Bar Association v. L. S. Kothari — 1965 DIGILAW 307 (ALL)

JUDGMENT Gyanendra Kumar, J. - This is a somewhat unfortunate case for proceedings against the Presiding Officer of a court for having committed an alleged contempt of his own court. This case has been initiated by the Bar Association Library, Moradabad, which is a registered body under the Societies Registration Act. One of its members is Malik Amar Chand Kapur, Advocate, who has been practising at Moradabad from 1952 mainly on the criminal side. In 1964 opposite party, Lakashman Singh Kothari, was the Sub-Divisional Magistrate, Amroha at Moradabad. A criminal case (State v. Khalil and others) under the U. P. Prevention of Cow Slaughter Act was pending before the opposite party, in which Malik Amar Chand Kapur was appearing for the accused. On 24-11-1964 P.W. Khem Singh, Head Constable was being examined by the assistant Public Prosecutor as the first witness for the prosecution. It appears that in his examination-in-chief certain leading question was put by the Assistant Public Prosecutor which was objected to by Amar Chand Kapur, who was the defence counsel. It further appears that instead of addressing his objection to the Magistrate, the defence counsel directly started addressing the Assistant Public Prosecutor, which was obviously a poor or even offensive Type of advocacy. However, the Magistrate did not note down the objection of the defence counsel, allegedly on the ground that the same was not addressed to him but to the Assistant Public Prosecutor. It is stated that the Assistant Public Prosecutor again asked some leading questions which were again objected to by the defence counsel in the same manner, with the result that recording of the deposition of the witness was interrupted. Hence the Magistrate wrote down the following order on that very sheet of paper on which he was recording the statement of the witness: - "The counsel for the defence will not let me write down the statement because he is interfering every now and then. I, therefore, ask him to leave the court." 2. This order was read aloud by the Magistrate and he desired the defence counsel to leave his court room. The word ask was, however, substituted by the word request. There is considerable controversy between the parties whether this change was made by the Magistrate there and then before reading out the order or subsequently. Whatever be the stage, it does not really make any substantial difference in the situation. The word ask was, however, substituted by the word request. There is considerable controversy between the parties whether this change was made by the Magistrate there and then before reading out the order or subsequently. Whatever be the stage, it does not really make any substantial difference in the situation. The crux of the matter is that the Magistrate required the defence counsel to leave his court room, as he was supposed to be obstructing the smooth progress of the case. Nevertheless, the Advocate did not leave the court room and the Magistrate renewed recording the evidence. Soon after the accused made a request to the Magistrate to stay further proceedings as they wanted to move for the transfer of the case from his court. The Magistrate accordingly stayed further proceedings subject to the accused's furnishing a personal bond of Rs. 200/-. A transfer application was subsequently moved before the Sessions Judge, Moradabad on that very day. who admitted the same and stayed further proceedings before the Magistrate. 3. Subject to reasonable exceptions, an accused has a right to be defended by a counsel of his choice. This is his fundamental right under Article 22 of the Constitution in the instant case. Malik Amar Chand Kapur was the counsel who had been engaged by the accused to defend them. At the relevant time he was engaged in discharging his duty towards his clients, when he was asked by the Magistrate to leave his court room, in the midst of the case. It was under these circumstances that the petitioner, Bar Association of Moradabad, has approached this Court for taking contempt proceedings against the Magistrate concerned principally on the ground that what the Magistrate did was not so much an insult to the person of the advocate but to the administration of justice as such, for he was protected by law in the discharge of his duties to the client. It is on that account that an insult to or attack on a professional gentleman of the Bar is considered contempt of Court. 4. Whether a Presiding Officer can commit contempt of his own court is a question, which is not free from controversy. However, it has to be remembered that the Presiding Officer alone does not constitute a court, which, in fact and law, is an impersonal being or entity. 4. Whether a Presiding Officer can commit contempt of his own court is a question, which is not free from controversy. However, it has to be remembered that the Presiding Officer alone does not constitute a court, which, in fact and law, is an impersonal being or entity. It is true that one of its main limbs is the presiding Officer but there are other more or less equally important limbs which constitute a court, like the counsel practising before it, the officials of the court, the litigants, who come to the court for redress of their grievances and even the witnesses, who appear for one party or the other. Admittedly, Advocates are officers of the Court and are as such part and parcel of the administration of justice, in which they have to play the important role of protecting the rights and interest of the litigant public, on the one hand and of assisting the Presiding Officer in the even-handed dispensation of justice on the other. The Presiding Officer and the counsel are the two bright facets of the same gem. They have often been called the two main wheels on which rolls the stately chariot of justice. There can hardly be any doubt that if one were to insult, abuse or hold out a threat to the Presiding Officer of a court, he would be guilty of gross contempt of that Court, inasmuch as he would thereby demolish the dignity of the court. Likewise, one were to insult, abuse or hold out a threat to an Advocate appearing before a court, he would equally be guilty of having committed contempt of that court inasmuch as it would interfere with the course of proper administration of justice and thereby impair the dignity of the court. Anything which tends to impair the sacred process of a judicial proceeding and hampers the proper administration of justice would obviously amount to contempt of court. 5. It has been observed by Oswald in his book on Contempt of Court that "Contempt of court ... is so manifold in its aspects that it is difficult to lay down any exact definition of the offence .... There are three different sorts of contempt. One kind of contempt is scandalising the Court itself. There may be likewise a contempt of the Court, in abusing parties who are concerned in causes. is so manifold in its aspects that it is difficult to lay down any exact definition of the offence .... There are three different sorts of contempt. One kind of contempt is scandalising the Court itself. There may be likewise a contempt of the Court, in abusing parties who are concerned in causes. To speak generally, Contempt of Court will be said to be constituted by any conduct that tends to bring the authority and administration law into disrespect or disregard, or to interfere with or prejudice parties, litigants or their witnesses during the litigation." 6. In Halsbury's laws of England 3rd Edition Vol. 8 pages 7 and 12 (articles 8 and 16) it has been laid down "Any act done ... to interfere with the due course of justice or the lawful process of the court, is a contempt of court. . . . Disturbing the proceedings before an officer of the court is a contempt of the court whose officer he is and so also is an attempt by threat or otherwise to induce an officer of the court to depart from the course of his duty."In Re Ludlow Charities, Lechmere Charlton's case, (1837) 2 My. & Cr. 316. 7. Likewise in 17 Corpus Juris Secundum page 96 para. 35 reads: - "Judges and Magistrates are liable for contempt committed by them.... where they are guilty of misbehaviour in office .... (McFarland v. State, 109 N. W. 2d 397, 405, 172 Neb 251) Where a country judge collaborated with one charged with crime to secure his release by the issuance of a void writ of habeas corpus and thereafter cited the Judge of the district court having jurisdiction of the criminal proceeding for criminal contempt for disregarding the void, writ, the county judge could be punished for contempt, since his conduct was calculated to destroy the authority, dignity, and integrity of the district court of the same county and to obstruct proceedings and hinder administration of justice in such court in a matter of which it had jurisdiction, and the rule of judicial immunity could not be invoked in contempt proceeding against him." 8. In this connection, reference may be made to the Full Bench case of Muhammed Shafi v. Chaudhary Qadir Baksh, Magistrate 1st Class, Lahore, A.I.R. 1949 Lahore 270 in which the facts were that proceedings under Sec. 145, Cr. In this connection, reference may be made to the Full Bench case of Muhammed Shafi v. Chaudhary Qadir Baksh, Magistrate 1st Class, Lahore, A.I.R. 1949 Lahore 270 in which the facts were that proceedings under Sec. 145, Cr. P. C. were pending in the court of Ch. Qadir Buksh, Magistrate 1st Class. During the pendency of these proceedings one of the parties instituted a civil suit against the other in the court of the Sub-Judge Lahore for declaration of his rights and for permanent injunction. He further obtained a temporary injunction ordering the defendant to that suit not to continue the proceedings in the court of the Magistrate under Sec. 145, Cr. P. C. When parties appeared in the court of the Magistrate on a subsequent date the party who had obtained an injunction from the civil court was represented by Mr. Mohd. Shafi, Advocate. As soon as the Magistrate was informed that Mr. Shaft's client had obtained an ad-interim injunction from the Sub-Judge against the other party, the Magistrate lost his temper, got up from his chair and addressed Mr. Mohammad Shafi, Advocate, as follows: - "This is a foolish order passed by a foolish Sub-Judge and secured by a foolish lawyer. I am not going to take notice of it. From where have you come ? What is your standing? You seem to know nothing of law. You are instrumental in procuring this foolish order and as such you have committed a crime for which you could be sent behind the bars.". 9. After making the above remarks the Magistrate told Mr. Shafi in a very contemptuous manner that he wanted to teach him a lesson so that he should be careful in future. He further told the Advocate that he was playing with fire and that the consequences of playing with fire were obvious. These remarks were made while the Magistrate was still sending and was full of rage and fury. 10. The question for consideration in that case was whether the remarks made by the Magistrate amounted to contempt of court. It was observed by Abdul Rashid, C.J.: - "If the Magistrate was of the opinion that such an injunction could not be legally issued by a Sub-Judge it was open to him to ignore the injunction and continue the proceedings. The question for consideration in that case was whether the remarks made by the Magistrate amounted to contempt of court. It was observed by Abdul Rashid, C.J.: - "If the Magistrate was of the opinion that such an injunction could not be legally issued by a Sub-Judge it was open to him to ignore the injunction and continue the proceedings. There was however no occasion whatever for the Magistrate to lose his temper completely, to jump up from his chair and to begin shouting at the counsel who had dared to secure such an injunction. The words used by the respondent (Magistrate) gather ominous significance when all the surrounding circumstances are taken into consideration .... The counsel may legitimately submit (before a higher court) that the order (of a subordinate court) is wrong, foolish or even perverse. The atmosphere and circumstances, in which such submissions are made, are completely different from the scene created in a court of law by Ch. Qadir Buksh by getting up from the chair and by hurling insulting epithets at the counsel who had dared to obtain an injunction. In these circumstances, the remark that "This is a foolish order passed by a foolish Sub-Judge and secured by a foolish lawyer" certainly amounts to contempt of the court of Sub-Judge .... 11. In the present case these words were used in a contemptuous manner towards Mr. Mohammad Shafi and the object of the whole episode was to intimidate the lawyer who had dared to secure an injunction in order to help his client. . . .The fact that the lawyer was meant to be intimidated show that he may not carry on further proceedings in the court of the Sub Judge, is fairly evident from the following words uttered by the respondent (magistrate) You are instrumental in procuring this foolish order and as such you have committed a crime for which you could be sent behind the bars . . . .The respondent did not finish there. He plainly told Mr. Shafi that he wanted to teach him a lesson so that he should be careful in future. The object of this remark was to intimidate Mr. Mohammad Sha from carrying on the proceeding on behalf of his clients in the court of the Sub Judge............. 12. . . .The respondent did not finish there. He plainly told Mr. Shafi that he wanted to teach him a lesson so that he should be careful in future. The object of this remark was to intimidate Mr. Mohammad Sha from carrying on the proceeding on behalf of his clients in the court of the Sub Judge............. 12. If the abuse of the witnesses who appear in a court of law to be regarded as contempt of Court on the ground that it would intimidate other witnesses and thus impede the course of justice, it must be held that the intimidation of lawyer, who is representing one o the parties, is also contempt o Court, as it would seriously inter fere with the administration of justice. 13. It is of the greatest importance that the prestige and dignity of the Courts of law should be preserve at all costs. There cannot be any thing of greater consequence than to keep the streams of justice clear and pure, so that litigants may have the utmost confidence that they would be treated in a considerate manner by Courts of law. No Judge or Magistrate has any business to loss his temper in a Court of law, to get up from his chair and to make contemptuous remarks about other judges or counsel appearing either side. If parties to a litigation feel that they are likely to be subjected to insulting behaviour at the hands of the Presiding Officers of the Courts it would shake all confidence in the administration of justice and would thus pollute the stream of justice. 14. It is true that in the above case the Magistrate was charged of contempt of the court of the Sub-Judge. But the observations of the learned Chief Justice would equally apply if the Magistrate were to act in the manner described above, in respect of the proceedings of his own court. 15. From the above quoted observations of Abdul Rashid C.J. it can well be inferred that if the Presiding Officer of a court were to jump from his chair, clinch his fist and then insult, intimidate and hurl abuse on a counsel and refrain him from fearlessly performing his sacred duty, towards his client, by asking him to leave the court room, during the progress of a case, he would obviously be guilty of contempt of his own Court. It can hardly be doubted that the counsel has as much right to remain in the court room as the Presiding Officer himself, and an order by a Presiding Officer ejecting the counsel from he court room during the progress of a cause would not only pollute and prejudice the fair administration of justice but would violently shake the faith and confidence of the litigant public in the sublimity of the process of law. If the Presiding Officer acts in such an outrageous and undignified manner, he can verily be held guilty of contempt of his own Court, for he is only one of the component parts, which constitute the comprehensive, and manifold concept of a `Court'. 16. In Mahabir Prasad v. State, A.I.R. 1953 M.B. 60 it was held that Judges of inferior courts and Magistrates can be punished for contempt by the High Court for acting unjustly, oppressively or irregularly in the execution of their duties. It is to be noted that subordinate courts cannot start proceedings in contempt against their own Presiding Officers in the manner contemplated by Sec. 228 of the Indian Penal Code. In the first place, Sec. 228, I.P.C. only speaks of a public servant sitting in any stage of a judicial proceeding. This clearly refers to the individuality of the Judicial Officer as distinct from the overall and impersonal entity of the `court'. In such a case the wrong-doer has to be some one other than the Presiding Officer. Secondly, it is not possible for the Presiding Officer of a court to take proceedings in contempt against himself inasmuch as he cannot act in the triple capacity of being the prosecutor, the accused and the Judge in his own cause, at one and the same time. Here we are concerned with the proceedings which are being taken by the High Court under Sec. 3 of the Contempt of Courts Act read with Article 215 of the Constitution of India, as the Court of Record, in respect of a court subordinate to it. The present case being one where the contempt of court is not punishable under Sec. 228, I. P. C. the only authority which can take cognizance of a contempt in respect of a subordinate court is the High Court. 17. The present case being one where the contempt of court is not punishable under Sec. 228, I. P. C. the only authority which can take cognizance of a contempt in respect of a subordinate court is the High Court. 17. It is sometimes loosely stated that it is difficult to understand how a Presiding Officer of a court can be accused for committing contempt of his own court. To me it appears that it is based upon the mistaken belief that the Presiding Officer and the court are inseparable synonyms of each other. As already pointed out earlier, the Presiding Officer is not the whole court. He is only a component though important part of the wider concept which constitutes a court. The individuality of the Presiding Officer is essentially different from the impersonal entity of a court, Therefore, if the Presiding officer acts in a manner which outrages the dignity of the court and thereby defines the sacred image of the pure administration of justice, he can certainly be held to be guilty by the High Court of being in contempt of his own court, for the image of pure administration of Justice and majesty of law have to be preserved at all costs. It is true that it is the duty of the Presiding Officer to regulate the proceedings of his court and maintain its decorum, but this has to be done in a dignified manner which may be in consonance with the prestige of the court and not in angry, abusive and ignorable from which may undermine the very foundation on which exists the edifice of the administration of justice. Those limits have been prescribed by immutable principles, long traditions and practice of the courts which have been exercising their jurisdiction in this country, more or less in the present form for over a century, with innate sense of justice. 18. Coming to the merits of the instant case, opposite party Lakshman Singh Kothari has candidly admitted in his deposition before me that he knew that Advocates are officers of the court and they have a right to remain in the court room like the Presiding Officer himself. 18. Coming to the merits of the instant case, opposite party Lakshman Singh Kothari has candidly admitted in his deposition before me that he knew that Advocates are officers of the court and they have a right to remain in the court room like the Presiding Officer himself. He further stated that he did not intend to offer any insult to Shri Kapur but had asked him to move out of the court room in order to maintain discipline in his court, inasmuch as he bona fide believed that it was his duty to do so in order to smoothly carry oil the work of his court. The opposite party also realised that on the relevant date and time he was acting as a court of justice and not as a court of discipline or as an executive officer. He had expressed his regrets to the Acting President and Secretary of the Bar Association as well as to Shri Kapur himself, in the presence of the District Magistrate, Moradabad. He again expressed his sincere regrets and tendered unqualified apology for the unhappy incident which occurred in his court on the 24th of November, 1964. Such unfortunate incidents do sometimes happen in court rooms. It is gratifying to note that the opposite party has realised his mistake and expressed his regrets not only here but even at an earlier stage when there was lot of resentment and agitation on the point by the members of the Moradabad Bar. What happened in the court room of the opposite party o 24-11-64 was evidently in the heat o the moment, partly occasioned b the fact that Shri Kapur had started registering his protests and objections by directly addressing the Assistant Public Prosecutor rather that the Presiding Officer of the court It was under these circumstance that the opposite party entertained a bona fide but mistaken belief that he was entitled to ask the defence counsel to walk out of the court room in order to maintain discipline and progress of the case. How ever, the Magistrate soon after realised his mistake, and in a over straightforward manner he expressed his regrets for the same. He has again tendered unqualified apology in this Court and has thus mitigated the wrong. I think by his conduct the opposite party has sufficiently purged himself in the matter and further action is called for against him. 19. He has again tendered unqualified apology in this Court and has thus mitigated the wrong. I think by his conduct the opposite party has sufficiently purged himself in the matter and further action is called for against him. 19. Accordingly I discharge the notice of contempt issued to the opposite party. In the circumstances of the case I make no order as to costs.