Bombay High Court
Manoj Oswal vs State Of Maharashtra Through ... on 15 September, 2017
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL SUO MOTU CONTEMPT PETITION NO.3 OF 2015
The Hon'ble High Court, Mumbai,
On its Own Motion. .. Petitioner
Vs
State of Maharashtra. .. Respondent
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Dr.F.R.Shaikh, APP for the State.
Shri Sachin Suryakant Punde for the Respondent No.3.
Shri Sandeep Shripad Koregave for the Respondent Nos.4 to 6.
Shri Tejpal Shrikant Ingale along with Shri Shailesh Dhanjay Chavan for
Satara District Bar Association, Vaduj Taluka Bar Association, Dahiwadi
Taluka Bar Association, Jaoli Taluka Bar Association, Koregaon Taluka
Bar Association and Medha Taluka Bar Association.
Shri Harshad Bhadbhade along with Shri Saurabh Butala for Lanja Bar
Association, Guhagar Bar Association, and Ratnagiri Bar Association.
Shri Umesh R. Mankapure along with Shri Vinod Sangvikar for Sangli
Bar Association.
Shri Rajshekhar S. Alange for Solapur Bar Association.
Shri Bushan Walimbe for Sindhudurg Bar Association.
Shri Prashant Bhavake for Dapoli Bar Association.
Shri Nilesh Wable for Pune Bar Association.
-
ALONG WITH
CIVIL WRIT PETITION NO.6093 OF 2015
Manoj Oswal. .. Petitioner
Vs
State of Maharashtra and Others. .. Respondents
--
Shri Kushal Mor along with Ms Juhi Mehrotra for Petitioner.
Shri Manish Pabale, AGP for Respondent No.1/State.
Shri S.R.Shinde for Respondent No.2.
Shri Sudam Kale along with Shri Makarand Bakre for Respondent No.4.
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CORAM : A.S. OKA &
SMT.ANUJA PRABHUDESSAI, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 27TH FEBRUARY 2017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 15th September 2017
JUDGMENT ( PER A.S. OKA, J )
ISSUE INVOLVED:
1. The issue involved in these Petitions is "whether the
decision and/or the action of members of various Bar Associations of
abstaining from the Court work and the acts of office bearers of the Bar
Associations/Action Committee of the Advocates calling upon the
members of the Bar to abstain from the Court work or boycott the Court
proceedings in support of their demand for establishment of a bench of
this Court at Pune/Kolhapur amount to a criminal contempt ?"
ORDERS PASSED ON THE ADMINISTRATIVE SIDE:
2. On 30th June 2015, the Registrar (Judicial-I) submitted a
note before the Hon'ble the Chief Justice on the administrative side
seeking following prayer:-
"(A) To initiate suo-motu Criminal Contempt
proceeding against the Chairman, office
bearers and members of the Pune Bar
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Association who have resorted to the weapon
of strike and paralyzed administration of
justice system by giving call of indefinite
strike."
3. The Hon'ble the Chief Justice granted the said prayer and
directed by an administrative order dated 2 nd July 2015 that a Suo Moto
Criminal Contempt proceeding should be initiated which should be
placed before a Bench presided over by one of us (A.S.Oka, J).
4. Writ Petition is filed by a litigant for bringing to the notice
of this Court the situation created by the members of the Pune Bar
Association by abstaining from the Court work.
REFERENCE TO THE ORDERS PASSED BY THE COURT
FROM TIME TO TIME:
5. Thereafter, various orders were passed by a Bench presided
over by one of us (A.S.Oka, J). First few orders concern abstention
from the Court work by the members of the Bar in the Courts in Pune
District in support of their demand for establishing a bench of this Court
at Pune. In Paragraph 3 of the order dated 3 rd July 2015 passed in the
present Petitions, this Court observed thus:
"3. In Writ Petition No.6093 of 2015, the Third
Respondent Shri Girish Shedge, the President of Pune
Bar Association is represented by Shri Dhakephalkar,
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the learned senior counsel. On a query being made
by the Court, on instructions, he states that on the
basis of a Resolution passed by the Pune Bar
Association, from 19th June 2015 onwards, the
lawyers are abstaining from work in all the Civil
and Criminal Courts as well as Tribunals in Pune
District. On instructions, he states that the lawyers
are protesting against the failure of the State
Government to recommend establishment of a
Bench of this Court at Pune. Thus, the admitted
position is that for such a long period from 19 th
June 2015, the lawyers at Pune are boycotting all
Civil and Criminal Courts as well as Tribunals in
Pune District. As a result of this, a large number of
litigants are forced to approach this Court especially on
the Criminal Side for seeking urgent reliefs."
6. Paragraphs 1 and 2 of the order dated 6th July 2015 passed
in these Petitions read thus:
"1. Learned Senior Counsel representing the
Pune Bar Association states that on Saturday,
4th July, 2015, a Resolution has been passed
by the Pune Bar Association withdrawing the
earlier Resolution, by which the members of
the Pune Bar were called upon to abstain
from Court work. We accept the said
statement. We direct the President of the Pune
Bar Association to place on record a copy of the
said Resolution along with an affidavit.
2. In view of the prima facie findings recorded in
the order dated 3rd July, 2015, before we
consider of taking further action, the issue is
whether the office bearers of the Pune Bar
Association are willing to tender an apology for
committing the breach of the law laid down by
the Apex Court. The other issue is whether the
office bearers are willing to give an undertaking
on oath that in future, they themselves will not
indulge in any such activities and they will not
encourage any one else to engage in such
activities."
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7. Under the order dated 20th July 2015, a notice was issued
of criminal contempt to the office bearers of Pune Family Court Bar
Association. Paragraph 4 of the said order reads thus:
"4. Therefore, even the members of the Pune
Family Court Bar Association appear to have indulged
in illegal activity of abstaining from Court work. We,
accordingly, issue notice to the President, Vice
President and Secretary of the Pune Family Court Bar
Association calling upon them to show cause as to
why the action under the Contempt of Courts Act,
1971 for committing criminal contempt should not be
initiated against them. Notice is made returnable on
6.8.2015. Notices be dispatched to be Principal
Judge of the Family Court at Pune through a special
messenger. The Principal Judge shall ensure that
service is effected before the returnable date."
8. Further order dated 6th August 2015 notes that the office
bearers of the Pune Family Court Lawyers' Association tendered
affidavits containing unconditional apology and assurance not to repeat
the offending act. The apology was accepted by the Court under the
said order. The order dated 6th August 2015 notes that the President,
two Vice Presidents, Treasurer, Secretary and Joint Secretary of the
Pune Bar Association have filed the affidavits tendering unconditional
apology and containing assurances that they will not indulge in any
such illegal activities and will not personally encourage any one else to
indulge in such activities. Under the said order, the assurances
contained in the said affidavits were accepted as the undertakings given
by them to the Court and apology tendered was accepted. The order
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dated 6th August 2015 notes that the seven members out of ten
members of the Managing Committee filed similar affidavits tendering
unconditional apology and containing similar assurances. The apology
was accepted under the said order and even assurances were accepted
as the undertakings. By the said order, notices of contempt were issued
to three members of the Managing Committee Shri Omkar R. Pawar,
Shri Omkar A. Arte and Shri Pravin S. Gore.
9. On the basis of further administrative order passed by the
Hon'ble the Acting Chief Justice on 10th September 2015, the office note
dated 10th September 2015 and reports received from the Principal
District Judge, Kolhapur and the learned Principal District Judge,
Sindhudurg along with newspaper cuttings were ordered to be placed
before a bench presided over by one of us (A.S.Oka, J). Accordingly, on
16th September 2015, the office note and the newspaper cuttings along
with present suo motu contempt petition were placed before a bench of
this Court. The paragraphs 3 to 7 of the said order read thus:
"3. We have perused the report dated 9 th
September 2015 submitted by the learned
Principal District Judge at Kolhapur. The
report records that the members of the
Kolhapur Bar Association took out a mock
funeral procession of the Hon'ble the Chief
Justice of this Court and, thereafter, his effigy
was burnt in the court premises. Press
cuttings of the news published in various local
news papers have been annexed by the
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Principal District Judge to the said report. The
said press cuttings of the news papers dated 9th
September 2015 indicate that the said incident
took place in the evening of 8th September 2015
in the precincts of the Kolhapur Court. There are
few more reports submitted by the Principal
District Judge of Kolhapur on 10th,11th and 14th
September 2014. The reports record that
slogans were shouted by the members of the
Kolhapur District Bar Association against the
Hon'ble the Chief Justice. Not only that the
aforesaid objectionable acts were committed,
but the Kolhapur District Bar Association gave
a call for abstaining from the Court work for
three days. He has further reported that on 9 th
September 2015, in the morning, the
members of the Kolhapur Bar Association
assembled near the entrance of the District
Court and shouted slogans against the
Hon'ble the Chief Justice. There was an
agitation near the gate in which not only the
Advocates but political leaders participated.
The members of the Bar abstained from the
Court work for three days in all the Courts in
District Kolhapur on the basis of an appeal
made by the Kolhapur Bar Association.
4. The report submitted by the Principal District
Judge, Sindhudurg dated 9th September 2015
records that the Sindhudurg District Bar
Association made an appeal to the members
of the bar to abstain from the Court work for
three days on 9th, 10th and 11th September
2015 in protest against the failure of this
Court to abide by the assurance given to
establish a Bench of this Court at Kolhapur.
5. The report dated 10th September 2015 submitted
by the learned Principal District Judge, Ratnagiri
records that on 10th September 2015, the
members of the Bar Associations of Ratnagiri,
Lanja, Dapoli and Guhagar abstained from the
Court work. It is reported that even the
members of the Dapoli Bar Association
abstained from the Court work on 10th
September 2015. However, it is stated that the
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members of the Bar worked on that day in the
Court at Khed. The report records that the
members of the Bar at the aforesaid places
abstained from the Court work on the basis of
an appeal made by the Kolhapur Bench Action
Committee.
6. The report dated 10 th September 2015 submitted
by the learned Principal District Judge of Satara
records that the Vice President of the Satara
District Bar Association, Satara informed him
that on the basis of the appeal made by the
Kolhapur Bench Action Committee, the
members of the Bar have decided to abstain
from the Court work from 9th to 11th
September 2015. The report records that the
Taluka Bar Associations at Medha, Dahiwadi,
Waduj and Koregaon passed resolutions
appealing to the Advocates to abstain from
the Court work from 9th to 11th September
2015.
7. Reports of the Principal District Judges show that
due to abstention on the part of the members of
the Bar, the work in the Courts in the said
Districts was completely standstill."
10. In Paragraph 9, this Court considered the decisions of the
Apex Court in the cases of Ex.Capt. Harish Uppal v. Union of India
and others1 and Common Cause, a Registered Society v. Union of
India and others2. After quoting the relevant portions of the said order
dated 16th September 2015, in Paragraph 9, this Court observed thus:-
".....Thus, the action of the members of the Bar to
abstain from the Court work amounts to criminal
contempt as it directly interferes with the
1 (2003)2 SCC 45
2 (2006)9 SCC 304
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administration of justice. Such action lowers the
dignity of the Court. As far as the members of the
Kolhapur Bar Association are concerned, prima facie,
their conduct of taking mock of funeral procession of
the Hon'ble the Chief Justice in the Court premises
and burning the effigy in the Court premises
aggravates the contempt. This amounts to lowering
the dignity of this Court. Not only that this conduct
lowers the dignity of the Court of law but we are
constrained to observe that the said conduct has
lowered the dignity of the noble legal profession.
From the reports of the Principal District Judges, it
appears that the members of the Bar in Kolhapur
District Court abstained from the work on the basis of
the appeal made by the Kolhapur Bar Association. As
far as District Sindhudurg is concerned, the Advocates
abstained from the Court work on the basis of the
appeal made by the Sindhudurg District Bar
Association. The learned Principal District Judge,
Ratnagiri records that the Bar Associations of Dapoli,
Ratnagiri, Lanja and Guhagar made an appeal to the
members of the Bar to abstain from the Court work.
As far as District Satara is concerned, the members of
the Bar abstained from the Court work on the basis of
the appeal made by the Satara District Bar Association
as well as the Bar Associations of Medha, Dahiwadi,
Waduj and Koregaon. The office bearers of all the
aforesaid Associations are prima facie guilty of
Criminal Contempt. Moreover, the office bearers of the
Kolhapur Bench Action Committee are prima facie
guilty of Criminal Contempt as it is reported that the
Bar Associations acted on the basis of the appeal made
by the said Committee."
11. In paragraphs 10 to 12 of the said order, this Court
observed thus:
"10. According to us, if what is stated by the Principal
District Judge of Kolhapur and what is stated in
the news items in the news papers is correct,
prima facie, this is a case of aggravated criminal
contempt by the office bearers of the Kolhapur
Bar Association.
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11. Even assuming that the members of the Bar
have a right to demand establishment of a
Bench of this Court at a particular place, they
cannot take law into their own hands and hold
the legal system at ransom. This is the second
occasion on which this Court is required to
issue notice of contempt to the members of
the Bar on the same ground.
12. Our attention is also invited to the Rules 7, 8 and
9 of the Bar Associations (Constitution,
Registration and Control) Rules, 2005 framed by
the Bar Council of Maharashtra and Goa. Rules
confer power on the Bar Council of Maharashtra
and Goa to cancel the certificate of registration
granted to a Bar Association if such Bar
Association commits misconduct by giving a call
for strike etc. Apart from the Rules, prima facie,
it appears to us that the conduct of the office
bearers of the Bar Association of calling upon the
members of the Bar to abstain from the Court
work may amount to professional misconduct. If
the members of the Bar have taken out a mock of
funeral procession of the Hon'ble the Chief
Justice and burnt his effigy in the Court
premises, surely this is a grave misconduct.
Therefore, the State Bar Council should
immediately step in and initiate action. If there is
inaction on the part of the Bar Council,
appropriate inference will have to be drawn."
(emphasis added)
12. In Paragraphs 14 and 15 of the said order, the following
directions were issued.
"14. In this petition, we are not concerned with the
demand for establishment of a circuit Bench at
particular places. The law confers authority on
the appropriate authority to take a decision
regarding establishment of a circuit Bench or a
Bench of this Court. Prima facie, we are of the
view that even assuming that the members of
the Bar feel that the demand for establishment
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of a Bench at a particular place is very
legitimate, they cannot act against the well
settled law as laid down by the Apex Court.
They cannot force or compel a Constitutional
Authority to act in a particular manner by
exerting pressure by such illegal methods and
by taking help of the political parties. What is
material to note is that apart from lowering the
dignity of the entire institution, the real
sufferers were the common litigants as the
functioning of the Courts on the relevant dates
came to a complete standstill in major parts of
the aforesaid Districts. Therefore, for the time
being, we propose to issue a notice of Criminal
Contempt to the Office Bearers of the concerned
Bar Associations as well as the Action
Committee on the basis of whose appeal the
Advocates abstained from the Court work.
15. Hence, we direct that notices of criminal
Contempt be issued in accordance with Rule
9(1) of Contempt of Court (Bombay High
Court) Rules, 1994 to all the office bearers
(Presidents, Vice-Presidents, Secretaries,
Treasurers and the members of the Managing
Committee) of the Kolhapur Bar Association,
Sindhudurg District Bar Association, Dapoli,
Ratnagiri, Lanja and Guhagar Bar Associations,
Satara District Bar Association as well as
Medha, Dahiwadi, Waduj and Koregaon Bar
Associations. We direct that similar notices be
issued to the office bearers of the Kolhapur
Bench Action Committee. True copies of this
order be forwarded along with the notices. As
the names of the Office Bearers are not
available on record, we direct that the notices
be issued through the Principal District Judges
of the District Courts at Kolhapur, Sindhudurg,
Ratnagiri and Satara. The Notices are made
returnable on 9th October 2015. The Registrar
(Judicial-I) shall ensure that the notices are
prepared immediately after getting all the
particulars from concerned Principal District
Judges and the same are dispatched to the
concerned Principal District Judges to ensure
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completion of service on or before 9 th October
2015."
13. Thereafter, on 9th October 2015, when the Contempt
Petition was placed before this Court, in Paragraph 3, this Court
observed thus:
"3. The contemnors representing various Bar
Associations who are present today assure the
Court that till the Contempt Petition is heard, they
will not take recourse to the objectionable activity
of boycotting the Courts or abstaining from the
Court work in support of a demand for establishing
a Bench or a Circuit Bench at any place. They
assured that they will not indulge in boycotting or
abstaining from the Court work as a mark of
protest against the failure of the Hon'ble the Chief
Justice of this Court to take a decision to establish
a Bench or a circuit Bench at a particular place. We
must note that the learned senior counsel for the
Kolhapur Bench Action Committee has also given
the said assurance on behalf of the office bearers of
the Action Committee. We accept the assurances
given as aforesaid as the Undertakings. Only in view of
the undertakings that we are granting a longer time to
file a reply and that we are dispensing with the
presence of majority of contemnors."
(emphasis added)
14. Thereafter, several orders were passed from time to time.
On 28th October 2015, a Criminal Application was tendered across the
bar by the President of Kolhapur Bar Association in which reliance was
placed on the Special General Body meeting of Kolhapur District Bar
Association held on 21st October 2015. On that date, a Resolution was
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passed resolving that an Application should be made by the Bar
Association for modification of the order dated 9 th October 2015 and for
claiming exemption from filing the undertakings as aforesaid before this
Court. This Court in the order passed on 28 th October 2015 observed
that the act of passing the Resolution on 21 st October 2015 and the act
of filing a Criminal Application amount to an aggravated contempt.
15. The order dated 9th December 2015 notes that certain
District Courts Bar Association had taken a decision to abstain from the
work of Lok Adalat on account of the failure of the Hon'ble Chief Justice
to establish a bench of this Court at Kolhapur. This Court passed an
order directing the Contemnors to reconsider the decision of boycotting
the work of Lok Adalats. The order dated 29 th January 2016 records the
statements of learned counsel representing various Bar Associations
except Satara and Kolhapur Bar Associations that the members of the
Bar have been participating in Lok Adalats and they will continue to do
so. The order dated 11th March 2016 records that the Kolhapur District
Bar Association passed a Resolution dated 10 th March 2016 recording a
decision of the members of the Bar Association not to abstain from the
work of Lok Adalats. The order dated 23 rd June 2016 is very material.
Clause 1 of the said order reads thus:
"Except for three members of the Manging Committee
of the District Bar Association of Pune and office
bearers of the Satara District Bar Association, all other
Contemnors seem to have filed reply to the contempt
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notices. The learned counsel representing the office
bearers of Satara Bar Association to whom contempt
notices have been issued states that now new office
bearers and Managing Committee of the said District
Bar Association has been elected. Nevertheless, the
hearing of the contempt notices will have to be
proceeded with as there is already a finding recorded
by this Court that a prima facie case of contempt is
made out against the contemnors who have been
served with the contempt notices. We may, however,
hasten to add here that undertakings which have
been given by the office bearers of the Bar
Associations who are contemnors have been filed
on their behalf as well as on behalf of the
concerned Bar Associations."
(emphasis added )
WRIT PETITION NO.6093 OF 2015
16. As far as Writ Petition No.6093 of 2015 is concerned, the
said Writ Petition has been filed for inviting attention of the Court to the
fact that the Pune Bar Association has taken a recourse to illegal and
unlawful strike. It is pointed out that the members of the Bar
Association and some of its office bearers are preventing some members
of the Bar who are willing to carry on the Court work.
LEGAL POSITION
17. Before adverting to the affidavits and submissions made
across the bar, the settled legal position will have to be highlighted. In
the order dated 16th September 2015, this Court has already made a
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reference to Paragraphs 20, 22 and 25 of the decision of the Apex Court
in the case of Ex.Capt. Harish Uppal. The Paragraphs 20, 22 and 25 of
the decision of the Apex Court in the case of Ex.Capt. Harish Uppal
read thus:-
"20. Thus the law is already well settled. It is the
duty of every advocate who has accepted a
brief to attend trial, even though it may go on
day to day and for a prolonged period. It is
also settled law that a lawyer who has
accepted a brief cannot refuse to attend court
because a boycott call is given by the Bar
Association. It is settled law that it is
unprofessional as well as unbecoming for a
lawyer who has accepted a brief to refuse to
attend court even in pursuance of a call for
strike or boycott by the Bar Association or the
Bar Council. It is settled law that courts are
under an obligation to hear and decide cases
brought before them and cannot adjourn
matters merely because lawyers are on strike.
The law is that it is the duty and obligation of
courts to go on with matters or otherwise it
would tantamount to becoming a privy to the
strike. It is also settled law that if a resolution is
passed by Bar Associations expressing want of
confidence in judicial officers, it would amount
to scandalising the courts to undermine its
authority and thereby the advocates will have
committed contempt of court. Lawyers have
known, at least since Mahabir Singh
case [(1999) 1 SCC 37] that if they participate
in a boycott or a strike, their action is ex facie
bad in view of the declaration of law by this
Court. A lawyer's duty is to boldly ignore a
call for strike or boycott of court/s. Lawyers
have also known, at least since Ramon Services
case [(2001) 1 SCC 118 : 2001 SCC (Cri) 3 :
2001 SCC (L&S) 152] that the advocates would
be answerable for the consequences suffered by
their clients if the non-appearance was solely on
grounds of a strike call."
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21. It was expected that having known the well-
settled law and having seen that repeated strikes
and boycotts have shaken the confidence of the
public in the legal profession and affected
administration of justice, there would be self-
regulation. The abovementioned interim order
was passed in the hope that with self-restraint
and self-regulation the lawyers would retrieve
their profession from lost social respect. The
hope has not fructified. Unfortunately strikes
and boycott calls are becoming a frequent
spectacle. Strikes, boycott calls and even
unruly and unbecoming conduct are
becoming a frequent spectacle. On the
slightest pretence strikes and/or boycott calls
are resorted to. The judicial system is being
held to ransom. Administration of law and
justice is threatened. The rule of law is
undermined.
22. It was expected that having known the well-
settled law and having seen that repeated strikes
and boycotts have shaken the confidence of the
public in the legal profession and affected
administration of justice, there would be self-
regulation. The above mentioned interim order
was passed in the hope that with self-restraint
and self-regulation the lawyers would retrieve
their profession from lost social respect. The
hope has not fructified."
"25. Thus a Constitution Bench of this Court has held
that the Bar Councils are expected to rise to the
occasion as they are responsible to uphold the
dignity of courts and majesty of law and to
prevent interference in administration of justice.
In our view it is the duty of the Bar Councils to
ensure that there is no unprofessional and/or
unbecoming conduct. This being their duty no
Bar Council can even consider giving a call for
strike or a call for boycott. It follows that the Bar
Councils and even Bar Associations can never
consider or take seriously any requisition calling
for a meeting to consider a call for a strike or a
call for boycott. Such requisitions should be
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consigned to the place where they belong viz.
the waste-paper basket. In case any Association
calls for a strike or a call for boycott the State
Bar Council concerned and on their failure the
Bar Council of India must immediately take
disciplinary action against the advocates who
give a call for strike and if the Committee
members permit calling of a meeting for such
purpose, against the Committee members.
Further, it is the duty of every advocate to boldly
ignore a call for strike or boycott."
(emphasis added)
18. Earlier orders of this Court make a reference to the decision
of the Apex Court in the case of Common Cause, a Registered Society
v. Union of India and others. In the case of Roman Services Pvt. Ltd.
v. Subhash Kapoor3, the Apex Court dealt with the consequences
suffered by the litigants on account of non appearance of the Advocates
on the ground of a call given for strike by Bar Associations. The Apex
Court held that the members of the Bar will be responsible for the
consequences suffered by the litigants.
19. The Courts of Law are established for common man. A
litigant who comes to the Court of law is a consumer of justice. The
functions and duties of the members of the Bar and Judges are
complementary to each other. The ultimate object of members of the
Bar and Judges is to ensure that justice is done to a common man. Their
duty is to ensure that speedy justice is provided to the citizens. If
3 (2001)1 SCC 118
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members of the Bar give a call for strike or for abstaining from the
Court work, it completely paralyzes the administration of justice in the
concerned Courts as it had happened in the Districts of Pune, Satara,
Sangli, Kolhapur, Sindhudurg and Ratnagiri on account of call for strike
given in support of the demand for establishing a bench of this Court.
Though the decision of the Apex Court lays down that the members of
the Bar should ignore such illegal call, very few lawyers showed the
courage of defying the call. The reasons for not defying the call are
obvious.
20. In the State of Maharashtra, there is a huge pendency of
cases in all the Courts. Abstention by the members of the Bar leads to
further delay in disposal of the proceedings. In many cases, the
accused could not get bail though they deserved the grant of bail on
merits, on account of boycott and/or strike by the members of the Bar.
In many civil cases, the litigants must have been deprived of an
opportunity to get an urgent ad-interim relief. Such a call given for
strike or to abstain from the Court work directly interferes with the
administration of justice. It tends to interfere with due course of legal
proceedings. In fact, it tends to obstruct the entire functioning of justice
delivery system and, therefore, such conduct amounts to a criminal
contempt within the meaning of Section 2(c) of the Contempt of Courts
Act, 1971. Moreover, participating in such boycott or strike may
sng/skn 19 smcp-3.15nwp-6093.15
amount to infamous conduct on the part of the members of the Bar
thereby attracting disciplinary proceedings under Section 35 of the
Advocates Act, 1961. Moreover, such conduct will also amount to a civil
contempt as it will amount to committing the breach of various
directions of the Apex Court in the case of Harish Uppal (supra) and
others.
21. The Lok Adalats constituted under the Legal Services
Authorities Act, 1987 have trappings of a Civil Court. It can pass
executable decrees by consent of the parties. The provisions of the
Legal Services Authorities Act, 1987 will have to be considered in the
light of the Section 89 of the Code of Civil Procedure, 1908. Therefore,
the act of boycotting Lok-Adalats in support of a demand for
establishing a bench of this Court will also attract the aforesaid
consequences.
22. The members of the Bar constitute a special class in our
society. They belong to an elite profession and therefore, a conduct of
higher standards is expected of them. Under the guise of supporting
the purported cause of litigants for establishing an additional bench of
this Court, a prolonged abstention of the Advocates from the Court
work has caused enormous damage to the cause of the litigants. It is
unfortunate that the members of the Bar and especially some members
sng/skn 20 smcp-3.15nwp-6093.15
of the Bar at Kolhapur indulged in shouting of slogans against the then
Hon'ble the Chief Justice of this Court and went to the extent of taking
a mock funeral procession of the then Hon'ble the Chief Justice of this
Court in the precincts of the Court. The justification offered is that the
tempers were very high as an assurance given by Hon'ble the Chief
Justice was not abided by. This explanation is completely devoid of
merits. This has caused all the damage to the prestige and the dignity of
the institution of the judiciary.
23. In the light of the legal position, now the question is
whether any action deserves to be taken under the Contempt of Courts
Act, 1971 for committing criminal contempt against the Contemnors
against whom notices of contempt have been issued. In the light of the
affidavits placed on record, the case of the Contemnors will have to be
examined. Apart from the Solapur Bar Association and some of the
Taluka Bar Associations in Ratnagiri District, none of the Bar
Associations have disputed that the calls were given by the Bar
Associations to boycott the Court proceedings. It is in the light of the
admitted position that the conduct of the Respondents will have to be
deprecated.
24. The contempt notices have been issued initially basically on
the basis of the two letters written by the two members of the Pune Bar.
sng/skn 21 smcp-3.15nwp-6093.15
The two members of the Bar were restrained from appearing in Court
by the President and the office bearers of the Pune Bar Association by
using force. It is on the basis of these two letters, the Hon'ble the Chief
Justice passed an order on 2nd July 2015 directing initiation of suo moto
criminal contempt proceedings. Before the said order was passed, a
report of the learned Principal District Judge, Pune was called for. The
report records that the Pune Bar Association has given a call to abstain
from the Court work for their demand for establishing a Bench of this
Court at Pune. The report was placed along with the note put up by the
Registry before the Hon'ble the Chief Justice. The learned Principal
District Judge in his report noted that due to call given by the Pune Bar
Association, the work of the Court has been paralyzed. The Pune Bar
Association passed a Resolution calling upon the members of the Bar to
abstain from the Court work in all the Civil and Criminal Courts as well
as the Tribunals in Pune District with effect from 19 th June 2015. The
order dated 3rd July 2015 makes a note of the fact that from 19 th June
2015, the members of the Bar have abstained from the Court work as a
mark of protest due to the failure to establish a Bench of this Court at
Pune. This Court in the order dated 3rd July 2015 noted that as the
lawyers are abstaining from the Court work, a large number of litigants
are being forced to approach this Court especially on the Criminal Side
for seeking urgent reliefs. Therefore, a suo moto criminal contempt
notice was issued to the office bearers of Pune Bar Association. After
sng/skn 22 smcp-3.15nwp-6093.15
aforesaid order was passed, on 4th July 2015, an urgent General Body
Meeting of the Pune Bar Association was convened and earlier call
given for abstaining from the Court work was withdrawn. On 28 th July
2015, Shri Girish C.Shedge, the then President of the Pune Bar
Association and six others filed affidavits accepting their mistake of
abstaining from the Court work in support of their demand for
establishing a bench at Pune. Their affidavits refer to the aforesaid
order dated 4th July 2015. In the said affidavits, the office bearers in
their personal capacity have tendered an unconditional apology and
they have given personal undertaking not to indulge in any such
activities and not to encourage any one to indulge in such activities. On
6th August 2015, other 15 office bearers/Managing Committee
Members filed similar affidavits.
25. In the order dated 3rd July 2015, this Court referred to the
decision of the Apex Court in the case of Ex.Capt. Harish Uppal. This
Court noted that a prima facie case is made out to initiate action for
committing a criminal contempt against the office bearers of the Pune
Bar Association. In the same order, this Court noted the statement of
the learned senior counsel appearing for the Pune Bar Association that
on the next day, a meeting of the Bar Association will be convened to
reconsider the earlier decision. It is true that on the very next day, a
Resolution was passed by the Pune Bar Association recalling its earlier
sng/skn 23 smcp-3.15nwp-6093.15
decision to boycott the Court proceedings. In the order dated 3 rd July
2015, this Court noted that the Pune Bar Association gave a call to
abstain from the Court work from 19th June 2015. This Court noted as
to how the litigants suffered enormous inconvenience and prejudice.
Only after the intervention of the Court that perhaps wiser counsel
prevailed over the members of the Pune Bar and on 4 th July 2015, the
call earlier given to abstain from the Court work was withdrawn. But
the fact remains that for a period of 16 days, the entire judiciary in the
Pune District was paralyzed and hardly any judicial work could be done
by the Judicial Officers. This happened in a District which is one of the
largest judicial Districts in our country which is perhaps having highest
pendency in the State. The members of the Bar took up the issue of
establishing a bench at Pune presumably for the sake of litigants. In the
bargain, they have done enormous prejudice and harm to the interests
of litigants by abstaining from the Court work for such a long time.
There are instances brought on record in Writ Petition No.6093 of 2015
and by way of letters addressed by the two members of the Bar as to
how the members of the Bar adopted illegal and violent methods for
preventing those members of the Bar who were willing to work in the
Court.
26. In the teeth of the law laid down by the Apex Court in its
decision in the case of Ex.Capt. Harish Uppal, the members of the Bar
sng/skn 24 smcp-3.15nwp-6093.15
indulged in gross illegalities which brought the institution of the
judiciary in disrepute. Considering the Resolution passed on 4 th July
2015 and apology tendered by the office bearers and undertakings
given by the office bearers, we propose to show leniency by granting
pardon.
AFFIDAVIT FILED BY THE SOLAPUR BAR ASSOCIATION:
27. Now, we turn to the stand taken by the Bar Associations.
We are referring to some of the affidavits filed on record. As far as
Solapur Bar Association is concerned, the stand taken on oath is that
the said Bar Association did not support the call given by the Action
Committee at Kolhapur for boycotting the Courts on 9 th, 10th and 11th
September 2015. Shri Shivshankar L. Ghodke, the President of Solapur
Bar Association has stated that on 8 th, 9th & 10th September 2015, the
members of Solapur Bar Association were working in Court at Solapur
and they did not abstain from the Court work. He stated that so far the
Solapur Bar Association is not a part of Kolhapur Bench Action
Committee, Kolhapur. Therefore, he has sought discharge of the
contempt notice. In Paragraph 5 of this affidavit, he has given an
undertaking on behalf of the members of Solapur Bar Association that
they will not indulge and commit any such act in future that will cause
impediment in the functioning of the judiciary and stalling the work of
sng/skn 25 smcp-3.15nwp-6093.15
judicial system. He has stated that the members of Solapur Bar
Association will see that the functioning of the Court and the judicial
system would run in smooth and proper manner without there being
any strike or boycott in the Court. He has stated that the members of
the Bar were regularly attending Lok Adalats. We have no hesitation in
accepting the statements made in the affidavit and undertaking given
by Shri Ghodke as the undertaking given by the members of the Solapur
Bar Association. There is no material placed on record to show that the
members of the said Association have indulged in illegal activity of
boycotting the Courts. Therefore, the contempt notice will have to be
discharged as far as the members of the said Association are concerned.
AFFIDAVITS FILED BY THE PUNE FAMILY COURT
LAWYERS' ASSOCIATION:
28. As far as Pune Family Court Lawyers' Association is
concerned, there are affidavits filed by its office bearers. In the affidavit,
it is accepted that there was a call given for abstaining from the Court
work and which was withdrawn on 4 th July 2015. They have given an
unconditional apology and have stated that they will not indulge in any
illegal activities and will not encourage anybody else to indulge in any
such activities. The Advocates practicing before the Family Court have
more onerous responsibility. Their abstention directly affects several
families.
sng/skn 26 smcp-3.15nwp-6093.15
AFFIDAVITS OF ADVOCATES' BAR ASSOCIATION OF
DAHIWADI, DISTRICT - SATARA AND SATARA
DISTRICT BAR ASSOCIATION:
29. Shri Rajendrakumar Ramhari Jadhav, the President of
Dahiwadi Advocates' Bar Association, Taluka-Man, District Satara, and
the President and officer bearers of another Bar Association at Taluka
Vaduj, District Satara as well as the President of Satara District Bar
Association have filed affidavits and undertaken not to take recourse to
such strikes during the pendency of the Petitions. The office bearers of
various Taluka Bar Associations in Satara District have filed affidavits
tendering apology and undertakings.
30. Shri Rajendrakumar Ramhari Jadhav, the President of
Dahiwadi Taluka Bar Association, Shri Dhiraj Dattatray Kshirsagar, Vice
President of Dahiwadi Taluka Bar Association and Shri Sagar Kundalik
Bhosale, Secretary of Dahiwadi Taluka Bar Association have also filed
affidavits tendering apology. They have given their personal
undertakings not to go on strike or abstain from Court work or boycott
the Court proceedings on the issue of formation of Bench of this Court
at Kolhapur.
31. Shri Mahesh N. Kulkarni, Ex-Officio Vice President of
Satara District Bar Association, who is the District Government Pleader
sng/skn 27 smcp-3.15nwp-6093.15
of Satara, has given an undertaking stating that he has worked in the
Court on 9th, 10th and 11th September 2015. Considering the statements
on oath and documents annexed to the affidavit, there is no room to
disbelieve the said statements.
AFFIDAVITS OF THE BAR ASSOCIATION OF SANGLI:
32. Shri Harish Gokuldas Pratap and Shri Ravikant Rangarao
Patil, the Presidents of Sangli Bar Association for the years 2016-17 and
2015-2016 respectively, apart from tendering apology, have given
undertakings not to boycott the Courts and the Lok Adalats.
AFFIDAVITS OF KOLHAPUR DISTRICT BAR ASSOCIATION:
33. Shri Rajendra Lalasaheb Chavan, the President of both the
Kolhapur District Bar Association and Kolhapur Bench Action
Committee has filed an affidavit dated 29 th January 2016. His
contention is that the then Hon'ble the Chief Justice of Bombay High
Court had assured the members of the Association that on 8 th
September 2015, i.e. on the day of his retirement, he would take a final
decision about the establishment of a Bench at Kolhapur. He stated that
when in the evening of 8th September 2015, it was learnt that no
decision has been taken, the public at large could not control their
sng/skn 28 smcp-3.15nwp-6093.15
feelings which led to protests and agitation in the evening of 8 th
September 2015. Thereafter, at the instance of members of the Bar, a
call for protest by the lawyers for three days in six Districts was given.
He has accepted that there was an incident of a burning of effigy of the
retired Chief Justice of Bombay High Court. He has stated that the act
was unfortunate but was out of a sheer frustration. He claims that the
Bar Association never supported such act. Thus, it is an admitted
position that unpleasant events occurred in the Court and near the
precincts of the Court at Kolhapur on the evening of 8 th September
2015. Involvement of the members of the Bar in the said incident is not
disputed.
AFFIDAVIT OF LANJA BAR ASSOCIATION:
34. Shri Rahul Madhusudan Desai, the Secretary of Lanja Bar
Association, has filed an affidavit stating therein that the said Bar
Association supported the demand made by the Action Committee for
the bench at Kolhapur and, therefore, a Resolution was passed on 9 th
September 2015 for abstaining from the Court work. There are
affidavits filed by the members of Lanja Bar Association giving
assurances/ undertakings that pending the hearing of the Contempt
Petition, they would not take recourse to such activities.
sng/skn 29 smcp-3.15nwp-6093.15
AFFIDAVITS OF DAPOLI BAR ASSOCIATION,
GUHAGAR BAR ASSOCIATION AND RATNAGIRI BAR
ASSOCIATION:
35. There is an affidavit filed by Shri Vijay Chandrakant Pawar,
the Chairman of Dapoli Bar Association stating that the said Bar
Association used to follow the instructions of Kolhapur High Court
Action Committee and accordingly, a Resolution dated 9 th September
2015 was passed for abstaining from the Court work. In Paragraph 6,
there is an undertaking given that the members of the Bar will not take
any action in contravention of the order that this Court may pass in the
Contempt Petition. There are similar affidavits filed by other office
bearers of Dapoli Bar Association. Shri Girish Gopal Shembekar, who is
a practising Advocate, has filed an affidavit stating that he was not an
office bearer of the Bar Association and that he never boycotted the
Court proceedings. His statements made in the affidavit deserve to be
accepted. Shri Sanket A. Salvi and other office bearers of Guhagar Bar
Association have filed affidavits tendering apology and accepting that
on 9th September 2015, a meeting of Association was held in which it
was decided to support the cause taken by the Kolhapur Bench Action
Committee. However, they have categorically stated that on 9 th to 11th
September 2015, the members of the Bar did not boycott the Court
proceedings. We accept the said statements made by the members of
the Managing Committee of Guhagar Bar Association.
sng/skn 30 smcp-3.15nwp-6093.15
36. Shri Fazal Musa Dingankar, the President of Ratnagiri
District Bar Association, while tendering an apology has contended that
though the cause propagated by Kolhapur Bench Action Committee was
supported by the said Bar Association, it did not support the call given
by the said Action Committee for boycotting the Courts and, therefore,
during the period between 9th September 2015 to 11 th September 2015,
the members of the Bar did not abstain from the Court work. There are
similar affidavits filed by other office bearers of Ratnagiri Bar
Association. Shri Fazal Musa Dingankar, the President of Ratnagiri Bar
Association has filed another affidavit dated 22 nd December 2016 in
which he has stated that he was the President of Ratnagiri Bar
Association for the term 2014-2017. He has given undertaking not to
take recourse to the strike or abstaining from the Court work as well as
Lok Adalats. Similar undertakings have been given by other office
bearers of Ratnagiri Bar Association. Another affidavit has been filed
on 6th January 2017 by Shri Fazal Musa Dingankar, the President of
Ratnagiri Bar Association stating that a Resolution has been passed by
Ratnagiri Bar Association that the members of the Bar will not indulge
in illegal act or will not go on strike or abstain from the Court work. He
has also filed a separate affidavit reiterating his statement and stating
that the members of the Bar Association will participate in Lok Adalats.
37. Shri Nitin S. Sawant, a resident of Kherdi, Taluka -
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Chiplun, District - Ratnagiri has stated in the affidavit that he has no
concern with any Bar Association as its members. Nevertheless, he has
tendered an apology. There are undertakings given by the office bearers
of Guhagar Taluka Bar Association stating that they will not take
recourse to strike till disposal of the Writ Petitions. There is another
affidavit filed by Shri Nitin S. Sawant, residing at Kherdi, Taluka-
Chiplun, District - Ratnagiri to which he has annexed several
documents showing that he has appeared in the Court on 9 th, 10th & 11th
September 2015. The office bearers of Dapoli Bar Association,
Ratnagiri, filed an affidavit stating that as per the Resolution of Dapoli
Bar Association dated 6th January 2017, the Dapoli Bar Association
resolved not to boycott the Court proceedings in future.
AFFIDAVIT OF LANJA BAR ASSOCIATION:
38. Shri Sadanand Dhondu Gangan, who was the President of
Lanja Bar Association, has given an undertaking not to take recourse to
strike or to abstain from the Court work. There are similar affidavits
filed by the office bearers of Lanja Bar Association.
AFFIDAVIT OF DISTRICT BAR ASSOCIATION OF
SINDHUDURG:
39. Shri Veeresh Ramchandra Naik, the Secretary of
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Sindhudurg District Bar Association has filed an affidavit dated 11 th
April 2016 for himself and on behalf of the Bar Association. He has
stated that the office bearers of Sindhudurg District Bar Association will
not pass any Resolution for calling bandh or boycotting the Court or
abstaining from the Court work as a mark of protest or in support of a
demand for establishing a bench or a circuit bench of this Court in any
part of Maharashtra and Goa.
40. There are affidavits filed by the office bearers of
Sindhudurg District Bar Association tendering apology and assuring
that till the Contempt Petition is disposed of, the office bearers of
Sindhudurg District Bar Association will not pass any Resolution calling
strike.
AFFIDAVIT OF BAR COUNCIL OF MAHARASHTRA
AND GOA:
41. Shri Pravin Y. Ranpise, the Secretary of Bar Council of
Maharashtra and Goa has filed an affidavit placing on record a Circular
issued on 14th February 2014 to all Taluka and District Court Bar
Associations forwarding therewith Resolutions passed by the Bar
Council of Maharashtra and Goa on 27 th June 2015. By another
affidavit dated 19th November 2015, he has placed on record
Resolutions passed by the Bar Council of Maharashtra and Goa. A
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Resolution dated 25th October 2015 records that the concerned office
bearers of various Bar Associations as mentioned in the Resolution
dated 4th October 2015 should not indulge in any such activity which
paralyzes the functioning of the Court. It is stated that if they act
contrary to the orders, it will be an act of gross misconduct.
CONCLUDING PART
42. All the Contemnors who have filed the affidavits have
tendered apology. No one has disputed the legal position that the Bar
Associations or the members of the bar have no right to abstain from
the Court work or to boycott the Court proceedings or Lok Adalats in
support of their demand for establishing a Bench or Circuit Bench of
this Court at a particular place. Some of them, as stated above, have
given undertakings not to indulge in such illegal acts till disposal of the
Contempt Petition.
43. The legal position is crystal clear. Such acts of the
Advocates of boycotting the Courts or abstaining from the Court work
including the work of Lok-Adalats or making an appeal to the members
of the Bar to do so in support of a demand for establishing a bench of
this Court is not only illegal but the same amounts to committing both
a civil and criminal contempt.
sng/skn 34 smcp-3.15nwp-6093.15
44. It is unfortunate that some members of the Kolhapur Bar
Associations participated in the agitation on 8 th September 2015 which
included an act of taking a mock funeral procession of the then Hon'ble
the Chief Justice of this Court and thereafter, an act of burning the
effigy of the then Chief Justice. A Chief Justice of this Court on his last
working day ought not to have been attacked in this fashion.
45. The Kolhapur Bar Association and the Kolhapur Bench
Action Committee had given a call for abstaining from Court work on
9th to 11th September 2015. The members of the Bar in Districts of
Kolhapur, Sangli and Satara as well as members of the Bar at few places
in Ratnagiri and Sindhudurg Districts abstained from the Court work
accordingly. Therefore, the members of the said Associations are guilty
of committing criminal contempt. Only in the light of the apologies
tendered and undertakings on oath that we are showing mercy though
they deserve no sympathy. If hereafter the members of the Bar take
recourse to strike or boycott in support of their demand for establishing
a bench or circuit Bench, it will be an act of aggravated criminal
contempt which will be dealt with strictly and firmly. No member of the
Bar can openly and blatantly defy the decisions of the Apex Court. The
act of causing enormous harm to the interests of litigants and
reputation of the institution will not be tolerated in future.
sng/skn 35 smcp-3.15nwp-6093.15
46. Accordingly, we dispose of the Petitions by passing the
following order:-
ORDER :
(a) The apologies tendered by the Contemnors and the
undertakings given by them to this Court are
accepted;
(b) The Contempt notices are discharged;
(c) The Criminal Suo Moto Contempt Petition and the
Civil Writ Petition are disposed of on above terms;
(d) Criminal Application No.1 of 2016 is disposed of
accordingly.
(ANUJA PRABHUDESSAI, J ) (A.S.OKA, J)
