering the authority and it clearly amounts to interference with due course of judicial proceedings which were being conducted by the Presiding Officer. The power of the High Court of superintendence and control over the subordinate judiciary under Article 235 of the Constitution includes within its ambit the duty protect members of the subordinate Courts. In the above conspectus, the charges related to criminal contempt framed against the contemnors are fully established.

In the above conspectus, we have no hesitation to say that the charges of criminal contempt established against a practicing lawyer cannot be taken with a pinch of salt who carries the trapping of an officers of the Court whose duty is to assist the Court and uphold the majesty of law and dignity of the person manning the Court. No judicial system can tolerate such ignoble act and conduct of a practicing Advocate. The crucial question that remains is what would be the appropriate punishment to the contemnor.

In connection with whether the apology commends itself for acceptance or not, we may refer to the decision of the Apex Court in Preetam Pal v.. High Court M.P., 1993(1) SCC 529 in which the Apex Court observed as under:

"To punish an advocate for contempt of Court, no doubt must be regarded as an extreme measure, but to preserve the proceedings of the Courts from being deflected or interfered with, and to keep the streams of justice pure, serene and undefiled, it becomes the duty of the Court though painful to punish the contemnor in order to preserve its dignity. No one can claim immunity from the operation of the law of contempt if his act or conduct in relation to Court or Court proceedings interferes with is calculated to obstruct the due course of justice."

Reverting to the case in hand, we are of the firm opinion that the apology tendered by the contemnors does not exude bona fide or manifest genuineness ostensibly for the reasons that the apology has been tendered at a stage when the contemnor sensed that his goose is cooked. As stated supra, in vindication of his stand, they refer to various actions taken by them against the officer including the complaints made to the District Judge and also to the Administrative Judge, the Chief Justice attended with complaint made to Bar Association. It is in this conspectus, we feel compelled to say that the apology submitted in this case, does not seem to inspire a real contriteness on the part of the contemnor but the same is used as a device to screen himself from the rigours of law. The Apex in the aforesaid judgment in M.S. Singhvi has rightly observed that the incidence of con temp v. ever on the increase. There is a felt read to curb such incidence. To cap it all, the majesty and dignity of the Court has to be preserved. It should not be forgotten that frequent attacks on the dignity of the Courts would shake the very foundation of the judiciary. The I Courts have to perform judicial functions in responsible yet disagreeable ambiance and they require utmost protection. The attack made on Presiding Officers disparaging in character and derogatory to his/her dignity would vitally shake the confidence of the public in him/her. The vitriolic attacks made on the officer were much more than mere insult and in effect they scandalized the Court in such a way as to create distrust in the popular mind and, impair confidence of the people in Court. The administration of justice must remain independent, clean, fearless and impartial. If an Advocate uses the vile of browbeating the Presiding Officer by his toxic vitriolic attack, it is indeed disquieting and should not be viewed with equanimity. In the above perspective, it cannot be ruled out that the contemnor set up the entire theory in order to save his skin. In this view of the matter, the apology offered does not commend to us for acceptance and it.is turned down.

In the above conspectus, the reference made to this Court is allowed and the contemnor is held guilty of criminal contempt.

We accordingly convict him under section 12 of the Contempt of Courts Act. However, on the point of sentence, looking to the fact, the contemnors have not been involved earlier, it would meet the ends of justice if the contemnor is visited with punishment of imprisonment for one month and punishment of imposition of fine which we quantify at Rs. 1000/.

In the result, the contemnor is sentenced to undergo simple imprisonment for one month attended with a fine which we quantify at Rs. 1000/. The contemnor shall pay the fine within 10 days. In default, it is directed that the contemnors shall undergo simple imprisonment for 15 days. The imprisonment shall run consecutively in default.

However, the punishment so imposed shall be kept in abeyance for a period of sixty days so as to enable the contemnor to approach the Apex Court if so advised. It needs hardly be said that immediately after expiry of sixty days in case no stay order is furnished by the contemnor, he would be taken into custody forthwith to serve out the sentence immediately.

The matter shall be listed beforethis Court in the second week of Nov. 2011 for ensuring compliance.