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2010 DIGILAW 4799 (MAD)

W. Peter Rameshkumar v. Sundar @ Sundaresan

2010-10-29

S.TAMILVANAN

body2010
Order:-On the representation made by Mr.K.Balasundaram, learned counsel appearing for the respondent, his name wrongly typed in paragraph number 6 of the order, dated 22.09.2010, is ordered to be corrected, accordingly, the word “petitioners” is substituted for the words “Mr.K.Balasundaram, learned counsel on record” in the third line of paragraph number 6 of the order of this Court, dated 22.09.2010. 2. This petition has been filed under Section 482 of the Code of Criminal Procedure, seeking an order to expunge the remarks made in the order, dated 22.09.2010 in Crl.O.P.No.5065 of 2010 and M.P.(MD).Nos.1 and 2 of 2010 and also to set aside the order rejecting the claim of the petitioners / A1 and A4 to A7 in M.P.(MD).No.2 of 2010, seeking permission not to appear before the trial court in the case in C.C.No.46 of 2010 on the file of the District Munsif-cum-Judicial Magistrate, Thirumayam. 3. Though the relief sought for should be to expunge the remarks made only against Mr.W.Peter Ramesh Kumar, the first petitioner herein, it is seen that a common affidavit has been filed by the said Advocate along with Mr.B.Muruganandam and Mr.K.Saravanan, as if the court had passed any adverse remarks against the other two advocates also. It is made clear that M/s.B.Muruganandam and K.Saravanan, the other two advocates have not argued the petition and no adverse remarks were passed against them by this Court, by order, dated 22.09.2010. Only Mr.W.Peter Ramesh Kumar had argued the matter in an unpleasant manner, so as to affect the dignity and decoram of this Court, which necessitated this Court in passing adverse remarks against the counsel to protect the high dignity of the judicial institution. 4. Subsequently, the petition in M.P.(MD).No.3 of 2010 on 07.10.2010 was filed by Mr.W.Peter Ramesh Kumar along with M/s.B.Muruganandam and K.Saravanan. On going through the common affidavit, dated 04.10.2010 filed in support of the petition in M.P.(MD).No.3 of 2010, I am of the considered view that the petition was filed with patently false and defamatory allegations with a view to tarnish the image of the Judge of this Court and the judicial institution, which is a clear criminal contempt committed by the petitioners herein. 5. 5. Though the adverse remarks were made by this Court only against Mr.W.Peter Ramesh Kumar in the order, dated 22.09.2010, with a view to create unreasonable support, two other names of his office colleague have been added in the common affidavit, though they are nothing to do with the adverse remarks passed by this Court. However, by filing the common affidavit containing false and defamatory allegations, the two other Advocates have also committed contempt of court. (i) In the common affidavit, dated 04.10.2010, paragraph number 4, it reads thus : “We state that further to this Thiru.Mohammed Imranulla, staff reporter, the Hindu, Madurai edition was summoned three times on 23.09.2010 and 24.09.2010 to the chambers of His Lordship S.Tamilvanan and was coerced and forced to bring out an article on Sunday against the undersigned.” There is no need for any Judge, especially a Judge of the High Court to call for a reporter of a particular newspaper three times on two days, coerce and force him to print a news item against the petitioners. The aforesaid averment itself would clearly speak that it is an utter false hood, defamatory in nature and which would be a glaring example for the latin maxim “Res ipsa loquitur”, the thing speaks for itself, as the averment needs no other proof for establishing it as false. (ii) It is an admitted fact that the adverse remarks were made by this Court by order, dated 22.09.2010 only against Mr.W.Peter Ramesh Kumar, however, the common affidavit, dated 04.10.2010 reads as if the adverse remarks were made by this Court against the undersigned three advocates therein, which is also a clear false hood, on the very face of the record. It has been deliberately done to make up a case against this Court. The averments would show that it is a clear false hood and a gross criminal contempt of Court. (iii) The common affidavit reads in paragraph number 5 that the aforesaid Mohammed Imranulla, a reporter of the Hindu newspaper has conveyed and tendered apology on 25.09.2010 to the petitioners, stating that it would come out in the newspaper on the next day. If it is true, atleast the petition could have been filed immediately or atleast on 27.09.2010. Even I could see the publication in the newspaper, Madurai edition, only on 27.09.2010, after reaching Madurai from Chennai by Flight. If it is true, atleast the petition could have been filed immediately or atleast on 27.09.2010. Even I could see the publication in the newspaper, Madurai edition, only on 27.09.2010, after reaching Madurai from Chennai by Flight. The averments made by the petitioners would clearly show that the petitioners have attempted to create false evidence against the court with the help of a newspaper reporter close to them. (iv) The common affidavit filed on 04.10.2010 reads that the petitioners had sent written communication to both the Apex Court and the Madras High Court, seeking enquiry by a sitting Judge of Madurai Bench, which reads as follows : “Therefore, feeling the ill will and so much love lost, the representation that Crl.O.P.No.5065 of 2010 may be posted before some other Judge was advanced on 22.09.2010 in a very polite and humble way giving all the due respect to the Hon’ble Court. But absolutely the opposite effects are being received, therefore, it was requested through written communication to both the Apex Court and Madras High Court that an enquiry may be ordered by a sitting judge of the Madurai Bench in the interest of Justice and bench bar relationship.” It is clear from the common affidavit that the petitioners had sought enquiry by a sitting Judge of Madurai Bench of the Madras High Court, thinking that this Court is a Subordinate Court. From the E.No.134/91 given in this petition, it is seen that Mr.W.Peter Ramesh Kumar has put in 19 years of standing at the Bar, however, he has made a request against law to conduct an enquiry through a sitting Judge of the Madurai Bench of the Madras High Court, as if this Court is a Subordinate Court, which is highly defamatory and also contempt of Court. (v) In the common affidavit, the name of the Hon’ble Mr.Justice P.Jothimani has been unnecessarily dragged by the petitioners and they have stated that they complained before the Hon’ble Mr.Justice P.Jothimani on the same day, i.e., on 22.09.2010 in the open court. The Hon’ble Judge never discussed anything on this, similarly, I never discussed about the contempt committed by the first petitioner with my respected learned Brother till date. The Hon’ble Judge never discussed anything on this, similarly, I never discussed about the contempt committed by the first petitioner with my respected learned Brother till date. However, from the averments made by the petitioners in the common affidavit, it is brought to the notice of this Court that the petitioners had made representations against the Judge of this Court before another Judge. The typed set filed by the petitioners contains a copy of the written representation sent by the petitioners to Hon’ble Mr.Justice P.Jothimani through the Registrar (Judicial), Madurai Bench and also approached the said Hon’ble Judge seeking to expunge the remarks, which itself is a contempt, as per the rulings of the Hon’ble Apex Court. As per Article 121 of the Constitution of India, the conduct of a Judge of the Supreme Court or the High Courts cannot be discussed even in the Parliament, except on impeachment proceedings. In such circumstances, the petitioners approaching some other Hon’ble Judge of this Court and raising allegations, as per the decisions of the Hon’ble Apex Court referred to in this order, by way of written representation before another Judge are clear professional misconduct and also contempt of Court. (vi) As per the written representation, dated 22.09.2010 made by the petitioners before the Hon’ble other Judge, the petitioners have clearly admitted the fact that this Court passed the order, dated 22.09.2010 in the open Court, whereby dismissed the M.P.(MD).No.2 of 2010 and also stating the adverse remarks as disparaging remarks as passed against the undersigned three Advocates with the name of the Judge of this Court. The averments made in the representation before the Hon’ble other Judge, dated 22.09.2010 would clearly falsify the averments made in the common affidavit, dated 04.10.2010 that they came to know about the remarks only on 25.09.2010 through a newspaper reporter known to them. The above facts would clearly establish that the petitioners have violated the fundamental professional ethics and committed professional misconduct and also criminal contempt. 6. When the matter was taken up, Mr.Peter Ramesh Kumar, represented that he wanted to produce certain decisions and the court informed that he was entitled to produce any decision and advance his arguments. He simply produced the following decisions : 1. Manish Dixit vs. State of Rajasthan, AIR 2001 SC 93 2. Viswambaran, S.K. vs. E.Koyakunju, 1988 L.W.(Crl) 1 7. When the matter was taken up, Mr.Peter Ramesh Kumar, represented that he wanted to produce certain decisions and the court informed that he was entitled to produce any decision and advance his arguments. He simply produced the following decisions : 1. Manish Dixit vs. State of Rajasthan, AIR 2001 SC 93 2. Viswambaran, S.K. vs. E.Koyakunju, 1988 L.W.(Crl) 1 7. In Viswambaran, S.K. vs. E.Koyakunju, reported in 1988 L.W.(Crl) 1, the Hon’ble Apex Court has given a ruling that proper opportunity to the petitioner for explaining or defending must be given to maintain principles of natural justice. 8. In Manish Dixit vs. State of Rajasthan, reported in AIR 2001 SC 93 , the Hon’ble Supreme Court has given a finding that the High Court had passed adverse remarks against Tahsildar, who was an Executive Magistrate. It has been held that unreasonable opportunity shall be given, in order to maintain principles of natural justice. In the instant case, proper and reasonable opportunity was given to the petitioners. 9. Hence, the aforesaid decisions are not applicable to the facts and circumstances of the case, since Mr.W.Peter Ramesh Kumar and others were given reasonable opportunity. 10. In N.G.Dastane vs. Shrikant S.Shivde reported in 2001 (6) SCC 135 , the Hon’ble Supreme Court has held that under Section 35 (1) of Advocates Act, 1961, misconduct covers any misdemeanour or misdeed or misbehaviour which obstructs administration of justice such as seeking repeated adjournments on flimsy or frivolous grounds, so as to abuse the process of court is misconduct. Similarly, tactics of filibuster are also professional misconduct. In the instant case, Mr.W.Peter Ramesh Kumar had unreasonably exceeded his limit. He has not regretted for his improper and unruly attitude in the open court against his professional ethics on 22.09.2010 but filed a petition with false, derogatory and defamatory averments against the high dignity of the Institution by filing the common affidavit, dated 04.10.2010 and thereby committed criminal contempt of Court. 11. In the decision reported in 2001 (6) SCC 135 (referred to above), it has been made clear that it is the duty of the Bar Council concerned to supervise and prevent the misconduct of the Advocate, who commits contempt of Court and degrade the status of the Institution. 11. In the decision reported in 2001 (6) SCC 135 (referred to above), it has been made clear that it is the duty of the Bar Council concerned to supervise and prevent the misconduct of the Advocate, who commits contempt of Court and degrade the status of the Institution. The ruling of the Hon’ble Apex Court reads as follows : “When the Bar Council in its wider scope of supervision over the conduct of advocates in their professional duties comes across any instance of such misconduct it is the duty of the Bar Council concerned to refer the matter to its Disciplinary Committee. The expression “reason to believe” is employed in Section 35 of the Act only for the limited purpose of using it as a filter for excluding frivolous complaints against advocates.” In the instant case, the averments made by Mr.W.Peter Ramesh Kumar and two others are totally false and also defamatory, which is a clear professional misconduct, hence, it is a fit case to be referred to the Bar Council to be decided by its Disciplinary Committee for taking appropriate action under Advocates Act, in order to maintain the dignity of the Judiciary. 12. In Vinay Chandra Mishra’s case reported in 1995 (2) SCC 584 , the Hon’ble Supreme Court has held as follows : “(a) Normally, no Judge takes action for in facie curiae contempt against the lawyer unless he is impelled to do so. It is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and the intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the court and to threaten and obstruct the course of justice. It is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and the intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the court and to threaten and obstruct the course of justice. (b) After going through the report of the learned Judge and the affidavits and the additional affidavits filed by the contemner and after hearing the learned counsel appearing for the contemner, we have come to the conclusion that there is every reason to believe that notwithstanding his denials, and disclaimers, the contemner had undoubtedly tried to browbeat, threaten, insult and show disrespect personally to the learned Judge.” It has been further held that though the contemnor was a senior member of the Bar and also adorned the high offices such as those of the Chairman of the Bar council of India, the President of the U.P High Court Bar Association, Allahabad and others, he was sentenced to undergo simple imprisonment for a period of six weeks, since the high dignity of the Court is more important and professional misconduct would demolish the edifice of the Judiciary. 13. The Hon’ble Supreme Court has categorically ruled that when Constitution vest the Apex Court that the special and specific power to take action for contempt not only of itself but of the lower courts and tribunals for discharging its constitutional obligation as the higher custodian of justice in the land, the power is obviously coupled with the duty of the administration of justice from those whose action create inference or obstruction to the course of justice. The failure to exercise the power of such actions, when it is envisaged specifically for the purpose of his failure to discharge the duty. 14. In U.P.Sales Tax Service Assn. vs. Taxation Bar Assn., reported in 1995 (5) SCC 716 , the Hon’ble Apex Court has held that under Section 35 of Advocates Act, 1961, an Advocate cannot browbeat or pressurise judicial officers or authorities, so as to deter them from discharging the judicial functions and further, ruled that scandalising court / statutory authority by lawyers imputing wild allegations demanding enquiry and transfer of its function to another jurisdiction is a criminal contempt. Here in this case, Mr.W.Peter Ramesh Kumar has scandalised by raising false and wild allegations against the presiding Judge of the High Court and as per the decision of the Hon’ble Apex Court, it amounts to criminal contempt. 15. The Hon’ble Supreme Court in the aforesaid decision reported in 1995 (5) SCC 716 (referred to above), held that any scurrilous, offensive, intimidatory or malicious attack on the judicial officer / authority beyond condonable limits, amounts to scandalising the court / tribunal amenable to not only conviction for its contempt but also liable to libel or defamation and damages personally or group libel. It was further held that maintenance of dignity of the court / judicial officer or quasi-judicial authority, is therefore, one of the cardinal principles of rule of law embedded in judicial review. In the instant case, in the affidavit, scandalising, wild and false allegations were raised by the Advocates by way of filing the common affidavit. 16. In Pravin C.Shah vs. K.A.Mohd.Ali, reported in 2001 (8) SCC 650 , the Hon’ble Supreme Court has held that Bar Council exercises control over the Advocates, whereas the High Court has power to formulate rules for regulating proceedings inside the Court, including the conduct of advocates during such proceedings and the court cannot be deprived of control of supervision of proceedings inside a court, merely because the right of an advocate is involved. 17. In R.K.Anand vs. Delhi High Court, reported in 2009 (8) SCC 106 , the Hon’ble Apex Court come down heavily on the professional conduct saying that some of the lawyers are on the declining standards and the role and responsibilities of the Bar Council, while forfeiting the right of designated them as senior Advocates and recommended the Full Court to diverse them the honour on account of the contempt of Court committed by them. 18. It has been made clear by the Hon’ble Apex Court that the dignity and decoram of the judicial institution must be safeguarded. Scandalising and raising deliberately false allegations against a Judge or Judicial Officer is against the judicial institution. 19. 18. It has been made clear by the Hon’ble Apex Court that the dignity and decoram of the judicial institution must be safeguarded. Scandalising and raising deliberately false allegations against a Judge or Judicial Officer is against the judicial institution. 19. Advocates can fight to eradicate corruption and make efforts to reduce the pendency of cases and legally fight for justice to their clients and do mediation to raise the image of the noble profession, but causing professional misconduct and acting against the dignity and decoram of the institution, in order to abuse process of the court by making black mail against the Judicial institution, which cannot be justified. In the instant case, it is a clear abuse and also professional misconduct, committed by the petitioners, which cannot be simply ignored without realising that the misconduct is against the Institution. 20. In the instant case, the petitioners have raised false scandalising, wild allegations, which are highly defamatory as stated in detail in sub-paragraph numbers (i) to (vi) of paragraph number 5 of this order. 21. I am sure that the entire members of the Bar wherever I served as Subordinate Judge and also High Court Judge know that proper integrity and honesty are being maintained by me throughout for the past 24 years from the date of entering into the Judicial service. Though the petitioners have committed criminal contempt, so as to affect the high dignity of this Court instead of taking contempt proceedings against them, I find it just and reasonable to refer the matter to the Bar Council of Tamil Nadu, the appropriate forum, which is represented by elected members of the Bar for taking appropriate action against the petitioners herein, who committed professional misconduct and contempt of Court. 22. 22. The Registrar (Judicial), Madurai Bench of Madras High Court is directed to send a copy of this order along with the certified copy of the order, dated 22.09.2010 passed by this Court in Crl.O.P.No.5065 of 2010 and M.P.(MD).Nos.1 and 2 of 2010 and a certified copy of the affidavit and petition filed by the petitioners in M.P.(MD).No.3 of 2010 to the Chairman, Bar Council of Tamil Nadu, Chennai with a covering letter to take appropriate action against the petitioners for their professional misconduct, by referring the matter to Disciplinary Committee of the Bar Council, as ruled by the Hon’ble Apex Court in the light of various decisions and the decision reported in 2001 (6) SCC 135 (referred to above). The matter shall be disposed of by the Bar Council of Tamil Nadu, according to law, within a period of four months from the date of receipt of a copy of this order and the result be intimated to the Registry of the High Court. With the above observations, this petition is dismissed.