REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 697 of 2006
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.
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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.
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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.
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11. It is settled principles 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.
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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
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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 rigour of the law. Such an apology can merely
be termed as paper apology.
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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 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
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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
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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; 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.
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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 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
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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
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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 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
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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.
....................................
J.
(Dr. B.S. CHAUHAN)
.....................................
J.
(SWATANTER KUMAR)
New Delhi,
June 15, 2011
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