Upendra Kumar Joshi v. State of Bihar — 1985 DIGILAW 336 (PAT)

JUDGMENT : P. S. Sahay, J. - The appellant, a practising Advocate of this court, has been convicted under the Contempt of Courts Act, 1971 (hereinafter to be referred to as the Act) and sentenced to pay a fine of Rs. 10/- in default, to suffer simple imprisonment for one week. 2. Some facts have to be stated in ORDER :to appreciate the point. The appellant was previously practising in the district Court of Bhagalpur and there he was involved in a criminal case under sections 379, 352 and 500 of the Indian Penal Code, He had come to this Court, against the framing of the charge but that application was dismissed and there was a trial and while considering the question of sentence the learned Magistrate, by his ORDER :dated 12.4.1980, called for a-report from the Probation Officer and against that the appellant moved this court in Criminal Miscellaneous no. 1849 of 1980 which was placed for admission before Hon'ble Mr. Justice V. Mishra (as he then was) and notice was issued to the complainant on 22.4.1980. The matter was taken up by the Hon'ble Judge on 8.8.1980 but at the time of argument some disparaging statements were made by the appellant arid, therefore, the learned Judge did not think it proper to hear the case and ORDER :ed it to be placed before another, Bench. He also observed that he would have taken a serious view but he deliberately refrained from doing so. The case was thereafter placed before Hon'ble Justice R. P. Sinha (as he then was) on 3.9.1980. The case, as it appears, was argued before the lunch hours and' also continued after that and the learned Judge was not inclined to admit the application and, thereafter, the appellant stated in the Court that the case should be transferred to other Court in presence of a number of lawyers. The application was dismissed and a proceeding of contempt of court was started against the appellant for making certain observations which amounted to contempt of court. Notice was issued to the appellant-contemner on 6.9.1980 and a show cause was filed on his behalf arid the matter was placed before Hon'ble Justice R.P. Sinha, who, by his ORDER :dated 1.10.1980, ORDER :ed that this case may be placed before another Bench. 3. The case was placed before Uday Sinha, J. and appellant pleaded not guilty. Notice was issued to the appellant-contemner on 6.9.1980 and a show cause was filed on his behalf arid the matter was placed before Hon'ble Justice R.P. Sinha, who, by his ORDER :dated 1.10.1980, ORDER :ed that this case may be placed before another Bench. 3. The case was placed before Uday Sinha, J. and appellant pleaded not guilty. Then the learned judge decided to take evidence of the lawyers who were present in the court room and they are Sri Kanhaya Prasad Verma, Ex-Government Advocate, Sri Arun Bihari Mathur, Sri Ashwini Kumar Rai, Sri Mahfooz Ahmad and Sri Pawan Kumar Joshi, All Advocates. All of them stated that the appellant argued his case at length and the case was dismissed and even' after that the appellant stated before the court, that the case should be sent to another Bench. Sri Arun Bihari Mathur happened to be present in both the Courts when the appellant was arguing for admission. According to the evidence of those witnesses it is clear that the appellant had argued his case at length but the judge was not inclined to admit the application and then the appellant prayed that the case should be transferred to another Court. One witness Sri Vibhuti Pandey was also examined on behalf of the appellant but he was declared hostile. At the fag end of the case apology was tendered by the appellant which was not accepted by the learned Judge. After considering the evidence and other materials the learned single Judge held the appellant to be guilty and convicted and sentenced him as stated above. This appeal has been preferred under section 19 of the Act. 4. Before the appeal was taken up a petition was filed on behalf of the appellant on 26.8.1983 with a prayer to call for the records of the criminal case• which was pending against the appellant at Bhagalpur and also to stay the proceeding. The matter was placed before a Bench consisting of Hon'ble Justice B. S. Sinha and Hon'ble Justice R. N. Thakur. The petition was considered by their Lordships and the prayer was rejected. But, at the same time their Lordships issued a notice to show cause as to why proceeding of contempt of court should not be started against him for the statements made in the petition particularly with reference to sub-paragraphs (II) and (X) of paragraph 1 of the application. The petition was considered by their Lordships and the prayer was rejected. But, at the same time their Lordships issued a notice to show cause as to why proceeding of contempt of court should not be started against him for the statements made in the petition particularly with reference to sub-paragraphs (II) and (X) of paragraph 1 of the application. The appellant filed his show cause which was taken up by the same Bench on 26.3.1984 and it was ORDER :ed that since the main appeal was ready for bearing and was running in the daily cause list the show cause should also be considered along with the appeal. The case was placed before Bench consisting of Hon'ble Justice A. P. Sinha and Hon'ble Justice R. N. Thakur and it was ORDER :ed to be placed before another Bench in view of the fact that Hon'ble Justice R. N. Thakur was one of the Judge who had issued notice to this appellant. When the case was taken up before us a prayer was made by the appellant to place the matter before the Hon'ble the Chief Justice under section 14 (2) of the Act which was rejected on 7.10.1985. Another prayer of the appellant that he wanted to examine more witnesses and file some documents was not pressed at the time of hearing. 5. The appellant, appearing in person, has raised a number of contentions which I propose to deal with them separately. Firstly, it has been contended that the appellant was not given adequate opportunity to place his case which, according to him, was against all principles of natural justice and in support of his contention reliance has been placed on the cases of National Textile Worker's Union Vrs. P.R. Ramakrishan (A.I.R. 1983 Supreme Court 75): Md. Sarfuddin Vrs. The State of Bihar & ors. (1974 Bihar Bar Council Journal 738). Learned Counsel has relied on some of the provisions of the Code of Criminal Procedure and has submitted that the procedure had not been followed. P.R. Ramakrishan (A.I.R. 1983 Supreme Court 75): Md. Sarfuddin Vrs. The State of Bihar & ors. (1974 Bihar Bar Council Journal 738). Learned Counsel has relied on some of the provisions of the Code of Criminal Procedure and has submitted that the procedure had not been followed. Learned counsel for the State, on the other hand, has submitted that the rules under the Contempt of Courts Act were not framed at the time when this case was taken up for hearing and therefore, the procedure adopted by this court was very, fair and witnesses were examined and cross-examined by the appellant and, therefore, the grievance of the appellant is wholly imaginary and fit to be rejected. In this connection reliance has been placed in the case of Sukhdev Singh Vrs. Teja Singh, the Chief Justice of Pepsu High Court (A. I. R. 1954 Supreme court 186) where it has been held that the provisions of the Code of Criminal Procedure will not be attracted in cases relating to Contempt of Courts Act and the High Court can evolve its own procedure. But I find that full opportunity was given to the appellant and there is no substance in this contention. The submission of the appellant that Hon'ble R.P. Sinha should have been examined; also cannot be accepted in view of the provisions of section 14 (3) of the Act which reads as follows : "14(3) Notwithstanding anything contained in any other law, in any trial of a person charged with contempt under subsection (1) which is held, in pursuance of a direction given under sub-section (2), by a judge other than the judge or judges in whose presence or hearing the offence is alleged to have been committed, it shall not be necessary for the judge or judges in whose presence or hearing the offence is alleged to have been committed to appear as Ii witness and the statement placed before the Chief Justice under sub-section (2) shall be treated as evidence in the case." 6. The ORDER :of R.P. Sinha, J. passed on 3.9.1980 formed the basis of the contempt proceedings and the appellant was asked to show cause and, therefore, he was-fully aware as to what he had to meet in the proceeding. It was not, ata1l, necessary to examine the learned single judge. The ORDER :of R.P. Sinha, J. passed on 3.9.1980 formed the basis of the contempt proceedings and the appellant was asked to show cause and, therefore, he was-fully aware as to what he had to meet in the proceeding. It was not, ata1l, necessary to examine the learned single judge. Similar prayer was made at the time when the proceeding was taken up and was rejected by the learned Judge. The argument that section 14(3) of the Act which lays down that it will not be necessary to examine the judge in whose presence the contempt is committed violates Article 13 of the Constitution of India and section 137 of the Evidence Act is fit to be rejected for the reasons given above and the case laws relied upon by the appellant in the cases of Moti Singh and Others vrs. Dhanukdhari Singh and others (A. I. R. 1923 Patna 53) and Harihari Sinha & ors vrs. Emperor (A. I. R. 1936 Calcutta 356) have no application at all. Because they relate to the admissibility of the documents in course of trial and as it has teen held earlier that the provisions of the Code of Criminal Procedure will not be attracted in this case. The purpose to enact section 14(3) of the Act is that a person facing a contempt proceeding should not humiliate the judge who had issued notice for contempt. If such prayer is allowed then it will be difficult for a judge to Issue notice and the contemner, knowing full well that he has committed the contempt, will try to put all sorts of questions to a judge which may not be in the interest of administration of justice and also to the judge. The procedure adopted by the learned single judge was very fair and full opportunity was given to the appellant to meet his case and, therefore, he cannot have any grievance on this score. 7. The contention of the appellant that full opportunity was not given to argue his case also cannot be accepted in view of the fact that the argument was started before lunch and it continued after the lunch which is apparent from the evidence of the witnesses examined in the case. They are all lawyers of standing and have fully supported this fact. They are all lawyers of standing and have fully supported this fact. It is true that the lawyer of the complainant-opposite party was not heard though noticed, but it was for the judge to be satisfied and if the Judge was not prime facie, satisfied then it was not at all necessary to hear the other side. The contention of the appellant that in absence of any counter-affidavit facts stated in his petition should be accepted as correct is wholly devoid of any substance because the decision given in the case of Md. Sarfuddin (1974 B. B. C. J. 738) (supra) relates to a writ application where in absence of any counter affidavit facts stated in the application were taken as correct. Another contention of the appellant that the Criminal Miscellaneous 1849 of 1980, which was dismissed by Hon'ble R.P. Sinha, J. be restored under section 386 of the Code of Criminal Procedure is wholly fallacious and without any merit. True that no charge was framed in this case, but as I have said earlier; it was not a criminal trial and the appellant had full knowledge as to what he had to meet in the proceeding and, therefore, there is no substance in the argument of the appellant in this regard. The appellant also submitted that for the ends of justice it was necessary to see the balance sheet of the Firm of the complainant who had filed the criminal case at Bhagalpur and, in my opinion, this argument is also devoid of any substance the matter was not, at all, at issue and not relevant for the consideration of the appeal. 8. Lastly, it has been contended that even if the appellant had stated before the Judge to transfer the case to another court it did not amount to contempt of Court and, in this connection, the appellant has relied on section 406 of the Code of Criminal Procedure which lays down the procedure for transfer of a case. This argument, in my opinion, in also wholly misconceived. Section 406 of the Code of Criminal Procedure has no application to the instant case. This argument, in my opinion, in also wholly misconceived. Section 406 of the Code of Criminal Procedure has no application to the instant case. It is true that a person has every right to move for transfer of a case if he has no faith in the court and this can be done only before the case is actually taken up and that also according to the procedure laid down under the law. But, after the argument is made and after seeing the attitude of the Judge if the party prays that the case should be transferred to another court that will surely amount to casting aspersion on the Judge that he has not been administering justice in accordance with law. This will be a dangerous practice and has to be stopped. If such prayers are allowed then it will lead to dangerous results and there will be no end of the argument by a counsel in any case and will amount to interference with the due course of any judicial proceeding and will certainly amount to a criminal contempt as defined under the Act. The vagueness of notice to him is without any foundation and the appellant, being a lawyer, had full knowledge of the allegation and the consequence which was to follow therefrom. 9 The appellant took his chance in two Courts and on both the occasion when he saw the attitude of the Court not favourable, then he wanted the case to be transferred to another Court. The object was to have a third chance. This was not expected from the appellant who is a practising Advocate of this court and is well aware as to how cases are argued in this Court. A Judge has every right to decide a case, even wrongly, but a lawyer has no business to insist in arguing the case and to say something in Court which may reflect on the dignity of the court. If the appellant really felt that the dismissal was wrong he should have agitated his case before the Supreme court. Thus, from the evidence and other circumstances, I am clearly of the opinion that the appellant is guilty of the contempt of court. 10. The law of contempt is based on sound public policy for punishing those who shake the public confidence in the administration of justice. Thus, from the evidence and other circumstances, I am clearly of the opinion that the appellant is guilty of the contempt of court. 10. The law of contempt is based on sound public policy for punishing those who shake the public confidence in the administration of justice. In the instant case the appellant, who is an advocate, was himself a party and therefore, personally interested in the case and on two dates he was heard by two different courts and, thereafter, he made a prayer to transfer the case to another court which definitely cast an aspersion on the learned Judge as to his impartiality and judicial bearing that is likely to shake public confidence in the administration of justice, at his hands, and so it amounts to contempt of the court. In the words of Professor William R. Arther the law of contempt is based upon the premise that it is desirable for the welfare of society arid essential to its peace and safety that justice be expeditiously, fairly, impartially done in all civil and criminal trials, and the people at large-have faith in the integrity of the Judges and of their courts and confidence in their ability and efficiency. In the case of Special Reference No. 1 of 1964 (A. I. R. 1965 Supreme court 745) Gajendra Gadkar C.J., speaking from the Bench held follows : "We ought not to forget that the power to punish for contempt, large as it is must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or the status of the Court but may some times affect it adversely". This is certainly one of those cases in which this court cannot be a silent spectator, when the dignity of a court is at a stake Barwel in legal ethic at page 182 has stated as follows : "A lawyer is under obligation to do nothing that shall detract from the dignity of the Court of which he himself is a sworn official and Assistant. He should at all times pay deferential respect to the Judges and scrupulously observe the decorum of• the Court room". 11. In the case of Perspective Publication Vrs. He should at all times pay deferential respect to the Judges and scrupulously observe the decorum of• the Court room". 11. In the case of Perspective Publication Vrs. State of Maharashtra (A. I. R. 1971 Supreme Court 221) after discussing the law of contempt and its applicability it has been observed, besides others, that the summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice. In the instant case, this Court has no option but has to exercise its power so that such things are not repeated in court rooms in future. The aforesaid case has also been followed in the case of C.K. Daphtary Vrs. O.P. Gupta & ors. (A. I. R. 1971 Supreme Court 1132) where a lawyer was held guilty for scandalising the Judges of the Supreme Court. 12. Now, coming to the notice issued to the appellant on 5.12.1983, it seems that the statements made in those paragraphs, though not happily worded; were made against the JUDGMENT : of the learned single Judge. The appellant has admitted before us that comment was made against the JUDGMENT : and •not against any Judge and to quote his own words he has stated that he never meant to show any disrespect to the learned single Judge and the words used might be harsh or inapt and if such impression had been carried by this Court then he was sorry for the same and apologised for the wrong done. In view of stand taken by the appellant, in course of the argument, I do not propose to take any further action in the matter and treat it as closed with a hope that the appellant will be more careful in using the words and expression in any petition in future especially against a Court. The notice issued to him is, accordingly discharged. 13. In the result, the appeal fails and is, accordingly, dismissed. M. P. Varma, J. - I agree.