In Re (Sri Alok Pandey) Cjm vs Sri Rakesh Tiwari Advocate
2015 Latest Caselaw 1108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 13.05.2015
 
Delivered on 10.07.2015
 
Court No. - 34
 
Case :- CONTEMPT APPLICATION (CRIMINAL) No. - 8 of 2013
 
Applicant :- In Re (Sri Alok Pandey) Cjm
 
Opposite Party :- Sri Rakesh Tiwari Advocate
 
Counsel for Applicant :- A.G.A.,Sudhir Mehrotra
 
Counsel for Opposite Party :- Abhishek Mishra,K.N.Mishra,N.C.Rajvanshi,P.C. Yadav
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Dinesh Gupta,J.

(Delivered by Hon. Sudhir Agarwal, J.)

1. Shri Alok Pandey, Chief Judicial Magistrate, Allahabad sent a Complaint/Reference vide Letter dated 12.12.2012, alleging that contemnor Rakesh Tiwari, Advocate on 21.12.2012, during lunch when aforesaid judicial officer was retiring in his chamber, entered the chamber alongwith 2-3 junior advocates, without seeking permission and started using abusive language besides attempting to slap and said that he (the Presiding Officer) was required to pass order for registering FIR but he did not listen and will have to face severe consequences. The contents of Reference Letter are reproduced as under:

"llEeku fuosnu gS fd vkt fnukad 21&12&2012 dks eS ekuuh; tuin U;k;k/kh'k egksn; ds lkFk dsUnzh; dkjkxkj uSuh] bykgkckn dk fujh{k.k djus x;k Fkk vkSj le; yxHkx 1-15 ih0,e0 ij okil vk;kA eSa yap esa vius foJke d{k esa cSBk Fkk rHkh vpkud Jh jkds'k frokjh] ,MoksdsV vius nks&rhu twfu;j vf/koDrkx.k ds lkFk esjh fcuk vuqefr ds vpkud esjs foJke d{k es ?kql vk;s vkSj eq>s ekW& cgu dh Hkn~nh&Hkn~nh xkfy;ka nsrs gq, eq>s FkIiM ekjus ds fy, gkFk mBk;k vkSj dgk fd rqels eSus ,Q0vkbZ0vkj0 ntZ djus dk vkns'k djus ds fy, dgk Fkk rqeus esjh ckr dks ugh lquk vkSj lkys bldk vatke cgqr cqjk gksxkA eS vpkud gq, bl ?kVukdze ls LrC/k gks x;k vkSj rRdky vius foJke d{k dks NksMdj ekuuh; tuin U;k;k/kh'k egksn; ds foJke d{k dh vksj pyk x;kA

mYys[kuh; gS fd izdh.kZ izkFkZuki= la[;k &[email protected]@2012] vUrxZr /kkjk 156¼3½ n0iz0la0] vf[kys'k dqekj 'kqDyk cuke g"kZ o/kZu flag mQZ cM~Mw vkfn es Jh jkds'k frokjh ,MoksdsV esjs Åij ,Q0vkbZ0vkj0 ntZ djkus gsrq vkns'k ikfjr djus ds fy, ncko cuk jgs Fks fdUrq xq.k&nks"k ds vk/kkj ij mDr izkFkZuki= dk fuLrkj.k djrs gq, eSus izkFkZuki= dks ifjokn ds :i esa ntZ djus dk vkns'k fnukad 18&12&2012 dks ikfjr fd;k x;k FkkA fnukad 19&12&2012 ,oa 20&12&2012 dks eSa vkdfLed vodk'k ij FkkA blfy, muds }kjk vkt esjs lkFk mDr ?kVuk dkfjr dh x;h gSA

vr% Jh jkds'k frokjh vf/koDrk ds fo:) esjs lkFk fd;s x;s nqO;Zgkj o U;kf;d voekuuk dh dk;Zokgh izkjEHk fd;s tkus gsrq esjs }kjk vkosnu izLrqr fd;k tk jgk gSA d`i;k bls ekuuh; l{ke U;k;ky; ds le{k leqfpr vkns'k ikfjr djus ds fy, izLrqr djus dh d`ik djsaA"

"With due respect, it is submitted that on this 22.12.2012, I alongwith Ld. District Judge went to inspect Central Jail, Naini, Allahabad and returned around 1:15 pm. During lunch time, I was sitting in my retiring room, all of a sudden Shri Rakesh Tiwari, Advocate alongwith his 2-3 junior advocates entered my retiring room and raised his hand to slap me while abusing me targetting my mother and sister and said, "I had asked you to pass an order for registration of FIR. You did not listen to me. It will have a very bad ending." I was stunned with this sudden state of affairs and proceeded towards the retiring room of Ld. District Judge leaving my retiring room with immediate effect.

It is pertinent to mention that in Miscelleneous Application No. 1747/XII/2012 : Akhilesh Kumar Shukla Vs. Harsh Vardhan Singh alias Baddu and others filed u/s 156 (3) Cr.P.C., Shri Rakesh Tiwari, Advocate was pressurizing me for passing an order for registration of FIR but I had on 18.12.2012 while disposing the said application on merits I passed an order for registration of application as complaint case. On 19.12.2012 and 20.12.2012, I was on casual leave. Hence, they caused the said incident with me today.

Hence, an application is being submitted by me against Shri Rakesh Tiwari for initiating proceedings for contempt of court and misbehaviour with me. Kindly place the same before the Hon'ble Competent Court for appropriate order."

(English translation by Court)

2. District Judge, Allahabad forwarded the said Reference vide order dated 22.12.2012 where-after matter was registered and placed before the Court having determination of criminal contempt. On 29th August, 2013, a Division Bench considered the matter, and being prima facie satisfied that a case of criminal contempt has been made out, issued notice to contemnor-Rakesh Tiwari. Process returned with Report dated 30.9.2013, stating that contemnor after reading notice, returned the same, stating that his name is 'Rakesh Kumar Tiwari' and not 'Rakesh Tiwari'.

3. This Court vide order dated 7.10.2013 directed District Judge, Allahabad to find out the name of correct person after verifying record of Miscellaneous Application No.1747/XII/2012 (Akhilesh Kumar Shukla vs. Harsh Vardhan Singh alias Baddu and others) filed under Section 156 (3) Cr.P.C. and also after verification from Shri Alok Pandey, the then Chief Judicial Magistrate, Allahabad, who made the Reference. Consequently, District Judge, Allahabad submitted report dated 24.10.2013 pointing out that from vakalatnama filed in aforesaid case, subsequently registered as Complaint Case No.1919 of 2013 (Akhilesh Kumar Shukla vs. Harsh Vardhan Singh), there appeared two Advocates, i.e. R.K. Tiwari and Smt. Saumya Tiwari, and their enrollments no. are U.P.4498/87 and 05308/2011, respectively. Thereafter, verification was made and it was found that contemnor's Registration No. is U.P.4498 of 1987. Consequently, a notice was served upon him on 2.11.2013. The District Judge submitted report vide Letter dated 6/7.11.2013 verifying service of notice upon contemnor.

4. On 11.11.2013, contemnor-Rakesh Tiwari appeared before the Court and submitted that he has not received copy of Reference and other supporting documents. The Court passed order to supply the same to contemnor within two weeks. The said documents were supplied to contemnor as is evident from Office Report dated 25.11.2013. On 26.11.2013 and 9.12.2013, contemnor appeared in person and sought time to file reply, which was allowed. A reply by way of an affidavit, sworn on 18.12.2013, was filed by contemnor, admitting that he appeared as a counsel in Miscellaneous Application No.1747/XII/2012 subsequently registered as Complaint Case No.1919 of 2013 (Akhilesh Kumar Shukla vs. Harsh Vardhan Singh alias Baddu and others) under Sections 419, 420, 467, 468, 471 and 408 I.P.C., Police Station-Colonelganj, Allahabad. The application was heard on 30.10.2012 and 8.11.2012 was the date fixed for order. On 8.11.2012, contemnor saw that one of opposite party, namely, Shri Sharad Tandon, General Manager, District Industries Centre, Allahabad was seen in conversation with Chief Judicial Magistrate in his chamber, hence, he had no hope of justice from that Court and proposed to file an application for transfer before District Judge, Allahabad, therefore, no order should be passed on his application. The contemnor moved an application dated 8.11.2012 before Chief Judicial Magistrate, requesting him not to pronounce the order which was ready by him. The CJM kept the application with him stating that he shall not pronounce the order. However, subsequently, contemnor came to know that order was pronounced by Presiding Officer, directing to register application filed under Section 156 (3) Cr.P.C. as complaint case, fixing 23.12.2012 for recording statement of complainant under Section 200 Cr.P.C.

5. Thereafter, on 9.11.2012, an application was filed by contemnor before District Judge alleging that Chief Judicial Magistrate has removed from record application dated 8.11.2012, submitted by contemnor, requesting not to deliver any order since he proposes to move transfer application as he (the Presiding Officer) has shown a collusive and corrupt attitude, for which appropriate action should be taken against him (Chief Judicial Magistrate, Allahabad). The aforesaid application was filed in the Court of District Judge, Allahabad on 9.11.2012 at 12.50 P.M. The complaint case, however, was not pressed by applicant and dismissed on 20.11.2012 by the then Chief Judicial Magistrate.

6. Thereafter, on 30.11.2012, another application under Section 156 (3) Cr.P.C. was filed by Akhilesh Kumar Shukla against Harsh Vardhan Singh alias Baddu and others on which Shri Alok Pandey, Chief Judicial Magistrate did not pass any order alleging that contemnor has made a complaint to District Judge and may get his application transferred to another Court. Contemnor had no information about any further order passed on application filed under Section 156 (3) Cr.P.C and it is in January, 2013, he came to know that some order was passed by Shri Alok Pandey, the then Chief Judicial Magistrate on 18.12.2012 registering the application as complaint case and fixing 22.1.2013 for recording of statement under Section 200 Cr.P.C. The contemnor had no information either on 21.1.2013 or before that of any order passed by concerned Presiding Officer. The, contemnor denied the allegation levelled against him in Reference made by concerned Chief Judicial Magistrate, alleging that he is a practising lawyer since 1987 and has never shown any such conduct and is surprised to hear about allegation made against him.

7. This matter came-up before a Bench consisting by Hon'ble V.K. Shukla and K.N. Bajpayee, J.J. on 20.1.2014 when finding, prima facie a case of 'criminal contempt', it framed following charge:

"Sri Rakesh Tripathi, Advocate on 21st December, 2012 during lunch hour without taking permission from C.J.M., Allahabad entered into his chamber along with 2-3 colleagues and at the said point of time he started hurling filthy abuses to the CJM and the matter did not end there, as he also raised his hand to beat the Chief Judicial Magistrate and also threatened him of dire consequences. The contemnor also asked the C.J.M as to why he has not passed an order for lodging F.I.R. when he had asked for the same. This act on part of the contemnor constitutes criminal contempt within the meaning of Section 2(c) of Contempt of Courts Act, 1971, as this act has not only lowered the authority of the Court but also scandalized the Court and the same has also the tendency of interference with the due course of administration of justice."

8. The contemnor was allowed time to file reply to the aforesaid charge.

9. No reply was filed and on 25.2.2015, contemnor appeared in person and sought further time to file reply, which was allowed.

10. On next date, i.e. 12.3.2015, reply to the charge was filed vide affidavit sworn on 12.3.2014, through Shri A.K. Singh, Advocate, with endorsement that Sri Radha Kant Ojha, Senior Advocate will appear on behalf of contemnor to argue the matter. It was also stated that contemnor does not intend to file any other document and matter be heard on some other day.

11. Ultimately, after several adjournments, matter came-up on 8.4.2015 and Court again enquired from Shri R.K. Ojha, learned Senior Advocate appearing for contemnor whether he proposes to file any further document etc., for which, contemnor sought time to make statement and bring on record further evidence, if any, whereupon matter was adjourned to 27.4.2015. No further document or evidence was adduced and ultimately the matter was heard on 13.5.2015.

12. Defence taken in reply affidavit to the charge, sworn on 12.3.2014, is virtually the same as it was in earlier affidavit of contemnor. It is said that an application was filed by contemnor, as counsel, on behalf of one Akhilesh Kumar Shukla, on 19.10.2012 under Section 156 (3) Cr.P.C. It was heard by Chief Judicial Magistrate, Allahabad on 30.10.2012 and 8.11.2012 was date fixed for order. Before pronouncement of order on 8.11.2012, contemnor saw that one of the accused, Sharad Tandon, General Manager, District Industries Centre, Allahabad was sitting in chamber of Chief Judicial Magistrate. He apprehended that his client would not get justice. In the interest of justice that said Presiding Officer should not pronounce order in a case wherein the said accused was a party, he (contemnor) moved an application on 8.11.2012 before Chief Judicial Magistrate requesting him not to pass any order since contemnor is going to file a transfer application before District Judge, Allahabad. Though Chief Judicial Magistrate assured contemnor that he would not pass any order but he actually passed order on the same date i.e. on 18.12.2012, converting application filed under Section 156 (3) Cr.P.C. into a complaint case. The application thus was registered as Case No.13500 of 2012. The concerned Chief Judicial Magistrate took away the said application from record, whereafter, contemnor moved an application before District Judge, Allahabad on 9.11.2012, making complaint against Chief Judicial Magistrate, Allahabad.

13. Another application was filed on 30.11.2012 under Section 156 (3) Cr.P.C. by contemnor, as counsel appearing on behalf of Shri Alok Kumar Shukla, whereupon concerned Magistrate, in open court, stated that since contemnor has already moved an application before District Judge, Allahabad making complaint, he would not pass any order and rather the said application shall be placed before District Judge, Allahabad for assigning to some other court. Contemnor had full faith on Magistrate but in January, 2013, contemnor got information that Chief Judicial Magistrate has passed some order on 18.12.2012 treating the application as complaint case.

14. The record shows that second application filed by contemnor as counsel through Shri Akhilesh Kumar Shukla was initially registered as Miscellaneous Application No.1747/XII/2012 and on conversion, a complaint case was registered as Complaint Case No.1919 of 2013.

15. It is also stated in para 14 of affidavit that in complaint case no.1919/2013 proceeding is going on and non-bailable warrant has been issued to opposite party. It is also said in para 15 of affidavit that on 21.12.2012 there was no case of contemnor in the Court of Chief Judicial Magistrate nor he visited the Court nor chamber nor retiring room nor obstructed in Court proceeding in any manner, therefore, the question of entering chamber of Chief Judicial Magistrate, does not arise. In fact there was a general call of strike on account whereof, advocates were abstaining from judicial work. Para 15 of affidavit reads as under:

"15.That the deponent with due respect submits before this Hon'ble Court that on 21.12.2012 there was no case of the deponent in the Court of learned Chief Judicial Magistrate nor the deponent has visited Court or Chamber or Retiring Room of the learned Chief Judicial Magistrate and further on the said date Advocates were obstructed from their duties because of general call made by the Bar Association, therefore, there is no question of entering into Chamber of the learned Chief Judicial Magistrate."

16. The above paragraph has been sworn on personal knowledge.

17. It is again stated in para 18 of affidavit that contemnor himself has not entered the chamber or Court Room of Chief Judicial Magistrate on 21.12.2012, therefore, there was no question of using filthy languages or trying to slap. The alleged incident is just a counter-blast of transfer application submitted by contemnor on 9.11.2012 before District Judge, Allahabad. Para 18 reads as under:

"18.That the deponent further submits with due respect before this Hon'ble Court that deponent has not entered into Chamber or in Court Room of the learned Chief Judicial Magistrate on 21.12.2012, therefore, there is no question of using filthy languages or tried to slap, therefore said incident is just a counter blast of the application which has been moved by the deponent being counsel on 9.11.2012."

18. It is interesting to note that this paragraph no.18 has been sworn on the basis of record. In para 19 of affidavit, it is then requested that an inquiry be conducted through District Judge in respect of application moved by contemnor on 9.11.2012.

19. In para 20, it is said that charge levelled against contemnor is liable to be dropped and proceeding be dropped and appropriate action be taken after making inquiry on contemnor's application dated 9.11.2012.

20. Shri R.K. Ojha, learned Senior Advocate appearing for contemnor stated that contemnor is himself a witness of incident in which one of accused person was found sitting in the room of Presiding Officer of Court, who was to deliver the order on the same day, and then a reasonable apprehension arose in his mind that concerned Presiding Officer shall not be able to do justice fairly and impartially. Hence, he moved an application requesting him (CJM) not to deliver the order since he proposes to file transfer application before District Judge but still Presiding Officer pronounced the order. The Court registered the application of Akhilesh Kumar Shukla as a complaint case and directed to proceed. The said application however was not allowed to proceed, since complainant Akhilesh Kumar Shukla did not press the same before Court concerned and got it dismissed as "not pressed". Thereafter, another application was filed on 30.11.2012 before Chief Judicial Magistrate, in which an order was passed on 18.12.2012, directing to register the application as complaint case but as per stand of contemnor, he was not present in Court, since there was a general call of strike by advocates on that date. He submitted that in these facts and circumstances, the charge levelled against contemnor is not correct and should be dropped.

21. We have heard Shri Sudhir Mehrotra, learned counsel nominated by Court to assist and Shri R.K. Ojha, learned Senior Advocate, appearing for contemnor.

22. It is rightly argued by Shri Sudhir Mehrotra, learned counsel nominated for assistance of the Court that order dated 18.12.2012 from very beginning, shows that it was passed after hearing counsels. Before this Court, it was argued that this observation made in the order of Chief Judicial Magistrate is not said or shown to be incorrect and false. Once the counsels argued the matter on 18.12.2012 before Chief Judicial Magistrate and is mentioned in that order, the defence that contemnor had no knowledge is incorrect. The aforesaid order has not been challenged by applicant before appropriate Forum on the ground that order has been passed by Chief Judicial Magistrate without hearing counsel and instead of directing to register FIR, Court has wrongly treated the application as complaint. On the contrary, applicant Akhilesh Kumar Shukla having accepted the order has proceeded with the matter, as admitted by contemnor in para 14 of his affidavit, sworn on 12.3.2014. Though it is said that on 21.12.2012, contemnor neither attended the Court of Chief Judicial Magistrate nor entered his chamber but with respect to the fact stated in the order dated 18.12.2012 that Court had heard counsel for parties, nothing has been said. No attempt has been made by contemnor or applicant to have said that none appeared on behalf of applicant before CJM on 18.12.2012 still it was wrongly mentioned by Presiding Officer in the said order dated 18.12.2012 that counsels have been heard. In these facts, this Court is justified to infer that Miscellaneous Application No.1747/XII/2012 was actually argued by his counsel before Chief Judicial Magistrate, Allahabad on 18.12.2012, whereupon, Presiding Officer passed order, directing to register the application as a complaint case, and thereafter, Complaint Case No.1919 of 2013 was registered and matter proceeded further. What actually transpired in Court has to be seen from order of Court unless there is sufficient material showing that the fact stated in order, is apparently incorrect or false or there is wrong mention of fact or something, which has not transpired in Court, as held in Sarguja Transport Services Vs. State Transport Appellate Tribunal, Gwalior (AIR 1987 SC 88).

23. The first inference and conclusion with regard to conduct of contemnor is that application under Section 156 (3) Cr.P.C. filed by Shri Akhilesh Kumar Shukla on 30.11.2012 was actually argued by his counsel before Chief Judicial Magistrate on 18.12.2012 whereupon, the Magistrate passed order for treating application as a complaint case, and the stand otherwise taken before us is false. It is also not the case of Contemnor that Miscellaneous Application No.1747/XII/2012 filed on 30.11.2012 was argued by any other counsel, thus, we are justified in inferring that it is the contemnor, who himself argued the matter on 18.12.2012 whereupon, Chief Judicial Magistrate passed order on that date. The otherwise contention of contemnor that he had no knowledge about the order is clearly untrustworthy and has to be rejected.

24. Then comes the question about allegation that on 21.12.2012, contemnor alongwith 2-3 other junior advocates entered the chamber of Chief Judicial Magistrate during lunch and misbehaved as well as attempted to assault him. The reply to the aforesaid incident is contained in paras 15 and 18 of affidavit, sworn on 12.3.2014. One paragraph i.e. 15 has been sworn by contemnor on personal knowledge and another paragraph i.e. 18, on record. He has tried to justify his denial on the ground that since there was a general call of strike by Bar Association, abstaining from judicial work, therefore, there was no question of contemnor to enter the chamber of Chief Judicial Magistrate. Nothing has been shown from record to substantiate this stand taken by contemnor that he did not enter the chamber of Chief Judicial Magistrate and acted in the manner, alleged against him by Chief Judicial Magistrate. On the contrary, we find that contemnor himself has not shown a fair and straight conduct, and therefore, bare unsubstantiated denial, do not inspire any confidence to believe the same.

25. At the first instance, contemnor has said that an application was filed by him before Chief Judicial Magistrate on 8.11.2012, requesting not to pronounce the order since he intends to move a transfer application before District Judge, Allahabad. A typed uncertified copy of alleged application dated 8.11.2012 has been filed alongwith earlier affidavit, sworn on 18.12.2013. It is not the case of contemnor that he filed the application following the procedure prescribed under General Rules (Criminal). The contemnor is an Advocate of long standing as he himself admitted, Thus, he must be aware of procedure of filing application in Court. The application must have been sufficiently stamped, ought to have been presented in the office of Court where it would have been registered and entered into relevant register, and thereafter, would have been sent to Court. Admittedly, no such procedure was followed by applicant. The reason is not forthwith-coming. A well experienced advocate would not follow procedure prescribed in law, in moving application, is beyond apprehension of any prudent person. No reason for this has been given by contemnor. Therefore, in our view, contemnor has completely failed to prove that any application as alleged was filed by him on 18.12.2012 before Chief Judicial Magistrate.

26. Hence, the allegation that Chief Judicial Magistrate removed the said application from record renders wholly baseless and shows a concocted story.

27. Moreover, here is not a case where order dated 8.11.2012 can apparently be said to be adverse to the applicant, who filed application under Section 156 (3) Cr.P.C. The Magistrate did not reject said application out right. He had three options, either to reject the said application or could have directed to register application as a complaint case, and thereafter, could have required complainant to have the task of proving his case by adducing evidence or third option is to direct police to register FIR. The first option, if followed by Magistrate, could have resulted to some extent, in a judicial order against applicant but there against also the applicant has further remedy in law. In the present case, Magistrate followed option 2 and directed to register application as complaint case so that complainant may be given opportunity to prove the complaint. It cannot be said that order passed by Magistrate in any manner favoured the accused or has prejudiced the applicant. A person who makes complaint, initial burden lies upon him to prove his case.

28. Be that as it may, even otherwise the subsequent conduct of contemnor speaks of his own conduct. He did not pursue the matter further and got it dismissed as not pressed. Though it is said that there was some technical mistake but what that technical mistake was, which compelled the applicant to get the application dismissed as not pressed, has not been explained. Even second application filed by applicant ultimately resulted in registering a complaint case and matter is now proceeding further. There is no change in the ultimate result. Hence to suggest that Magistrate had shown sympathy or would have favoured the accused, is clearly unfounded, baseless and nothing but an imagination of contemnor.

29. We further find that though an application was filed by contemnor before District Judge on 9.11.2012 but it is not the case that he made any attempt to have the matter proved further by producing any evidence before District Judge or by requesting District Judge to collect evidence from contemnor. On the contrary, contemnor chose to have the application/complaint dismissed as not pressed on 20.11.2012 and then filed a fresh application. Thus, the alleged story of loss of confidence also lacks substance. When the contemnor was required to show any material on record to substantiate the fact that alleged one of the accused, Sharad Tandon, General Manager, District Industries Centre, Allahabad actually visited the chamber of Chief Judicial Magistrate, he clearly stated that except what has been stated in affidavit and complaint, nothing more is available on record. He also admits in subsequent proceedings that same Chief Judicial Magistrate passed similar order to register a complaint case, which has satisfied the applicant and the matter is now proceeding further and non-bailable warrant has been issued to accused. Therefore, even the allegation that contemnor saw an officer of Government sitting in chamber of Chief Judicial Magistrate has not been substantiated in any manner. In regard to further denial of the fact that contemnor did nothing on 21.12.2012, there is two types of swearing, i.e. para 15 on personal knowledge and para 18 on the basis of record. In Para 15, which has been sworn on personal knowledge, the contemnor supports his denial alleging that there was a general call of strike by Bar Association, therefore, no question would have arisen for visiting the chamber of Chief Judicial Magistrate. The mere fact that advocates were abstaining from judicial work, does not mean that no one can visit chamber of a Presiding Officer of a Court or cannot attend judicial work in Court. With regard to para 18, no record is before us to substantiate it.

30. Lastly, we find that in the two affidavits filed by contemnor, he has simply insisted that an inquiry should be directed on his complaint dated 9.11.2012 made to District Judge, Allahabad, though as we have already discussed above, he himself did not make any attempt to have the matter proceeded further by requesting District Judger to make an inquiry on complaint made by him.

31. The contemnor has made a statement before Court on affidavit, which he has failed to prove. In respect of charge levelled against him, a bare denial that too in view of above discussion, is untrustworthy. In the above background and considering the facts in entirety, we are satisfied that the charge levelled against contemnor, is clearly proved. We, therefore, hold the charge proved against him.

32. Of late, we find a deep increasing tendency of advocates in making scurrilous allegations against presiding officers of subordinate Courts. They do not hesitate in going to the extent of dishonouring of Presiding Officer as well as the Court by abusing and misbehaving, openly, in presence of public at large, which includes litigants, clerks and others, in Courts or inside the Court campus. If an order has not been passed by a Judicial Officer to the liking of an advocate, remedy lies elsewhere but no one can have liberty to create a situation/ an ugly scene, by raising abusive slogans against officer(s) as well as the Court. If this would not have the effect of lowering authority and majesty of the Court, what else can be.

33. When 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 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.

34. 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 the contemnor has shown behaviour like member of an unruly mob of hooligans. An Advocate forgetting the higher status conferred upon him, making Officers of the Court, has chosen to malign Judicial Officer of the Subordinate Court.

35. 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 a moral agent. This character, he cannot shake off, by any other character on 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.

36. We do not intend to lay down any code of conduct for the class of the peoples known as "Advocates", but certainly have no hesitation in observing that no Advocate has any business to condemn a Judge by abusing etc. for a judicial order he has passed. 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 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.

37. This Court has a constitutional obligation to protect subordinate judges. In Smt. Munni Devi and others Vs. State of U.P. and others, 2013 (2) AWC 1546, this Court in para 10, has 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."

38. 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 attack by misbehaviour and abuse has been shown against concerned Judicial Officer. 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.

39. The Judicial Officer/Judges had no platform to stand and clarify the circumstances in which the order has been passed by them. They have 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 be allowed to be made by a party, who did not find an 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 conduct/integrity of Judicial Officer in passing the order and that too without any material to support such an 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 but the resultant situation may came 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.

40. On the question of sentence, looking the entire facts and circumstances, as discussed above, we also find that contemnor on the one hand followed the mode of complete denial and persistence of allegation, but on the other hand, has not shown any remorse or repentance towards his conduct. His stand, we have discussed above, has not been found correct. Whatever allegations he had made, has failed to prove. It shows that not only he has maligned and scandalized the subordinate court but has not shown any conduct of apology in this Court also. Except of bare denial, he has not shown any remorse towards his conduct. The allegation and charged levelled against him, is also quite serious. Therefore, it deserves serious punishment.

41. In these circumstances, we impose punishment of simple imprisonment of six months upon contemnor and a fine of Rs.2000/-. In case of non payment of fine, he shall undergo simple imprisonment for a further period of 15 days.

42. Besides above, in order to maintain discipline and avoid nuisance in the District Judgeship, we also direct that contemnor shall not enter the premises of District Judgeship, Allahabad for a period of six months. The aforesaid period of restriction shall commence with effect from 15th July, 2015.

43. Besides, the conduct of contemnor shall remain under constant watch of District Judge, Allahabad for a period of two years. If contemnor shows any otherwise objectionable conduct, causing interference in peaceful and smooth functioning of Court etc. the District Judge, Allahabad shall immediately report the matter to the Court suo-motu.

44. So far as amount of fine is concerned, contemnor may deposit the same either in this Court or with the District Judge, Allahabad or with the Chief Judicial Magistrate, Allahabad by 18.7.2015.

45. Contempt application is disposed of.

Order Date :- 10.7.2015

Ajeet

Case :- CONTEMPT APPLICATION (CRIMINAL) No. - 8 of 2013

Applicant :- In Re (Sri Alok Pandey) Cjm

Opposite Party :- Sri Rakesh Tiwari Advocate

Counsel for Applicant :- A.G.A.,Sudhir Mehrotra

Counsel for Opposite Party :- Abhishek Mishra,K.N.Mishra,N.C.Rajvanshi,P.C. Yadav

Hon'ble Sudhir Agarwal,J.

Hon'ble Dinesh Gupta,J.

1. Despite order, contemnor is not present in Court. The judgement has been pronounced in his absence.

2. We further direct the Chief Judicial Magistrate, Allahabad to ensure immediate arrest of contemnor and sent him to jail to serve out sentence pursuant to order passed in this contempt application.

3. Registrar General, High Court, Allahabad shall immediately take steps for compliance of this judgement.

Order Date :- 10.7.2015

Ajeet