HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 15.4.2015 Delivered on 12.5.2015 Court No. - 34 Case :- CONTEMPT APPLICATION (CRIMINAL) No. - 14 of 2012 Applicant :- In Re : Akhilesh Kumar Addl. Civil Judge Opposite Party :- Sri Magendra Pal Singh, Advocate Counsel for Applicant :- A.G.A., Sudhir Mehrotra Counsel for Opposite Party :- Rajen Mawar, Rajesh Kumar, Rohit Singh, Shamimul Hasnain, V.P.S.Kashyap Hon'ble Sudhir Agarwal,J.
Hon'ble Shashi Kant,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. The contemnor is present in person and stated that whatever reply he intended to file, is already on record and now he does not want to file any reply or adduce any evidence, therefore, the Court should decide the matter after considering his submissions.
2. Sri Sudhir Mehrotra, learned Special Counsel nominated by the Court to assist in this criminal contempt has been heard in support of proceedings. We may also put on record that a number of counsels have put in appearance on behalf of contemnor, whose names are also shown in the cause list, instead the contemnor appeared in person and requested that he should be permitted to defend in person which we have allowed. The contemnor has been heard in person at length.
3. This criminal contempt application was registered on receiving a letter dated 20.04.2012 from District Judge, Budaun, addressed to Registrar General of this Court and enclosing therewith reference letter dated 16.4.2012 of Sri Akhilesh Kumar, Additional Civil Judge, Senior Division, Budaun. The reference was received in this court on 27.04.2012, whereafter it was placed before Hon'ble the Chief Justice and His Lordship approved the same on 02.07.2012 to place it before the Bench dealing with criminal contempt for initiating appropriate contempt proceedings. Pursuant thereto, a Division Bench, on 18.07.2012, having been satisfied, prima facie, that Sri Magendra Pal Singh, Advocate (hereinafter referred to as "contemnor"), practising in District Judgeship, Badaun, has attempted to scandalize Presiding Officer as also the Court and lowered down authority of the Court, took cognizance of the reference and issued notice to the contemnor. The contemnor put in appearance and submitted reply along with his affidavit dated 17.10.2012. In para 6, he said :
"That so far as the Applicant/(Alleged) Guilty Person/Contemner himself is concerned, he is neither MOHAN DAS KARAM CHAND GANDHI nor he is ANNA HAJARE, but he always opposed Corruption which is now present in every Sphere and almost in all the Departments in the Country, through out. The instant Reference / Contempt in the blatant Illustration of such the OPPOSING by the Applicant / (Alleged) Guilty Person/Contemner since upon the Instruction, Dictation and Direction of his Client, namely SRI AMAR PAL who himself requested the Applicant / (Alleged) Guilty Person / Contemner to move the Application 146-C Dated 23 rd April 2011 and subsequently, namely SRI AMAR PAL SINGH, filed his own Affidavit dated 06th May 2011, in support of the aforesaid Application. So the Contempt Proceedings, if were require should be imitated against SRI AMAR PAL, son of Late CHANDRA PAL, the Deceased Judgment Debtor, who filed his own Affidavit and the Application, through Counsel/ Advocate i.e. the Applicant / (Alleged) Guilty Person/Contemner being his Attorney / Advocate in the aforesaid Court and as such the Contempt Proceedings launched, only against the Applicant / (Alleged) Guilty Person/ Contemner are certainly under Malice, while abusing the Powers, being the Presiding Officer of the Court concerned, with an intention to take all the Lawyers in his GRIP / SUPERVENESS."
4. Thus, whatever has been said and alleged against the Court and Presiding Officer, is ex facie admitted by contemnor but his stand is that he represented his client, and, on his instructions, said all those things, therefore, contempt proceedings should be initiated against his client. He has also said that the same having been initiated only against contemnor, is malicious and amounts to abuse of power.
5. Then in para 7, he said that his detailed counter affidavit is under preparation but still he is tendering apology with a request to drop contempt proceedings. It reads as under :
"That in view of the above situations and circumstances, the Applicant/ (Alleged) Guilty Person/ Contemner is do here by begs APOLOGY and though the Applicant / (Alleged) Guilty Person/Contemner has got Drafted the Complete Counter Affidavit. Which is under Typing Preparation and as such it can not be filed, today. Accordingly it appears quite Significant Essential and expedient in the Interest of Justice that this Hon'ble Court may graciously be pleased, kindly to accept the UNCONDITIONAL APOLOGY, being tendered and made by the Applicant / (Alleged) Guilty Person/ Contemner, and kindly to drop the instant Contempt Proceedings, against him and kindly, not to insist the Applicant / (Alleged) Guilty Person/ Contemner to file the Counter Affidavit, to Complicate the Matter, which Applicant / (Alleged) Guilty Person/ Contemner does not want, in any way, what so ever, other wise the Applicant / (Alleged) Guilty Person/ Contemner shall suffer irreparable and immense Injuries."
6. The manner and tenor of tendering apology is ex facie neither bona fide nor showed genuine remorse on the part of contemnor nor could be said to be unconditional and hence not accepted.
7. The contemnor then filed a counter affidavit sworn on 04.12.2012, in which he firstly raised plea of limitation alleging that contempt proceeding was initiated after expiry of more than one year from the date of alleged contempt, hence, is barred by limitation under Section 20 of Contempt of Courts Act, 1971 (hereinafter referred to as "Act, 1971"). He says that this question should be decided first in which he attempted to explain entire incident in his own way. It would be useful to reproduce paragraphs 4 to 18 of the said affidavit as under :
"4. That the alleged contempt have been committed on dated 16th April 2011 when Shri Akhilesh Kumar the Additional Civil Judge (S.D.) Budaun ignored the adjournment application 44-D in the execution case No. 10/2009 Smt. Suneeta Rastogi vs. Surendra Kumar Sharma and declared in the open court that he had promised to the decree holder that he shall pass an order to issue "Dakhal Parvana" while on the same day the lawyers were on strike and further said to the deponent who was the Advocate for J.D., that another execution case No. 34/98 Smt. Ganga Devi vs. Late Chandra Pal Singh and others is fixed for hearing on 22-4-2011 in which you are an Advocate for J.Ds. I will also make an order to issue "Dakhal Pravana" in that case on the date fixed i.e. 22-4-2011. At the same time and same day on dated 16-4-2011 the deponent moved an application17c on behalf of client in the above execution case No.10/2009 in which a fair and accurate report of a judicial proceedings or any stage thereof was published in good faith by disclosing that the presiding Judge is prejudice by a conspiracy with the decree holders, so he has made his mind priory and promised the decree holders to pass their favourable orders without hearing or formal hearing the parties. The Presiding Judge/Complainant has declared the decision of 22-4-2011 on 16-4-2011 on 16-4-2011 prejudicially and admitted all the blames against him by a silent motion and did not rebut the application 17c.
5. That in the mean time the judgment debtor filed a transfer application in court of District Judge for Transfer the execution case No. 34/1988 from the court of Additional Civil Judge(S.D.) Budaun that was pending. An application No.145-D was submitted by the J.Ds. through counsel to adjourn the case on the ground that the transfer application is pending in the court of District Judge Budaun against this execution case, as the result has been declared priorly on dated 16-4-2011 and the applicants no hope from this court for a clean and fair justice on merit. Hence prayed not to pass any order till the disposal of transfer application.
6. That the Court due to being prejudice and according to the confidential promise towards the decree holder, passed an order for issuing a Dakhal Parvana in the favour of decree holder, without hearing the deponent on 22-4-2011. The Judgment debtor, Amarpal Singh came on 23-4-2011 and perused the order dated 22-4-2012 passed against the records on file and mentioning dead Chandra Pal and his dead counsel be appeared before court and the court heard them and the date was not fixed for disposal of applications 143-c and 144-c and no objection was filed against such applications even then the presiding Judge/complainant rejected the applications 143-C and 144-C by mentioning a forge objection 104C against such applications by an arbitrary order as he declared on 16-4-2011 Amar Pal Singh J.D. made a view after consideration on situation that such a Blunder apparent on the face of judgment dated 22-4-2011 may be possible in the position of senseless mind taking bribery or by any other illegal effects.
7. That Amar Pal Singh abovementioned J.D. directed the deponent to move an application before the court to make an formal order for filing revision against said order and he also directed the respondent to write the application on this dictation in his own language. Deponent prepared an application 146-C according to his will and he made his signature on the application and gave it himself in the court on 23-4-2011. This application was also fair and accurate report of a judicial proceedings or any stage there of and it is not an amount to contempt.
8. That after receiving the application 146-C Shri Akhilesh Kumar Additional Civil Judge(S.D.) Budaun sent his orderly Shri Jara Chand to call the deponent in his Chamber at noon the same day. The deponent along with Shri Omkar Singh Yadav Advocate and Shri Laxman Prasad Advocate went in the chamber where Shri Akhilesh Kumar Judge being annoyed pressurized the deponent to return or to not press the application 146-C. The deponent did not agree to follow an illegal pressure of complaint Judge. Then after Shri Akhilesh Kumar misbehaved by abusing the deponent and threatened to issue a notice for contempt with the false and imaginary arbitrary charges and blames. The deponent did not say any insulting word except respectable words. Shri Akhilesh Kumar said Judge issued a notice with the false allegations and charges from his chamber on 23-4-2011 with malafide intention. The deponent did not moved application personally, it was moved by the Amar Pal Singh through counsel in his own language and signed him also and did speak any word to scandalize the said judge allegations in notice are totally false. The two other advocates are the eye witness of the occurrence, they can give their statements.
9. That the first date of alleged contempt to committed as 16-4-2011 on filing an application 17c in execution case No.10/2009 and second date committing an alleged contempt was 23-4-2011, on filing the application 146-C in execution case No.34/1998 as alleged in the notice dated 23-4-2011, annexed with the complaint. From 16-4-2011 till the date 16-4-2012 the complainant Judge remained sleeping for a period of one year while the deponent/alleged contemnor remained knocking the door of proceedings to disclose the ambiguity by the suitable action concerned. A period of one year became expired on 15-4-2012. The complainant made an application for taking action after initiating the proceedings and sent it, through the District Judge Budaun, to the Hon'ble High Court and this Hon'ble Court perused the record sent by Shri Akhilesh Kumar the Additional Civil Judge (S.D.) Budaun on 18th July 2012 and initiated the contempt proceedings by registering it as contempt application (Criminal) No. 14 of 2012 and took cognizance also by issuing a notice to the deponent alleged contemnor to show cause. Thus the contempt proceeding were initiated by this Hon'ble Court at a belated stage and 18-7-2012 after expiry of the prescribed limitation of one year by the date 15-4-2012. The pending contempt proceedings must be dropped in the interest of justice.
10. That the deponent received the notice for alleged contempt issued by shri Akhilesh Kumar, Additional Civil Judge(S.D.) Budaun date 27-4-2011 and I came to know by perusing the contents of the said notice dated 23-4-2011 that the notice was issued from the Chamber with wrong allegation as under bl i=koyh esa vkids }kjk izkFkZuk i= 146&x fn0 23-4-2011 dks fn;k x;k] ftlesa vkids }kjk U;k;ky; ij xEHkhj fd'e dk vkjksi yxk;k x;k gS fd ^^vki fj'or ds u'ks esa brus eneLr Fks fd i=koyh fcuk ns[ks gS fMdzhnkj ds i{k esa n[ky ijokuk tkjh dj fn;k vkSj vkns'k esa >wB fy[k fn;k fd vk[;k gsrq dksbZ Hkh vkns'k 2-00 ih0,e0 rd izkIr ugha gqvkA** Reality is that the said application was given by Shri Amar Pal Singh with his signature through counsel and he has admitted in his affidavit dated 6-5-2011 that the said application146-c was written in his own language by his direction he had signed himself on it. The deponent did give this application personally and there was no intention of deponent to scandalize the court, he only performed his duty as an advocate. Thus the deponent was not liable to be blamed for contempt, the contempt if allegedly committed, the notice dated 23-4-2011 should be issued against Amar Pal Singh, applicant as the deponent was not applicant.
11.That the language and alleged facts in the notice were ambiguous as vkids }kjk U;k;ky; ij xEHkhj vkjksi yxk;k x;k gS fd vki fj'or ds u'ks esa brus eneLr Fks fd i=koyh fcuk ns[ks gh fMdzhnkj ds i{k esa n[ky ijokuk tkjh dj fn;k vkSj vkns'k esa >wB fy[k fn;k fd vk[;k gsrq dksbZ Hkh vkns'k 2-00 ih0,e0 rd izkIr ugha gqvkA** The complainant, has mentioned that a serious blame was wrong because on perusing the order dated 22-4-2011 it becomes rightly proved that such an arbitrary and illegal order can not be passed without taking bribery or any other illegal influence or in the senseless mind. Thus in accordance with Sec.4 of contempt of Court Act 1971, fair and accurate report of judicial proceedings is not contempt.
12-That the another false allegation was mentioned in the Notice that was under :-
esjs foJke d{k esa vkdj ;g Hkh dgk fd vki U;k;k/kh'k gSa] vki viuh Mªsl mrkjdj ckgj vk,] rks ge vkidks ns[k ysaxs] ;g Hkh dgk fd vkidh vkSj esjh ;ksX;rk ,d gh gS cl vUrj ;g gS fd vki ;gkWa cSBs gS] vki dksbZ fo'ks"k O;fDr ugha gSA Reality is that on calling by the complainant, I went with two other advocates named Shri Omkar Singh Yadav and Shri Laxman Prasad Advocates, in the Chamber of complainant and I did not say anything as alleged and mentioned in the notice. I talked everything with due respect of the court the complainant pressurized me to not press the application 146 -C I did not be agree to do so without consent of my client, then the complainant judge misbehaved to me and threatened to issue a contempt notice of such type with false allegations. Two other Advocates are eye witnesses of the alleged occurrence.
13. That the said notice was issued from the chamber in violation of Section 7 of the contempt of Court Act 1971 and called for explanation from the deponent within ten days. The deponent alleged contemnor requested with respect towards the presiding Judge by an application No.153C dated 2-5-2011 for explaining the ambiguous position of contempt notice only for the purpose of giving a suitable plantation of the notice. The explanation from the Judge did not demand as of right, it was only good faith and in the interest of justice that may be given by the respectable Judge in the interest of justice, nothing is restrained and prohibited to do in good faith. For the end of justice. If the respective Judge was faultless, he must give permission to the deponent to make complainant against himself on the demand of deponent, but he did not dare to do so. Due to waiting for answer of application No. 153-C dated 2-5-2011 the deponent could not give explanation of the said notice. There is no fault on the Part of deponent/alleged guilty person.
14. That the respectable Judge did give any answer for the question mentioned, in deponent's application dated 2-5-2011 and feeling fault himself, proposed the president and secretary of District Bar Association Budaun to inform and suggest the deponent for stopping the matter with compromise. I the deponent sent an further application on dated 10-5-2011 by the speed Post accepting the proposal of respectable Judge by surrendering myself with due respect towards the court, but received no answer.
15. That the respectable Judge became transferred in the Month of April 2012 and the contempt matter remained pending. In such conditions the deponent moved the third application on dated 10-04-2012 for giving answers as demanded before by the deponent for giving applications of the aforesaid notice as well as disposing of the pending matter of alleged contempt in the interest of Justice But the respectable complainant Judge did not take any response and did not disclose the losses for giving the suitable answers for ambiguity and did not disclose the reasons for not giving answers and not to take any action to make reference for initiating the proceedings as well as remaining slept throughout the year and after expiry of prescribed limitation for action of one year from the date 16-4-2011 till the date 15-4-2012, he sent an application for initiating the contempt proceeding to the Hon'ble High Court, Allahabad.
16. That the deponent / contemnor is not guilty for any act of alleged contempt because he has acted all the functions in good faith without any intention to scandalize or to demoralize the dignity of court, the complainant, Judge made a complaint with malafide intention by mentioning wrong facts. The deponent likes a fair and justify proceedings on the basis of law, but in the present environment some of the Judges remains involve in the occupation confidentially. If any person or Advocate interferes in their bad and corrupt practice, they often use a weapon of contempt break such interference while a judge must be fair and clean hearted. Shri Akhilesh Kumar, Addl. Civil Judge Budaun also was seemed to be involved in the corrupt practice as Shri Amar Pal Singh, Applicant prepared a complaint along with affidavit dated 6-5-2011 against the said Judge the copy of affidavit is annexed with the application dated 10.4.2012 moved by deponent and it is also appended with this complaint of contempt. Another complaint was also filed by Shri Amar Pal Singh S/o Late Chandra Pal Singh Judgment debtor in execution Case No. 34/98 before the District Judge Budaun. The inquiry running against the complaint Judge Shri Akhilesh Kumar before the District Judge Budaun. The deponent did not make support the complainant Judge in his corrupt practice and interfere something. So he mala fidely used such illegal weapon of contempt for only making his pressure baselessly and such he remained silently sleeping till the expiry of prescribed period of one year to take action and no step was taken by him during the time of one year and he wrongly mentioned in the complaint on page-5 that eSaus ;g lksp dj fd ckj o csap ds lEcU/k e/kqj jgs vkSj U;kf;d izslj esa fdlh Hkh izdkj dh vkokaNuh; ?kVuk u ?kVs] bl ckr dks /;ku esa j[krs gq, vf/koDrk Jh exsUnz iky flag ds fo:) dksbZ dk;Zokgh rRdky djuk mfpr ugha le>kA
17. That the complainant Judge make expressed his illegal and baseless opinion in the para no.3 on page 6 of his complaint malafidedly and it is also mentioned in this para totally wrong that he has given possession to the decree holders in execution case No. 10/2009 and in execution case No. 34/98 and his order was confirmed by the appellant court. The true position is that the Civil Court has passed a decree in O.S. No. 198/87 regarding the Plot No. 291/2 and plot No. 292/3 area-0.685 Hectare and the execution court executed a sale deed for new number of plots after consolidation for plot No. 371 and the Dakhal Possession has been shown to be given on 7 plots No. 291/1, 292/2, 292/3, 292/4, 205/2m, 206/3 and 292/6m total area 0.649 according to the Dakhal Nama paper No. 156 in the execution case No. 34/98 by the order of complainant Judge. The revision was dismissed against such order on the ground of being an interlocutory order at the stage of admission.
18. That all of the contents of contempt application are false and baseless, hence denied ab initio. The deponent did make and submitted the application No. 146-c personally, it has been moved by the client Amar Pal Singh through counsel/deponent and the contents of application are the fair and accurate report of Judicial proceedings which are not the amount of contempt. The proceedings are initiated by this Hon'ble Court after the prescribed period of one year. Hence the deponent is not guilty for contempt as well as no action can be taken to punish for contempt of court."
8. Having gone through the reply and affidavit of contemnor, this Court found that there was no reason to drop the proceedings. The apology tendered by contemnor was neither unconditional nor bona fide nor showed genuine remorse on his part. The Court declined to accept contemnor's request for dropping proceedings and on 17.12.2013, framed following charge :
"That in the court of Sri Akhilesh Kumar, Additional Civil Judge( Senior Division) Budaun, the proceedings of execution case No. 34 of 1998 Ganga Devi Versus Chandra Pal were pending for a long time in which application nos. 143(g) and 144(g) of the said execution case were rejected and the letter of possession was issued through Amin fixing next date 10.5.2011, you as a counsel of the judgement debtor moved an application on 23.4.2011, mentioning therein that the case was pending in the court of District Judge, where the dated was fixed on 20.5.2011, you also made allegation that there was no hope of justice and make request to transfer the matter to other court because the court was under the influence of the decree-holder. You also made charge upon the court that he had taken bribe form the decree holder and was drunken in bribe and give possession in his favour, then the court took it seriously and issued notice to you on 2.5.2011 to explain about the false allegation made in the application dated 23.4.2011 within 10 days as to why action for initiating contempt proceedings be not taken but you did not respond but to subside the matter Sri Yogindra Sharma, President Bar Association and Sri Yatinder Pal Singh, Secretary, Bar Association, Budaun gave an application/ letter dated 153(g) and requested orally many times on your behalf not to take any action against you by submitting that you will respect the court and will not offend the court in future so that relations between the Bar and Bench may remain cordial, keeping it in view the court kept in abeyance the proceedings for initiating the contempt against you. You on 10.4.2012 again gave an application to the Steno of the court reiterating again all the allegations made in the earlier application dated 23.4.2011 and you also challenged for initiating the contempt proceedings and thereby you have deliberately scandalized the court, lower down dignity of the court, and interfered with the administration of justice which constitute an offence of criminal contempt as defined under section 2(c) of the Contempt of Courts Act, 1971 punishable under section 12 of the Contempt of Courts Act, 1971 within the cognizance of this court."
9. The contemnor filed reply/rebuttal to the charge vide affidavit sworn on 09.5.2014. Again basic facts stated in his earlier affidavit were reiterated. However, he added some further reply to the charge. The averments contained in this reply from paras 2 to 18 are reproduced as under :
"2. That it is necessary and relevant to disclose the arounding circumstances and facts of the case concerned. First of all, deponent was engaged as an Advocate by the J.D. in ex case No.10 of 2009 Smt. Sunita Rastogi Versus Surendra Sharma on 16.04.2011 in the court of Additional Civil Judge (S.D.), Badaun and moved an application for adjourning the case on next day, because deponent was engaged same day and could not inspect the file. The presiding officer, Shri Akhilesh Kumar (Judge) said to pass an order in favour of decree holder, by ignoring the application 44 D given by deponent. The copy of application 44 D is being filed herewith and marked as Annexure No.1 to this affidavit.
3. That when deponent was present in court in the above mentioned ex case No. 10 of 2009, Shri Akhilesh Kumar, Additional Civil Judge (S.D.) Badaun openly declared sitting in court that he is going to pass an order in this case and your another ex case No.34/98, Ganga Devi Versus Chandra Pal is fixed on 22.04.2011, I shall pass an order against your party because I promised the decree holders of these two cases to pass the orders quickly in their favour. Deponent moved an application No. 47 C on the same time on 16.04.2011, but the respected Judge did not rebut any thing for saying wrong allegations and admitted silently. A copy of application 47-C is being filed herewith and marked as Annexure No.2 to this affidavit.
4. That on 20.04.2011 the J.D. Of ex. Case No.34 of 1998 moved a transfer application before learned D.J. Badaun and on 22.04.2011 moved an application No. 145 D with allegations that as transfer application is pending and the applicants have no hope of fair justice from this court, hence it is prayed that no order be passed in the interest of justice till the disposal of transfer application. A copy of application 145-D is being filed herewith and marked as Annexure No.3 to this affidavit.
5. That the dated 22.04.2011 was not fixed to pass an order for taking Dakhal on the disputed land and for the disposal of application 143-C and 144-C as well as no objection was filed against the application no. 143-C and 144-C in connection with Order 21 Rule 29 C.P.C. None was present to press the applications above on behalf of J.D.s. The main and important facts are that J.D. Chandra Pal Singh has died in 2002 and his heirs have been substituted in 2003, his counsel had also died in 2009, while both were shown present in the court and heard on 22.04.2011 and the applications 143-C and 144-C were disposed off alongwith a imaginary objection 104-C against such applications. The presiding Judge, Shri Akhilesh Kumar passed an arbitrary order on 22.04.2011 as he declared previously on date 16.04.2011 and knowingly mentioned a wrong provision of Order 21 Rule 29 C.P.c. for rejecting the applications.
6. That the Judge appeared to be prejudice and effected with the illegal pressure of decree holder as he had declared on 16.4.2011 order to be passed on 22.4.2011 because the latches and faults apparent on the record of order dated 22.04.2011 could not be presumed as the bonafide mistakes, but these defects can be said great blunders deliberately, made for giving illegal benefit to the decree holder. The order sheet of dated 18.12.2010 to 05.04.2011, annexed herewith, are relevant to see and copies of the applications no.143-C and 144-C are also annexed herewith for perusal and kind consideration as Annexure No. 4 and 5 to this affidavit.
7. That when Shri Amar Pal Singh, the son of dead J.D. Chandra Pal Singh perused the said order dated 22.04.2011 and discussed about the illegalities made by Judge knowingly, he lost his temper and directed deponent (his advocate) to write an application for making formal order of the said order to file revision, in his language, so that the learned Judge ought to make his mind for taking note his faults and understanding the blunders made by him prejudicially. There was no mens-ria and no intention to lower down the dignity of Court.
8. That on 23.04.2011, deponent wrote an application with the direction of his client Amar Pal Singh and deponent submitted it, as a counsel, but the signature of Amar Pal Singh before court as application No. 146-C, in connection with the order dated 22.04.2011. The copies of application No.146-C and order dated 22.04.2011 are being filed herewith and marked as Annexure No.6 and 7 to this affidavit.
9. That the said Judge called for me in his chamber. Deponent went there with two other advocates namely Shri Omkar Singh Yadav Advocate and Shri Laxman Prasad, Advocate. The same learned Judge became annoyed and threatened for returning the application 146-C, since deponent forbade, the presided Judge told his Orderly to take out from chamber by pushing and issued a notice against me for contempt from the chamber on same date, 23.04.2011 for giving explanation within 10 days. The notice is barred by Section 7 of C. of Court Act 1971.
10. That deponent the alleged contemnor, gave an application 153-C on 02.05.2011 for clearing some ambiguous positions regarding notice for giving a suitable answer, no reply was received till date 10.05.2011.
11. That on 10.05.2011 the President and Secretary of District Bar Association, Badaun suggested me, the alleged contemnor, to subside the matter according to the proposal of Additional Civil Judge (S.D.), Badaun, deponent became agree and gave an application dated 10.02.2012 and no action was taken against the alleged contemnor in consequence of notice. A copy of application dated 10.05.2011 is being filed herewith and marked as Annexure No.8 to this affidavit.
12. That the alleged contemnor gave another application on 10.04.2012 by disclosing the real facts, regarding the relevant conduct of learned Judge and illegalities in other alongwith confirming subsequently a forged Dakhalnama, that was connected with the Dakhal on 7 plots while the decree was passed only for two plots and the sale deed was executed regarding plot no. 371, only one plot. This application was concerned only the prayer to conclude the manner with true facts against the same. This reference for committing an offence of contempt of court is baseless and time barred as well as the charges are irrelevant.
13. That the proceedings are initiated on 18.07.2012 by this Hon'ble Court against the alleged contempt of 23.04.2011. The proceedings are time barred under Section 20 of Contempt of Court Act, as such contempt proceedings are liable to be withdrawn.
14. That after receiving the show cause notice the alleged contemnor tendered an unconditional apology and requested for excuse, that is pending and the reply affidavit regarding facts was also submitted.
15. That on 17.12.2013 the three charges were framed by the Hon'ble Court in the above petition, those are not relevant for confirming the allegations regarding offence of contempt of court, in accordance with the circumstances, intention and provisions laid down in the relevant sections 3, 4, 5, 6, 7 of the Contempt of Court Act, 1971 and considering the object of legislative body to enact the law of contempt of court, is clear that the law is made only for controlling and balancing the co-administration of justice as well as the dignity of court, so it is not a Penal Act and contemnor shall not be treated as an accused. It is only a matter between the court and contemnor and not related to the public-society. Hence the allegations do not come in the definition of Criminal Contempt Under Section 2(C) of Contempt of Court Act, 1971.
16. That the first charge is- a publication in writing as the court was drunken in bribe.
Rebuttal- The application is made through counsel, in the language and direction with signature of client. There was no mens-ria for lowering down the dignity of court. It was only for purpose to take knowledge of Judge towards the faults made by him knowingly as court adopted a wrong procedure arbitrarily. It is well settled principle of law that no offence can be made without mens-ria. The alleged contemnor, wrote the application no. 146-C in good faith and innocently without any mens-ria, only this application is the base of notice dated 23.04.2011 as well as the charges.
17. That the second charge is - The deponent sent Bar President and Secretary to subside the matter and they gave application No.153(g).
Rebuttal - The allegations of charge are wrong. The application 153(g) was given by the deponent and they were called by the learned Judge to subside the matter, as the deponent wrote an application dated 10.05.2011 at the proposal of them. But received no reply.
18. That the third charge is- A publication by another application dated 10.04.2012, reiterating against all the allegations made in earlier application dated 23.04.2011 and deliberately scandalize the court lower down the dignity of the court and interference in the administration of justice.
Rebuttal - There is no mens-ria in this application. The same application is regarding to give answer of the previous applications and the contents of application are just true and fair on merit of facts and law and no notice was given to explain, if the allegations were illegal and false. The application was given to steno and was read in chamber, hence no charge of offence is made out. Section 5 of Contempt of Court Act provides that fair criticism of any judicial act is no contempt and Section 7 proceedings in chamber is no contempt and Section 3 & 4 to submit true and accurate report, no contempt. Copies of decree and Dakhalnama are being filed herewith and marked as Annexure No. 9 and 10 to this affidavit."
10. He also appended copies of applications etc., which he had submitted in the Court of Additional Civil Judge. We shall discuss and refer the same later on, as and when it would be necessary.
11. While advancing oral submissions, the contemnor reiterated, Firstly; contempt proceeding initiated against him is barred by limitation and therefore, deserve to be dismissed; Secondly, in any case, no contempt is made out since he has been discharging his duties towards his client and whatever the client required, he did, therefore, contemptuous attitude cannot be attributed to him; Thirdly, that application was written on direction of client reproducing his desire hence contemnor is not guilty; Fourthly, there is no mens rea; Fifthly, there is no publication by submission of application dated 10.4.2012 since it was given to the Steno and read in Chamber; Sixthly, a fair criticism of judicial act is no contempt and proceeding in chamber also does not amount to contempt; Seventhly, that reproduction of true and accurate report does not amount to contempt, and; lastly, he contended that in any case, this is the highest court of the State which exercise its authority with magnanimity and benevolence, therefore, it should condone the entire incident and tender apology to the contemnor by closing the proceedings.
12. We have given our anxious considerations, seriously and dispassionately to all the submission. We have also looked into the record available as also the relevant statutory provisions and the authorities on the subject. There are, broadly three questions :
i. Whether contempt proceedings initiated by this Court is barred by limitation under Section 20 of Act, 1971;
ii. Whether contemnor is guilty of charge framed against him;
iii. If question no.2 is answered in affirmation, what punishment would be justified ?.
13. The admitted facts, as borne out from record and whatever has been discussed above, are that the contemnor was representing judgment debtor in Execution Case No.10 of 2009. On 16.04.2011, contemnor moved an application seeking adjournment. The Court, however, passed order for execution of decree and did not accept adjournment. The contemnor then filed application no.47-C on 16.4.2011 making allegations of predetermined mind on the part of Presiding Officer and also that he is proceeding in the matter for his personal interest and illegal reasons. A photocopy of the application is on record. It shows that it was received in the office of Additional Civil Judge on 16.4.2011 at 3.10 P.M.. Thereafter, in another Execution Case No.34 of 1998 (Ganga Devi Vs. Chandra Pal), contemnor moved an application on behalf of judgment debtor Amar Pal Singh, S/o Chandra Pal Singh stating that he has moved a transfer application in the Court of District Judge, Budaun in which 20.05.2011 is fixed, therefore, no order should be passed on execution. This application was opposed by decree holder.
14. On the record, contemnor has also placed an application no.143C filed on 11.09.2009 in Execution No.34 of 2009 (Ganga Devi Vs. Chandra Pal) stating that judgment debtor has filed subsequently original suit no.309 of 2009 for declaring sale deeds void and during pendency of the aforesaid suit, execution proceedings should be deferred. With the similar request, another application, paper no.144C, was also filed on 07.11.2009 in Execution No.34 of 1998.
15. Application No.146C was filed on 23.4.2011 stating that Presiding Officer of the Court passed order without hearing counsel for judgment debtor, who did not appear due to strike of advocates. The allegations made in the application dated 23.4.2011, paper no.146C, reads as under :
^^fuosnu gS fd btjk; mijksDr esa izkFkhZ ds vf/koDrk us dy izk0 i= fn;k Fkk fd btjk; okn dks LFkkukUrfjr djkus gsrq izk0 i= ftyk tt lkgc ds U;k;ky; esa isafMax gSA fnukad 20-5-11 yxh gSA vkils vk[;k ekaxh x;h gSA vki fMdzhnkj ls lkt dj x;s gSA vkils U;k; dh vk'kk ugha gSA blfy, vkt dksbZ vkns'k ikfjr u djsaA vk[;k gsrq vkns'k ftyk tt lkgc dks Hkh izkFkhZ ds lkeus vkdj 12-30 ih,e ij Jheku th ds le{k is'k gks x;k] tks vkius nQ~rj esa Hkst fn;kA vki fj'or ds u'ks esa brus eneLr Fks fd i=koyh fcuk ns[ks gh fMdzhnkj ds i{k esa n[ky ijokuk tkjh dj fn;kA vkns'k esa >wB fy[k fn;k fd vk[;k gsrq dksbZ vkns'k 2-00 ih0,e0 rd izkIr ugha gqvkA mHk; i{kksa dks lquk tkuk Hkh fy[kk fn;k tcfd izkFkhZ ds vf/koDrk izk0 i= nsdj pys vk;s FksA vkius ;g fcYdqy >wB fy[k fn;k fd en;wu pUnziky e; vf/koDrk U;k;ky; esa vkdj mifLFkr gq,A tcfd pUnziky U;k;ky; ugha vk;s FksA vkius fnukad 16-4-11 dks gh izkFkhZ ds vf/koDrk dks lquhrk nsoh cuke lqjsUnz 'kekZ ds bt0 okn la[;k [email protected] esa vkns'k nsrs le; dg fn;k Fkk fd eSa 22-4-11 dks btjk; okn la0 [email protected] xaxk nsoh cuke pUniky esa n[ky ijokuk tkjh dj nawxkA eSaus fMdzhnkj ls ok;nk dj fn;k gSA izkFkhZ ds vf/koDrk us mlh fn0 bt0 okn la[;k&[email protected] esa bl vk'k; dk izk0 i= fn;k gS mlesa Hkh vkius gMrky ds fnu fcuk lqus n[ky ijokuk fj'or ysdj tkjh fd;kA vkSj i=koyh ij fy[kk mHk; i{kksa dks lqukA eSaus ;g ckr lquh gSA izkFkhZ vkids vkns'k ls O;fFkr gSA fjohtu djuk pkgrk gSA vr% izkFkZuk gS fd vkns'k fnukad 22-4-11 dk fdz;kUo;u 10 fnu rd LFkfxr fd;k tkos gS rFkk vkns'k fn0 22-4-11 dk QkeZy vkns'k cuk fn;k tkosA** "It is submitted that in the aforesaid execution the counsel for the plaintiff had yesterday moved an application stating that an application for transfer of execution suit is pending in the court of the District Judge; which is fixed for 20.05.201. A report has been sought therein from you. You have colluded with the decree holder and as such you are not supposed to deliver justice. So, you are requested not to pass any order today. Even the direction of the District Judge seeking a report thereon was placed before your good-self at 12.30 pm in the presence of the applicant but you sent the same to the office. You were so much infatuated with the bribe that even without perusing the records you issued a possession warrant in the favour of the decree holder. You got it scribed in the order that no direction seeking a report was received till 2 pm. It was so scribed that both the parties were heard despite the fact that the counsel for the applicant had left after submitting the application. You have got it wrongly scribed that the debtor Chandra Pal had put in appearance in the court alongwith the counsel. As a matter of fact, Chandra Pal had not come over to the court. You had on 22.04.2011 itself, while passing an order in Execution Suit No. 10/2009 titled as Sunita Devi Vs. Surendra Sharma, told the counsel for the applicant: "I'll issue a possession warrant in Execution Suit No. 34/98 titled as Ganga Devi Vs. Chandra Pal because I have made a promise to the decree holder". The counsel for the applicant had on that very day moved an application to this very effect in the Execution Suit No. 10/2009 but even in the said case you, after taking bribe, even without hearing anybody, issued a possession warrant on that day despite there being strike, getting it scribed on the record that both the parties were heard. I have heard of it. The applicant is aggrieved by your order and seeks revision.
It is, therefore, requested that the operation of the order dated 22.04.2011 be stayed for 10 days and the order dated 22.04.2011 be prepared into a formal one."
(English Translation by the Court)
16. With respect to allegations made by contemnor in application 146-C in Execution Case No.34 of 1998, Judicial Officer concerned required him to show cause why contempt proceedings may not be initiated. The contemnor submitted reply dated 10.5.2011 admitting drafting and filing of said application but took a defence that it was on the instructions of his client and therefore, no contempt has been committed by him. He further stated that assertion of facts, correctly, do not amount to contempt.
17. It is said that with the intervention of office bearers of Bar Association, Presiding Officer deferred further proceedings for making reference for contempt but then contemnor submitted another application/letter dated 10.4.2012, in which he again reiterated the same allegations and, thereafter, reference for contempt has been made.
18. We now propose to consider questions and issues raised in this matter in the light of the aforesaid factual background and relevant provisions. The first question raised by contemnor is regarding limitation.
19. Section 20 of Act, 1971 reads as under :
"Limitation for action for contempt.- No court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
(emphasis added)
20. The limitation of one year provided under Section 20 of Act, 1971 commences from the date on which contempt is alleged to have been committed. The question is, what is the date on which the contempt is said to have been committed or what is a date of commencement of limitation under Section 20 of Act, 1971.
21. From reference order as also charge framed, we find that there are two dates, one is contemnor's application dated 23.4.2011 in which he made certain scurrilous allegations against Judicial Officer. The second in the chain of events is dated 10.04.2012 when again he repeated and reiterated what he has said earlier in his application dated 23.04.2011. It is a continuous chain of events, which commenced on 23.4.2011 and recommenced/continued/repeated on 10.04.2012. Thus, for the purpose of Section 20 of Act, 1971, period of one year is to be taken from 10.04.2012 when contemnor repeated, in continuation, within one year, what he has done on 23.04.2011.
22. The contemnor, however, urged that there are four applications and it is the first date when the contempt commence, which will be material and not any subsequent one. It is now doubt true that in the entire chain of events, there are four applications submitted by contemnor, which formed chain of the contempt alleged to have been committed by him. The first started with his application dated 23.4.2011 in Execution No.34 of 1998, in which he made following allegations :
^^ - - -vkius gMrky ds fnu fcuk lqus n[ky ijokuk fj'or ysdj tkjh fd;kA^^ "You, after taking bribe, issued a possession warrant on the day of strike without affording any hearing."
(English Translation by the Court)
23. Then comes his application/letter dated 02.5.2011 in Execution Case No.34 of 1998 wherein he sought certain explanation/reply from Judicial Officer. The third document is dated 10.5.2011 sent by contemnor in which he admits of submitting application dated 23.4.2011 and 02.5.2011 though alleging that he sent it on the instructions and as per desire of his client and mention of correct and fair facts does not amount to contempt. He said, if the Presiding Officer is ready to withdraw his notice, the contemnor shall also withdraw his notice dated 02.5.2011. The forth document is dated 10.4.2012 wherein he referred to his earlier documents and said, since no specific reply has been given by Judicial Officer concerned, therefore, there is an admission by silence of the allegations of bribe levelled against Judicial Officer by contemnor at the instance of his client. The relevant allegations in the letter dated 10.4.2012 are as under :
^^ - - - cfYd ts0Mh0 o izkFkhZ ls jaft'k ekudj] Mh0,p0 ls fj'or ysus dk vkjksi ekSu lgefr ls Lohdkj djrs gq, QthZ n[kyuke tkjh djds fMdzh o cSukek ls fHkUu vfLrRofoghu xkVk la[;kvksa ij n[ky fnyk;s tkus dh QthZ dk;Zokgh vehu ij ncko nsdj djk nhA** ^^Jheku~ th }kjk tqfMf'k;y dks [ksy dk eSnku le> fy;k gSA U;k; o dkuwu lnSo Jheku~ th }kjk utjankt fd;s tkrs jgs gSaA ,MoksdsV o i{kdkj dks /kedh nsdj bruk Mjk nsrs gSa fd og ;k rks Lo;a fj'or nsus dks rS;kj gks tk; ;k fojks/kh }kjk nh sx;h fj'or vklkuh ls gte gksus esa gLr{ksi u djs] blh dze esa Hk;kouh /kedh Lo:i izkFkhZ dks QthZ voekuuk dk uksfVl nsdj Hk;Hkhr fd;k x;k vkSj foi{kh fMdzhnkj ds i{k esa QthZ vfLrRoghu vkjkth ij n[ky fnykuk Lohdkj dj fn;kA** ^^izkFkhZ tkuuk pkgrk gS fd izkFkhZ ds izfr voekuuk dh QthZ dk;Zokgh D;ksa dh x;h\ ;fn dk;Zokgh lgh Fkh rks visf{kr Li"Vhdj.k vc rd D;ksa ugha fn;s x;s\ ,oa tokc nsus gsrq dksbZ Lej.k i= D;ksa ugh fn;k\ rFkk f[kykQ dk;Zokgh D;ksa ugha dh\** "As a matter of fact, harbouring enmity with J.D. and the applicant, . . , while accepting with acquiescence the allegation of bribe being taken from D.H., orchestrated the fake proceeding of handing over the possession of non-existing plots, different from the decree and the sale-deed, by way of issuing fake possession letters, while exerting pressure on amin."
"Judicial process has been taken to be a playground by Shriman Ji. Law and justice have constantly been flouted by Shriman Ji. He, by issuing threats to advocates and parties, frightens them so much that they are either compelled to pay bribe by themselves or to turn a blind eye to the easy digesting of the bribe paid by opposite parties; in pursuance thereof, the applicant was caused to be frightened by issuing a fake contempt notice as a terrible threat, gave a go ahead to the delivery of possession of fake non-existent plots to the defendant decree holder."
"The applicant seeks to know why fake contempt notice was issued against him? If the proceeding was a right one, then why desired clarifications were not given till now and why no reminder was sent seeking reply and why no proceeding was taken against him? " (English Translation by the Court)
24. At the end of the application/letter dated 10.4.2012 the contemnor put a note as under :
^^uksV%&ts0Mh0 fj'or dk lk{; nsus dks rS;kj gSaA eSaus vkids fgr esa mUgsa jksd fn;k FkkA 'kiFk i= dh QksVw dkih layXu gSA**
"Note - J.D. is ready to adduce evidence regarding the bribe. I had forbidden him in your interest. The photocopy of affidavit is attached herewith." (English Translation by the Court)
25. A photocopy of the aforesaid affidavit of Sri Amar Pal Singh is also on record, which is said to have been sworn on 6.5.2011 and therein also aforesaid allegations have been reiterated.
26. The facts clearly shows that it is a case where serious allegations have been made by contemnor against Presiding Officer of the Court below not only on 23.4.2011 but the process has continued thereafter for almost a year and the last such date is 10.4.2012. The act of criminal contempt in this case, is not a one time incident but it has continued to have been committed by the contemnor continuously even after 23.4.2011 and therefore, for the purpose of Section 20 of Act, 1971, the last letter sent by contemnor i.e. 10.4.2012 would also be a date on which alleged contempt has been committed and limitation of one year would commence therefrom also. The letter dated 10.4.2012 amount to acknowledgement and renewal of what was done earlier.
27. The reference was made by Additional Civil Judge (Senior Division) Budaun vide letter dated 16.4.2012 with a covering letter of District Judge, Badaun dated 20.4.2012 and it was received in this Court on 27.4.2012. The criminal contempt was registered on 17.7.2012, and, on 18.7.2012, notice was issued to the contemnor to show cause as to why he should not be punished for the act of contempt, as mentioned in reference letter sent by Sri Akhilesh Kumar, Additional Civil Judge (Senior Division), Budaun.
28. In the light of the decision in Pallav Seth Vs. Custodian, 2001 (7) SCC 549, whether we take the date when reference was received in the Court or the date when notice was issued, in either way, contempt proceedings initiated by this Court against contemnor is within limitation of one year, taking into consideration continued act of contempt committed by contemnor, which commenced on 23.04.2011, repeated and recommenced on 10.04.2012. Thus, we have no hesitation in holding that contempt proceedings, by no stretch of imagination, can be said to be barred by limitation and it is well within the period of one year, as contemplated in Section 20 of Act, 1971.
29. Question No.(i) is answered accordingly i.e. against the contemnor.
30. Then comes second question whether contemnor is guilty of charge levelled against him. The documents noted above, and the context thereof written by contemnor, are admitted by him. His defence is that these allegations were made by him under the instructions and directions of his client Amar Pal Singh, in discharge of his duties as an advocate and counsel towards said client. Since he has reproduced sentiments and instructions of his client, in discharge of his professional duties, therefore, he is not guilty of contempt, but, at the best, his client may be guilty and proceedings ought have been initiated against him. It is further said that whatever has been written is nothing but a fair and correct statement of proceedings which have taken place, therefore, it does not amount to 'contempt' in view of Section 4 of Act, 1971. Lastly, defence is that since various orders passed by Presiding officer were in utter violation of principles of natural justice, as also various provisions of law, the contemnor was justified in drawing inference otherwise against conduct and integrity of Judicial Officer and that has been reflected in the words and looking to the entire facts and circumstances, it cannot be said that there was any otherwise intention of contemnor in maligning reputation of Presiding Officer of the Court, undermining authority of Court or scandalizing the Court. The contemnor, an advocate is also an officer of the Court. He owe a duty to the Court also.
31. The first shade of defence in respect of question no.(ii) is that, contemnor has simply discharged his duty as an advocate to his client and, therefore, himself is not guilty of any contempt. We find no force in the submission.
32. The defence of contemnor that he owes a duty to his client and has written what his client has instructed cannot absolve him from his own responsibility and duty he owe to the Court. In Lalit Mohan Das Vs. Advocate General Orissa, AIR 1957 SC 250, the Court said that a Member of Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and ask for a review thereof. At the same time, a member of the Bar is an Officer of the Court and owes duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court. He must not do anything to bring the Court itself into disrepute. If a lawyer/member of the Bar overstep the limits of propriety and made imputations of partiality and unfairness etc. against Presiding Officer of the Court, openly, such matter and such conduct of the member of Bar brings into disrepute the whole system of justice i.e. the administration of justice, hence he would be guilty of committing 'criminal contempt' of the Court.
33. Thus, mere fact that applications or letters, as the case may be, submitted before the Court have been signed by him as an advocate would not absolve him from his own responsibility of committing criminal contempt, if, whatever has been said by him in those applications and the contents thereof satisfy the term "criminal contempt" as defined under Section 2(c) of Act, 1971.
34. The term "criminal contempt" has been defined under Section 2(c) of Act, 1971 as under :
"criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;"
(emphasis added)
35. Taking substance of various applications submitted by contemnor before Court below, insinuations and allegations made by him are; (i) the Judicial Officer concerned has conspired with decree holder, has taken bribe, therefore, there is no hope of justice to judgment debtor; (ii) Judicial Officer concerned was so much overwhelmed due to bribe; (iii) Presiding Officer concerned has conceived judiciary as a playground; and (iv) Law and justice is always ignored by Presiding Officer concerned. Allegations ex facie scandalize and lower down authority of the Court.
36. It is tried to suggest that these are the allegations against Judge individual and, therefore, cannot come within the purview of "criminal contempt" under Section 2(c) of Act, 1971 but at the best, may constitute an offence of defamation under Section 499 IPC or Section 228 IPC i.e. intentional insult or interruption to public servant sitting in judicial proceeding and Judicial Officer was free to take appropriate criminal proceedings against contemnor but no contempt would lie. We find no substance in the submission. The allegations are not against individual officer regarding his integrity but in respect to his functioning as a Judicial Officer in the Court and in respect of various orders passed by him. When these allegations are made, public confidence in the impartiality, fairness and independence of institution as a whole is bound to shrink. Hence, it is bound to scandalise and lower down the authority of the Court.
37. A similar argument was considered in State of Madhya Pradesh Vs. Revashankar, AIR 1959 SC 102 and rejected. Similar allegations were made in that case also against a Magistrate. The Court said that aspersions made prima facie show that they were much more than a mere insult to the learned Magistrate. In effect, they scandalised the Court in such a way as to create distrust in the popular mind and impair the confidence of people in Courts.
38. Subsequently again, In Re: Arundhati Roy, AIR 2002 SC 1375, the Court has observed that offence under IPC is different than a contempt of Court. The law of defamation under Penal Code cannot be equated with the law of contempt of court in general terms. The Court referred to a Privy Council's decision in Surender Nath Vs Chief Justice and Judges of the High Court, 10 Cal. 109 wherein it has been observed that "although contempt may include defamation, yet an offence of contempt is something more than mere defamation and is of a different character".
39. The Court further referred to its earlier decision in Bathina Ramakrishna Reddy Vs. State of Madras, 1952 CriLJ 832 holding:
"When the act of defaming a Judge is calculated to obstruct or interfere with the due course of justice or proper administration of law, it would certainly amount to contempt. The offence of contempt is really a wrong done to the public by weakening the authority and influence of Courts of law which exist for their good."
"attacks upon the judges excite in the minds of the people a general dissatisfaction with all judicial determinations... and whenever man's allegiance to the laws is so fundamentally shaken it is the most fatal and dangerous obstruction of justice"
40. Willmot C.J. in Wilmot's Opinion page 256; Rex b. Davies 30 at page 40-41 said :
"..in my opinion claim out for a more rapid and immediate redress than any judges as private individuals but because they are the channels by which the Kings's justice is conveyed to the people."
This passage has been quoted with approval in Re : Arundhati Roy (supra) also.
41. What is made punishable in Indian Penal Code is the offence of defamation as defamation and not as contempt of court. If the defamation of a subordinate court amounts to contempt of Court, proceedings can certainly be taken under Section 2 of Act, 1971, quite apart from the fact that other remedy may be open to the aggrieved officer under Section 499 IPC.
42. The contemnor said that whatever he has said was a correct and fair statement of fact. Here he tried to bring Section 13 of Act, 1971 which has been amended permitting 'truth' as a defence in contempt matter. It reads as under :
"13. Contempts not punishable in certain cases --
Notwithstanding anything contained in any law for the time being in force, --
(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;
(b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoicing the said defence is bonafide". (emphasis added)
43. However, in the present case, contemnor did not make any request before the Court to show that whatever he has said was truth. He did not make any request for adducing any evidence. In his pleadings, he has referred to desire of his client Amar Pal Singh. He has also said, when he visited chamber of Judicial Officer, he was accompanied by two advocates Omkar Singh Yadav and Laxman Prasad. He has further said that on 10.05.2011, President and Secretary of District Bar Association tried to pacify problem between Judicial Officer and him. All or any of them could have been produced to support whatever has been said by contemnor to prove the allegations but nothing has been done. No attempt is made to show that allegations of bribe, conspiracy with decree holder etc. represented true facts. No material has been brought on record and no evidence has been adduced to prove it.
44. Defence of 'truth' is not a shield to protect someone's ex facie acts constituting contempt, who is guilty of levelling serious allegations against Judge in respect of his judicial functioning and has tried to lower down the authority of the Court.
45. The extract of various letters written by contemnor and submitted to Presiding Officer of Court below leave no manner of doubt that the same have the effect of scandalizing and prejudicing not only the Judge but the Court also. It also amount to interfering with the administration of justice.
46. In Rachapudi Subba Rao Vs. Advocate General, Andhra Pradesh, AIR 1981 SC 755, the contemnor Rachapudi Subba Rao served a notice upon Additional Subordinate Judge making various allegations in respect of a judgment given by him. The allegations of bad faith, malice, partiality etc. were made. The proceedings of contempt under Section 12 read with 10 and 15 of Act, 1971 were initiated. The Court held that tone, temper and contents of notice impute malice, partiality and dishonesty to the Subordinate Judge in judicial adjudication, constitute a deliberate attempt to scandalise the judge, to terribly embarrass him, and, to lower the authority of his office and the Court.
47. In Shamsher Singh Bedi Vs. High Court of Punjab and Haryana, 1996 (7) SCC 99, the contemnor Shamsher Singh Bedi, an advocate faced criminal contempt proceedings. One Gurdial Singh was arrested and remanded to judicial custody. A bail application was filed before the Magistrate, which was rejected. Gurdial Singh served a notice upon the Magistrate, which was drafted by advocate Shamsher Singh Bedi. The notice contains certain remarks, scandalous in nature. The Court held that notice having been drafted by advocate, he cannot escape responsibility in his professional capacity. The allegation being scandalous in nature, they tend to pervert the course of justice and likely to interfere wit the proper administration of justice, hence, amount to criminal contempt. The Court also observed that it is not necessary to show that there has been actual interference with administration of justice by such remarks and, it is enough, if it is likely or tends in any way to interfere with the proper administration of law.
48. Insulting a Judge engaged in judicial work or imputing corrupt practices to him in discharge of his official duties is a very grave contempt. It is nothing but scandalising the Court. A Division Bench of Andhra Pradesh High Court in State of Andhra Pradesh Vs. Dr. A.Gopal Menon, 1996(3) ALD 675 said :
"The test for determining whether this kind of contempt has been committed is to find out whether the act in question has a tendency to pollute the fountain of justice and whether it has a tendency to destroy the confidence of common man in the administration of justice."
49. If an impression is made in the minds of public that Judges of the Court act on extraneous considerations in deciding cases, confidence of the litigants, in particular, and, public in general, in the administration of justice is bound to be undermined. No greater mischief than that can possibly be imagined.
50. The allegation of mala fide, bad intention against a Judge in respect to a judicial orders clearly amounts to scandalizing the Court and is a "criminal contempt". Vilificatory criticism of a Judge functioning in the court is nothing but a clear criminal contempt since it not only affects the 'administration of justice' but also lowers the authority and dignity of the Court. It creates a distress in the public mind as to the capacity of Judge to meet out even-handed justice. Reckless and scurrilous attack made against a Judge, imputing oblique motives in discharge of his judicial functions and suggesting unholy acquaintance and constant contacts with one of the litigant to favour him/them for granting relief amounts to criminal contempt.
51. In re : S.Mulgaokar 1978 (3) SCC 339, the Court said that judiciary cannot be immune from criticism, but, when that criticism is based on obvious distortion or gross mis-statement and made in a manner which seems designed to lower respect for judiciary and destroy public confidence, it cannot be ignored. When there appears some scheme and a design to bring about results which must damage confidence in judicial system and demoralize Judges by making malicious attacks, anyone interested in maintaining high standards of fearless, impartial, and unbending justice will feel perturbed.
52. In re: Vinay Chandra Mishra, AIR 1995 SC 2348, the Court observed that normally, no Judge takes action for in facie curiae contempt against lawyer unless he is impelled to do so. It is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the court and to threaten and obstruct the course of justice. It was also observed that making allegations or aspersions on the integrity of Judge is not to be misunderstood as a outspoken fearless attitude of an advocate. Brazenness is not outspokenness and arrogance is not fearlessness. Use of intemperate language is not assertion of right nor is a threat an argument. Humility is not servility and courtesy and politeness are not lack of dignity. Rule of law is the foundation of the democratic society. If judiciary is to perform its duties and its functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. The foundation of judiciary is trust and confidence of people in its ability to deliver fearless and impartial justice. When foundation itself is shaken by acts which tend to create disaffection and disrespect for authority of court by creating distrust in its working, the edifice of the judicial system gets eroded.
53. Of late, we find a deep increase in tendency of advocates in making allegations against Presiding Officers of the Courts and thereafter also try to justify their allegations by filing transfer applications with such allegations. In the context of allegations of bias etc. against Presiding Officers made in transfer applications filed under Section 24 C.P.C. Or 407 Cr.P.C., the Court, time and again has held that apprehension of bias must be shown bona fide and reasonably. It should be substantiated by material placed before the Court. Reminding the duties of advocate, in Smt. Sudha Sharma Vs. Ram Naresh Jaiswal, AIR 1990 MP 320, the Court said that a foremost duty casts upon the counsel concerned while drafting and making allegations against the Judge concerned, is to take utmost care and caution in making wild allegations against the Presiding Judge. The counsel should realise that he is officer of the Court. Introducing fanciful and imaginary allegations for harbouring apprehension that fair and impartial justice would not be done should be avoided. Mere suspicion by party is not sufficient. There must be reasonable apprehension based on material.
54. The justice delivery system knows no caste, religion, creed, colour etc. It is a system following principle of black and white, i.e., truth and false. Whatever is unfair, that is identified and given its due treatment and whatever is good is retained. Whoever suffers injustice is attempted to be given justice and that is called dispensation of justice. The prevailing system of dispensation of justice in Country, presently, has different tiers. At the ground level, the Courts are commonly known as "Subordinate Judiciary" and they form basis of administration of justice. Sometimes it is said that subordinate judiciary forms very backbone of administration of justice. Though there are various other kinds of adjudicatory forums, like, Nyaya Panchayats, Village Courts and then various kinds of Tribunals etc. but firstly they are not considered to be the regular Courts for adjudication of disputes, and, secondly the kind and degree of faith, people have in regular established Courts, is yet to be developed in other forums. In common parlance, the regular Courts, known for appropriate adjudication of disputes basically constitute subordinate judiciary, namely, the District Court; the High Courts and the Apex Court.
55. The hierarchy gives appellate and supervisory powers in various ways. The administrative control of subordinate judiciary has been conferred upon High Court, which is the highest Court at provincial level and is under constitutional obligation to see effective functioning of subordinate Courts by virtue of power conferred by Article 235 read with 227 of the Constitution. No similar power like Article 235, in respect to High Court is exercisable by Apex Court, though it is the highest Court of land. Its judgments are binding on all. Every order and judgment of any Court or Tribunal etc., in the Country, is subject to judicial review by Apex Court. This is the power on judicial side. Thus scheme under the Constitution imposes heavy duty and responsibility upon High Court to ensure due or proper honour of subordinate Court and Judge and to save them from such scurrilous attack.
56. In Ajay Kumar Pandey, Advocate, In Re:, (1998) 7 SCC 248, the Court said that superior Courts, i.e. High Court as also the Apex Court is bound to protect the Judges of subordinate Courts from being subjected to scurrilous and indecent attacks, which scandalise or have the tendency to scandalise, or lower or have the tendency to lower the authority of any court as also all such actions which interfere or tend to interfere with the due course of any judicial proceedings or obstruct or tend to obstruct the administration of justice in any other manner. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the courts to enable them to discharge their judicial functions without fear.
57. If there is a deliberate attempt to scandalize a judicial Officer of subordinate Court, it is bound to shake confidence of litigating public in the system and has to be tackled strictly. The damage is caused not only to the reputation of the concerned Judge, but, also to the fair name of 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 tame a Judge into submission to secure a desired order. The foundation of our system is based on the independence and impartiality of the men having responsibility to impart justice i.e. Judicial Officers. If their confidence, impartiality and reputation is shaken, it is bound to affect the very independence of judiciary. Any person, if allowed to make disparaging and derogatory remarks against a Judicial Officer, with impunity, is bound to result in breaking down the majesty of justice.
58. We cannot ignore the fact that much cherished judicial independence needs protection not only from over zealous executive or power hungry legislature but also from those who constitute, and, are integral part of the system. Here is a case where an Advocate has drafted an application since the litigants do not appear to understand the legal complexity much. The Advocate forgetting the higher status conferred upon him, making him an Officer of the Court, has chosen to malign Judicial Officer of the Subordinate Court.
59. An Advocate's duty is as important as that of a Judge. He has a large responsibility towards society. He is expected to act with utmost sincerity and respect. In all professional functions, an Advocate should be diligent and his conduct should also be diligent. He should conform to the requirements of law. He plays a vital role in preservation of society and justice system. He is under an obligation to uphold the rule of law. He must ensure that the public justice system is enabled to function at its full potential. He, who practices law, is not merely a lawyer, but acts as moral agent. This character, he cannot shake off, by any other character on any professional character. He derives from the belief that he shares sentiment of all mankind. This influence of his morality is one of his possession, which, like all his possession, he is bound to use for moral ends. Members of the Bar, like Judges, are the officers of the Court. Advocacy is a respectable noble profession on the principles. An Advocate owes duty not only to his client, but to the Court, to the society and, not the least, to his profession.
60. We do not intend to lay down any code of conduct for the class of the peoples known as "Advocates", but certainly we have no hesitation in observing that no Advocate has any business to condemn a Judge merely on the basis of his caste, creed or religion or for any other similar trait or attribute. If there is something lacking on the part of a Judicial Officer touching his integrity, Advocates, being Officers of the Court, may not remain a silent spectator, but should come forward, raising their voice in appropriate manner before the proper authority, but there cannot be a licence to any member of Bar to raise his finger over the competency and integrity etc. of a Judicial Officer, casually or negligently, or on other irrelevant grounds. Here the competence and capacity of the concerned Judicial Officer has been attempted to be maligned commenting upon his integrity and honesty. It deserves to be condemned in the strongest words. No one can justify it in any manner. Thinking of intrusion of such thought itself sounds alert. It is a siren of something which is not only very serious, but imminent. It is a concept or an idea which should not have cropped up in anybody's mind, connected with the system of justice, and if has cropped up, deserves to be nipped at earliest, else, it may spreads its tentacles to cover others and that would be a dooms day for the very institution.
61. This Court also made similar observations in Smt. Munni Devi and others Vs. State of U.P. and others, 2013(2) AWC 1546 and in para 10, said:
"10. Be that as it may, so far as the present case is concerned, suffice is to mention that the Constitution makers have imposed constitutional obligation upon the High Court to exercise control over subordinate judiciary. This control is both ways. No aberration shall be allowed to enter the Subordinate Judiciary so that its purity is maintained. Simultaneously Subordinate Judiciary can not be allowed to be attacked or threatened to work under outside pressure of anyone, whether individual or a group, so as to form a threat to objective and independent functioning of Subordinate Judiciary."
62. Criticism of an order of a Court cannot be equated with making scurrilous attack on the conduct and integrity of the Judicial Officer/Presiding Officer of the Court. In the present case, an open allegation of bribe has been levelled against concerned Judicial Officer.
63. Wild imaginary allegations against conduct of Judicial Officer without having any material to substantiate the same cannot be tolerated, inasmuch as, it not only brings into disrepute the entire justice system but is likely to cause serious erosion in the confidence of public in case such tendency is not snuffed at the earliest. The Judicial Officer/Judges had no platform to stand and clarify the circumstances in which the order has been passed by them. They had no platform to defend themselves. The strength of judiciary comes from the strong public opinion which it has in the system. If unsubstantiated flimsy imaginary fanciful allegations made by a party, who did not find its order in its favour, it will demolish the very foundation of the system of justice. Every order passed by the Court will be in favour of one of the party and against another. The loosing party cannot be allowed to challenge the very integrity of Judicial Officer in passing an order and that too without any material to support such a allegation. If we allow such a trend to remain unnoticed, or condone the same without any appropriate action, it will not only encourage such tendency amongst other and but also resultant situation may result in a serious blow to the system of administration of justice, which is one of the founding pillar of constitutional scheme and has to be protected by all legal and reasonable means.
64. We may put on record that we called upon the contemnor to place on record any material and evidence to substantiate his allegations of bribe etc. levelled against the Judicial Officer concerned and we told him that in case the same can be proved, this Court would take all steps permissible in law to weed out such a Judicial Officer from the cadre of Judicial Officer of subordinate Courts but he failed and did not make any attempt to do so. Therefore, attempt of the contemnor to shield himself with reference to Sections 3 to 7 of Act, 1971 is misconceived. Those provisions have no applicability in this case.
65. The facts discussed above, clearly show that having lost in earlier litigation, the judgment debtor was seriously indulged in attempting to delay and defer execution of judgment. In this process, even different counsels were engaged by the judgment debtor. The attempt to seek adjournment on 16.4.2011 failed when Presiding Officer passed order for execution of decree. It is admitted case that there was no obstruction or stay order by any superior court preventing execution court to proceed for execution. The grievance of judgment debtor was that his request for adjournment was ignored. In such zeal and having failed to get the things deferred, as planned or thought of by the judgment debtor, the contemnor helped him as a tool in hand by making scurrilous accusations and allegations against Judicial Officer, going to the extent of not only scandalizing the Presiding Officer of the Court and the Court itself but also to lower down the dignity of the Court. The persistence on the part of contemnor, is evident from repeated letters sent by him. It clearly shows adamant and persistent attitude on his part to challenge Judicial Officer in daring to pass an order rejecting request for adjournment. He virtually attempted to challenge the Judicial Officer as to how he could dare to pass order of execution when an adjournment was prayed by him.
66. The suggestion that advocates were on strike does not provide any justification for making such allegations, inasmuch as, repeatedly, Apex Court as well as this Court have held that a call of strike by advocates except of a rare occasion, is per se illegal. A call, which has the effect of paralysing judicial function ex facie, in our view, amounts to a direct interference in the administration of justice and is a 'criminal contempt' under Section 2(c) of the Act, 1971.
67. Thus, we have no hesitation in holding that the act of contemnor in making serious scurrilous allegations against conduct and integrity of Presiding Officer of Court below and its reputation, by submitting various letters/applications clearly show a well concerted plan and predetermined attempt on his part to scandalize the Court, lowering down its dignity. The contemnor therefore, is guilty of committing gross criminal contempt. The charge held proved against the contemnor.
68. The question no.(ii) is answered accordingly.
69. Now, we come to the question about punishment. Certain family circumstances have been explained to request for dropping the proceedings. During the course of argument, we are informed that daughter of contemnor is to marry in the last week of May, 2015. There is an old mother at the residence and nobody is there to look after her.
70. The facts, no doubt, at the first flush, attract a bit sympathy and considerate approach against imposing a severe punishment upon the contemnor but we cannot be oblivious of the fact that here is a person who has repeatedly tried to disrepute a Judicial Officer, who was virtually at the start of his career working as Civil Judge (Junior Division), the first step in the subordinate judiciary. If such a person (contemnor) is not dealt with strictly, wrong massage will go not only by demoralising the young and new Judicial Officers, working in the initial cadre of judiciary but may also give a wrong massage to the Bar/litigants, that to whatever extent they may criticise, abuse or make serious aspersion against Judicial Officer(s), still they may escape severe punishment in the hands of the Court. We have to handle the situation carefully, balancing both the aspects, but, simultaneously with iron hands so as to give a tough massage to all and to avoid recurrence of such incidents.
71. We are also taking judicial cognizance of the fact that in State of Uttar Pradesh, disturbance at the level of advocates in various ways have become a regular feature. Most of Districts Judgeships suffer in discharge of judicial duties on account of frequent abstention by advocates from judicial work. On one hand, burden of litigation is increasing with increase of population, increase of legislations, executive failure/inaction etc. and consequential increase of multifarious complications and problem but simultaneously on the other hand, due to attitude of advocates, a large number of working days are being lost. The effective judicial work for a large number of days suffer due to abstention of advocates for one or the other reasons. In the entire Western U.P., for the last almost three decades and more, advocates are paralysing judicial work on every Saturday. Meaning thereby, in those almost two dozens districts, every year, almost 50 days and more, judicial work suffers due to abstention of advocates from courts.
72. Besides, there are several other reasons. When this is not sufficient, they find other tactics adopted to create an undue pressure upon Presiding Officer for having judicial orders in a particular manner and when failed, reckless allegations are made. The officers of subordinate judiciary are already working in extremely tough conditions. Unlike other counter parts working in some other States having very good conditions, in State of U.P., situation is totally different. The Court rooms and chambers, in most of the cases, are in shambles. Though, this Court, on administrative side is not lacking or turning a stone for betterment of subordinate judiciary, but, apathy of executive is a big hurdle. Still, Judicial Officers of subordinate Courts have never complained for poor infrastructure and working conditions. They are devotedly performing their functions without any word of protest. However, when there is an attempt to mark their reputation in the hands of scrupulous persons, it is constitutional responsibility of the Court to come forward and protect them.
73. We have reminded ourselves of all the observations made time and again that Judge should live and work like a saint/sage and always show benevolence and magnanimity. We are of the view that it should not go to the extent of representing to others lack of strength, confidence and capacity to uphold majesty of justice. A time has come where degree of public confidence and faith in the system has started eroding and lest it not be too late. We have to handle the situation so as to put the things right on all corners.
74. Having given our anxious consideration, we find that contemnor deserves a bit severe punishment. We sentence him for simple imprisonment for one month and also impose fine of Rs.1,000/-. In case of non-payment of fine, he shall undergo 15 days' further simple imprisonment.
75. We also direct that contemnor shall not be entitled to enter the premises of Budaun Judgeship for a period of three months, which will commence from 19th May, 2015. The conduct and attitude of contemnor while working as member of the Bar in Budaun Judgeship, after expiry of period of punishment as also restrain order of entering Court premises, shall remain under the constant watch of District Judge, Budaun for a period of two years and if he finds any untoward activity on the part of contemnor, he shall report to this Court forthwith.
76. The execution of sentence of one month simple imprisonment however, shall remain suspended for a period of two months, during which period the contemnor is entitled to avail statutory remedy of appeal. In case no appeal is filed, and, if filed, and no otherwise order is passed, the contemnor shall surrender himself before Chief Judicial Magistrate, Budaun, who shall take steps for serving the sentence by contemnor.
77. With the aforesaid punishment order and direction, the contempt application is disposed of.
Order Date :- 12.5.2015 KA