REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 1108-1115 OF 2004
O.P. Sharma & Ors. .... Appellant(s)
Versus
High Court of Punjab & Haryana .... Respondent(s)
WITH
CRIMINAL APPEAL NO. 1206 OF 2004
J U D G M E N T
P. Sathasivam, J.
1) Criminal Appeal Nos. 1108-1115 of 2004 are directed
against the common judgment and final order dated
25.08.2004 passed by the Division Bench of the High Court of
Punjab and Haryana at Chandigarh in Crl. O.C.P. Nos. 18 and
25 of 1999, Crl. O.C.P. Nos. 3,4,5,18,19 and 20 of 2001
whereby the Division Bench after rejecting the claim of the
appellants herein found all of them guilty of criminal contempt
and convicted them under Section 12 read with Sections 15
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and 2(c) of the Contempt of Courts Act, 1971 (hereinafter
referred to as "the Act")and sentenced them to various terms of
simple imprisonment and fine. Feeling aggrieved by the order
of conviction and sentence, one Surinder Sharma has filed Crl.
A. No. 1206 of 2004. Since the issue in all these appeals is
common and relate to one incident, they are being disposed of
by the following judgment.
2) Brief facts:
(a) The District and Sessions Judge, Faridabad, by his letter
dated 16.09.1999, addressed to the Registrar, High Court of
Punjab & Haryana, forwarded Letter No. 376 dated 14.09.1999
written by Shri Rakesh Singh, Civil Judge (Junior Division-
cum-Judicial Magistrate, Ist Class) Faridabad which was
addressed to him. In the said letter, the Judicial Magistrate
has stated that on 11.09.1999 at about 3 p.m., when he was
dealing with the remand of accused Soran in FIR No. 136
dated 13.06.1999, under Sections 393/452/506/34 of the
Indian Penal Code (hereinafter referred to as "the IPC")
pertaining to Police Station Chhainsa, the Assistant Public
Prosecutor requested him for remanding the accused to police
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custody. By that time, Mr. L.N. Prashar, Advocate, one of the
contemnors/appellants herein, who represented the accused,
opposed the request of police remand. After hearing the
arguments, the Magistrate remanded the accused to police
custody. When the order of police remand was not found
favourable, Mr. L.N. Prashar, advocate became enraged and
started hurling abuses and derogatory remarks against him.
Upon hearing the remarks, he tried to pacify him and
requested him to behave properly but he did not relent and
again uttered unparliamentary words and also threatened him
with dire consequences.
(b) It was further stated that the accused Soran was being
produced in four criminal cases on that very day and was
being represented by Mr. Prashar in all the matters. When he
took another remand paper of the same accused, Mr. Prashar
became furious and again uttered unparliamentary words and
also threatened him. When he kept on sitting on the dias, Mr.
Prashar called his fellow colleagues including Mr. O.P.
Sharma, Rajinder Sharma, Surinder Sharma, Advocates, in
total about 15-20 advocates, who all belonged to the same
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group. Then, he requested Mr. O.P. Sharma, who is a senior
member of the Bar, to request Mr. Prashar to behave properly
in the Court. However, Mr. O.P. Sharma sided with Mr.
Prashar and along with other advocates shouted slogans and
abused in filthy language and also threatened him.
(c) It was further stated that advocates were very aggressive
and wanted to assault him physically. To avoid any further
deterioration in the situation, he retired to his Chamber. One
of his staff members, namely, Shri Raj Kumar, Ahlmad, had
informed the Chief Judicial Magistrate, Faridabad and the
Judicial Magistrate, Ist Class, Faridabad about the incident
and they came to his Chamber and they also overheard Mr.
Prashar shouting in the Court. After sometime, Mr. O.P.
Goyal, Addl. District & Sessions Judge, Faridabad came there
and pacified the advocates.
(d) In continuation of his letter dated 14.09.1999, the
Magistrate addressed another letter dated 24.09.1999 to the
District Judge, Faridabad. In the said letter, it was stated that
Mr. Prashar and Mr. O.P. Sharma, Advocates had criminal
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record and these persons have indulged in pressure tactics
since long and highlighted all the details about them.
(e) The entire incident was published in a local newspaper
`Mazdoor Morcha' which necessitated action under the Act
against Shri Satish Kumar, owner, publisher, printer and
Editor of the said newspaper.
(f) Based on the letter of the District & Sessions Judge as
well as letter of the Judicial Magistrate, Faridabad, the High
Court took the matter by suo motu and initiated contempt
proceedings against the contemnors under Section 2(c) of the
Act relating to the incident which took place on 11.09.1999 in
the Court of Shri Rakesh Singh, Civil Judge, Faridabad for
taking appropriate action.
3) Before the High Court, the respective
contemnors/advocates filed affidavits highlighting the
circumstances under which the unfortunate incident occurred
and by filing separate affidavits they tendered unconditional
apology and also regretted for the same. On direction by the
High Court, all of them appeared before the Magistrate
concerned and expressed their regret and also tendered
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unconditional apology. The Division Bench, taking note of
seriousness of the issue and finding that the reference made
by the Magistrate is based upon correct facts and overall
conduct of the contemnors found all of them guilty of criminal
contempt within the meaning of Section 2(c) of the Act and
imposed simple imprisonment of six months/three months
with a fine of Rs.1,000-2,000/- each. As stated earlier,
challenging the said conviction and sentence, the above
appeals have been filed.
4) Heard Mr. Ram Jethmalani and Mr. V. Giri, learned
senior counsel for the appellants and Mr. S. Chandra
Shekhar, learned counsel for the respondent.
Submission of Mr. Ram Jethmalani
5) At the outset, Mr. Ram Jethmalani, learned senior
counsel for the appellants submitted that in view of the fact
that the appellants herein, after realizing their mistake
immediately, offered unconditional apology by filing affidavits
before the High Court and also appeared before the Magistrate
before whom the unfortunate incident had occurred, tendered
apology and regret for their action, prayed for leniency and
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setting aside the order of the High Court sentencing the
contemnors to jail. He also submitted that inasmuch as the
alleged incident had occurred in September, 1999, considering
the passage of time and by realizing the mistake tendered
unconditional apology before the High Court as well as before
the concerned Magistrate, their sentence of imprisonment may
be set aside. He further submitted that all the
appellants/contemnors prepared to file fresh affidavits
conveying their unconditional apology and regret for the
incident and also assured that they would not indulge in such
activities in future.
Controversial behaviour of the Contemnors
6) Before considering the acceptability of the affidavits filed
by the appellants, in order to visualize seriousness of the
matter, it is useful to refer the exchange of words and
behaviour of the appellants (in English version) while the
Magistrate remanded the accused Soran to police custody.
They are:
"You have taken bribe. You do all works only after taking
bribe. You are indulging in gangism."
"What can you do to me. You may make contempt against
me. I will suck your blood. I will not leave you till High
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Court. Bahanchod, you are considering this Court as inn.
Come out, we will just now teach you a taste of Judgeship.
My name is L.N. Prashar. You will come to know today as to
how you pass orders against me. Even earlier, criminal
cases are pending against me. If one more case proceeds
against me, it would make no difference. It would cause you
very clearly to have an enmity with me and now I will see to
it that I suck your blood. If you have any courage, you come
out."
7) When the Magistrate took up another remand paper of
the same accused, Mr. Prashar, again became furious and
uttered that:
"You dismiss this bail application. I have no faith in your
Court. I am not going to furnish any bail bonds. There is no
need for us to have any bail from your Court."
8) At that stage, the Magistrate asked his Reader to call the
Chief Judicial Magistrate, Faridabad so that the situation
could be brought under control. On this, Mr. Prashar
remarked:
"What can your CJM do. You may call him as well. We will
see your CJM also. You are indulging in big gangism."
9) Thereafter, the Magistrate requested Mr. O.P. Sharma,
Advocate, who is a senior member of the Bar, to request Mr.
Prashar to behave properly in the Court. However, Mr. O.P.
Sharma, Advocate, sided with Mr. Prashar and shouted.
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"We will do like this only. Lock his Court and raise slogans
against him.... On the asking of Shri O.P. Sharma, Advocate,
other Advocates accompanying him raised slogans, "RAKESH
SINGH MURDABAD, RAKESH SINGH MURDABAD.....
..... He was also threatened by saying you come out. We will
see your gangism."
10) When all the officers were sitting in the chamber of the
Magistrate, they over-heard Mr. Prashar shouting in the Court
in loud voice saying,
"You are indulging in gangism. You are passing orders of
your choice. The contempt can not harm me. I will see to it
as to how you remain in service."
Professional Conduct and Etiquette - Rules and decisions
of this Court
11) In the light of the above scenario, before considering the
fresh affidavits filed before this Court by the appellants-
Advocates, let us recapitulate various earlier orders of this
Court as to the duties of lawyer towards the Court and the
Society being a member of the legal profession.
12) The role and status of lawyers at the beginning of
Sovereign and Democratic India is accounted as extremely
vital in deciding that the Nation's administration was to be
governed by the Rule of Law. They were considered
intellectuals amongst the elites of the country and social
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activists amongst the downtrodden. These include the names
of galaxy of lawyers like Mahatma Gandhi, Motilal Nehru,
Jawaharlal Nehru, Bhulabhai Desai, C. Rajagopalachari, Dr.
Rajendra Prasad and Dr. B.R. Ambedkar, to name a few. The
role of lawyers in the framing of the Constitution needs no
special mention. In a profession with such a vivid history
it is regretful, to say the least, to witness instances of the
nature of the present kind. Lawyers are the officers of the
Court in the administration of justice.
13) Section I of Chapter-II, Part VI titled "Standards of
Professional Conduct and Etiquette" of the Bar Council of India
Rules specifies the duties of an advocate towards the Court
which reads as under:
"Section I - Duty to the Court
1. An advocate shall, during the presentation of his case and
while otherwise acting before a court, conduct himself with
dignity and self-respect. He shall not be servile and whenever
there is proper ground for serious complaint against a judicial
officer, it shall be his right and duty to submit his grievance to
proper authorities.
2. An advocate shall maintain towards the courts a respectful
attitude, bearing in mind that the dignity of the judicial office
is essential for the survival of a free community.
3. An advocate shall not influence the decision of a court by
any illegal or improper means. Private communications with a
judge relating to a pending case are forbidden.
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4. An advocate shall use his best efforts to restrain and
prevent his client from resorting to sharp or unfair practices
or from doing anything in relation to the court, opposing
counsel or parties which the advocates himself ought not to
do. An advocate shall refuse to represent the client who
persists in such improper conduct. He shall not consider
himself a mere mouth-piece of the client, and shall exercise
his own judgement in the use of restrained language in
correspondence, avoiding scurrilous attacks in pleadings, and
using intemperate language during arguments in court.
5. An advocate shall appear in court at all times only in the
prescribed dress, and his appearance shall always be
presentable.
6. An advocate shall not enter appearance, act, plead or
practise in any way before a court, Tribunal or Authority
mentioned in Section 30 of the Act, if the sole or any member
thereof is related to the advocate as father, grandfather, son,
grand-son, uncle, brother, nephew, first cousin, husband,
wife, mother, daughter, sister, aunt, niece, father-in-law,
mother-in-law, son-in-law, brother-in-law daughter-in-law or
sister-in-law.
For the purposes of this rule, Court shall mean a Court,
Bench or Tribunal in which above mentioned relation of the
Advocate is a Judge, Member or the Presiding Officer.
7. An advocate shall not wear bands or gown in public places
other than in courts except on such ceremonial occasions and
at such places as the Bar Council of India or the court may
prescribe.
8. An advocate shall not appear in or before any court or
tribunal or any other authority for or against an organisation
or an institution, society or corporation, if he is a member of
the Executive Committee of such organisation or institution or
society or corporation. "Executive Committee ", by whatever
name it may be called, shall include any Committee or body of
persons which, for the time being, is vested with the general
management of the affairs of the organisation or institution,
society or corporation.
Provided that this rule shall not apply to such a member
appearing as "amicus curiae" or without a fee on behalf of a
Bar Council, Incorporated Law Society or a Bar Association.
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9. An Advocate should not act or plead in any matter in which
he is himself peculiarly interested.
Illustration
I. He should not act in a bankruptcy petition when he himself
is also a creditor of the bankrupt.
II. He should not accept a brief from a company of which he is
Director.
10. An advocate shall not stand as a surety, or certify the
soundness of a surety for his client required for the purpose of
any legal proceedings."
14) In the case of Daroga Singh and Others vs. B.K.
Pandey, (2004) 5 SCC 26, one Additional District and
Sessions Judge was attacked in a pre-planned and calculated
manner in his courtroom and chamber by police officials for
not passing an order they sought. This Court held that,
"The Courts cannot be compelled to give "command orders".
The act committed amounts to deliberate interference with
the discharge of duty of a judicial officer by intimidation
apart from scandalizing and lowering the dignity of the Court
and interference with the administration of justice. The effect
of such an act is not confined to a particular court or a
district, or the State, it has the tendency to effect the entire
judiciary in the country. It is a dangerous trend. Such a
trend has to be curbed. If for passing judicial orders to the
annoyance of the police the presiding officers of the Courts
are to be assaulted and humiliated the judicial system in the
country would collapse."
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15) In R.D. Saxena vs. Balram Prasad Sharma, (2000) 7
SCC 264, this Court held as under:
"In our country, admittedly, a social duty is cast upon the
legal profession to show the people beckon (sic beacon)
light by their conduct and actions. The poor, uneducated
and exploited mass of the people need a helping hand from
the legal profession, admittedly, acknowledged as a most
respectable profession. No effort should be made or allowed
to be made by which a litigant could be deprived of his
rights, statutory as well as constitutional, by an advocate
only on account of the exalted position conferred upon him
under the judicial system prevalent in the country........"
16) In Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd.,
(1999) 1 SCC 37, this Court held that it is the solemn duty of
every Court to proceed with judicial function during Court
hours and no Court should yield to pressure tactics or boycott
calls or any kind of browbeating. The Bench as well as the
Bar has to avoid unwarranted situations or trivial issues that
hamper the cause of justice and are in the interest of none.
17) In the case of Ajay Kumar Pandey, Advocate, In Re: ,
(1998) 7 SCC 248, the advocate was charged of criminal
contempt of Court for the use of intemperate language and
casting unwarranted aspersions on various judicial officers
and attributing motives to them while discharging their
judicial functions. This Court held as under:
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"The subordinate judiciary forms the very backbone of
administration of justice. This Court would come down a
heavy hand for preventing the judges of the subordinate
judiciary or the High Court from being subjected to
scurrilous and indecent attacks, which scandalise or have
the tendency to scandalise, or lower or have the tendency to
lower the authority of any court as also all such actions
which interfere or tend to interfere with the due course of
any judicial proceedings or obstruct or tend to obstruct the
administration of justice in any other manner. No affront to
the majesty of law can be permitted. The fountain of justice
cannot be allowed to be polluted by disgruntled litigants. The
protection is necessary for the courts to enable them to
discharge their judicial functions without fear."
18) In Chetak Construction Ltd. vs. Om Prakash & Ors.,
(1998) 4 SCC 577, this Court deprecated the practice of
making allegations against the Judges and observed as under:
"Indeed, no lawyer or litigant can be permitted to browbeat
the court or malign the presiding officer with a view to get a
favourable order. Judges shall not be able to perform their
duties freely and fairly if such activities were permitted and
in the result administration of justice would become a
casualty and rule of law would receive a setback. The Judges
are obliged to decide cases impartially and without any fear
or favour. Lawyers and litigants cannot be allowed to
"terrorize" or "intimidate" Judges with a view to "secure"
orders which they want. This is basic and fundamental and
no civilised system of administration of justice can permit
it........"
Similar view has been reiterated in Radha Mohan Lal vs.
Rajasthan High Court, (2003) 3 SCC 427.
19) Advocacy touches and asserts the primary value of
freedom of expression. It is a practical manifestation of the
principle of freedom of speech. Freedom of expression in
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arguments encourages the development of judicial dignity,
forensic skills of advocacy and enables protection of fraternity,
equality and justice. It plays its part in helping to secure the
protection or other fundamental human rights, freedom of
expression, therefore, is one of the basic conditions for the
progress of advocacy and for the development of every man
including legal fraternity practising the profession of law.
Freedom of expression, therefore, is vital to the maintenance of
free society. It is essential to the rule of law and liberty of the
citizens. The advocate or the party appearing in person,
therefore, is given liberty of expression. But they equally owe
countervailing duty to maintain dignity, decorum and order in
the court proceedings or judicial processes. Any adverse
opinion about the judiciary should only be expressed in a
detached manner and respectful language. The liberty of free
expression is not to be confounded or confused with licence to
make unfounded allegations against any institution, much
less the judiciary [vide D.C. Saxena vs. The Hon'ble Chief
Justice of India, (1996) 5 SCC 216].
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20) In the matter of In re: Vinay Chandra Mishra (the
alleged contemner), (1995) 2 SCC 534, the contemner who
was a senior advocate, President of the Bar and Chairman of
the Bar Council of India, on being questioned by the Judge
started to shout and said that no question could have been
put to him and that he will get the High Court Judge
transferred or see that impeachment motion is brought
against him in Parliament. This Court while sentencing him to
simple imprisonment for six weeks suspended him from
practising as an advocate for a period of three years and laid
down as follows:
"The contemner has obviously misunderstood his function
both as a lawyer representing the interests of his client and
as an officer of the court. Indeed, he has not tried to defend
the said acts in either of his capacities. On the other hand,
he has tried to deny them. Hence, much need not be said on
this subject to remind him of his duties in both the
capacities. It is, however, necessary to observe that by
indulging in the said acts, he has positively abused his
position both as a lawyer and as an officer of the Court, and
has done distinct disservice to the litigants in general and to
the profession of law and the administration of justice in
particular."
21) In the case of Supreme Court Bar Association vs.
Union of India & Anr., (1998) 4 SCC 409, a Constitution
Bench of this Court overruled In re: Vinay Chandra Mishra
(the alleged contemner) and held as under:
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"The power of the Supreme Court to punish for
contempt of court, though quite wide, is yet limited and
cannot be expanded to include the power to determine
whether an advocate is also guilty of "Professional
misconduct" in a summary manner which can only be
done under the procedure prescribed in the Advocates
Act. The power to do complete justice under Article 142
is in a way, corrective power, which gives preference to
equity over law but it cannot be used to deprive a
professional lawyer of the due process contained in
the Advocates Act 1961 by suspending his licence
to practice in a summary manner, while dealing
with a case of contempt of court."
It also opined that:-
"An Advocate who is found guilty of contempt of court
may also, as already noticed, be guilty of professional
misconduct in a given case but it is for the Bar Council
of the State or Bar Council of India to punish that
Advocate by either debarring him from practice or
suspending his licence, as may be warranted, in the
facts and circumstances of each case. The learned
Solicitor General informed us that there have been
cases where the Bar Council of India taking note of the
contumacious and objectionable conduct of an
advocate, had initiated disciplinary proceedings against
him and even punished him for "professional
misconduct", on the basis of his having been found
guilty of committing contempt of court. We do not
entertain any doubt that the Bar Council of the State or
Bar Council of India, as the case may be, when apprised
of the established contumacious conduct of an advocate
by the High Court or by this Court, would rise to the
occasion, and taken appropriate action against such an
advocate. Under Article 144 of the Constitution "all
authorities, civil and judicial, in the territory of India
shall act in aid of the Supreme Court. The Bar Council
which performs a public duty and is charged with the
obligation to protect the dignity of the profession and
maintain professional standards and etiquette is also
obliged to act "in aid of the Supreme Court ". It must,
whenever, facts warrant rise to the occasion and
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discharge its duties uninfluenced by the position of the
contemner advocate. It must act in accordance with the
prescribed procedure, whenever its attention is drawn
by this Court to the contumacious and unbecoming
conduct of an advocate which has the tendency to
interfere with due administration of justice....."
The Bench went on to say :-
".........There is no justification to assume that the Bar
Council is would not rise to the occasion, as they are
equally responsible to uphold the dignity of the courts
and the majesty of law and prevent any interference in
the administration of justice. Learned counsel for the
parties present before us do not dispute and rightly so
that whenever a court of record, records its findings
about the conduct of an Advocate while finding him
guilty of committing contempt of court and desires or
refers the matter to be considered by the concerned Bar
Council, appropriate action should be initiated by the
concerned Bar Council in accordance with law with a
view to maintain the dignity of the courts and to uphold
the majesty of law and professional standards and
etiquette."
22) In M.B. & Sanghi, Advocate vs. High Court of Punjab
& Haryana, (1991) 3 SCC 600, this Court took notice of the
growing tendency amongst some of the Advocates of adopting
a defiant attitude and casting aspersions having failed to
persuade the Court to grant an order in the terms they expect.
Holding the Advocates guilty of contempt, this Court observed
as under:
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"The tendency of maligning the reputation of Judicial
Officers by disgruntled elements who fail to secure the
desired order is ever on the increase and it is high time it is
nipped fat the bud. And, when a member of the profession
resorts to such cheap gimmicks with a view to browbeating
the Judge into submission, it is all the more painful. When
there is a deliberate attempt to scandalise which would
shake the confidence of the litigating public in the system
the damage caused is not only to the reputation of the
concerned Judge but also to the fair name of the judiciary,
Veiled threats, abrasive behavior, use of disrespectful
language and at times blatant condemnatory attacks like the
present one are often designedly employed with a view to
taming a judge into submission to secure a desired order.
Such cases raise larger issues touching the independence of
not only the concerned Judge but the entire institution. 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 Officers with impunity. It is
high time that we realise that the 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."
23) In the case of L.D. Jaikwal v. State of Uttar Pradesh,
(1984) 3 SCC 405, it was held by this Court that acceptance of
an apology from a contemnor should only be a matter of
exception and not that of a rule and expressed its opinion as
under:
"6. We do not think that merely because the appellant has
tendered his apology we should set aside the sentence and
allow him to go unpunished. Otherwise, all that a person
wanting to intimidate a Judge by making the grossest
imputations against him to do, is to go ahead and scandalize
him, and later on tender a formal empty apology which costs
him practically nothing. If such an apology were to be
accepted, as a rule, and not as an exception, we would in
fact be virtually issuing a 'licence' to scandalize courts and
commit contempt of court with impunity. It will be rather
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difficult to persuade members of the Bar, who care for their
self-respect, to join the judiciary if they are expected to pay
such a price for it. And no sitting Judge will feel free to
decide any matter as per the of his conscience on account of
the fear of being scandalized and prosecuted by an advocate
who does not mind making reckless allegations if the Judge
goes against his wishes. If this situation were to be
countenanced, advocates who can cow down the Judges,
and make them fall in line with their wishes, by threats of
character assassination and persecution, will be preferred by
the litigants to the advocates who are mindful of professional
ethics and believe in maintaining the decorum of courts.
7. We have yet to come across a Judge who can take a
decision which does not displease one side or the other. By
the very nature of his work he has to decide matters against
one or other of the parties. If the fact that he renders a
decision which is resented to by a litigant or his lawyer were
to expose him to such risk, it will sound the death knell of
the institution. A line has therefore to be drawn somewhere,
some day, by someone. That is why the Court is impelled to
act (rather than merely sermonize), much as the Court
dislikes imposing punishment whilst exercising the contempt
jurisdiction, which no doubt has to be exercised very
sparingly and with circumspection. We do not think that we
can adopt an attitude of unmerited leniency at the cost of
principle and at the expense of the Judge who has been
scandalized. We are fully aware that it is not very difficult to
show magnanimity when someone else is the victim rather
than when oneself is the victim. To pursue a populist line of
showing indulgence is not very difficult -- in fact it is more
difficult to resist the temptation to do so rather than to
adhere to the nail-studded path of duty. Institutional
perspective demands that considerations of populism are not
allowed to obstruct the path of duty. We, therefore, cannot
take a lenient or indulgent view of this matter. We dread the
day when a Judge cannot work with independence by reason
of the fear that a disgruntled member of the Bar can publicly
humiliate him and heap disgrace on him with impunity, if
any of his orders, or the decision rendered by him,
displeases any of the advocates, appearing in the matter.
24) In the case of R.K. Garg Advocate v. State of
Himachal Pradesh, (1981) 3 SCC 166, where a lawyer hurled
20
a shoe on the judicial officer which hit him on the shoulder,
this Court opined that there is no doubt that the Bar and the
Bench are an integral part of the same mechanism which
administers justice to the people. Many members of the Bench
are drawn from the Bar and their past association is a source
of inspiration and pride to them. It ought to be a matter of
equal pride to the Bar. It is unquestionably true that courtesy
breeds courtesy and just as charity has to begin at home,
courtesy must begin with the Judge. A discourteous Judge is
like an ill-tuned instrument in the setting of a courtroom. But
members of the Bar will do well to remember that such
flagrant violations of professional ethics and cultured conduct
will only result in the ultimate destruction of a system without
which no democracy can survive.
25) In Lalit Mohan Das vs. Advocate General, Orissa &
Another, AIR 1957 SC 250, this Court observed as under:
"A member of the Bar undoubtedly owes a duty to his client
and must place before the Court all that can fairly and
reasonably be submitted on behalf of his client. He may even
submit that a particular order is not correct and may ask for
a review of that order. At the same time, a member of the
Bar is an officer of the Court and owes a duty to the Court in
which he is appearing. He must uphold the dignity and
decorum of the Court and must not do anything to bring the
Court itself into disrepute. The appellant before us grossly
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overstepped the limits of propriety when he made
imputations of partiality and unfairness against the Munsif
in open Court. In suggesting that the Munsif followed no
principle in his orders, the appellant was adding insult to
injury, because the Munsif had merely upheld an order of
his predecessor on the preliminary point of jurisdiction and
Court fees, which order had been upheld by the High Court
in revision. Scandalizing the Court in such manner is really
polluting the very fount of justice; such conduct as the
appellant indulged in was not a matter between an
individual member of the Bar and a member of the judicial
service; if brought into disrepute the whole administration of
justice."
26) A lawyer cannot be a mere mouthpiece of his client and
cannot associate himself with his client in maligning the
reputation of judicial officer 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 and would
cause a very serious damage to the name of the judiciary.
[vide M.Y. Shareef & Anr. Vs. Hon'ble Judges of Nagpur
High Court & Ors., (1955) 1 SCR 757; Shamsher Singh Bedi
vs. High Court of Punjab & Haryana, (1996) 7 SCC 99 and
M.B. Sanghi, Advocate vs. High Court of Punjab & Haryana
& Ors. (supra)].
27) Mr. Ram Jethmalani, learned senior counsel, strenuously
pleaded to accept the solemn statements made by all the
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appellants-Advocates in the form of affidavits dated
28.04.2011. Now, we are reproducing the affidavit filed before
us by Mr. O.P. Sharma (appellant No.1 herein):
"IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
IN
CRIMINAL APPEAL NOS. 1108-1115 OF 2004
In the matter of
O.P. Sharma & Ors. ...........Petitioners
Versus
High Court of Punjab & Haryana ........Respondent
AFFIDAVIT
I, O.P. Sharma, S/o Late Shri M.R. Sharma aged about 61
years R/o 252 Sector-9, Faridabad, Haryana presently at
New Delhi do hereby solemnly affirm and state as under:-
1. That the Deponent is one of the appellants in the
abovementioned Appeals.
2. That the deponent has the highest and abiding faith in the
institution of Judiciary and can not imagine saying or doing
any thing which would undermine the dignity and prestige of
the institution.
3. That the deponent hereby tenders unconditional apology
before this Hon'ble Court for the incident which took place in
the Courts at Faridabad out of which this contempt
proceedings arise and further undertake to maintain a good
behaviour in future.
4. That at the first available opportunity the unconditional
apology and undertaking for maintaining good behaviour
was filed before the Ld. Magistrate.
Sd/-
Deponent
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VERIFICATION
I the abovenamed deponent do hereby verify that the
contents of the above affidavit are true to the best of my
knowledge.
Verified at New Delhi on this 28th Day of April, 2011.
Sd/-
Deponent"
Similar affidavits have been filed by other appellants
reiterating what they had stated before the High Court and the
Magistrate concerned tendering unconditional apology for the
incident which took place in the Court at Faridabad. They
also assured this Court that they would maintain good
behaviour in future. Though sub-Section 1 of Section 12 of
the Act enables the court to award simple imprisonment for a
term which may extend to six months, proviso empowers the
court that accused may be discharged or punishment awarded
may be remitted on apology being made to the satisfaction of
the court. In fact, Explanation to this Section makes it clear
that an apology shall not be rejected merely on the ground
that it is qualified or conditional if the accused makes it bona
fide.
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28) Considering the plea made by Mr. Ram Jethmalani,
learned senior counsel and President of the Supreme Court
Bar Association, in tendering unconditional apology, recorded
even at the initial stage before the High Court and before the
Magistrate, Faridabad before whom the unwanted incident
had occurred and the present affidavits filed before us once
again expressing unconditional apology and regret with an
undertaking that they would maintain good behaviour in
future and in view of the language used in `proviso' and
`explanation' appended to Section 12(1) of the Act, we accept
the affidavits filed by all the Appellants.
29) Shri Satish Kumar, owner, publisher, printer and Editor
of `Majdur Morcha' newspaper has also filed affidavit before
this Court similar to one by the other appellants. Considering
the fact that the newspaper has merely published what had
happened in the Court, we are of the view that it would be just
and fair to apply the same relief to him also. We reiterate that
acceptance of an apology from a contemnor should only be a
matter of exception and not that of a rule.
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30) A Court, be that of a Magistrate or the Supreme Court is
sacrosanct. The integrity and sanctity of an institution which
has bestowed upon itself the responsibility of dispensing
justice is ought to be maintained. All the functionaries, be it
advocates, judges and the rest of the staff ought to act in
accordance with morals and ethics.
Advocates Role and Ethical Standards:
31) An advocate's duty is as important as that of a Judge.
Advocates have a large responsibility towards the society. A
client's relationship with his/her advocate is underlined by
utmost trust. An advocate is expected to act with utmost
sincerity and respect. In all professional functions, an
advocate should be diligent and his conduct should also be
diligent and should conform to the requirements of the law by
which an advocate plays a vital role in the preservation of
society and justice system. An advocate is under an obligation
to uphold the rule of law and ensure that the public justice
system is enabled to function at its full potential. Any
violation of the principles of professional ethics by an advocate
is unfortunate and unacceptable. Ignoring even a minor
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violation/misconduct militates against the fundamental
foundation of the public justice system. An advocate should
be dignified in his dealings to the Court, to his fellow lawyers
and to the litigants. He should have integrity in abundance
and should never do anything that erodes his credibility. An
advocate has a duty to enlighten and encourage the juniors in
the profession. An ideal advocate should believe that the legal
profession has an element of service also and associates with
legal service activities. Most importantly, he should faithfully
abide by the standards of professional conduct and etiquette
prescribed by the Bar Council of India in Chapter II, Part VI of
the Bar Council of India Rules.
32) As a rule, an Advocate being a member of the legal
profession has a social duty to show the people a beacon of
light by his conduct and actions rather than being adamant on
an unwarranted and uncalled for issue.
33) We hope and trust that the entire legal fraternity would
set an example for other professionals by adhering to all the
above-mentioned principles.
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34) In the light of the above discussion and reasons which we
have noted in the earlier paras and as an exception to the
general rule, we accept the unconditional apology tendered in
the form of affidavits in terms of proviso to Section 12(1) of the
Act and discharge all the appellants.
35) All the appeals are disposed of on the above terms.
.................................................J.
(P. SATHASIVAM)
.................................................J.
(DR. B.S. CHAUHAN)
NEW DELHI;
MAY 9, 2011.
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