HIGH COURT OF JUDICATURE AT ALLAHABAD (AFR) RESERVED ON 20.07.2015 DELIVERED ON 24.09.2015 Court No. - 34 Case :- CONTEMPT APPLICATION (CRIMINAL) No. - 13 of 2015 Applicant :- In Re : Opposite Party :- Ajai Kumar Bhardwaj (Advocate) Counsel for Applicant :- A.G.A., Sudhir Mehrotra Counsel for Opposite Party :- A.B.L. Gaur, Hari Om Khare, P.K. Singh, Vishal Agarwal Hon'ble Sudhir Agarwal,J.
Hon'ble Mrs. Ranjana Pandya,J.
(Delivered by Hon. Sudhir Agarwal, J.)
1. This criminal contempt application has been registered pursuant to a reference dated 27.09.2014 made by Shri Om Veer Singh, Additional Chief Judicial Magistrate, Hathras (hereinafterto referred as ACJM) which has been forwarded by District Judge, Hathras vide endorsement dated 29.09.2014.
2. The said ACJM is posted in the District Judgeship of Hathras since 21.12.2013. Prior to this he was posted as Civil Judge (J.D.) in Hathras since 18.04.2013. Several instances have been given by ACJM showing that Ajai Kumar Bhardwaj, Advocate (hereinafterto referred as 'Contemner') was in the habit of making false complaints against the conduct and character of Judicial Officers as also Court Staff in one or the other way. He (the Contemner) submitting a letter dated 18th of September, 2014 on the letterhead of District Bar Association, Civil Court, Hathras stating as under:-
^^1- mDr lh0ts0,e0 }kjk vk;s fnu izkFkhZ dks FkzsfVax o rjg rjg ls Mjk;k /kedk;k tk jgk gS vkSj dgk tk jgk gS fd rwus viuh f'kdk;rsa okfil ugha yh rks fdlh u fdlh Fkkus ls rq>s >wBk QWlok nwWaxk ;k vius ckWMhxkMksZ ls ;k vius Fkkus ds ljfQjs iqfyl okyksa ls ,udkmUVj djok nwWaxkA 2- mijksDr lh0ts0,e0 ls izkFkhZ dks tku eky dk iwjk [krjk cuk gqvk gS vkSj mDr lh0ts0,e0 Jh eujkt flag vius v/khuLFk Jh vkseohj flag ,0lh0ts0,e0 o flfoy tt o0iz0 Jherh fp=k 'kekZ ds ek/;e ls vekuoh; d`R; djkrs gq;s izkFkhZ dh gR;k Hkh djk ldrs gS ;fn izkFkhZ dh gR;k gks tkrh gS rks bu rhuksa dks gh ftEesnkj le>k tkosA 3- vr% Jheku~ th ls izkFkZuk gS fd esjs }kjk dh x;h f'kdk;rksa ij ;fn 'kh?kz vfr'kh?kz dk;Zokgh vey esa ugha yk;h x;h rks izkFkhZ etcwju dzfed vu'ku] vu'ku o vkej.k vu'ku djus dks etcwj gksxkA** " 1. The applicant is being threatened and intimidated every now and then in several ways by the aforesaid C.J.M. by way of holding out a warning that if he did not withdraw his complaints, he would be falsely implicated by any police station or be killed by orchestrating an encounter through his bodyguards or demented policemen.
2. The applicant is under persistent life threats and the said learned C.J.M. Sri Manraj Singh may orchestrate even his murder by occasioning the commission of inhuman activities through his subordinates Sri Omvir Singh, ACJM and Smt Chitra Sharma, Civil Judge ( Senior Division). If he is murdered, the threesome of them may be held responsible.
3. Sir, it is, therefore, requested that if earliest action is not taken over the complaints, the applicant will be forced to undertake successive fasts and fast unto death."
(English translation by Court)
3. The ACJM has said that the aforesaid allegations and scurrilous statements made against the Judicial Officers of Court amount to "criminal contempt".
4. As per the Rules, the matter was examined by a Committee consisting of two Hon'ble Judges and taking the view that various documents contain allegations which prima facie constitute "criminal contempt", made recommendation dt. 23.02.2015 for placing the matter before the Court having determination of Criminal Contempt. The aforesaid recommendation was approved by Hon'ble the Chief Justice on 17th of March, 2015.
5. The matter came up before Division Bench and on 8th of April, 2015, after being satisfied that there is a prima facie case of "Criminal Contempt" on the part of Contemner, the Court issued notice to show cause, why the Contemner be not tried for committing 'criminal contempt' after framing charge.
6. The Contemner appeared and filed affidavit sworn on 11th May, 2015 stating that the letters etc. which he has sent, were in his capacity as 'Secretary of Bar Association' and he was simply conveying the resolution passed by Association, therefore, is not himself guilty of committing any contempt. In brief, the contents of his affidavit are that he is a practising Advocate, elected Secretary of Bar Association and held the said office up to 6th of April, 2015. There were general complainants by the members of Bar Association that ACJM and two other Judicial Officer including one lady Judicial Officer, Hathras were favouring certain lawyers of a particular community and passing different orders in similar cases. In the meeting dated 20th June, 2014 the Bar Association passed a resolution making serious aspersions against ACJM and other Judicial Officers. The resolution contains allegations as we have already quoted above from the reference letter.
7. The aforesaid resolution further says that contemner being Secretary of Bar Association is authorized to get the aforesaid resolution typed out and send to higher authorities and in case, the said resolution is not conveyed to higher authorities, he himself shall be debarred from the Association.
8. Another letter dated 18th of September, 2014 was addressed to the District and Sessions Judge, Hathras in which reference was made to the complaint letters dated 21.08.2014 made against Shri Manraj Singh, CJM, Hathras, 06.09.2014 made against Shri Om Veer Singh, Additional CJM and 11.09.2014 made against Smt. Chitra Sharma, Civil Judge (Senior Division) stating that no action has been taken on the said complaints and on the contrary, CJM, Hathras has got three Security Guards misusing his powers. It further says that CJM was so much annoyed that he has managed through his subordinate judges harassment to the Contemner and has allotted resourceful police station to his favourite Additional Chief Judicial Magistrate Om Veer Singh who enjoyed police station Hathras Gate. CJM is continuously threatening the Contemner asking to withdraw the complaints else he would be implicated in a false case or would be encountered through his body-guards or police personnels.
9. The Contemner had expressed his apprehension of murder by the CJM, ACJM and Civil Judge (Senior Division) namely Shri Manraj Singh, Om Veer Singh and Smt. Chitra Sharma and said that in case, he is murdered, the three officers should be held responsible. He lastly said that, in case, no further action is taken Contemner would be compelled to proceed on hunger strike. One more similar complaint letter dated 22.10.2014 has been made addressed to Hon'ble the Chief Justice, Allahabad High Court. It is said that these complaints were made by Contemner on being asked by the members of Bar Association. When these facts came to the notice of ACJM, he has referred it making a case of 'criminal contempt'.
10. Relying on Section 6 of the Contempt of Court Act, 1971 (hereinafterto referred as "Act, 1971"), it is said that complaint made against officers of Subordinate Court would not amount to criminal contempt. Taking notice of the complaint made by the Contemner, this Court through Registrar (Confidential) sent a letter dated 19th of December, 2014 asking him to submit a duly sworn affidavit along his photograph and materials in support of the allegations made in the complaints. Pursuant thereto the Contemner has sent an affidavit dated 16.01.2015 to this Court. Since the complaints have been made by Contemner before notice was issued, completing all the formalities, the law is that contempt proceedings should not be continued against him and in this regard he also relied upon Section 13 of the Act, 1971. It is also contended that the Contemner was pressurized not to file or lodge any complaint against ACJM and other Judicial Officers but he did not yield to pressure as he felt duty bound being Secretary of District Bar Association. In the past also, the Contemner made a complaint against Sri Mridanshu Kumar, Additional Civil Judge, Court No. 3, Hathras but when the complaint was pending the said officer was transferred from Hathras, hence the Contemner did not pursue the matter further. Lastly, in an usual way it is said that the Contemner has highest regard and respect to the authority of Court and tenders unconditional apology.
11. This Court vide order dt. 18.05.2015 did not find itself satisfied with the explanation and finding a prima facie case of 'criminal contempt' on the part of Contemner proceeded further and charged him as under:-
"That you Ajay Kumar Bhardwaj, Advocate, in our complaint dated 18.09.2014 leveled false allegations against Additional Chief Judicial Magistrate, Hathras. The words used in letter dated 18.09.2014 are quoted herein below:
^^1- mDr lh0ts0,e0 }kjk vk;s fnu izkFkhZ dks FkzsfVax o rjg rjg ls Mjk;k /kedk;k tk jgk gS vkSj dgk tk jgk gS fd rwus viuh f'kdk;rs okfil ugha yh rks fdlh u fdlh Fkkus ls rw>s >wBk Qlok nwaxk ;k vius ckMhxkMksZa ls ;k vius Fkkus ls ljfQjs iqfyl okyksa ls ,udkmUVj djok nwxkA 2- mijksDr lh0ts0,e0 ls izkFkhZ dks tku eky dk iwjk [krjk cuk gqvk gS vkSj mDr lh0ts0,e0 Jh eujkt flag vius v/khuLFk Jh vkseohj flag ,0lh0ts0,e0 o flfoy tt o0iz0 Jherh fp=k 'kekZ ds ek/;e ls vekuoh; d`R; djkrs gq, izkFkhZ dh gR;k Hkh djk ldrs gSaA ;fn izkFkhZ dh gR;k gks tkrh gS rks bu rhuksa dks gh ftEesnkj le>k tkosA** In doing so you have utilized letter head of District Bar Association, Hathras without there being any authorization of the Bar. Thus by words written you have threatened the Court as also scandalized the Court. Thus you have committed criminal contempt defined under Section 2(c) of Contempt of Courts Act, 1971 punishable under Section 12 of the Act."
"1. The applicant is under persistent life threats and the said learned C.J.M. Sri Manraj Singh may orchestrate even his murder by occasioning the commission of inhuman activities through his subordinates Sri Omvir Singh, ACJM and Smt Chitra Sharma, Civil Judge ( Senior Division). If he is murdered, the threesome of them may be held responsible.
2. Sir, it is, therefore, requested that if earliest action is not taken over the complaints, the applicant will be forced to undertake successive fasts and fast unto death."
(English translation by Court)
12. The contemner was given opportunity to submit reply to the aforesaid charge. Reply has been submitted vide counter affidavit sworn on 19.06.2015. The basic contents in reply are the same as the Contemner has stated in his earlier affidavit. We find it appropriate to reproduce the defence taken by the Contemner in his own words as stated in paragraphs - 5, 6, 7, 8 and 9A to 9-P:-
"5. That the deponent/opp.party is practising advocate of District Court, Hathras and he is selected Secretary of District Bar Association and held that said office up to the 6th April, 2015 and thereafter a fresh election of Bar Association of District Hathras has been taken place.
6. That being the Secretary of District Bar Association, Hathras, it is the duty of the deponent to do his best efforts to protect the dignity of Bar and Bench as well as it is the pious duty to do the best efforts to protect the dignity and reputation of judiciary in the area as well as it is the pious duty of the deponent being secretary of the Bar Association to protect the constitutional right regarding the judicial system in India so that Hon'our of Judicial authorities as well as the courts be protected and the deponent has always tried to his best efforts.
7. That Sri Manraj Singh C.J.M. Hathras, Sri Om Veer Singh A.C.J.M. Hathras as well as Chitra Sharma Civil Judge (Senior Division) Hathras were doing irregular conduct as they are doing such activities as they are not sitting in proper dress which are required and mandatory for performing the duties of Presiding Officer regarding which there was complaint by the litigant as well as by the counsels of the District Court and on account of such activities of aforesaid Judicial Officers are degrading the dignity of judiciary; subsequently a Meeting of Common House of District Bar Association was held on 20.6.2014 in which a resolution was passed by the Bar Association and the same was sent to the higher authorities of Central as well as State Govt with regard to giving information in respect of the conduct of the aforesaid Judicial Officers by the deponent being the Secretary and from bare perusal of the aforesaid resolution no criminal contempt is made out against the deponent and it is also submitted that the deponent has not done any act in the Court or before the Judicial Authorities and the deponent has only sent the copy of the said resolution to the concerned judicial authorities as pious duty so that the dignity of judiciary should be maintained.
8. That after passing the resolution and after waiting for response, to change their activities, but they have not paid any heed; subsequently being pious duty, the deponent thereafter has sent an application by redressing his grievance as well as the redressal of advocates/members of the Bar Association of District Bar Association Hathras to the concerned higher judicial authorities on 21.08.2014. On account of dispatching the application dated 21.8.2014, the aforesaid Judicial Officer i.e. C.J.M., A.C.J.M and Civil Judge (SD.) respectively, became annoyed to the deponent; subsequently they after thought malafidely by making false and bogus allegation against the deponent, started threatening and harassing the deponent by several means; subsequently the deponent has called the general meeting of District Bar Association on 15.9.2014 and stated his grievance before the General House of Bar Association subsequently unanimously by the Member of Bar Association Hathras passed another resolution dated 15.9.2014 and sent the information regarding the grievance to the concerned higher authorities for which the deponent was authorized by the member of the Bar to refer the same; subsequently being Secretary of Bar Association the deponent has sent the copy of the aforesaid resolution dated 18.9.2014 along with other relevant paper to the concerned higher authorities as such no case for any criminal contempt is made out against the applicant/deponent which also clear from perusal of section 2C, 6 and 13 of Contempt of Court Act 1971 and as such the aforesaid criminal contempt application being beyond the scope and ambit of said section, legally liable to be dismissed being not maintainable and is liable to be treated infructuous. For kind perusal of this Hon'ble Court, the copy of resolution dated 15.9.2014 is attached to the reply as ANNEXURE NO - 1.
9B. That the application in question the deponent has stated his grievance as well as grievance of member of Bar with purpose to protect the right and dignity of the members of Bar Association.
9C. That the deponent has been falsely involved in the aforesaid Criminal Contempt proceedings while no criminal contempt is made out against the deponent/applicant which is clear from section 2C, 6 and 13 of the Contempt of Court Act 1971.
9D. That the deponent has not stated any averments before the court or any judicial authorities while they are performing their duties as such no case of any criminal contempt is made out against the applicant/deponent.
9E. That the action of C.J.M., A.C.J.M and Civil Judge (S.D.) are against their pious duties as no law protect to them to threat the Advocate or the deponent or any other Advocates under this unauthorized power exceeding jurisdiction and the concerned judicial authorities has acted beyond and scope of judicial system against the provision of law and as such no case is made out against the deponent under the Criminal Contempt Court Act.
9F. That the concerned judicial authorities are performing irregular conduct as they are not presenting in proper dress in the court which is mandatory for performing the duties as Presiding Officer; subsequently the dignity of Judicial system has been disturbed by the aforesaid judicial officer and as such the action of Judicial Officer are highly illegal, arbitrary and violative to their pious duty and same is against the dignity of judicial system and as such regarding the aforesaid conduct it is pious duty of the deponent to informed the higher authorities to sent the information regarding the aforesaid activities of the aforesaid judicial authorities so that dignity of judicial system be protected.
9G. That it is also pertinent to mention here that if the aforesaid contempt application will not be dismissed by considering the facts and circumstances of the case then there will be adverse effect on the judicial system in future, as in future most of the Judicial Officer will not be seated in proper dress in the court, no one will be there to made objection regarding the same; Subsequently a great problem will created to protect the dignity of judicial system and as such the aforesaid contempt application is legally liable to be dismissed in the interest of justice.
9H. That by perusing the contents of the resolution and the application referred to the concerned authorities no criminal contempt is made out against the deponent as the deponent has only sent their grievance to the higher authorities of judicial system as the said application and resolution does not come with in the purview of criminal contempt at all.
9I. That the deponent has not scandalized the court and the deponent has not done any act which lower down its authorities and the deponent has not done any scurrilous or serious activities and the deponent/applicant has only sent the information regarding their grievance to the concerned higher authorities and copies thereof has already been filed by way of counter affidavit and supplementary counter affidavit and by perusing the same no criminal contempt is made out against the deponent.
9J. That the deponent has not obstructing the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language against the aforesaid judicial authorities and as such no criminal complaint is made out against the deponent.
9K. That the deponent has not done any offence as the charge levelled against the deponent and subsequently on the basis of alleged charges the deponent has been debarred as per charge no. 7, 8 and 9 while no case is made out against the deponent as such by perusing the contents of preceding para of the instant reply the deponent may kindly be discharge from the charges made against him by this Hon'ble Court.
9L. That the deponent has never stated any ill averments against the aforesaid judicial authorities nor he has given any sort of threat to any judicial authorities nor the deponent has distributed any pump late regarding such complaint in court premises or any Advocate or any clients and there is no material evidence is against the deponent, thus no criminal contempt is made out against the applicant/deponent.
9M. That by perusing the contents of instant reply it is necessary in the interest of justice that the deponent may kindly be discharge from the charges levelled against him and dismissed the impugned proceedings of criminal contempt to protect the right of the deponent with intention to maintain the dignity of judicial system.
9N. That despite all above facts at any stage if this Hon'ble Court feels that if the deponent made any disobedience, or disregard of this Hon'ble Court, intentionally or deliberately the deponent begs unconditional apology for the same.
9(O). That it is relevant to mention here that against the said charges, the S.L.P. is filed and pending for consideration before Hon'ble Apex Court.
9P. That from bare perusal of the instant reply it is crystal clear that neither the deponent made any taunting to the court nor used any unconstitutional word to the judicial authorities nor insulted the court in any manner nor reumerised or scandalized any thing in court premises but it is judicial authorities who proceeded in the matter to demoralized the BAR by hook and crook with out any material present on record while in all episode the deponent has done any such activities as alleged against him but being representative of BAR he represented his grievance being authorized representative of bar to put the matter regarding the conduct of aforesaid judicial authorities before the Higher Judicial authorities of the State as well as Centre, thus from any corner no case of any criminal proceedings is made out against the applicant/deponent."
13. It is further said that on 03.09.2014 Contemner sent complaint against ACJM Om Veer Singh to the Registrar, Vigilance Bureau (Admn.), High Court, Allahabad, which is still pending and an affidavit filed by him in support thereof, is on record as Annexure CA -7.
14. We have heard Shri Sudhir Mehrotra,learned Special Counsel nominated by this Court to assist in this matter and Shri Hari Om Khare, Advocate, who has appeared on behalf of the contemner.
15. Sri Mehrotra submitted that reckless and scurrilous allegations have been made by Contemner against judicial officer of the Court below, which is a serious matter and constitutes 'criminal contempt' having effect of lowering down authority of Court, therefore, Contemner must be punished severely.
16. Per contra, Sri Khare, learned counsel appearing for Contemner submitted that on the complaint made by Contemner, a vigilance inquiry has been initiated against the ACJM, which is pending. No 'criminal contempt' is made out and the ingredients of 'criminal contempt' under Section 2(c) are not satisfied. He also placed reliance on Sections 4, 5, 6 and 13 of the Act, 1971. He reiterated that 'Contemner' only discharged his duties as an office-bearer of Bar Association and conveyed decisions of members of Association, hence he alone cannot be held responsible and he was only a medium to communicate sentiments, decisions and resolutions taken in the collective meeting of Bare Association. Sri Khare further submitted that Contemner cannot be punished for committing contempt of Court as he has not committed any contempt to Court concerned and also in view of the fact that he is tendering unconditional/unqualified apology before this Court, if Court finds that he has committed any contempt. In support of his contention Sri Khare, learned counsel for contemner has placed reliance on the Apex Court's decision in Afzal v. State of Haryana: AIR 1996 SC 2326 and a Constitution Bench judgment in Bharad Kant Mishra Vs. Registrar of Orissa High Court, AIR 1974 SC 710.
17. We have considered the entire arguments and also perused the record.
18. The Contemner has admitted that he sent letter dated 21st of August, 2014 as is evident from para - 8 of the counter affidavit. Now, his explanation is that the said letter sent by him in the capacity of Secretary of Association for redressal of his grievance as well as the grievance of advocates/members of the Bar Association. We have already quoted the extract of letter dated 21st of August, 1984 and we do not find that it can be said to have been sent by the Contemner in his capacity as Secretary of the Association except that the letter was written on the letterhead of Association.
19. First of all, we place on record that on being enquired from Special OSD (Vigilance) we are informed that no vigilance inquiry is pending against Sri Om Veer, ACJM, Hathras. So far as the allegations levelled against judicial officer are concerned, apparently it cannot be doubted that same constitute criminal contempt as defined in Section 2 (c) subject to what Sri Khare has argued with reference to various provisions of Act, 1971, which we propose to examine hereat also.
20. Shri Khare sought to defend the conduct of contemner in making aforesaid allegations by referring to Sections 4, 5, 6 and 13 of Act, 1971. We proceed to examine the defence taken by the counsel for contemner referring to the aforesaid provisions.
21. Section 4 reads as under:-
4. Fair and accurate report of judicial proceeding not contempt.― "Subject to the provisions contained in Section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof."
22. A perusal of the above provision shows that it only reiterates well settled exposition in law that a fair and accurate report of judicial proceeding is not contempt. We can quote the observations of Lord Campbell CJ in Dairson Vs. Duncan (1857) 26 L.J.Q.B. 104 where His Lordship has said, "A fair statement of what takes place in a Court of Justice is privileged and it is a most beneficial law that it should be so, as the public have a great interest in knowing what occurs there and the inconveniences which can arise from such a publication are infinitesimally small in comparison with the benefits which result from it."
23. Again, Lord Atkin in Ambard Vs. Attorney General of Trinidad, 1936 AC 322, said, "No wrong is done by any member of the public who exercises the ordinary right of criticising in good faith, in public or private, the public act done in a seat of justice. The path of criticism is a public way, the wrong headed or permitted to err therein;
Provided that the members of the public abstain from imputing improper motives to those taking part in the administration of justice............ . One has also to take care that he is genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out-spoken comments of ordinary men."
24. Section 4 of Act, 1971 only protects a fair and accurate report of judicial proceeding or any stage thereof and not the allegations and aspersions caused against Presiding Officer of the Court. The term 'judicial proceedings' also came up for consideration in Subhash Chand Vs. S.M. Aggrawal, 1984 Cr.LJ 481 before the Punjab and Haryana High Court and it was held that the "judicial proceedings" mean day to day proceedings of the Court including proceedings in appeal. The judicial proceedings would not include within its ambit the Presiding Officer and the Court itself. What actually in our view is contemplated in Section 4 is that in respect to the judicial proceedings in a Court, any person is free to make a fair and accurate report and publish it. It should be the report in respect to the proceedings and not to the conduct of Presiding Officer. When a judgment is given or some interim order is passed or transcribed in the Court during the course of hearing can be a part of such publication provided it is fair and accurate report.
25. In a Rajasthan matter in Meghraj Taword Vs. Karpoor Chandra Kulish, 1987 (1) Raj LR 204 the Court said that a news item regarding any decision or proceeding of the Court when published it should be kept in mind that contentions of both the parties should be fairly described to give balanced view points of each of the parties as placed before the Court by them in their petitions and the replies; arguments advanced by learned counsel appearing for both the parties should also be properly described so that reader is in a position to understand the view points placed before the Court by both the counsels; and the facts and material on which the Court basis its decision in the matter should also be described in the news item so that the readers are in a position to understand why the Court took a particular view while deciding the matter. Section 4, therefore, has no application in the case in hand and reliance placed thereon is totally misplaced and misconceived.
26. No person gets a licence to criticise, condemn and make allegations and aspersions upon the conduct, character and function of Presiding Officer of Court as such an attempt made is not protected under Section 4 of Act, 1971 and reliance placed thereon by learned counsel for contemner is apparently unsustainable, hence rejected.
27. Then, we come to Section 5 of the Act, 1971. It reads as under:-
5. Fair criticism of judicial act not contempt.― "A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided."
28. In respect to a case which has been heard and finally decided by the Court, if any person makes any fair comment on the merits of such case it shall not amount to contempt. This is the precise intent of Section 5. A judgment once delivered becomes a public document. If on the merits of such judgment a reader thereof makes his comments fairly and in a bonafide manner that would not constitute contempt but such a comment would have to be confined to the merit of such case and not to the conduct of an authority of the Court. It is also to be seen that fair comments on the merits of the case must be based on facts and honest.
29. In Perspective Publications Private Limited Vs. State of Maharashtra, AIR 1971 SC 221 and C.K. Daphtary Vs. O.P. Gupta, 1971 (1) SCC 626 the Court held that attributed impropriety or lack of integrity to the Presiding Officer of the Court would exceed the bounds of fair criticism and shall not be protected by Section 5 of Act,1971. This Court in Manik Chand Gupta Vs. Virendra Kumar, 1979 Cr.LJ 412 held that the allegations of partiality levelled on the Presiding Officer of the Court would not be protected by Section 5 of Act, 1971. In Ashwani Kumar Ghose Vs. Arvinda Bose, AIR 1953 SC 75 it was held that the allegations of extraneous consideration levelled upon the Presiding Officer of the Court in rendering a judgment would be beyond the permissible limit of Section 5 of the Act, 1971 and shall not be protected by the said provision.
30. In the present case, we do not find as to how Section 5 is attracted and reliance thereon on the part of Contemner shows a total misconception and misunderstanding of legal provision on his part.
31. Section 6 has been very heavily relied by Shri Khare to protect the Contemner from the aforesaid charge. It reads as under:-
6. Complaint against presiding officers of subordinate Courts when not contempt.― "A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court to―
(a) any other subordinate court, or
(b) the High Court, to which it is subordinate."
Explanation.― In this section subordinate court means any court subordinate to a High Court.
32. It is contended that the Judicial Officer was not honest and working in a very indiscreet manner. A true complaint was made against his conduct by Contemner, hence, it would not amount to contempt and Contemner is protected by Section 6 of Act, 1971. It is pointed out that on the complaint made by Contemner, this Court on administrative side has initiated vigilance inquiry which is pending. These aspects require serious consideration.
33. In State Vs. Brahma Prakash, AIR 1950 Alld. 556 this Court said that no Judge is immune from criticism but the criticism must take form of reasonable argument or ex- postulation. It must be made in good faith. It must be free from imputation of improper motives. Criticism of a judicial act which cannot reasonably be said to be within the limits will be contempt. In Rex Vs. B.S. Nayyar, AIR 1950 Alld. 549 this Court said that the complaints must be genuine, made in a proper manner with the object of obtaining redress and not made malafide, with a view to exert pressure upon the Court in exercise of its judicial function or to diminish authority of the Court by vilifying it. It should not be in furtherance of justice to stifle them by means of summary action for contempt.
34. The essential requisite for invoking Section 6 is good faith. We have no manner of doubt, if a judge of subordinate Court is taking bribe (s), is impartial or is otherwise influencing judicial proceedings in an improper way, information may be given to the superior authorities on administrative side. However, if the allegations are made in respect to the judicial duty, that the same are dishonest and corrupt, one will have to face contempt unless it can be shown that the allegations are correct and made bonafide. Anybody if makes a reflection on the dealing of Court in judicial matters, it is bound to shake confidence of general public in the seat of justice. No Judge or Magistrate is immune if he takes recourse to corrupt practice and sells justice for his own benefit. But, then, such a complaint must come bonafide and not in a reckless casual manner showing individual motive of the complainant. As we have said, bonafide of the complainant is the foundation. A tangible test to apply is whether the complainant has acted with due care and attention. It is not open to a person to take precipitous action only on vague information in an irresponsible manner.
35. We, now, propose to examine whether Section 6 of Act, 1971 can help contemner in the case in hand. Vague allegations have been levelled against ACJM concerned that in collusion with two other judicial officers, he is conspiring to get the contemner murdered. Allegations are vague. It is not stated as to when any such threat was administered or how the contemner knows of the aforesaid alleged conspiracy etc. It is not case that any first information report was lodged by contemner in this regard. The allegations are personal and against integrity and character of the ACJM.
36. Having given our anxious consideration to the language of the letters dated 21.08.2014 and 18.09.2014, we are clearly of the view that the allegations made by the Contemner against the concerned Presiding Officer ex-facie constitute 'criminal contempt' being scurrilous and serious allegations, tend to lower down the authority of the Court. These allegations cannot be said to have been made bonafide, but for the petty gains of Contemner. The allegations lack bonafide. Protection of section 6 is not available to the Contemner.
37. We have also noticed here that there is no complaint of any corruption against the officer concerned and basically the allegations levelled are captious showing that attempt on the part of Contemner is to malign the image of Judicial Officer by highlighting the fact that he is indulging in criminal activities. We cannot restrain ourselves from condemning such an attempt on the part of Contemner particularly when he has made such attempt in a pious institution of justice.
38. Now, we come to Section 13 of Act, 1971. 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 invoking the said defence is bona fide.
39. Section 13 as amended now permits truth as a defence. It could have been available provided the Contemner has requested and offered to prove the allegations. No such attempt has been made. Now, the kind of allegations he has levelled against the Judicial Officer, it cannot be doubted that they are so serious in nature and in case, they are allowed to remain, bound to influence the public at large to loose confidence in the impartiality and objectivity in this institution of justice. Contemner has not requested to prove that allegations made by him were true. In fact, he has caused aspersions in a reckless manner. The allegations levelled against judicial officer concerned are apparently motivated and biased. It cannot be said that there is any fair criticism or there is any complaint made bonafide.
40. There are cases where a person has made a fair criticism of the orders passed by Court below, but here the conduct, integrity, and efficiency of Judicial Officers has been abusively commented and indicted by using impertinent language. If an order is passed wrongly, in an appropriate manner, with civilized words and manner, it is always open to the litigant or his Advocate or even a common man to criticise such order. We do not initiate contempt proceedings on just fall of a hat as we are not no sensitive, but then it cannot be extended to the extent of permitting a litigant or an Advocate or any person to virtually abuse the Presiding Officers of the Court, which would include the Court itself. A fair criticism does not constitute to scandalize or lower the authority of Court or Judicial Institutions or an attempt to interfere with administration of justice, but ill-motive, intentional and deliberate castigation going to the extent virtual abuse is not protected and that has a different impact. It is criminal contempt.
41. In P.N. Duda Vs. P. Shiv Shankar and others 1988 3 SCC 167 the Court said that justice is not a cloistered virtue. she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men. Administration of justice and Judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is, to defend and uphold the Constitution and the laws without fear and favour, but Any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be prevented. The Courts cannot ignore attempts made to decry or denigrate the judicial process, when it is done with quite seriousness.
42. The definition of Criminal Contempt under Section 2(c) reads as under:
"2(c). Criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, 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 proceeding; or
(iii)interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
43. Publication whether by words spoken or written etc. on any matter or doing of any other act, which scandalizes or tends to scandalize or lowers or tends to lower the authority of any Court constitutes 'criminal contempt'. Such act, as aforesaid, if prejudices or interferes or tends to interfere with due course of any judicial proceeding also amounts to 'criminal contempt'. Thirdly, if such an act interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner, again it would constitute 'criminal contempt'. The word 'scandalize' has not been defined in Act, 1971. In Black's Law Dictionary word 'scandal' has been described as under:
"Scandal consists in the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to decency or good manners, or which charges some person with a crime not necessary to be shown in the cause, to which may be added that any unnecessary allegation, bearing cruelly upon the moral character of an individual, is also scandalous. The matter alleged, however, must be not only offensive, but also irrelevant to the cause, for however, offensive it be, if it is pertinent and material to the cause the party has a right to plead it. It may often be necessary to charge false representations, fraud and immorality, and the pleading will not be open to the objection of scandal, if the facts justified the charge. (emphasis added)
44. In Aiyer's Law Lexicon, second edition, Page 1727, reference has been made to Millington Vs. Loring (1880) 6 QBD 190, where the word 'scandalous' has been explained as under:
" A pleading is said to be 'scandalous' if it alleges anything unbecoming the dignity of the court to hear or is contrary to good manners or which charges a crime immaterial to the issue. But the statement of a scandalous fact that is material to the issue is not a scandalous pleading."
45. In Narmada Bachao Andolan Vs. Union of India, (1999) 8 SCC 308, in para 7 of the judgment the Court said:
"7. We wish to emphasise that under the cover of freedom of speech and expression no party can be given a licence to misrepresent the proceedings and orders of the court and deliberately paint an absolutelty wrong and incomplete picture which has the tendency to scandalise the court and bring it into disrepute or ridicule.
46. Recently, the aforesaid definitions of the term 'scandalise' has been quoted with approval in Indirect Tax Practitioners' Association Vs. R.K. Jain 2010 8 SCC 281.
47. In Subramanian Swamy Vs. Arun Shourie (2014) 12 SCC 344, the court had occasion to examine Section 13(b) as came to be amended by Act 6 of 2006. The court observed that the amended provision enables the court to permit justification by truth as a valid defence in any contempt proceeding if it is satisfied that such defence is in public interest and the request for invoking the defence is bona fide, unless the court finds that it is only a camouflage to escape the consequences of deliberate or malicious attempt to scandalise the court or is an interference with the administration of justice.
48. In the present case, Contemner has tried to picture the concerned judicial officer as a criminal. He has gone to the extent of implicating not only ACJM but also CJM and a lady judicial officer. Where is the basis for this statement, we are at a loss to understand since none has been disclosed. Details and facts are not stated as to when, how and where any such threat was administered by the Judicial Officer and whether the Contemner lodged any report in this regard with police or not. The attitude of the Contemner for petty gains, in our view, must be deprecated in the strongest words. His conduct also justifies a severe punishment.
49. At this stage, Shri Khare, learned counsel for Contemner submitted that since Contemner was an office-bearer of Bar Association, therefore, in the matter of punishment due consideration should be showed. In our view, the submission is thoroughly misconceived. The mere fact that contemner was an office-bearer of Association cannot authorize him to go on making wild scurrilous allegations against the Judicial Officer including a woman Judicial Officer. He has not kept his conduct within the prescribed limits, what to say of limits of morality and ethics.
50. Even if an Advocate has held any other office, his responsibility as an officer of court being an Advocate does not cease. He is bound to maintain decorum of the court.
51. 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.
52. 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 lightly. 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 conduct of concerned Judicial Officer has been attempted to be maligned. 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.
53. 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 itself. 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 are allowed, it will demolish the very foundation of the system of justice. 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 others but also the resultant situation may cause a serious blow to the system of administration of justice, which is one of the founding pillars of constitutional scheme and has to be protected by all legal and reasonable means. We are, therefore, satisfied that the Contemner has failed to maintain good conduct and behaviour which can be said to be orderly, good and disciplined.
54. In the entirety of circumstances and in the facts of this case, having given our anxious consideration, we are satisfied that charge of 'criminal contempt' levelled against Contemner is proved and he is guilty of 'criminal contempt' as defined under Section 2 (c) of Act, 1971 of subordinate Court.
55. Now, coming to sentence, we find that 'criminal contempt' on the part of Contemner is quite serious and grave. It would have a demoralizing effect on Presiding Officer of subordinate Court if Contemner is not awarded appropriate punishment. It demands severe punishment.
56. We impose punishment of simple imprisonment of six months and fine of Rs.2,000/-. In case of non deposit of fine, the Contemner shall undergo further simple imprisonment of three months.
57. Further, in order to maintain discipline and smooth functioning of District Judgeship, we restrain the Contemner from entering the premises of District Judgeship at Hathras to practice as an advocate for a period of one year. This period shall commence w.e.f. 05th of October, 2015.
58. We also direct the District Judge, Hathras to keep close watch over the conduct of Contemner, whenever he commences his entry in Court premises to practice law, for a period of two years, and if found any thing otherwise, report to the Court suo motu without any delay.
59. Registry is directed to certify copy of judgment to the District Judge and CJM, Hathras forthwith for communication and compliance.
60. Reference is allowed in the manner aforesaid.
(Hon. Mrs. Ranjana Pandya, J) (Hon. Sudhir Agarwal, J) Order Date :- 24.09.2015 LBY