CHAPTER – VI

PROCEDURE AND DEFENCES

IN CONTEMPT CASES

229

CHAPTER – VI

Procedure and Defences in Contempt Cases

Nature of contempt proceedings makes the matters relating to procedure to be

followed interesting. Whether contempt proceedings are civil or criminal or quasi

civil or quasi criminal in their nature, is a vexed question. They are not civil as

imprisonment and fine are prescribed as punishments. They are not criminal as

contemner is not given the status of accused and he is not entitled to the legal and

constitutional safeguards. Contemner was not even entitled to take up his defence.

Quasi civil and quasi criminal nature also does not suit contempt proceedings well.

Supreme Court called contempt proceedings as special proceedings.

1. PROCEDURE

Procedure after cognizance – (1) Notice of every proceeding under section 15 shall

be serves personally on the person charged, unless the court for reasons to be recorded

directs otherwise.

(2) The notice shall be accompanied –

(a) in the case of proceedings commenced on a motion, by a copy of motion as also

copies of the affidavits, if any, on which such motion is founded; and

(b) in case of proceedings commenced on a reference by a sub-ordinate court, by a

copy of the reference.

(3) The court may, if it is satisfied that a person charged under section 15 likely to

abscond or keep out of the way to avoid service of the notice, order the attachment of

his property of such value or amount as it may deem reasonable.

(4) Every attachment under sub-section (3) shall be affected in the manner provided in

the Code of Civil Procedure, 1908, for the attachment of property in execution of a

decree for payment of a money, and if, after such attachment, the person charged

appears and shows to the satisfaction of the court that he did not abscond or keep out

of the way to avid service of the notice, the court shall order the release of his

property from attachment upon such terms as to costs or otherwise as it may think fit.

230

(5) Any person charged with contempt under section 15 may file an affidavit in

support of the defense, and the court may determined the matter of the charge either

on the affidavits filed or after taking such further evidence as may be necessary, and

pass such orders as the justice of the case requires.

1. Contempt of Court - In the case of Mrityunjoy Das & another v. Sayed Hasibur

Rahman &other’s204

, the apex court has observed that ―be it noted that a proceeding

under the extraordinary jurisdiction of this court in the terms of the provisions of the

Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required

is that of a criminal proceeding and the ‗breach shall have to be established beyond

reasonable doubt.‖ Thus, what we find is that the Apex court has held that contempt

proceeding is a quasi criminal and standard of proof is of the criminal proceeding, that

the breach has to be established beyond reasonable doubt. Therefore, the appellant

stands at par or in a row of alleged contemnors and the directions given to the

appellant to disclose the names of the officers of the appellant company against whom

the alleged contempt action may be initiated, may lead to self incrimination of

appellant. As the appellant is a company, thereby for the acts which have been

committed by its officers, the company will be held liable for the contempt. Therefore

the appellant and its officers are the persons who have allegedly committed the

offence of contempt of court. Therefore, the question is whether one of the alleged

contemnors can be directed to disclose the names of the other alleged contemnors.

Because as a result of the disclosure of those names, and if those officers are found to

be contemnor, the appellant will also be declared as contemnor. Therefore, the learned

counsel for the appellant submitted that the act of disclosure of the names of officers

of the appellant company is not a simplicity act of disclosure of the names of the

contemnors with which the appellant had no concern, but as a result of the said

disclosure the appellant gets involved in the contempt of court. Not only that but

appellant produces the evidence as against the company that is against appellant.

Thus, according to the learned counsel for the appellant, the appellant asked to give

evidence against appellant‘s will by giving such directions. We find substance in the

contention. Therefore, what we find that even though we have ample powers to find

out a proper procedure for punishing the persons for committing the contempt of

204

Mrityunjoy Das & another v. Sayed Hasibur Rahman &other’s, (2001) 3 SCC 739: (AIR 2001 SC 1293)

231

Court, yet the procedure which we invent shall not be contrary to Article 20(3) of the

Constitution. However, in the present matter, what we find is that the directions given

by the learned single Judge to respondent No.3 to disclose the names of its officers is

a direction which ultimately resulted into producing and procuring the evidence as

against the appellant also and thereby it violates Article 20(3) of the Constitution, and

therefore the said direction is not sustainable in law. Therefore we are inclined to

quash the said directions.205

2. Contempt of Court – Violation of – Proceedings for – The question before this

Court is that is this Court helpless under these circumstances? Because whenever this

court finds or it has been brought to notice of this court that someone has committed

contempt of Court, in order to maintain the discipline, dignity and do deter the

contemnor from indulging into the acts of contempt, this court is expected to take

appropriate steps to book the contemnors and punish for contempt of Court. How to

do this when the names of the contemnors are not known and especially under the

circumstances the directions cannot be given to the party on record to disclose the

names of the contemnors. What is interesting to be noted is that in the matter of

Zahira when the Apex Court has noted that the various statements have been made by

Zahira and it was rather difficult to hold whether she is responsible for the contempt

or not, the Court directed investigation of the facts through the Registrar of the court

and after getting a report, further actions were taken as against the contemnor.

However, in that case the contemnor was known but what was the material as against

the contemnor was necessary to be ascertained and the Apex Court ascertained it by

appointing the officer of the Court to investigate into the facts and get the factual

report. This is how the Apex Court has followed its own procedure to deal with the

contempt action. In the present matter the appellant is a multinational company and its

officers may be either in this country or out of this country. If the officers of appellant

are in this country the required information, namely, the names of the officers of

appellant and record pertaining to the sale or disposal of machinery would have been

investigated either giving directions to police officers. But such course cannot be

adopted in this case because the officer‘s allegedly committing contempt and record is

located outside the country. Now as a result of the globalization of the business and

market, multinational companies are coming to this country along with their officers;

205

Clough Engineering Ltd., v. Oil & Natural Gas Corporation, 2009 Cri LJ 2177 (Bom).

232

they carry on business and/or undertake certain contracts here. When litigation starts

in this country and thereby they are under the orders of this Court. But if the officers

of said company who are outside the country commit breach of the orders of this

court, unless their names have been found or brought before this Court, it will not be

possible for this court to deal with the officers of these multinational companies who

have flouted the orders passed by this Court.

Therefore, this Court cannot be a silent spectator to the fact that the information

regarding the names of the alleged contemnor - officers is exclusively with the

multinational company and as the company is also one of the contemnors along with

them, cannot be forced to disclose the names of its officers. Therefore, even though

we find that directly the directions cannot be given to the company probably in view

of Article 20(3) of the Constitution, yet it cannot be said that this Court is helpless. On

the contrary in view of the inherent powers to punish for the contempt, this Court can

provide for its own procedure and machinery to find out the names of the contemnors

and to deal with them.

In Zahira.'s case (AIR 2006 SC 1367)(supra) the Apex Court found the appointment

of the Registrar to investigate into the facts under what circumstances Zahira made

various statements and after getting report Supreme Court proceeded to deal with

contempt. In the similar matter what we have noticed is that the contempt of court is a

quasi criminal proceeding and ultimately it resulted into punishment for the offence of

contempt of court. Here, the alleged contemnor-appellant, is a corporate body and is

before this Court, however the officers of this company are outside India, namely,

they are in Australia, and their names are not known to the Court. This is a case

wherein the information in respect of the offence of contempt of court is outside India

and the said information is required for punishing the contemnors.

The information in respect of the names of the persons who alleged to have

committed the contempt of court, the manner in which the machinery was disposed of

and the record prepared by those officers for disposing of those machineries can be

investigated by invoking the powers as provided in section 166-A of the Cr.P.C. or on

the line of the procedure provided in this section. We therefore find it appropriate to

direct the Chief Metropolitan Magistrate, Mumbai to issue a letter of request to a

Court or an authority in Australia where the office of appellant was located and where

233

the sale transaction of disputed machinery has taken place on 15-10-2007, who is

competent to deal with the request to examine orally any person employed by the

appellant - company, who is supposed to be acquainted with the facts and

circumstances of the present case and to record their statements made in the course of

the case. The Chief Metropolitan Magistrate, Mumbai shall also issue a letter of re-

quest to the said Court or Authority requesting to investigate and find out as to who

are the officers of the appellant - company who are responsible for the disposal of the

machinery on 15th October 2007.206

3. Corporation had been making discrimination amongst the employees in the

matter of regularization of their services – The respondent herein was one of the

six petitioners in Writ petition No. 4739 of 1998, which was also disposed of together

with other writ applications pending before the High Court. A contempt petition came

to be filed by the respondent herein alone, although, as noticed hereinbefore, the

scheme involved a large number of workmen who were parties before the High Court.

The said contempt petition was filed, inter alia, on the premise that the Corporation

had been making discrimination amongst the employees in the matter of

regularization of their services. By reason of the impugned judgment dated 18-8-

2005, having regard to the submissions made before it on behalf of the parties, the

High Court directed:

―Considering the contention of the non-applicant and after hearing the applicant, it

will be appropriate if the respondent is permitted to prepare a fresh gradation list as

per date of engagement of all the daily-rated employees. The gradation list shall also

reflect educational qualifications of all respective employees. The aforesaid gradation

list will be prepared by the respondent within a period of 45 days from today and shall

be published on a notice board of the Municipal Corporation inviting objection, if

any, from the employees. A period of 15 days shall be given to the employees to

submit their objection. If any objection is filed by any of the employees in respect of

the gradation list, it shall be considered and decided by the respondent within a period

of two weeks thereafter. Then a final gradation list shall be published on the notice

board of the Corporation. Thereafter, the respondent shall take the exercise for

regularization of the employees as directed by this Court in Ramadhar case. Aforesaid

206

Clough Engineering Ltd., v. Oil & Natural Gas Corporation, 2009 Cri LJ 2177 (Bom).

234

exercise shall- be completed within a period of three months. From the perusal of the

order of the Commissioner dated 10-8-2005, it appears that some of the officers of the

Municipal Corporation joined hands with the employees and manipulated the

gradation list and/or issued regularization orders which are contrary to the directions

issued by this Court in Ramadhar case. All the employees concerned who are

responsible for the aforesaid mischief deserve an appropriate action by the

Commissioner, Municipal Corporation. In these circumstances, Commissioner,

Municipal Corporation is directed to take departmental action against all the erring

officers who have played mischief or played some mala fide rate in issuing the orders

of regularization which are contrary to the directions issued by this Court in

Ramadhar case or have manipulated the things for the purpose of issuing

regularization orders of the employees who were not eligible for the regularization.

Aforesaid action shall be taken by the commissioner, Municipal Corporation within a

period of three months from today. In case some action is to be taken by the State, an

appropriate step shall be taken by him in this regard drawing attention of the State

within a period of 30 days.

The Commissioner, Municipal Corporation shall be responsible for the compliance

with this order. A compliance report of this order is sent to the Registry of this Court

within a period as fixed by this Court hereinabove. Report filed in a sealed cover is

returned to Shri Sharad Verma, learned counsel.‖207

4. Hearing of Contempt Petition – When order passed at the preliminary hearing of

the contempt petition records "issue notice", as has been passed in this case, it

presupposes that the Court has expressed its intention to proceed with the contempt

action and which order is preferable to order under Rule 8(1). In such case, show

cause notice to be issued by the Registry necessarily will have to be in terms of Form

I. On the returnable date, the Court may proceed to hear the matter finally or may

choose to assign some other date for hearing. On service of such notice in Form I, the

contemnor against whom such notice is issued, is obliged to remain present in Court

on every such date unless his presence is dispensed with by the Court. In the instant

case the office has issued incorrect notice to the Respondents/Contemnors. The office

207

Municipal Corp., Jabalpur v. Om Prakash Dubey, (2007) 1 SCC 373:AIR 2007 SC 893.

235

will have to issue fresh notice to the Respondents /Contemnors in terms of Form I of

the Rules.208

5. Meaning of – Initiation – Initiation of the contempt proceedings is the time when

the Court applies its mind to the allegation in the petition and decides to direct, under

S. 17 the alleged contemnors to show-cause why he should not be punished.209

6. Petitions filed – Initiating proceedings for contempt – Where during pendency

of a writ petition challenging certain provisions of Cinematography Act and Rules,

petitions were filed for initiating proceedings for contempt and for filing complaint

under Ss. 120-B, 193, 199, I.P.C. against certain persons on the ground that they were

guilty of willful disobedience to the directions in interim orders of Supreme Court

with regard to preservation of certain film, the petitions for withdrawal of these

proceedings must be allowed, when the original writ petition itself was withdrawn'

and in appeal against convictions of these persons the Supreme Court acquitted them

in absence of proof that the prints and negatives of the film were deliberately

destroyed by the contemnors.210

7. Petition proceedings – Withdrawal for contempt – While considering the request

for withdrawal of the proceedings initiated for taking action for contempt of the court,

the Court would generally be guided by the broad facts of the case and more

particularly whether respect for judicial process would be enhanced or dwindled by

either granting or refusing to grant the request. Section 15 of the Contempt of Courts

Act, 1971 confers power on the Supreme Court as well as on the High Court to take

suo motu action or on a motion made by, amongst others, the Solicitor General. The

petitioner who has moved for taking action in contempt is not entitled as a matter of

right to withdraw the petition whenever it suits his purpose. Once the act, which prima

facie shows that contempt of the Court has been committed, is brought to, the notice

of the Court, it is the Court which has to decide whether the contempt has been

committed or not or whether it is appropriate to take action or at a later date whether

208

Saurashtra Vanza Gnyati Yuvak Mandal and Anr v. Municipal Corporation of Gr. Bombay and Ors. 209

Advocate General v. A.V.Koteshwara Rao. 210

Shri Amrit Nahata v. Union of India, and Others, AIR 1986 SC 791.

236

to drop the proceedings. The matter is primarily between the Court and the

contemnor.211

8. Position of contemnors – The other objection raised by the learned Advocate-

General that we should not have examined the respondents after administering oath in

this contempt proceeding is, in our opinion, equally devoid of any substance. As

pointed out by the Supreme Court in the aforementioned case of Delhi Judicial

Service Association212

, the position of the contemnors in the contempt proceeding is

not like that of the accused in criminal proceedings and thus, there is no bar in

examining the contemnor in the open Court. Even according to the Rule 29 framed by

this Court for dealing with contempt matters, the respondents should file affidavit-in-

support of their defense and at the same time, the Court is entitled to even take

evidence. We, thus, find no substance in the aforesaid submission of Mr. Roy. At this

stage, it will be profitable to refer to the following observations of the Supreme Court

in the case of Delhi Judicial Service Association (supra):

―The power to take proceedings for the contempt of Court is an inherent power of a

Court of record; the Criminal Procedure Code does not apply to such proceedings.

Since, the contempt proceedings are not in the nature of criminal proceedings for an

offence, the pendency of contempt proceedings cannot be regarded as criminal

proceedings merely because it may end in imposing punishment on the contemnor. A

contemnor is not in the position of an accused, it is open to the Court to cross-

examine the contemnor and even if the contemnor is found to be guilty of contempt,

the Court may accept apology and discharge the notice of contempt, whereas

tendering of apology is no defense to the trial of a criminal offence. This peculiar

feature distinguishes contempt proceedings from criminal proceedings. In a criminal

trial where a person is accused of an offence there is a public prosecutor who

prosecutes the case on behalf of the prosecution against the accused but in contempt

proceedings the Court is both the accuser as well as the Judge of the accusation as

observed by Hidayatullah, CJ in Debabrata Bandopadhyaya's case213

. Contempt

proceeding is sui generis; it has peculiar features which are not found in criminal

proceedings. In this view the contemnors do not stand in the position of a person

211

Shri Amrit Nahata v. Union of India, and others, AIR 1986 SC 791. 212

Delhi Judicial Service Association, 1991 Cri LJ 3086. 213

Debabrata Bandopadhyaya’s Case, AIR 1969 SC 189: 1969 Cri LJ 401.

237

accused of an offence "merely on account of issue of notice of contempt by this Court

and the Commission which was acting on behalf of this Court had full authority to

record the testimony of the contemnors. Commission issued notice and directed

Sharma, Police Inspector and other police officials to place their version of the

incident before it and there was no element of compulsion. In this view there has been

no violation of Art. 20(3) of the Constitution and Commission's findings are not

vitiated."214

9. Power of Tribunal to punish for Contempt – Validity of provision –

The Constitution Bench has not declared the provisions of Articles 323-A (2) (b) or

Article 323-B (3) (d) or Section 17 of the Act ultra vires the Constitution. The High

Court has, in its judgment under appeal, noted with emphasis the Tribunal having

been compared to like 'courts of first instance' and then proceeded to hold that the

status of Administrative Tribunals having been held to be equivalent to court of

tribunals subordinate to High Court the jurisdiction to hear their own contempt was

lost by the Administrative Tribunals and the only course available to them was either

to make a reference to High Court or to file a complaint under Section 193, 219 and

228 of IPC as provided by Section 30 of the Act. The High Court has proceeded on

the reasoning that the Tribunal having been held to be subordinate to the High Court

for the purpose of Articles 226/227 of the Constitution and its decisions having been

subjected to judicial review jurisdiction of the High Court under Articles 226/227 of

the Constitution the right to file an appeal to the Supreme Court against an order

passed by the Tribunal punishing for contempt under Section 17 of the Act was

defeated and on these twin grounds Section 17 of the Act became unworkable and

unconstitutional. We do not find any basis for such conclusion or interface being

drawn from the judgments of this Court in the cases of Supreme Court Bar

Association (supra) or L. Chandra Kumar (supra) or any other decision of this Court.

The Constitution Bench has in so many words said that the jurisdiction conferred on

the High Courts under Articles 226/227 could not be taken away by conferring the

same on any court or Tribunal and jurisdiction hitherto exercised by the High Court

now legislatively conferred on Tribunals to the exclusion of High Courts on specified

matters, did not amount to assigning tribunals a status of substitute for the High Court

214

Director General of Police, W.B. and Ors. v Nil, 2007 Cri LJ 1955 (Cal).

238

but such jurisdiction was capable of being conferred additionally or supplementally

on any Court or Tribunal which is not a concept strange to the scheme of the

Constitution more so in view of Articles 323-A and 323-B. Clause (2)(b) of Article

323-A specifically empowers the Parliaments to enact a law specifying the

jurisdiction and powers, including the power to punish for contempt, being conferred

on administrative tribunals constituted under Article 323-A. Section 17 of the Act

derives its legislative sanctity there from. The power of the High Court to punish for

contempt of itself under Article 215 of the Constitution remains intact but the

jurisdiction power and authority to hear and decide the matters covered by sub-section

(1) of Section 14 of the Act having been conferred on the Administrative Tribunals

the jurisdiction of the High Court to that extent has been taken away and hence the

same jurisdiction which vested in the High Court to punish for contempt of itself in

the matters now falling within the jurisdiction of tribunals if those matters would have

continued to be heard by the High Court has now been conferred on the administrative

tribunals under Section 17 of the Act. The jurisdiction is the same as vesting in the

High Courts under Article 215 of the Constitution read with the provisions of the

Contempt of Courts Act, 1971. The need for enacting Section 17 arose, firstly, to

avoid doubts, and secondly, because the Tribunals are not "courts of record". While

holding the proceedings under Section 17 of the Act the tribunal remains a tribunal

and so would be amenable to jurisdiction of High Court under Article 226/227 of the

Constitution subject to the well-established rules of self-restraint governing the

discretion of the High Court to interfere with the pending proceedings and up set the

interim of interlocutory orders of the tribunals. However any order or decision of

tribunal punishing for contempt shall be appealable only to the Supreme Court within

60 days from the date of order appealed against in view of the specific provision

contained in Section 19 of the Contempt of Courts Act, 1971 read with Section 17 of

the Administrative Tribunals Act, 1985. Section 17 of the Administrative Tribunals

Act is a piece of legislation by reference. The provisions of Contempt of Courts Act

are not as if lifted and incorporated in the text of Administrative Tribunals Act (as is

in the case of legislation by incorporation); they remain there where they are yet while

reading the provisions of Contempt of Courts Act in the context of Tribunals, the

same will be so read as to read the word 'Tribunal' in place of the word 'High Court'

wherever it occurs, subject to the modifications set out in Section 17 of the

Administrative Tribunals Act, Section 19 of the Contempt of Courts Act, 1971

239

provides for appeals. In its text also by virtue of Section 17 of the Administrative

Tribunal Act, 1985 the word 'High Court' shall be read as 'Tribunal'. Here, by way of

abundant caution, we make it clear that the concept of intra-tribunal appeals i.e.

appeal from an order or decision of a member of a Tribunal sitting singly to a bench

of not less than two members of the Tribunal is alien to the Administrative Tribunal

Act, 1985. The question of any order made under the provisions of the contempt of

Courts Act, 1971 by a member of the Tribunal sitting singly, if the rules of business

framed by the Tribunal or the appropriate government permit such hearing, being

subjected to an appeal before a Bench of two or more members of Tribunal therefore

does not arise. Any order or decision of the Tribunal punishing for contempt is

appealable under Section 19 of the Act to the Supreme Court only. The Supreme

Court in the case of L. Chandra Kumar has no-where said that orders of tribunal

holding the condemner guilty and punishing for contempt shall also be subject to

judicial scrutiny of High Court under Article 226/227 of the Constitution in spite of

remedy of statutory appeal provided by Section 19 of the Contempt of Courts Act

being available. The distinction between orders passed by Administrative Tribunal on

matters covered by Section 14(1) of Administrative Tribunals Act and orders

punishing for contempt under section 19 of the Contempt of Courts Act read with

Section 17 of Administrative Tribunals Act, is this: as against the former there is no

remedy of appeal statutorily provided, but as against the later statutory remedy of

appeal is provide by Section 19 of Contempt of Courts Act itself.215

2. DEFENCES

Sections 3-8 of Contempt of Courts Act, 1971 deal with defences. Sections 3 – 7

recognized specific defences whereas Sections 8 recognized general defences stating

specifically that other defences not affected. Among all the defences the most

contentious one has been truth – truth as defence.

A. Truth as defence:

Truth or No-truth – Purpose of Publication should matter in Contempt

Matters:

215

T. Sudhakar Prasad etc. v. Govt. of A.P. 2001(1) SRJ 298.

240

The dilemma over ‗truth‘ loomed large over Indian contempt law for quite

considerable time. The curtain is down in 2006 in the form of Contempt of Court

(Amendment) Act, 2006 amending Section 13 of 1971 Act and recognizing

‗justification by truth‘ as a valid defense in qualified circumstances216

. Though the

curtain is down everything is not down. Clouds continue to hang on. Clarity eludes.

The dividing line between freedom of speech and expression/Press and ill-motivated

attempts to interfere with administration of justice is not clearly drawn. Whether the

failure of the judiciary in general or the corruption or malfunctioning or blemishes of

an individual judge can be allowed to be presented, pressurizing the judiciary or an

individual judge in disposing of a pending case, needs attention. Purpose-oriented

attack, though studded with truth in its content, cannot be allowed to be used as a

defense in a contempt case.

“Truth” before the Amendment: The experiment with ―Truth‖ was a mixed

scenario. There have been occasions where the Courts went rude and sophisticated.

For instance, in Bathina Ramakrishna Reddy v. State of Madras217

, the Constitution

Bench of the Supreme Court observed: ―The article in question is a scurrilous attack

on the integrity and honesty of a judicial office. Specific instances have been given

where the officer is alleged to have taken bribes or behaved with impropriety to

litigants who did not satisfy his dishonest demands. If the allegations were true,

obviously it would be to the benefit of the public to bring these matters into light. But

if they were false, they cannot but undermine the confidence of the public in the

administration of justice and bring the judiciary into disrepute.‖

In this case, the appellant, though he took sole responsibility regarding publication of

the article, was not in a position to substantiate, by evidence, any of the allegations

made therein. The appellant admitted that the allegations were based on hearsay. The

Court held that it was incumbent upon him, as a reasonable man, to attempt to verify

the information he had received and ascertain, as far as he could, whether the facts

216

Amended Section 13: Contempts not punishable in certain cases – Notwithstanding anything contained in any law for the time being in force:

(a) no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice;

(b) the Court may permit, in any proceeding for contempt of Court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide. 217

AIR 1952 149

241

were true or mere concocted lies. The Court held that the appellant had not acted with

reasonable care and caution, and could not be said to have acted bona fide, even if

good faith could be held to be a defense at all in a proceeding for contempt.

When Chief Justice E.S. Venkataramaiah of Bombay High Court gave an interview,

on the eve of his retirement, to Kuldip Nayar, contempt proceedings were initiated

against him for scandalizing the entire judiciary, for his statement that ―the judiciary

in India has deteriorated in its standards because such judges appointed as are willing

to be ‗influenced‘ by lavish parties and whisky bottles.‖ … ―in every High Court,

there are at least 4 to 5 judges who are practically out every evening, wining and

dining either at a lawyers‘ house or a foreign embassy.‖ The Division Bench observed

that the entire interview appeared to have been given with an idea to improve the

judiciary and it was not a fit case where suo motu action was called for and dismissed

the petition on merits.

In Hari Singh Nagra Vs. Kapil Sibal218

, when criminal contempt proceedings were

taken up against Sibal for his comments, the Division Bench of the Supreme Court

held that ―the article of Mr. Sibal is an expression of opinion about an institutional

pattern. The article nowhere targets a particular Judge. The message of Mr. Sibal

examined the evils prevailing in the judicial system and was written with an object to

achieve maintenance of purity in the administration of justice. The message is an

exposition of Mr. Sibal‘s ideology and he had shown the corrective measures to be

adopted to get the institution rid of the shortcomings mentioned by him.‖ The

contempt proceedings were dropped.

The only case where the Supreme Court came close to suggesting that a contemnor

cannot justify the contempt was in C.K. Daphtary v. O.P. Gupta219

, where the

Constitution Bench held that ―if evidence was to be allowed to justify allegations

amounting to contempt it would tend to encourage disappointed litigants – and one

party or the other to a case is always disappointed – to avenge their defeat by abusing

the Judge.‖

218

(2010) 7 SCC 502 219

1971) 1 SCC 626, at pp. 644, 647

242

In 2002, when there was adverse news in the print media against the behavior of

sitting High Court Judges of Karnataka High Court, the High Court suo motu took up

contempt proceedings against several news papers for scandalizing and lowering the

authority of the Court. But, when the matter reached the Supreme Court, the then

Chief Justice stated that ―I will reward the media if they come out with the truth …. I

personally believe that truth should be a defence in a contempt case.‖

The National Commission to Review the Working of the Constitution (NCRWC)

headed by the distinguished former Chief Justice of India, M.N. Venkatachaliah, in its

report stated ―Judicial decisions have been interpreted to mean that the law as it now

stands, even truth cannot be pleaded as a defence to a charge of contempt of court.

This is not a satisfactory state of law220

. … A total embargo on truth as justification

may be termed as an unreasonable restriction. It would, indeed, be ironical if, in spite

of the emblems hanging prominently in the court halls, manifesting the motto

‗Satyameva Jayate‘ in the High Courts and ‗Yatho dharmas tatho jaya‘ in the

Supreme Court, the courts could rule out the defence of justification by truth. The

Commission is of the view that the law in this area requires an appropriate change.221

‖

The Committee further recommended that ―an appropriate amendment by way of

addition of a proviso to Article 19(2) of the Constitution to the effect that, ―in matters

of contempt, it shall be open to the Court on satisfaction of the bona fides of the pleas

and of the requirements of public interest to permit a defence of justification by

truth.222

‖

In the United States of America, contempt power is used against the press and

publication only if there is a clear imminent and present danger to the disposal of a

pending case. Criticism however virulent or scandalous after final disposal of the

proceedings will not be considered as contempt. The U.S. Supreme Court observed —

―the assumption that respect for the judiciary can be won by shielding judges from

published criticism wrongly appraises the character of American public opinion. For it

is a prized American privilege to speak one‘s mind, although not always with perfect

good taste on all public institutions ... And an enforced silence, however, limited,

220

Report of the National Commission to Review the Working of the Constitution, published by Universal Law Publishing Co. Pvt. Ltd. At page no.139 221

ibid. at page no.140 222

ibid

243

solely in the name of preserving the dignity of the Bench, would probably engender

resentment, suspicion and contempt much more than it would enhance respect.‖ In

Britain, the offence of scandalizing the court has become obsolete. In European

democracies such as Germany, France, Belgium, Austria, Italy, there is no power to

commit for contempt for scandalizing the court. The judge has to file a criminal

complaint or institute an action for libel. Summary sanctions can be imposed only for

misbehavior during court proceedings.

“Truth” after Amendment

The very first major case to be heard since the coming into force of this amendment

has exposed certain inconsistencies inherent in the Act. In the Delhi Mid Day case

decided by the Delhi High Court on September 11, 2007 (Court on its own motion v.

M.K.Tayal and Ors) the Supreme Court stayed the sentencing of the contemnors,46

till it disposed of their appeal against their conviction, i.e. Vitusah Oberoi v. Court of

its own motion. But, the Delhi High Court‘s brief order in this case, holding the

accused guilty of contempt raises important issues which were not anticipated by the

authors of this amendment or by the Standing Committee which examined the Bill.

Section 13 of the Act deals with contempt not punishable in certain cases. It shows

that Section 13 of the Act can be invoked only at the time of sentencing the

contemnors, and not earlier. It would then imply that the Court would be free to hold

the accused guilty and convict them of contempt of court, without hearing any

arguments on the truth of the allegations made against a Judge. Once the Court finds

the accused guilty of contempt, the question of permitting justification by truth as a

valid defense, just in order to avoid awarding of punishment on the contemnors,

appears to be illogical. Thus it is understandable that the Delhi High Court Bench

asked the counsel for contemnors, who invoked Section 13 during the arguments on

sentencing, ―Truth of what?‖ Permitting the contemnors to invoke truth as a valid

defense to the alleged contempt at this belated stage hardly makes sense, as the Court

had already concluded that they were guilty. Even if the Court permits such a defense,

and if such a defense is sustained, would it not contradict its own conclusion that the

contemnors were guilty? Any allegation of corruption against a Judge, even if it is

consistent with public interest and good faith, is likely to shake the public confidence

in the integrity of the Judiciary, including those brother Judges who sat with the

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allegedly corrupt Judge on a Bench. But the considerations of public interest and good

faith must perforce outweigh this contempt which is based entirely on perceptions.

The Standing Committee was aware of this inconsistency in the amendment. It noted

that eminent witnesses which it heard, had pointed to this, and wanted Section 13(a)

to be so amended as to prevent even a finding of guilt by the Court when no

appreciable injury to administration of justice is caused by the conduct of the

contemnor. They suggested similar amendment of Section 13(b) to say that ―no one

shall be held guilty of contempt of court by making or publishing any statement

relating to a Judge or court which is true or which he, in good faith, believes to be

true.‖ The Committee wanted the Government to appropriately address this, along

with other concerns expressed over the Bill. The Standing Committee further wanted

the defense of truth to be inserted suitably as one of the exemptions or defenses under

Section 8, which deals with other defenses not affected. The Committee felt it would

give the contemnor an additional help, ―because he may plead the defense of truth and

may not be held punishable‖. But the Government apparently rejected these

suggestions of the Committee, as is clear from the provisions of the Amendment Act.

The 2006 Amendment is only a half-hearted attempt to ensure judicial accountability,

and realize the objectives of the Contempt of Courts Act. A balance could be

maintained between the freedom of speech and expression/Press and scandalizing the

court or interfering into the administration of justice only when purpose of the

publication is considered.

B. Apology as Defence:

In a contempt case when the contemner takes up the plea of tendering apology could

it be accepted, becomes a puzzle question. Having committed act of contempt and

when the case comes to court for contempt action or when it reaches finality for an

order, the alleged contemner resorts to apology and pleads for clemency or leniency.

The test that the courts have been observing both in contempt case and defamation

cases is the sincerity of contemner or defamer in tendering it. It apology relates to the

act or acts of contempt and tendered with a mind of doing it, sincerely feeling for

committing the act of contempt it may be accepted. But it appears in many cases the

courts were not satisfied the way in which it was tendered. The law and procedure

relating to acceptance of apology in contempt case was comprehensively discerned in

245

popular case. The case deserves a full text. Hence, the case presented here in its

entirety.

The Supreme Court of India exercising Criminal Appellate Jurisdiction in Criminal

Appeal No. 697 of 2006 in Vishram Singh Raghubanshi, Appellant Vs. State of U.P.

Respondent, had stated the importance of apology as defence, as follows, in July,

2011:

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 response to the same, the appellant again submitted an

affidavit dated 18.10.2005 tendering an apology similar to one in the affidavit

246

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.

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 misbehavior 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 to satisfy the Court and establish the identity of the person

247

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 misbehavior/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 him 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.

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 0.7.1998 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

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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 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.

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.,

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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 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 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

250

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 practicing

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.

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 scandalize 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).

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‖.

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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.

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 rigor 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 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

252

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

Mishra v. Registrar of Orissa High Court & Anr., AIR 1974 SC 710;

253

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)

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

254

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 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. 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 o f the charges by

the High Court in the Criminal Contempt when appellant realized 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.

255

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 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.