S.K. Malviya vs Shivcharan Kurmi and others

C.P. Sen, J.

This is a reference u/s 15(2) of the Contempt of Courts Act, 1971, made by Sessions Judge, Damoh for taking action for contempt against contemners 1 to 6. Notices were issued to the contemners and also to Anandilal son of Ramdayal.

The said Anandilal, his brother Bhagwandas, one Sitaram and others resident of village Ghutariya, Tahsil Hatta, are being prosecuted under sections 147, 148 and 302/149 Indian Penal Code for committing murder of Gopi on 9-7-1982 in Crime No. 48/82 of Gaisabad police station. Contemner No. 1 Shivcharan Kurmi is a relation of the deceased. In bail application No. 48/82 by order dated 31-7-1982 Anandilal was released on anticipatory bail by the Sessions Judge who rejected the application of Bhagwandas. While granting bail, the Sessions Judge observed that it is alleged that Anandilal came out with a Lathi and Bhagwandas with a gun and he shouted "Maro Sale Ko" but there is no overt act against Anandilal, thereafter the deceased was killed by the other co-accused. On 5-8-1982 contemner No. 5 Sri Balram Tiwari, Public Prosecutor Damoh, moved an application for cancellation of bail of Anandilal alleging that he had gone to village Barkhera with his brothers and had told villagers --

It was further alleged that Anandilal stayed in the village and was threatening the witnesses in the case. Along with the application, photostat copy of the report lodged by contemner No. 1 Shivcharan Kurmi to police station Hatta on 4-8-1982 and also affidavits of contemners 2 to 4 Hariram, Sitaram and Ramsewak were enclosed in support of the allegations. The three deponents in their affidavits were identified by contemner No. 6 Sri Harbanslal Awasthy, a practising Advocate of Damoh. Notice was issued to Anandilal and he dented the allegations. He submitted that he never visited the village and the allegations are false and mischievous. In fact, in pursuance of the order of the Sessions Judge he went and offered his bail but he was illegally detained in the police station and ultimately released on bail on 12-8-1982. According to him, he and his brothers were eye-witnesses in the murder case of Barelal Kurmi in village Barkhera in the year 1978 in which Raghvendra Hajari, the then sitting M.L.A., and his brothers were accused. Hajari brothers were convicted by the trial Court but they have been acquitted by this Court in appeal and so in order to take revenge and by using their political influence Anandilal and his brother Bhagwandas have been falsely implicated in the present case. At present, Raghvendra Hajari''s wife Snehlata Hajari is a sitting M.L.A. of the ruling party. He never made any imputation against the applicant nor he had threatened the witnesses. By order dated 27-8-1982 the Sessions Judge rejected the application for cancellation of bail observing that the allegations that Anandilal along with Bhagwandas and Sitaram visited village Barkhera and made the imputation and threatened the villagers are false. Anandilal was actually released on bail on 12-8-1982 and it was stupid on his part to go to Barkhera on 2-8-1982 or 3-5-1982 and would have boasted how he got bail. In the report lodged by Shivcharan, the visit was stated to he on 3-8-1982 but in the affidavits of Hariram, Sitaram and Ramsewak the visit was said to be on 2-8-1982. Neither in the report nor in the affidavits there is mention about the presence of Bhagwandas and Sitaram in the said visit. So the story is a work of imagination and has been purposefully concocted in order that Anandilal''s bail may be cancelled and also that bail is not granted to Bhagwandas and Sitaram. This order of the Sessions Judge was affirmed by this -Court in Criminal Revision No. 42/83 on 15-2-1983.

It appears the Sessions Judge thereafter decided to hold a preliminary enquiry into the allegations made in the application for cancellation of bail by registering Misc. Cr. Case No. 17/82 on 10-9-1982. The Sessions Judge recorded the statements of Shri Balram Tiwari, Shri Harbanslal Awasthy, Shri M.Y. Siddiqui Notary who had sworn the affidavits, A.K. Tiwari, clerk of Shri Balram Tiwari and three Advocates Sarvashri Ramesh Shrivastava, G.S. Mehta and B.K. Tandon. The Sessions Judge then made this reference to this Court saying that the contents of the application for cancellation of bail, the report given to the police station by Shivcharan and the affidavits sworn by Hariram, Sitaram and Ramsewak are contemptuous and are made with the intention of scandalizing the Court and interfering with the administration of justice. The allegations appear to have been made with the ulterior motive of influencing the probable orders which might be passed on the applications of bail which might be presented in future on behalf of Bhagwandas and Sitaram. These allegations of payment of money to the Judge are false, mischievous and made with the intention of lowering down the prestige of the Court of Session and to make it a subject of public ridicule. Shri Tiwari stated that Shri Awasthy Advocate is the person who had drafted the application and who was instrumental in getting the affidavits sworn by the witnesses and this is corroborated from the statement of Shri A.K. Tiwari and Shri Siddiqui. It is worth noting that the person who drafted the application has exaggerated the allegation in the report and the affidavits by adding I So the contemners should be punished u/s 3 of the Act.

In pursuance of the show cause notices issued, contemner Shivcharan submitted that the averments in the application for cancellation of bail were not made by him but the same was prepared and drafted by Shri Awasthy. This is evident from the mistake in the application by mentioning deceased Gopi as his father while his father is Kunjilal. Without reading and understanding the application, he had signed the same. Similar is the statements of contemners 2 to 4 Hariram, Sitaram and Ramsewak that they never gave any instructions to Shri Awasthy to make the allegations contained in their affidavits. Sitaram is illiterate while Hariram and Ramsewak had read up to 2nd and 6th class respectively. Without reading and understanding the contents, they had sworn the affidavits which were drafted by Shri Awasthy. In his reply Balram Tiwari, contemner No. 5, submitted that after anticipatory bail was granted to Anandilal, one application was moved by Mahantibai, widow of Gopi, before the District Magistrate stating that Shri Tiwari should be removed and in his place Shri Awasthy be instructed to appear for the State in the case. The application for cancellation of bail along with its enclosures were drafted and prepared by Shri Awasthy and he was instructed by the District Magistrate to file the application for cancellation of bail. Without reading the application and relying on Shri Awasthy he had signed and presented the same in the Court. In fact, against the order rejecting the application he had himself drafted an application for cancellation of bail for being presented in the High Court and in that application he had not made any imputation against the Sessions Judge. In the reply of Shri Awashty, he denied that he had drafted or prepared the application for cancellation of bail and the affidavits. He simply identified the deponents in the three affidavits without knowing the contents. He was not engaged by Mahantibai or anybody to oppose the bail of Anandilal and others. However, all the contemners have expressed that they have full regard and trust in the impartiality and dignity of the Court and each of them has submitted an unqualified and unconditional apology and prayed for discharge of the notices.

The Supreme Court in Perspective Publications (P) Ltd. and Another Vs. State of Maharashtra, has held that "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 because justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectfully, even though outspoken, comments of ordinary men." It has been further observed that it will not be right to say that proceedings for contempt for scandalizing the Court have become obsolete and the proper course for the Judge is to institute an action for libel. The Supreme Court in the celebrated case of M.Y. Shareef and Another Vs. The Hon''ble Judges of The High Court of Nagpur and Others, has held as under:

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.

Counsel who sign applications or pleadings containing matter scandalizing the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds therefor, with a view to prevent or delay the course of justice, are themselves guilty of contempt of Court, and 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 recognised that the members of the Bar have not fully realised 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, in such cases even a qualified apology may well be considered by a Court. In border line cases where a question of principle about the rights of counsel and their duties has to be settled, ant 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. 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.

It is clear that counsel has to be careful in taking responsibility for the representation he makes on behalf of his client to the Court. When the parties in the application allege misconduct or bias, the counsel if he signs petition should see that such irresponsible allegations are not made. If they are made and if he yet signs the petition, he will be deemed to be in as much contempt of the Court as his party. It is most irregular and unfair for members of the legal profession to make personal attacks or make reckless and unfounded charges of corruption and improper imputations against Court. If the lawyer thinks that he has a just case of complaint against a Judge, he can make a representation to the higher authorities against his conduct. No counsel should be punished for bona fide statements but he would be liable for contempt if he makes reckless allegations without making proper enquiry or concocts or mischievously twists facts casting aspersions on the Court.

The Supreme Court in Brahma Prakash Sharma and Others Vs. The State of Uttar Pradesh, bus held as follows:

Cases of contempt which consist of scandalising the Court itself, are fortunately rare and require to be treated with much discretion. Proceedings for this species of contempt should be used sparingly and always with reference to the administration of justice. If a judge is defamed in such a way as not to affect the administration of justice, he has the ordinary remedies for defamation if he should feet impelled to use them.

There are two primary considerations which should weigh with the Court when it is called upon to exercise the summary powers in cases of contempt committed by ''scandalising'' the Court itself. In the first place, the reflection on the conduct or character of a judge in reference to the discharge of his judicial duties, would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice. It is not by stilling criticism that confidence in Courts can be created.

In the second place, when attacks or comments are made on a Judge or Judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the judge and what amounts really to contempt of Court, The fact that a statement is defamatory so far as the judge is concerned does not necessarily make it a contempt.

In that case the resolution of the Bar Council that certain judicial officers were incompetent was forwarded to the higher authorities and although the Supreme Court found that the imputations regarding incompetency are prima facie contemptuous but no contempt has been committed since there was no publication as required under Contempt of Courts Act, though the publication was sufficient for an action for defamation. The Supreme Court in State of Madhya Pradesh Vs. Revashankar, has held as under:

If in its true nature and effect, the act complained of is really "scandalising the Court" rather than a mere insult, then it is clear that on the ratio of the decision in Bathina Ramakrishna Reddy Vs. The State of Madras, the jurisdiction of the High Court is not ousted by reason of the provision in section 3(2) of the Act.

Where the accused filed an application purporting to be one u/s 528, Criminal Procedure Code in which he made serious aspersions against the Magistrate, one aspersion being that the Magistrate had joined in a conspiracy to implicate the accused in a false case of theft and the other aspersion being that the Magistrate had taken a bribe of Rs. 500.

Held that the aspersions amounted to something more than a mere intentional personal insult to the Magistrate; they scandalised the Court itself and impaired the administration of justice. Section 3(2), therefore, did not stand in the way of the High Court taking cognisance of the contempt.

The Supreme Court in Gobind Ram Vs. State of Maharashtra, has held that the mere statement in an application for transfer 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.

So keeping in view these principles and after having heard the parties and perused the record, we are of the opinion that gross contempt has been committed by these contemners by making false and reckless allegations against the Sessions Judge alleging that he had taken money for granting bail to Anandilal. This is not disputed by Shri Rajendra Singh who appeared for Shri Awasthy and by Shri S.C. Datt who appeared for rest of the contemners including Shri Balram Tiwari. According to Shri Tiwari, the application and affidavits were drafted and prepared by Shri Awasthy and he simply presented the same under his signature relying on his colleague Shri Awasthy without reading the contents and he had filed the application on the instructions of the District Magistrate. This does not appear to be correct and he is belied by his own statement given before the Sessions Judge in the preliminary enquiry that he had corrected the application which was drafted and prepared by Shri Awasthy. This is also evident from the corrections made in the cause title and also in its body in his own hand by Shri Tiwari. Therefore, it cannot be accepted that without reading the application and by relying on Shri Awasthy be had signed and presented the application, lie had presented the application fully knowing the contents. It appears that there was some sort of pressure on Shri Tiwari because earlier an application was made by Mahantibai, widow of deceased Gopi, to the District Magistrate that Shri Tiwari should be removed and instead Shri Awasthy should be appointed to conduct the case as Shri Tiwari did not oppose the bail of Anandilal. But we are inclined to accept his explanation that it was Shri Awasthy who drafted and prepared the application and the affidavits. In his turn Shri Awasthy wants to wash off his hands by saying that he has nothing to do in the matter except his identifying the deponents in the affidavits. Neither lie has drafted or prepared the application or the affidavits nor he was aware of the contents. He was also not engaged by anyone to oppose the bail of Anandilal and others. Similar was his statement in the preliminary enquiry recorded by the Sessions Judge but he has been belied by his own clients i.e. contemners 1 to 4. According to them, the author of the application and the affidavits is Shri Awasthy who had prepared and drafted them without any instructions from them. These are illiterate villagers and it is just possible that so far as deponents Hariram, Sitaram and Ramsewak are concerned they might have sworn the affidavits without knowing the contents but this will not be so, so far as Shivcharan is concerned because he had also lodged a report in police station Hatta on 4-8-1982 alleging that Anandilal was boasting that he got bail by paying money. May be lie was instigated by others to make such a report. The report has been fount to be false by the Sessions Judge and also by this Court in revision. It is difficult to believe that without knowing the contemners 1 to 4 Shri Awasthy would have taken pains to get the affidavits sworn before Shri Siddiqui. The deponents were identified by him. Shri Tiwari is also corroborated by his younger brother and clerk Shri A.K. Tiwari that Shri Awasthy had prepared and drafted the application and the affidavits and he had handed over the papers for being presented by Shri Balram Tiwari who was then Public Prosecutor. We are also inclined to accept the statement of senior Advocate Shri G.S. Mehta who appeared for Anandilal for getting bail and for opposing the application for cancellation of bail that Shri Awasthy was annoyed when bail was granted and he had instructed the Additional Public Prosecutor at the time of arguments for cancellation of bail. Similar is the statement of Shri B.K. Tandon, another Advocate. We are not inclined to accept the statement of Shri Ramesh Shrivastava, Additional Public Prosecutor that he has taken no help from Shri Awasthy while arguing for cancellation of bail of Anandilal. If Shri Awasthy was not already engaged on behalf of the complainant''s party, it is not understood why he should appear and take so much interest. In fact, the widow of the deceased also made one application before the District Magistrate that in place of Shri Tiwari Shri Awasthy should be appointed to conduct the case. The Sessions Judge has also observed that while drafting the application for cancellation of bail some exaggerations have been made from the allegations in the report and the affidavits by adding. We have no doubt that Shri Awasthy is the author of these imputations and he cannot escape his liability by saying that he has neither prepared nor signed the application for cancellation of bail.

We, therefore, hold that contemners 1 to 6 have committed gross contempt of Court by scandalizing the Court and thereby interfering with the administration of justice and they are liable to be punished u/s 12 of the Act. We take a lenient view so far as contemners 2 to 5 are concerned and serve a stern warning to them that in case they are found to resort to similar attitude a severe action would be taken against them in public interest. However, no such leniency can be shown to contemners 1 and 6 Shivcharan Kurmi and Shri Harbanslal Awasthy. Both are responsible for making false and reckless allegations and each is sentenced to pay tine of Rs. 500 or in default to undergo simple imprisonment for one month.