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2011 DIGILAW 1816 (ALL)

S. P. Goyal v. Mukund Tripathi and others

2011-07-29

IMTIYAZ MURTAZA, S.S.TIWARI

body2011
Imtiyaz Murtaza, J.;- The present contempt proceeding emanates from Reference made by Sri S.P.Goyal, Addl. District Judge Etawah dated 21.8.2009 which was duly forwarded by Dsitrict Judge Etawah for initiating contempt proceeding against the contemnors namely, Mukund Tripathi, Satendra Babu Tripathi, and Prabhkar Tripathi. The episodal facts are that on 20.7.2009 while the judicial proceedings were going on in Case no. 495 of 2006, Smt. Beena Mishra v. Sanjay Kumar Jain and others in which at the relevant time, statement of P.W. 2 Jishan Khan was being recorded, contemnor Satendra Babu Tripathi Advocate appearing for I.C.I.C.I General Insurance Company demurred to Mukund Tripathi Advocate on his posing leading questions to the witness upon which contemnor Mukund Tripathi in high pitched voice spoke to Satendra Babu Tripathi that he could pose any question to the witness. This angered Satendra Babu Tripathi, Advocate and he asked him to desist from raising the pitch of his voice upon which contemnor Mukund Tripathi put off his coat and remarked to the effect that He is not a mentally stable person; that he has boisterous and evinced his intemperate behaviour earlier also and that he was not afraid of anyone. This raised the hackles of Sri Satendra babu Tripathi. At that time, son of Sri Satendra Babu Tripathi was also standing there who intervened and called upon Mukund Tripathi not to show temper and caught hold of his hand and tried to take him out of court upon which Mukund Tripathi yelled. In the meantime, Satendra Babu Tripathi Advocate asked the court to retire but the court instead, warned the horn-locked parties to stop fighting and also called upon Prabhakar Tripathi to stop from fighting but they continued to exchange hot words in the court as a result of which the judicial proceeding of the court were interrupted and the statement of the witness could not be recorded. It is further stated that both the warring parties gave their respective applications to the court making allegations and counter allegations. On the note scripted by the office dated 25.8.200 the Administrative Judge Etawah passed the following order. "Lay before Hon. C.J." On 22.8.2009, Hon. Chief Justice appended approval for listing it before the appropriate Bench. We have heard learned counsel for the contemnors and also learned AGA. We have also been taken through the relevant materials on record. On the note scripted by the office dated 25.8.200 the Administrative Judge Etawah passed the following order. "Lay before Hon. C.J." On 22.8.2009, Hon. Chief Justice appended approval for listing it before the appropriate Bench. We have heard learned counsel for the contemnors and also learned AGA. We have also been taken through the relevant materials on record. At the very threshold, the learned counsel appearing for the contemnors raised issues having complexion of preliminary issue and argued referring to section 10 of the Contempt of Court Act 1971 that the High Court cannot take cognizance of a contempt committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code. He further argued that at the most offence under section 228 IPC could be said to be made out for which proceeding under section 345 Cr.P.C could at the maximum, be initiated against the contemnors by the court itself. This preliminary objection was disposed of by a detailed order dated 8.12.2009 whereby the objection was held to be sans any substance. The order dated 8.12.2009 is excerpted below to the extent it is necessary. "The proviso to section 10 of the Contempt of Court Act 1971 postulates that no High Court shall take cognizance of contempt alleged to have been committed in respect of the court subordinate to it whether such contempt is an offence punishable under the Indian Penal Code, 1860 (45 of 1860). The question raised in this matter had already been dwelt upon by the Apex Court in Bathina Ramakrishna Reddy v. State of Madras AIR 1952 SC 140 and para 9 of the said decision being relevant is quoted below. It may be pointed out in this connection that although the powers of the High Courts in India established under the Letters Patent to exercise jurisdiction as Superior Courts of Record in punishing contempt of their authority or processes have never been doubted, it was a controversial point prior to the passing of the Contempt of Courts Act, 1916, as to whether the High Court could, like the Court of King's Bench in England, punish contempt of Courts subordinate to it in exercise of its inherent jurisdiction. The doubt has been removed by Act XII [12] of 1926 which expressly declares the right of the High Court to protect subordinate Courts against contempt, but subject to this restriction, that cases of contempt which have already been provided for in the Indian Penal Code should not be taken cognizance of by the High Court. This seems to be the principle underlying S. 2 (3), Contempt of Courts Act. What these cases are, need not be exhaustively determined for purposes of the present case, but some light is undoubtedly thrown upon this matter by the provision of S. 480, Criminal P. C., which empowers any civil, criminal or revenue Court to punish summarily a person who is found guilty of committing any offence under Ss. 173, 178, 179, 180 or S. 228, Penal Code in the view or presence of the Court. We are not prepared to say, as has been said by the Patna High Court in Juanendra Prasad v. Gopal. 12 Pat. 172 that the only section of the Indian Penal Code which deals with contempt committed against a Court of justice or judicial officer is S. 228. Offences under Ss. 175, 178, 179 and 180 may also, as S. 480, Criminal P. C. shows, amount to contempt of Court if the "public servant" referred to in these sections happens to be a judicial officer in a particular case. It is well known that the aim of the contempt proceeding is. "to deter men from offering any indignities to a Court of justice" and an essential feature of the proceeding is the exercise of a summary power by the Court itself in regard to the delinquent. In the cases mentioned in S. 480, Criminal P. C., the Court has been expressly given summary powers to punish a person who is guilty of offending its dignity in the manner indicated in the section. The Court is competent also under S. 432, Criminal P. C. to forward any case of this description to a Magistrate having jurisdiction to try it, if it considers that the offender deserves a higher punishment than what can be inflicted under S. 480. Again the Court is entitled under S. 484, to discharge the offender on his submitting an apology, although it has already adjudged him to punishment under S. 480 or forward his case for trial under S. 482. Again the Court is entitled under S. 484, to discharge the offender on his submitting an apology, although it has already adjudged him to punishment under S. 480 or forward his case for trial under S. 482. The mode of purging contempt by tendering apology is a further characteristic of a contempt proceeding. It seems, therefore, that there are offences which are punishable as contempt under the Indian Penal Code and as subordinate Courts can sufficiently vindicate their dignity under the provisions of criminal law in such cases the legislature deemed it proper to exclude them from the jurisdiction of the High Court under S. 2 (3), Contempt of Courts Act, but it would not be correct to say that the High Court's jurisdiction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is otherwise an offence under the Indian Penal Code. Similar view was taken in State of M.P. Versus Reva Shanker AIR 1959 SC 102 and also in Brahm Prakash v. State 1954 SC 10 and Arun Paswan S.I v. State of Bihar 2004 (48) ACC 267). The crux of what has been held in all the decisions aforesaid is that if the conduct is one which scandalizes the court impairs the administration of justice, the jurisdiction of the High Court would not be barred. In Arun Paswan S.I. V State of Bihar AIR 2004, the Apex Court while dealing with proviso to section 10 of the Contempt of Courts Act held that bar of the jurisdiction of the High Court imposed by proviso to section 10 of the Contempt of Courts act is not attracted in the cases where the offences under sections 178, 179, 180 and 228 of the IPC are not committed in the view or presence of the Court. The Apex Court dealing with the facts of that case also held that it is not a mere personal insult to the District Judge. Such conduct of police officers scandalizes the court itself and impairs administration of justice inasmuch as it tends to demoralize the judicial officers and makes it difficult for them to perform their duties fearlessly. The quotation being relevant is abstracted below. "A fascicle reading of S. 345 of the Code it is clear that offences under Ss. Such conduct of police officers scandalizes the court itself and impairs administration of justice inasmuch as it tends to demoralize the judicial officers and makes it difficult for them to perform their duties fearlessly. The quotation being relevant is abstracted below. "A fascicle reading of S. 345 of the Code it is clear that offences under Ss. 175, 178, 179, 180 or 228 of IPC would constitute contempt only if they are committed in the view or presence of the Court. This would also show that offences under Ss. 175, 178, 179, 180 or 228 per se do not amount to contempt. They are contempt only if they are committed 'in the view or presence of the Court', otherwise they remain offences under the Penal Code simplicitor. In the present case the alleged slogan shouting and levelling abusive language against the Judge took place outside the Court. Therefore, the District and Sessions Judge rightly has not taken any action under S. 345 of the Code of Criminal Procedure and, therefore, the jurisdiction of the High court would not be ousted. The rational behind it is quite obvious. There would be no reason why the High Court should invoke its jurisdiction when the Court against whom contempt is committed, in the view or presence of the Court, can itself take action. Thus, bar of the jurisdiction of the High Court imposed by proviso to S. 10 of the Contempt of Courts Act is not attracted in the cases where the offences under Ss. 178, 179, 180 and 228 of the IPC are not committed in the view or presence of the Court. It is not a mere personal insult to the District Judge. Such conduct of police officers scandalizes the Court itself and impairs administration of justice inasmuch as it tends to demoralize the judicial officers and makes it difficult for them to perform their duties fearlessly." In view of what has been discussed in the light of the decisions of the Apex Court, we are of the view that the preliminary objection agitated before us by the learned counsel for the contemnors in respect of non maintainability of the criminal contempt proceeding has no substance and by this reckoning,it is held that contempt proceedings initiated against the contemnors are not barred by the proviso to section 10 of the Contempt of Court Act, 1971. On consideration of the above facts, it would ex-facie crystallize that the ingredients of section 2 (C ) of the Contempt of Court Act, 1971 are disclosed and the contemnor has made himself liable to be proceeded against under Section 2 (C )of the Contempt of Court Act, 1971 punishable under section 12 of the said Act." The contemnors Satendra Babu Tripathi and Prabhakar Tripathi are represented by Sri Arvind Kumar Tiwari. Both the contemnors are related to each other as father and son while the contemnor Mukund Tiwari is represented by Rajiv Lochan Shukla. Learned counsel appearing for the contemnors pleaded for merciful view taking into reckoning the peculiar circumstances which triggered the fight between two groups of lawyers. On being called upon to argue the case on merit of the case, he referred to unqualified apology stating that the contemnors have already tendered the unqualified apology and prayed for discharge taking a lenient view urging that the contemnors were fairly senior practising advocates attended with further submission that they can not be said to be prone to using contemptuous language and making scurrilous attacks nor is there any previous instance of their showing disrespect to the court and whatever has happened in Court was in a spontaneity. Ultimately, he stated that the contemnors should be given a chance to expiate their unruly conduct. We have gleaned the counter affidavit filed by all the three contemnors very carefully. In the counter affidavit filed by contemnor Prabhakar Tripathi sworn on 20th Oct 2010, he has, to begin with, given a brief sketch about his performance as a lawyer and thereafter, he has stated that he has a very high regard and respect for the courts and judiciary. In para 2 he has deeply regretted to whatever has happened in the court on 20.7.2009 and he has tendered his unqualified apology and prayed for its acceptance. The next counter affidavit filed in the court is of contemnor Mukund Tripathi. He too has tendered his unqualified apology and did not wish to enter into merits of the matter. The third counter affidavit filed in the court is of Satendra Babu Tripathi. In para 3, the contemnor has stated that he has rendered unconditional apology for the incident in the accompanying counter affidavit and in case the same is not accepted, his defence in following paragraphs be taken into reckoning. The third counter affidavit filed in the court is of Satendra Babu Tripathi. In para 3, the contemnor has stated that he has rendered unconditional apology for the incident in the accompanying counter affidavit and in case the same is not accepted, his defence in following paragraphs be taken into reckoning. In para 4, the contemnor has set out as under: "In the present case the notice issued and served on the deponent is incomplete, inaccurate and misleading. The notice issued to the deponent is the dotted lines notice. It does not mention what was the allegations/accusation against either of the contemnors. It does not contain any charges against either of them. The Hon'ble;e Supreme court has held in somewhat similar conditions that the contempt proceedings has been concluded without ensuring the compliance of mandatory provisions of the Rules of the Court, 1952 and allowed the Appeal (Sahdeo Versus State of U.P reported in 2010 (69) ACC 306). In para 5, he has taken the plea that from the reference made by the court, he has not been cited as aggressor and the incident as has happened in the court was triggered by Mukund Tripathi and despite provocation made by utterances of Mukund Tripathi, he and his son behaved throughout with a certain sang-froid. In para 6, he has stated that the charges framed are not in accordance with the reference. In para 7, he has cited Mukund Tripathi to be a person of criminal proclivity with number of criminal cases and FIRs to his discredit and that he was earlier issued contempt notices by the courts. In para 8, he has stated that in the case in which the present contemnor was also appearing, he had made serious objections to the court in relation to Mukund Tripathi's leading question, and that aforesaid Mukund Tripathi flew into rage and created unruly scene in the court and subsequently, he lost his temper to the extent that he became aggressive and still he and his son tried to soften him up. He further stated that his son merely took Mukund Tripathi out of court in order to pacify him and also that the court proceeding may not be further hampered. The contemnor has tendered apology for the utterances if any made by him in the face of provocative words used by Mukund Tripathi. He further stated that his son merely took Mukund Tripathi out of court in order to pacify him and also that the court proceeding may not be further hampered. The contemnor has tendered apology for the utterances if any made by him in the face of provocative words used by Mukund Tripathi. In para 11, the contemnor has stated that had the court taken timely decision on the leading questions, the incident which had occurred in the court resulting in disruption of court proceeding could have been averted. In para 12, it has postulated a condition that in case the Court decides to proceed further, he would prefer to cross examine the witnesses if any produced against him attended with the submission that he may be afforded opportunity to adduce evidence in his defence. It would thus appear that the two contemnors have put in unqualified apology for what had happened in court and begged to be forgiven while the third contemnor had endeavoured to portray himself as the one wronged by the two contemnors and he has also put forth a condition which cannot be said to be unqualified apology. However before proceeding further, we would also not flinch from saying that the apology, be it qualified or unqualified, is not to be used as a weapon of defence which often is forged to be used as a shield to protect the contemnor as a last resort. An unqualified apology is intended to be evidence of real contriteness. The apology, in order to dilute the gravity of the offence, it has repeatedly been ruled in catena of decisions, should be voluntary, unconditional and indicative of remorse and real contrition and it should be tendered at the earliest opportunity. We have to administer caution to ourselves that the Court should not be inveigled into accepting apology from those who are addicted to using contemptuous language and making scurrilous attacks and have to their discredit, earlier instance of misfeasance. Before we proceed further, we would like to quip here that if the judiciary has to perform its function in a fair and free manner, the dignity and authority of the court has to be respected by all concerned failing which the very constitutional scheme and public faith in the judiciary would run the risk of being eroded. Before we proceed further, we would like to quip here that if the judiciary has to perform its function in a fair and free manner, the dignity and authority of the court has to be respected by all concerned failing which the very constitutional scheme and public faith in the judiciary would run the risk of being eroded. Since all the contemnors are Advocates, the matter requires to be considered in all seriousness. An Advocate, we feel called to say, is not exempt from ordinary disability which the law imposes and his position is not inviolable and his privileges cannot extend to interfere with the administration of justice. Being well aware of finer etiquettes and the respects which the court deserves from an advocate he is expected to help in sub-serving the course of justice and not impede it in any manner. A legal practitioner has no doubt his duties towards his client but at the same time he has equally important duty and obligation upon him to cooperate with the court in the orderly and pure administration of justice. Any departure would be construed to be violative and neglecting his duties and obligations. A lawyer is a person educated and trained in law. The use of language has to be balanced and in fitness of things within the framework of the law of the land. He cannot and should not be reckless in the use of language. There are barriers which must be known to a lawyer and it should not be crossed. He should not overstep the limits of decency and ethics in the matter of his behavior towards the court. Here it would be appropriate to recall what actually happened in the court. The substance of facts as drawn from the report of the Presiding officer is quoted below. " On 20.7.2009, case no 495 of 2006 Smt Beena Mishra v Sanjay Kumar Jain and others was listed and witness PW 2 Jishan Khan was produced from the side of petitioner and the Peshkar of the Presiding officer was writing the statement. Then Sri Satnedra Babu Tripathi, Advocate of I.C.I.C.I General Insurance company asked Sri Mukund Tripathi, Advocate of petitioner, not to ask (put) leading questions (to) the witness. Sri Mukund Tripathi loudly told that he can ask any questions form his witness. Sri Satendra Babu Tripathi, advocate prevented him to make noise. Then Sri Satnedra Babu Tripathi, Advocate of I.C.I.C.I General Insurance company asked Sri Mukund Tripathi, Advocate of petitioner, not to ask (put) leading questions (to) the witness. Sri Mukund Tripathi loudly told that he can ask any questions form his witness. Sri Satendra Babu Tripathi, advocate prevented him to make noise. Then Sri Mukund Tripathi Advocate told that "Vah Samanyay Aadmi Nahi Hai. Usnai Pahelai Bhi Fire Kiya Hai, Vah Kisi Se Nahi Dartha" Then both the advocates started quarreling each other and Sri Mukund Tripathi, Advocate told the Presiding officer to go to the chamber. The Presiding officer told both the parties to keep silence but the order of the court was not followed by them and in this way they obstructed the court proceedings." It is worthy of notice that Satendra Babu Tripathi in his counter affidavit has passed on the blame to Mukund Tripathi as genesis of the entire trouble and described him as aggressor. According to the facts reported by the Presiding officer, none of the quarreling advocates heeded the repeated rule of the court and continued to fight. In Re Nand Lal Balwani AIR 1999 SC 1300 , the Apex Court held that law does not give a lawyer license to permit the liberty of causing disrespect to the court attempting in any manner to lower the dignity of the court. It is further observed by the Apex Court that a lawyer does not enjoy any special immunity under the Contempt of Courts Act where he is found to have committed a gross contempt of Court. In catena of decisions, the Advocates have been given the special status as the officers of the courts charged with solemn duty of upholding the dignity of the court for which they are as much responsible as the Presiding officer. It was further observed that the dignity of the court is the dignity of the law which is ever higher than howsoever high a person may be and it goes without question that the presiding officer of the Court represents that dignity which demands all the deference due to it. The exchange of expletives and hot words in the courts and grappling in the court by the lawyers is an incident heralding a dwindling of the faith of the public in the effectiveness of the system itself. The exchange of expletives and hot words in the courts and grappling in the court by the lawyers is an incident heralding a dwindling of the faith of the public in the effectiveness of the system itself. It is unwholesome for any member of the Bar to lose his temper and bring about a situation in the public court which can afford justifiable inference to be made of the action being voluntary and intended at lowering the prestige of judiciary. In the above conspectus, we have no hesitation to say that the charges of criminal contempt established against a practising lawyer cannot be taken lightly who carries the trapping of an officer of the Court whose duty is to assist the Court and uphold the majesty of law and dignity of the person manning the court. No judicial system can tolerate such ignoble act and conduct of a practising Advocate in the court particularly when the court is transacting judicial function. The crucial question that remains is what would be the appropriate punishment to the contemnor. In connection with whether the apology commends itself for acceptance or not, we may refer to the decision of the Apex Court in Preetam Pal v. High Court M.P. 1993 (1) SCC 529 in which the Apex Court observed as under: "To punish an advocate for contempt of court, no doubt must be regarded as an extreme measure, but to preserve the proceedings of the courts from being deflected or interfered with, and to keep the streams of justice pure, serene and undefiled, it becomes the duty of the court though painful to punish the contemnor in order to preserve its dignity. No one can claim immunity from the operation of the law of contempt if his act or conduct in relation to court or court proceedings interferes with is calculated to obstruct the due course of justice." In the above perspective, the apology offered does not commend to us for acceptance and it is turned down. In the above conspectus, the reference made to this Court is allowed and the contemnors are held guilty of criminal contempt. We accordingly convict them under section 12 of the Contempt of Courts Act and sentence each of them to undergo simple imprisonment for one months and to pay a fine of Rs. 2000/-. In the above conspectus, the reference made to this Court is allowed and the contemnors are held guilty of criminal contempt. We accordingly convict them under section 12 of the Contempt of Courts Act and sentence each of them to undergo simple imprisonment for one months and to pay a fine of Rs. 2000/-. In default, it may be prescribed, contemnor shall undergo further simple imprisonment for two weeks. However, the sentence of imprisonment shall remain suspended for a period of two years. In case, any of the contemnors is found to be repeating his intemperate performance, the sentence of imprisonment shall stand revived and they would be taken into custody under the orders of CJM forthwith to serve out the sentence. The matter shall be listed before this Court in the second week of Sept 2011 for compliance.