Vishram Singh Raghubanshi vs State Of U.P

Vishram Singh Raghubanshi ...Appellant

Versus

State of U.P. ...Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred under Section 19 of the

Contempt of Courts Act, 1971, (hereinafter called the `Act 1971')

arising out of impugned judgment and order dated 5.5.2006 passed by

the Division Bench of the Allahabad High Court in Contempt of Court

Case No. 13 of 1999.

2. FACTS:

A) Appellant is an advocate practising for last 30 years in the

District Court, Etawah (U.P.). On 25.7.1998, he produced one Om

Prakash for the purpose of surrender, impersonating him as Ram

Kishan S/o Ashrafi Lal who was wanted in a criminal case in the court

of IInd ACJM, Etawah. There was some controversy regarding the

genuineness of the person who came to surrender and therefore, the

Presiding Officer of the Court raised certain issues. So, the appellant

misbehaved with the said officer in the court and used abusive

language.

B) The Presiding Officer of the court vide letter dated 28.9.1998

made a complaint against the appellant to the U.P. Bar Council and

vide letter dated 27.10.1998 made a reference to the High Court for

initiating contempt proceedings under Section 15 of the Act, 1971

against him. The High Court considered the matter and issued show

cause notice on 5.5.1999 to the appellant. In response to the said

notice, the appellant submitted his reply dated 24.5.1999, denying the

allegations made against him, but, tendering an apology in the form of

an affidavit stating that he was keeping the court in the highest

esteem.

C) The Bar Council of U.P. dismissed the complaint referred by

the Presiding Officer vide order dated 18.3.2001, but the Allahabad

High Court did not consider it proper to accept the explanation

submitted by the appellant or accept the apology tendered by him,

rather, it framed the charges against the appellant on 27.9.2004. In

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response to the same, the appellant again submitted an affidavit dated

18.10.2005 tendering an apology similar to one in the affidavit filed

earlier.

D) The Division Bench of Allahabad High Court considered the

matter on judicial side, giving full opportunity to the appellant to

defend himself. The High Court ultimately held the appellant guilty

of committing the contempt and sentenced him to undergo 3 months

simple imprisonment with a fine of Rs.2,000/-. Hence this appeal.

3. This Court vide order dated 26.6.2006 suspended the operation

of sentence and directed the appellant to deposit the fine of Rs. 2,000/-

in this Court, which seems to have been deposited.

4. Shri Sanjeev Bhatnagar, learned counsel appearing for the

appellant, has submitted that he would not be in a position to defend

the contemptuous behaviour of the appellant but insisted that the

appellant is aged and ailing person and had tendered absolute and

unconditional apologies several times. Thus, the apology may be

accepted and the sentence of three months simple imprisonment be

quashed.

3 5. On the contrary, Shri R.K. Gupta, learned counsel appearing

for the respondent, has vehemently opposed the prayer made by Shri

Bhatnagar and contended that the appellant does not deserve any

lenient treatment considering the language used by him to the

Presiding Officer of the court and such a person does not deserve to

remain in a noble profession. He further contended that the apology

has not been tendered at the initial stage. The first apology was

tendered only after receiving show cause notice dated 5.5.1999 from

the High Court and under the pressure. More so, the language of the

apology is not such which shows any kind of remorse by the

appellant, thus, considering the gravity of the misbehaviour of the

appellant, no interference is wanted. Therefore, the appeal is liable to

be rejected.

6. We have considered the rival contentions made by learned

counsel for the parties and perused the record.

7. Admittedly, the case of impersonification of the person to be

surrendered is a serious one, however we are not concerned as to

whether the appellant had any role in such impersonification, but

being an officer of the court, if any issue had been raised in this regard

either by the court or opposite counsel, it was the duty of the appellant

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to satisfy the Court and establish the identity of the person concerned.

The conduct of the appellant seems to have been in complete violation

and in contravention of the "standard of professional conduct and

etiquette" laid in Section 1 of Chapter 2 (Part-VI) of the Bar Council

of India Rules which, inter-alia, provides that an advocate shall

maintain towards the court a respectful attitude and protect the dignity

of the judicial office. He shall use his best efforts to restrain and

prevent his client from resorting to unfair practices etc. The advocate

would conduct himself with dignity and self respect in the court etc.

etc.

There may be a case, where a person is really aggrieved of

misbehaviour/conduct or bias of a judicial officer. He definitely has a

right to raise his grievance, but it should be before the appropriate

forum and by resorting to the procedure prescribed for it. Under no

circumstances, such a person can be permitted to become the law unto

himself and proceed in a manner he wishes, for the reason that it

would render the very existence of the system of administration of

justice at a stake.

5 8. Before proceeding further with the case, it may be necessary to

make reference to certain parts of the complaint lodged by the

Presiding Officer to the High Court against the appellant:

(i) During the course of cross examination in a criminal case on

22.8.1998, the appellant was advised that he should ask

questions peacefully to the witness on which the appellant

stepped over dias of the court and tried to snatch the paper of

statement from him and started abusing him that "Madarchod,

Bahanchod, make reference of contempt to the High Court"

and stepped out, abusing similarly from the court room.

(ii) In another incident on 25.7.1998, three accused persons

namely, Ram Krishan, Ram Babu and Rampal surrendered

before the court and filed an application no. 57Kha for

cancellation for non-bailable warrants, and the whole

proceeding was completed by him. Aforesaid three accused

persons, namely, Ram Krishan and Ram Babu were real

brothers and sons of Ashrafi Lal. On 30.7.1998 order was

passed to release them on bail but before they could be

released, it came to the knowledge of the court that right

accused Ram Krishan son of Ashrafi Lal had surrendered and

sent to jail. This fact was brought before the court by the

mother of the person Om Prakash who was actually sent to jail

on 1.8.1998, of which enquiry was done and after summoning

from jail the person in the name of Ram Krishan stated in the

court that his name was Om Prakash, son of Sh. Krishan Jatav.

The complainant Bhaidayal was also summoned who also

verified the above fact. Thereafter, an inquiry was conducted

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by the Presiding Officer who found the involvement of the

appellant in the above case of impersonification.

9. The High Court examined the complaint and the reply

submitted by the appellant to show cause notice issued by the High

Court. The High Court did not find the explanation worth acceptable

and, thus, vide order dated 27.9.2004, framed charges against the

appellant in respect of those allegations dated 22.8.1998 and

25.7.1998 respectively.

10. It is not the case of the appellant that he was not given full

opportunity to defend himself or lead evidence in support of his case.

The appellant has not chosen to defend himself on merit before the

High Court, rather he merely tendered apology thrice. Even before us,

Shri Sanjeev Bhatnagar, learned counsel for the appellant, has fairly

conceded that the appellant had been insisting from the beginning to

accept his apology and let him off. Mr. Bhatnagar's case has been that

in the facts and circumstances of the case, particularly considering the

age and ailment of the appellant, apology should be accepted and

sentence of three months simple imprisonment be set aside.

7 11. It is settled principle of law that it is the seriousness of the

irresponsible acts of the contemnor and degree of harm caused to the

administration of justice, which would decisively determine whether

the matter should be tried as a criminal contempt or not. (Vide: The

Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union

& Ors., AIR 1970 SC 1767).

12. The court has to examine whether the wrong is done to the

judge personally or it is done to the public. The act will be an injury

to the public if it tends to create an apprehension in the minds of the

people regarding the integrity, ability or fairness of the judge or to

deter actual and prospective litigants from placing complete reliance

upon the court's administration of justice or if it is likely to cause

embarrassment in the mind of the judge himself in the discharge of his

judicial duties. (See: Brahma Prakash Sharma & Ors. v. The State

of U.P., AIR 1954 SC 10; and Perspective Publications (P.) Ltd. &

Anr. v. The State of Maharashtra, AIR 1971 SC 221).

13. In the case of Delhi Judicial Service Association v. State of

Gujarat & Ors., AIR 1991 SC 2176, this Court held that the power to

punish for contempt is vested in the judges not for their personal

protection only, but for the protection of public justice, whose interest

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requires that decency and decorum is preserved in courts of justice.

Those who have to discharge duty in a Court of Justice are protected

by the law, and shielded in the discharge of their duties; any deliberate

interference with the discharge of such duties either in court or outside

the court by attacking the presiding officers of the court would

amount to criminal contempt and the courts must take serious

cognizance of such conduct.

14. In E.M.Sankaran Namboodiripad v. T.Narayanan

Nambiar, AIR 1970 SC 2015, this Court observed that contempt of

court has various kinds, e.g. insult to Judges; attacks upon them;

comment on pending proceedings with a tendency to prejudice fair

trial; obstruction to officers of Courts, witnesses or the parties;

scandalising the Judges or the courts; conduct of a person which tends

to bring the authority and administration of the law into disrespect or

disregard. Such acts bring the court into disrepute or disrespect or

which offend its dignity, affront its majesty or challenge its authority.

In a given case, such a conduct be committed "in respect of the whole

of the judiciary or judicial system".

The court rejected the argument that in particular

circumstances conduct of the alleged contemnor may be protected by

Article 19(1)(a) of the Constitution i.e. right to freedom of speech and

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expression, observing that the words of the second clause, of the

same provision bring any existing law into operation, thus provisions

of the Act 1971 would come into play and each case is to be examined

on its own facts and the decision must be reached in the context of

what was done or said.

15. Thus, it is apparent that the contempt jurisdiction is to uphold

majesty and dignity of the law courts and the image of such majesty in

the minds of the public cannot be allowed to be distorted. Any action

taken on contempt or punishment enforced is aimed at protection of

the freedom of individuals and orderly and equal administration of

laws and not for the purpose of providing immunity from criticism to

the judges. The superior courts have a duty to protect the reputation of

judicial officers of subordinate courts, taking note of the growing

tendency of maligning the reputation of judicial officers by

unscrupulous practising advocates who either fail to secure desired

orders or do not succeed in browbeating for achieving ulterior

purpose. Such an issue touches upon the independence of not only the

judicial officers but brings the question of protecting the reputation of

the Institution as a whole.

1 16. The dangerous trend of making false allegations against

judicial officers and humiliating them requires to be curbed with

heavy hands, otherwise the judicial system itself would collapse. The

Bench and the Bar have to avoid unwarranted situations on trivial

issues that hamper the cause of justice and are in the interest of none.

"Liberty of free expression is not to be confounded or confused with

license to make unfounded allegations against any institution, much

less the Judiciary". A lawyer cannot be a mere mouthpiece of his

client and cannot associate himself with his client maligning the

reputation of judicial officers merely because his client failed to

secure the desired order from the said officer. A deliberate attempt to

scandalise the court which would shake the confidence of the

litigating public in the system, would cause a very serious damage to

the Institution of judiciary. An Advocate in a profession should be

diligent and his conduct should also be diligent and conform to the

requirements of the law by which an Advocate plays a vital role in the

preservation of society and justice system. Any violation of the

principles of professional ethics by an Advocate is unfortunate and

unacceptable. (Vide: O.P. Sharma & Ors. v. High Court of Punjab

& Haryana, (2011) 5 SCALE 518).

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17. This Court in M.B. Sanghi v. High Court of Punjab &

Haryana & Ors., (1991) 3 SCC 600, observed as under:

"The foundation of our system which is based on the

independence and impartiality of those who man it will be

shaken if disparaging and derogatory remarks are made

against the presiding judicial officer with impunity....It is

high time that we realise that much cherished judicial

independence has to be protected not only from the

executive or the legislature but also from those who are an

integral part of the system. An independent judiciary is of

vital importance to any free society".

18. This leads us to the question as to whether the facts and

circumstances referred hereinabove warrant acceptance of apology

tendered by the appellant.

The famous humorist P.G. Wodehouse in his work "The Man

Upstairs (1914)" described apology :

"The right sort of people do not want apologies,

and the wrong sort take a mean advantage of them."

The apology means a regretful acknowledge or excuse for

failure. An explanation offered to a person affected by one's action

that no offence was intended, coupled with the expression of regret for

any that may have been given. Apology should be unquestionable in

sincerity. It should be tempered with a sense of genuine remorse and

repentance, and not a calculated strategy to avoid punishment

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19. Clause 1 of Section 12 and Explanation attached thereto

enables the court to remit the punishment awarded for committing the

contempt of court on apology being made to the satisfaction of the

court. However, an apology should not be rejected merely on the

ground that it is qualified or tempered at a belated stage if the accused

makes it bona fide. There can be cases where the wisdom of

rendering an apology dawns only at a later stage.

20. Undoubtedly, an apology cannot be a defence, a justification,

or an appropriate punishment for an act which is in contempt of court.

An apology can be accepted in case the conduct for which the apology

is given is such that it can be "ignored without compromising the

dignity of the court", or it is intended to be the evidence of real

contrition. It should be sincere. Apology cannot be accepted in case it

is hollow; there is no remorse; no regret; no repentance, or if it is only

a device to escape the rigour of the law. Such an apology can merely

be termed as paper apology.

21. In Re: Bal Thackeray, Editor Samna, (1998) 8 SCC 660,

this Court accepted the apology tendered by the contemnor as the

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Court came to conclusion that apology was unconditional and it gave

an expression of regret and realisation that mistake was genuine.

22. In L.D. Jaikwal v. State of U.P., AIR 1984 SC 1374, the

court noted that it cannot subscribe to the 'slap-say sorry- and forget'

school of thought in administration of contempt jurisprudence. Saying

'sorry' does not make the slapper poorer.

(See also: T.N. Godavarman Thirumulpad v. Ashok Khot & Anr.,

AIR 2006 SC 2007)

So an apology should not be paper apology and expression of

sorrow should come from the heart and not from the pen; for it is one

thing to 'say' sorry-it is another to 'feel' sorry.

23. An apology for criminal contempt of court must be offered at

the earliest since a belated apology hardly shows the "contrition which

is the essence of the purging of a contempt". However, even if the

apology is not belated but the court finds it to be without real

contrition and remorse, and finds that it was merely tendered as a

weapon of defence, the Court may refuse to accept it. If the apology

is offered at the time when the contemnor finds that the court is going

to impose punishment, it ceases to be an apology and becomes an act

of a cringing coward. (Vide : Mulkh Raj v. The State of Punjab,

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AIR 1972 SC 1197; The Secretary, Hailakandi Bar Association v.

State of Assam & Anr., AIR 1996 SC 1925; C. Elumalai and Ors.

v. A.G.L. Irudayaraj and Anr., AIR 2009 SC 2214; and Ranveer

Yadav v. State of Bihar, (2010) 11 SCC 493).

24. In Debabrata Bandopadhyay & Ors. v. The State of West

Bengal & Anr., AIR 1969 SC 189, this Court while dealing with a

similar issue observed as under:

".....Of course, an apology must be offered and that too

clearly and at the earliest opportunity. A person who

offers a belated apology runs the risk that it may not be

accepted for such an apology hardly shows the

contrition which is the essence of the purging of a

contempt. However, a man may have the courage of

his convictions and may stake his on proving that he is

not in contempt and may take the risk. In the present

case the appellants ran the gauntlet of such risk and

may be said to have fairly succeeded."

25. This Court has clearly laid down that apology tendered is not

to be accepted as a matter of course and the Court is not bound to

accept the same. The court is competent to reject the apology and

impose the punishment recording reasons for the same. The use of

insulting language does not absolve the contemnor on any count

whatsoever. If the words are calculated and clearly intended to cause

any insult, an apology if tendered and lack penitence, regret or

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contrition, does not deserve to be accepted. (Vide: Shri Baradakanta

Mishra v. Registrar of Orissa High Court & Anr., AIR 1974 SC

710; The Bar Council of Maharashtra v. M.V. Dabholkar etc.,

AIR 1976 SC 242; Asharam M. Jain v. A.T. Gupta & Ors., AIR

1983 SC 1151; Mohd. Zahir Khan v. Vijai Singh & Ors., AIR

1992 SC 642; In Re: Sanjiv Datta, (1995) 3 SCC 619; and Patel

Rajnikant Dhulabhai & Ors. v. Patel Chandrakant Dhulabhai &

Ors., AIR 2008 SC 3016).

26. In the instant case, the appellant has tendered the apology on

24.5.1999 after receiving the show cause notice from the High Court

as to why the proceedings for criminal contempt be not initiated

against him. It may be necessary to make the reference to the said

apology, the relevant part of which reads as under:

"That from the above facts, it is evident that the

deponent has not shown any dis-regard nor abused the

Presiding Officer, learned Magistrate and so far as

allegations against him regarding surrender of Om Prakash

is the name of Ram Kishan are concerned, the deponent has

no knowledge regarding fraud committed by Asharfi Lal in

connivance with others and deponent cannot be blamed for

any fraudulent act.

That notwithstanding mentioned in this affidavit, the

deponent tenders unconditional apology to Mr. S.C. Jain,

IInd Addl. Chief Judicial Magistrate, Etawah if for any

conduct of the deponent the feelings of Mr. S.C. Jain are

hurt. The deponent shall do everything and protect the

dignity of judiciary. (Emphasis added)

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27. On 24.11.2005, the appellant has submitted an affidavit saying

as under:

"That the deponent expresses his unqualified remorse for

the incident giving rise to the present contempt application.

The deponent tenders his unconditional apology to this

Hon'ble Court and to Shri Suresh Chandra Jain, the then

A.C.J.M.-2 Etawah for the entire incident without any

qualification or pre-condition. The deponent gives the

following solemn undertaking that no such incident would

occur in future. The deponent has immense respect for this

Hon'ble Court and all other Courts of Law in the land.

The deponent also expresses bona fide, genuine and

heart-felt regret for the occurrence which the deponent

consider a blot on him".

28. The High Court considered the case elaborately examining

every issue microscopically and held that there was no reason to

disbelieve the facts stated by the judicial officer against the

contemnor/appellant, the facts were acceptable, and it was clearly

proved that the contemnor was guilty of gross criminal contempt. The

charges levelled against the appellant stood proved. A Judge has to

discharge his duty and passes order in the manner as he thinks fit to

the best of his capability under the facts and circumstances of the case

before him. No litigant, far less an advocate, has any right to take the

law in his own hands. The contemnor abused the Judge in most filthy

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words unworthy of mouthing by an ordinary person and that is true

without any justification for him ascending the dais during the course

of the proceedings and then abusing the judicial officer in the words

"Maaderchod, Bahanchod, High Court Ko Contempt Refer Kar". The

courts certainly cannot be intimidated to seek the favourable orders.

The appellant intimidated the presiding officer of the court hurling

filthiest abuses and lowered the authority of the Court, which is

tantamount to interfere with the due course of judicial proceedings.

The charge which stood proved against the appellant could not be

taken lightly and in such a fact-situation the apology tendered by him,

being not bona fide, was not acceptable.

29. We have considered the facts and circumstances of the case.

The show cause notice was given by the High Court on 5.5.1999. The

appellant submitted his reply on 24.5.1999. The charges were framed

against him on 27.9.2004 and in his first affidavit dated 18.10.2005,

the appellant had denied all the allegations made against him. The so-

called apology contained ifs and buts. Appellant is not even sure as to

whether he has committed the criminal contempt of the court or

whether the most filthy abuses could hurt the Presiding Officer.

1 Appellant has been of the view that the Officer was a robot and has

no heart at all, thus incapable of having the feelings of being hurt.

The appellant filed second affidavit dated 24.11.2005 tendering

apology. The apology has been tendered under pressure only after

framing of the charges by the High Court in the Criminal Contempt

when appellant realised that he could be punished. The apology was

not tendered at the earliest opportunity, rather tendered belatedly just

to escape the punishment for the grossest criminal contempt

committed by him. The language used by the Advocate for a judicial

officer where he practices regularly and earns his livelihood is such

that any apology would fall short to meet the requirement of the

statutory provisions. There has been no repent or remorse on the part

of the appellant at an initial stage. Had it been so, instead of making

grossest and scandalous allegations against the judicial officer, writing

complaint against him to the Administrative Judge in the High Court

of Allahabad, the appellant could have gone to the concerned judicial

officer and tendered apology in open court.

The appellant instead of yielding to the court honestly and

unconditionally, advanced a well guarded defence by referring to all

the facts that led to the incident. Apology tendered by the appellant

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gives an impression that the same was in the alternative and not a

complete surrender before the law. Such attitude has a direct impact

on the court's independence, dignity and decorum. In order to protect

the administration of public justice, we must take action as his

conduct and utterances cannot be ignored or pardoned. The appellant

had no business to overawe the court.

Thus, we are of the view that the apology tendered by the

appellant had neither been sincere nor bona fide and thus, not worth

acceptance.

30. The appeal lacks merit and is, accordingly, dismissed. A copy

of the judgment and order be sent to the Chief Judicial Magistrate,

Etawah, for taking the appellant into custody and send him to the jail

to serve out the sentence.

....................................J.

(Dr. B.S. CHAUHAN)

.....................................J.

(SWATANTER KUMAR)

New Delhi,

June 15, 2011

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