IN THE MATTER OF CHARLES PIFFARD ETC.', (1864) 1 Hyd 79, a barrister, offended by the use of a strong expression on the part of a judge while sitting in Court, sent an officer to the judge's private' residence upon a pacific errand to ask for an explanation. The matter was heard by a Bench of eleven judges, Sir Barnes Peacock, C. J. presiding. It was held by nine judges out of eleven that the party sending the message and the party conveying it, were both guilty of contempt of Court.
95. The letter must be read as a whole and to justify a committal for contempt, there must be evidence in the letter itself. (See 'ANDRE PAUL TERENCE AMBARD v. THE ATTORNEY-GENERAL OF TRINIDAD AND TOBAGO', (1936) 1 All E R 704).
Calcutta High Court
In Re: Sudhir Chandra Ray ... vs Unknown on 4 September, 1951
Equivalent citations: AIR 1952 Cal 258, 56 CWN 51
Bench: Harries, Chakravartti, Banerjee
Harries, C.J.
1. Two Rules were issued - one on July 26, 1951 and the other on July 27, 1951-by Mitter J. calling upon Sree Sudir Chandra Ray Chaudhuri, an Attorney of this Court, to show cause (1) why he should not be convicted and- punished for contempt of Court and (2) why disciplinary action should not be taken against him under the provisions of the Letters Patent of this Court. The Rule relating to contempt of Court was made returnable before the learned Judge, but the Rule relating to disciplinary action was made returnable before a Bench of three Judges as required by the Rules of this Court. As the two Rules were concerned with the same matter application was made to have the Rule relating to contempt of Court heard by the Bench of three Judges which would have to be constituted to hear the Rule relating to disciplinary action. The course suggested was obviously a convenient and proper one and an order was made transferring the contempt matter and directing the same to be heard by the Bench to be constituted for hearing the disciplinary matter.
2. A case - 'NARAYAN PROSAD SEAL v. MRS. MILLICENT DE SILVA', - was pending on the Original Side of this Court and was in the list of Mitter J. An application had been made in this suit for an injunction restraining the defendant from pursuing certain conduct. The attorney concerned, namely, Sri Sudhir Chandra Ray Chaudhuri, was the attorney for the defendant, Mrs. De Silva, and in these interlocutory proceedings an affidavit had been sworn by Mrs. De Silva. When the application for the injunction came before Mitter J. reference was made to this affidavit in opposition filed by Mrs. De ASilva. Annexed to the affidavit were 32 pages of exhibits, each page containing a copy of a rent receipt & all these rent receipts were in similar terms. During these interlocutory proceedings Mitter J. pointed out that it was wholly unnecessary to exhibit a copy of each of these rent receipts to the affidavit in opposition. He severely criticised and deprecated such conduct and he expressed the view that the affidavit appeared to have been drawn up in that form mainly for the purposes of costs.
3. Mrs. De Silva was represented by Counsel and representative of Sree Sudhir Chandra Ray Chaudhuri was in Court instructing Counsel. According to the learned Judge, Counsel1 was wholly unable to suggest that these 32 pages of exhibits were in any way necessary, as indeed they were not. No explanation of any kind for this somewhat extraordinary affidavit was made and nothing was suggested which tended to exonerate the attorney concerned from the charge suggested against him by the learned Judge.
4. Eventually the defendant, Mrs. De Silva gave certain undertakings and the application was disposed of on those terms. The learned Judge, however, did not carry out the intention which he had expressed during the proceedings, namely, to deprive the attorney of his costs of preparing the affidavit as against his client. The order eventually passed was that the costs would be costs in the cause.
5. On July 25, 1951, that is a week after the interlocutory matter had been disposed of, a letter was received by Mitter J. purporting to have been signed by the attorney in question, namely, Sree Sudhir Chandra Ray Chaudhuri. It is quite clear from an affidavit Which has been filed that this letter bears the signature of Sree Sudhir Chandra Ray Chaudhuri & before us it was admitted on his behalf that the letter had been sent by him. It is this letter which has given rise to these proceedings. The contents of this letter will have to be discussed in considerable detail in this judgment so it will be convenient at the outset to set out the letter in extenso. It is in these words:
10 Old Post Office St.
Calcutta, July 25, 1951.
"Dear Judge,
I expect you will be surprised to get this letter from me but I thought it my duty to point out certain facts to you as I feel that you had been unjustly harsh in making certain remarks against me in open Court while an application for injunction in 'NARAYAN PROSAD v. Mrs. MILLICENT DE SILVA', Suit No. 2887 of 1951 was being heard by you. My managing clerk as well as my client Mrs. De Silva tell me that on the 18th July, 1951 when the said injunction application in the said suit was being argued before you, you were pleased to observe in open Court that I had unnecessarily caused copies of certain rent receipts to be affixed to the affidavit in opposition affirmed by my client in the said proceedings and had wasted good paper My client also tells me that you went on to say that I had not acted rightly in causing copies of the said receipts to be annexed and that I must have done so with the sole intention of getting more money out of my client. You further stated that you would disallow my costs for annexing the said copies against my own client. Thereafter, however although you did not make any such order with regard to costs, you did mention my name openly in Court and remarked that it was a sufficient warning for me and I should be careful in the future.
When you read what I have to say with regard to the matter you will, I am sure, agree with me that I am justified in writing this letter to you and in protesting against the above remarks made by you against me.
Mrs. De Silva was introduced to me by a gentleman called Mr. M. V. Gough Govia a very prominent member of the Anglo-Indian Community who was my Deputy when I was the Mayor of Calcutta. Mr. Gough Govia by his letter dated 5-7-1951 requested me to take up her defence without charging anything as my costs as she could ill afford to pay anything more than the charges for stamps and the fees of a junior Counsel. The original letter of Mr. Gough Govia is enclosed herewith.
In the circumstances mentioned above I never charged nor do I have any intention of charging Mrs. De Silva anything for any work done by me or my office much less for any affidavit or for any exhibit or annexure affixed thereto.
You therefore misjudged me grossly when you thought that I was being actuated by mercenery motives in causing the said copies of the rent receipts to be annexed to the affidavit of Mrs. De Silva.
Frankly I had not expected this from you. I have known your family for years in fact ever since my boyhood. Your father the late Babu Bhuban Mohan Mitter was a great friend of my Maternal grant-father, the late Babu Kanai Lal Ghosh, Pleader, Burdwan, Bnuban Babu used to come often to my maternal grant-father's house at Burdwan when he was serving the Jamtara Raj and Katras-ghar Raj Estates. I distinctly remember your late lamented father in those days.
It has therefore, naturally pained me immensely to hear that you of all persons had made such remarks against me. How could you have thought that I was base enough to dishonestly make or extort money in the manner suggested by you knowing me and my family as you do (in fact few others know me and my family better) how could you for a single moment think that I was so dishonest, so greedy and capable of stooping so low? How could you suggest that I was a cheat, for that was really the substance of your remarks and one can easily give such an innuendo thereto? I am also pained and shocked at your above remarks.
I am in the profession for last 20 years. I have also done and am still doing some amount of public work though perhaps in a very small measure; I am now the Vice President of the newly formed Krishak Praja Party and I think I am one of those few people who in spite of divers sacrifices has not taken any advantage under the congress regime. In fact I have always been opposed to any form of corruption, bribery and nepotism. No one has up till now suggested that I was capable of acting in the manner indicated by you to extort money by dishonest means.
It is common knowledge now-a-days that I refuse to accept work even if there is good money in it for the simple reason that I am terribly over-worked. If I want to earn more money and to accept more work there are hundreds of people just waiting for me. Therefore it is unfair to even suggest that I would make money in the manner suggested by you.
Before I end this letter I suppose I also ought to justify my action in having caused the copies of the rent-receipts to be annexed to the affidavit of Mrs. De Silva. The reasons for my doing so were as follows:
(a) To show that my client was not a defaulter at all in payment of rents in accordance with the 1950 Rent Act and that as such her tenancy could not be determined by a mere notice to quit unless some other facts were proved as well. Furthermore the said rent receipts were annexed to show that in spite of the said notice to quit the landlords did not hesitate to accept rent from my client month by month.
(b) If the order to be passed in the said application was to be appealed from the said rent-receipts could not be included in the paper-book unless the same were annexed to the affidavit in opposition.
(c) I, as a responsible Solicitor, thought it fit to annex the said rent-receipts to prove my client's bona fides.
(d) Mr. Justice Bachawat before whom the application was first made always insists on copies of all documents going to be relied on at the healing, to be annexed.
I wish to repeat that I did not intend to and shall not charge nay client anything for the said affidavit at all by reason of the facts stated hereinabove.
One word more and I shall end. I sincerely hope you will take this letter in the spirit in which it is written and I expect a reply from you.
Your Sincerely,
Sd/- S. C. Ray Chaudhuri
The Hon. Mr. Justice
J. P. Mitter,
High Court, O. S. Calcutta."
6. The letter purports to be a letter to the Judge from a person who knows him well & the learned Judge is addressed as "Dear Judge." The writer first complains that he had been harshly treated by the learned Judge in the course of the interlocutory proceedings relating to the injunction. He complains that certain remarks of the learned Judge which, as I have already stated, related to unnecessary exhibits to the affidavit in opposition, were undeserved and unjustly harsh. He denies that copies of these rent-receipts were annexed to the affidavit with any intention of making costs, and he then proceeds to explain how he came into the case and how he was acting for Mrs. De Silva without any remuneration whatsoever. He states that he had never charged Mrs. De Silva anything for the work already done and he had no intention whatsoever of making any charge for the further work in the suit which still had to be done. That being so he suggested that the criticism of his conduct made by the learned Judge was without foundation and was unjustly harsh on him.
7. Had the letter ended there these proceedings could never have been instituted because there is nothing in the letter up to that stage which could be said to scandalize the learned Judge or which could be said to have any tendency to interfere with the due course of justice. That observation however does not mean that I approve of the conduct of this attorney in writing to the learned Judge even if he thought that the learned Judge had been unduly hard on him as all the circumstances connected with the matter had not been placed before the learned Judge for his consideration.
8. In the first place, the circumstances now suggested by Sri Ray Chaudhuri, if they did in fact exist, namely, that he was doing this work for Mrs. De Silva without any remuneration whatsoever, should have been mentioned to the learned Judge during the proceedings. Counsel had been instructed by Sri Ray Chaudhuri and a representative of Sri Ray Chaudhuri was in Court instructing Counsel. As I have already stated, Counsel could not support the affidavit in the form in which it was filed and if Sri Ray Chaudhuri was doing this work gratuitously the matter should there and then have been mentioned to the learned Judge and the whole affair would have immediately taken a very' different complexion. However no explanation of any kind was offered and without any explanation of any kind it seems to me that the criticism of the learned Judge was well founded. I can see no reason at all why it was necessary to annex to the affidavit 32 pages, each page containing a copy of a rent-receipt. It would have been quite sufficient to annex one copy of a rent receipt and a statement that there were 31 others, if necessary giving the date of each, in the same form.
9. If this was work that was being done gratuitously such an explanation would have ended the matter at once. But no explanation, as I have said, was forthcoming. If the facts are as stated by Sri Ray Chaudhuri, and we are not concerned in these proceedings whether the facts are or are not established, the proper course for Sri Ray Chaudhuri was to mention the matter to the learned Judge in open Court at the first possible opportunity.
10. Mr. N. K. Basu on behalf of Sri Ray Chaudhuri explained the delay of seven days by saying that the formal order was awaited and if in the formal order Sri Ray Chaudhuri had been deprived of his costs then he might have considered an appeal. When the formal order was drawn up it was found that the learned Judge had not deprived Sri Ray Chaudhuri of his costs and therefore no question of an appeal arose and according to Mr. Basu the only course his client could adopt was to approach the learned Judge privately.
11. There can be no doubt that the strictures passed on Sri Ray Chaudhuri's conduct by the learned Judge did affect his reputation in the profession and if these strictures were not justified Sri Ray Chaudhuri was perfectly entitled to ask the learned Judge to recall them. He should not however in my view have approached the Judge privately; but he should have referred to the matter either personally or through Counsel in open Court. If the strictures were uncalled for then a statement by the learned Judge in private would not clear Sri Ray Chaudhuri's professional reputation. But a statement by the learned Judge in open Court that the strictures were uncalled for, having regard to the facts later brought to his notice, would have had the desired effect of clearing Sri Ray Chaudhuri of a somewhat serious charge. Writing to a learned Judge privately concerning anything which he has said in open Court is conduct which I cannot approve of and which this Court strongly deprecates. The proper course to follow, if any one believes himself to have been harshly and unjustly criticised, is to move the Judge in open Court & to explain to him that the true facts were not placed before the Court. However Sri Kay Chaudhuri took the course of writing to the learned Judge privately.
12. Having set out the facts which, if true, would exonerate him from the charge made against him, Sri Ray Chaudhuri then refers to matters which to my mind were wholly irrelevant and were matters which should not have been mentioned to the learned Judge.
13. The really objectionable portion of the letter commences with these words:
"Frankly I had not expected this from you. I have known your family for years in fact ever since my boyhood."
He then discusses the relationship between their respective families and then adds:
"It has therefore naturally pained me immensely to hear that you of all persons had made such remarks against me."
14. The learned Judge says that he personally did not know Sri Ray Chaudhuri and it is not now suggested that personally the attorney wag known to the learned Judge. It may be that the family of the learned Judge and the family of the attorney had been on friendly terms. But how could that possibly affect the matter? If the facts as placed before the learned Judge were true, was the learned Judge to brush aside the facts merely because the family of the attorney in question had been on friendly terms with the family of the learned Judge? Clearly the relationship between the two families was wholly irrelevant. But Sri Ray Chaudhuri suggests that because of the friendly relationship the learned Judge should have known that Sri Ray Chaudhuri was such a person as could never be guilty of what was suggested by the learned Judge.
15. Sri Ray Chaudhuri then proceeds to say that he had been in the profession for twenty years and had done and was still doing certain public work. He then adds that he was now the Vice President of a newly formed political party and it is difficult to understand how the fact that he had obtained such a position in a political party could affect this matter at all. The writer then makes a statement which appears to me to be in singularly bad taste. He says:
"I think I am one of those few people who in spite of divers sacrifices has not taken advantage under the congress regime. In fact I have always been opposed to any form of corruption, bribery and nepotism. No one has up till now suggested that 1 was capable of acting in the manner indicated by you to extort money by dishonest means."
16. Even assuming that Sri Ray Chaudhuri was one of the few people who had "not taken advantage under the congress regime", and of cpurse there is no material upon which we can decide whether such a suggestion is true or not, I should have imagined that it was a remark better left for some one else to say rather than for Sri Ray Chaudhuri to say to himself.
17. This portion of the letter concludes with a, statement that it was common knowledge that Sri Ray Chaudhuri was in such busy practice that he had to refuse highly remunerative work. He adds:
"If I want to earn more money and to accept more work there are hundreds of people just waiting for me."
18. In this portion of the letter Sri Ray Chaudhuri gives himself a most glowing testimonial and suggests that a man with such a fine personality and professional reputation could not possibly be guilty of endeavouring unfairly to make costs.
19. The letter concludes with the writer setting out certain reasons why copies of all these rent-receipts should have been annexed to the affidavit and he then adds:
"I sincerely hope you will take this letter in the spirit in which it is written and I expect a reply from you."
In short he demands that the learned Judge Should justify himself in a letter to Sri Ray Chaudhuri.
20. Had these matters been placed before the learned Judge in open Court no objection could have been taken. But I venture to think that no one would have had the courage or, I might say, audacity to state in open Court on behalf of Sri Ray Chaudhuri what he stated in this letter. Advantage was undoubtedly taken of this means of communication to bring to the notice of the learned Judge matters which modesty, to say the least of it, would have made it impossible to mention in open Court. Would Sri Ray Chaudhuri, I wonder, have been prepared to say in open Court that he was one of the few men in the whole of India who had not taken undue advantage of his position as a congressman? Yet he gives that as one of the reasons why the learned Judge should not have made the remarks which he did.
21. As I have said earlier, the letter to my mind is in the worst possible taste and should never have been sent. But that does not conclude the matter, as the Court must be satisfide that sending this letter amounted to contempt of Court.
22. It is extremely difficult to define the] term "Contempt of Court". Generally how-! ever it may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice' the parties litigating or their witnesses during litigation.
23. Speaking of the powers of a Court to punish for contempt Oswald in his book "Contempt of Court", 3rd Ed. page 17, observes:
"It should always be borne in mind in considering and dealing with contempt of Court that it is an offence purely sui generis, and that its punishment involves in most cases an exceptional interference with the liberty of the subject, and that, too, by a method or process which would in no other case be permissible, or even tolerated. It is highly necessary, therefore, in all questions of this nature, where the functions of the Court have to be exercised in a summary manner, that the Judge in dealing with the alleged offence should not proceed otherwise than with great caution and deliberation and only in cases where the administration of justice would be hampered by the delay in proceeding in the ordinary course of law; and that when any antecedent process has to be put in motion, every prescribed step and rule, however technical, should be carefully taken, observed, and insisted upon."
24. Dealing with the care and caution that should be taken by a Court in dealing with questions of contempt Sir George Jessel, M. R., in the case of 'IN RE CLEMENTS; REPUBLIC OF COSTA RICA v. EARLANGER', (1876) 46 L J Oh 375, at page 383, observed:
"It seems to me that this jurisdiction of committing for contempt, being practically arbitrary and unlimited, should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of Judges, to see whether there is no other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject. I say that a Judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that, necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found."
25. It will be necessary therefore to approach the question as to whether this letter amounts to contempt of Court with care and caution and in my view a person should not be held guilty of contempt of Court Unless the Court is satisfied that his conduct has directly or indirectly tended substantially to interfere with the due course of justice.
26. The conduct of a person may tend to interfere with the due course of justice in one of two ways. It may tend directly to interfere with the course of justice and such a case would be conveying private information to a Judge hearing a matter which would tend to benefit fee person sending such information. A communication to a Judge might also tend to interfere with the due course of justice in that the communication was calculated to bring the Court or the particular Judge into contempt or to lower his authority. Such is an indirect interference with the due course of justice. Both forms however would amount to contempt of court and that is clear from the observation of Lord Russell of Killowen, L.C.J. in 'THE QUEEN v. GRAY', (1900) 2 Q B 36 at p. 40. ' The learned Lord Chief Justice observed:
"Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class pi contempt. Burther, any act done or writing published calculated to obstruct or interfere with due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke, L. C. characterised as 'scandalising a Court or a judge' 'IN RE READ AND HUGGONSON', (1742) 2 Atk 469. That description' of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to ?criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court."
27. It has been suggested in this case that the letter sent by Sri Ray Chaudhuri to the learned Judge constituted both forms of contempt in that it amounted to a direct and an indirect interference with the due course of justice.
28. The letter was written by Sri Ray Chaudhuri as the attorney of the defendant in a suit which was pending before the learned Judge for hearing and disposal. It was said that the letter might tend to prejudice the learned Judge against the attorney and therefore against his client, the defendant in the suit. As long as the suit was pending in the Court of the learned Judge such a communication, it was suggested, would tend substantially to interfere with the course of justice and would therefore constitute contempt of Court.
29. Sending private communications to a learned Judge during the pendency of litigation before him may amount to very serious contempt of Court and such was held by Lord Cottenham, L. C. in the case of 'IN RE DYCE SOMBRE', (1849) 1 M & G 116. At page 122 Lord Cottenham L.C. observed:
"The whole of this proceeding was most irregular and improper. Every private communication to a Judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a course calculated, if tolerated, to divert the course of justice, and is considered, and ought more frequently than it is, to be treated as, what it really is, a high contempt of Court. It is too often excused on account of the station in life of the parties, and their supposed ignorance of what is due to a Court of Justice. No such excuse can be ' made in the present instance. If this was not intended as a private communication, why was it made in that form? Why was it not brought before the Court in the usual manner through the solicitor and counsel of the party, who alone can be recognised as representing him? I have received from two of the subscribers to that letter, Lords...........................and .............. assurances that nothing disrespectful to myself was intended by that communication. I never considered it in that light; but as Judge of the Court against which the contempt has been committed, I am bound to express my high reprobation of the course pursued ....................."
30. It is clear therefore that if Sri Ray Chaudhuri's letter was concerned with the merits of the suit or any order made by the learned Judge it would, in the words of Lord Cottenham, have amounted to a high contempt of Court.
31. In my judgment this letter could not possibly be said to tend to interfere with the decision of the learned Judge in the suit in question. No reference is made in the letter to the merits or the demerits of the defence and there is nothing in the letter which can be suggested as putting forward anything on behalf of Mrs. De Silva which could only be done in open Court. The letter is not concerned with the defendant or with the suit and is concerned only with the conduct of Sri Ray Chaudhuri in the preparation of the affidavit in the interlocutory proceeding. I find it impossible to hold that this letter substantially tends to interfere with a just and proper decision of the suit itself. Further it appears to me that it cannot possibly be said that the letter had any tendency substantially or otherwise to interfere with the decision in the interlocutory matter relating to the injunction prayed for by the plaintiff. The letter was written after the interlocutory matter had been disposed of and the letter is not concerned with the merits of that application. The parties appear to have come to an agreement as to the disposal of the interlocutory application and the letter is not concerned in any way with the merits of the application. It is, as I have said, merely concerned with the professional conduct of the attorney for the defendant.
32. Had Mitter, J. made any order on this interlocutory application depriving Sri Ray Chaudhuri of his costs as against his client, Mrs. De Silva, very different considerations would have arisen. But as I have already said, the order as to costs was costs in the cause. Had Sri Ray Chaudhuri been deprived of his costs and had written to the learned Judge protesting against that order, it might be suggested that the letter was written with a view to influence the Judge and to induce him to change his order. That would I think have amounted to an interference with the due course of justice. But such cannot be suggested in this case. No order having been made against Sri Ray Chaudhuri the letter cannot be construed as an attempt to have the order made varied or altered in any way in favour of Sri Ray Chaudhuri. That being so I think it is im possible to hold that the letter amounts to contempt of Court as being an attempt directly to interfere with the due course of justice.
33. It is however suggested that the letter amounts to a contempt of Court in that the sending of it to the learned Judge amounted to scandalising the learned Judge and the Court to which he belongs. Scandalising a learned Judge must, I think, be still regarded, as contempt of Court though in 'MCLEOD v. ST. AUBYN', (1899) A C 549, Lord Morris had expressed the view that commitals for contempt of Court by scandalising the Court itself had in England itself become obsolete. That observation however was expressly dissented from in the following year in the case of 'THE QUEEN v. GRAY', (1900) 2 Q B 36 to which I have already made reference. In 'ANDRE PAUL TERENCE AMBARD v. ATTORNEY GENERAL OF TRINIDAD', 40 Cal W N 801, their Lordships of the Privy Council were of opinion that scandalising a Judge still constituted contempt of Court. But in that case too Lord Atkin who delivered the judgment of the Board discussed as to what would amount to scandalising a Judge. At p. 806, the learned Lord observed :
"But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way; the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men."
34. The letter addressed by Sri Ray Chaudhuri to the learned Judge does contain some criticism of the remarks which the learned Judge made concerning him. The writer complains that the learned Judge was not aware of the fact that the attorney was performing his duties in the suit gratuitously. Such a comment could not, I think, be said to amount to scandalising the learned Judge or the Court. At most it would be a criticism which could not be said to be malicious, unfair or improper. The writer was merely bringing to the notice of the learned Judge certain facts which he said existed and which had not been placed before the learned Judge. He was not doing so with a view to persuading the learned Judge to alter or vary any order, but merely with a view to influencing the learned Judge to change his opinion of the conduct of the attorney in question though that opinion which the learned Judge had formed did not any way prejudicially affect either Sri Ray Chaudhuri or his client in that particular case.
35. It was however during argument suggested that the portion of the letter, which immediately follows does scandalise the learned Judge because it suggests that the learned Judge should take into account matters which no learned Judge could properly take into account and give effect to. The suggestion was that the letter insinuates that the learned Judge should have dealt more leniently with the attorney's conduct because the attorney's family had been on friendly terms with the family of the learned Judge. Further it was said that the learned Judge should have looked more kindly on the conduct of the attorney by reason of the fact that the attorney was of 20 years' standing in the profession, had done and was still doing public work, was the Vice President of a newly formed political party and was one of the very few persons in India who had not improperly and dishonestly taken advantage of his position and membership of the congress, party.
36. Lastly it is said that the learned Judge, overlooked the fact that the writer was in such, heavy practice that he literally could have hundreds more clients if he had a desire to make money and nothing more.
37. On a fair reading of this part of the letter I do not think that the writer ever intended to suggest that the learned Judge ought to have taken into consideration matters which it would be improper for him to do. Even if the learned Judge had known of these facts, and it is quite clear that he did not, because he did not know Sri Ray Chaudhuri personally, he could not have taken these facts or any of them into consideration. A learned Judge must decide questions on the materials placed before him and he is not entitled to hold that a person could not do what has been suggested that he did merely because that person comes from a respectable family or holds some position of importance in politics or in any other walk of life. Further a learned Judge should not take into consideration the fact that an attorney is in very large practice and making a large income if" the facts tend to show that he has been guilty of improper conduct.
38. As I have said however the letter does not suggest that the matters mentioned were matters which the learned Judge should have taken into consideration. What is really suggested is that the writer" is surprised that the learned Judge could have believed what he did having regard to the position and unblemished reputation which the writer had in the profession and in public life generally. As I have said earlier the writer was giving himself a testimonial in the most glowing terms and was suggesting that a person who deserved all the good things which the writer said of himself could never be guilty of any mean or underhand practices. There is I think in this portion of the letter nothing said which is derogatory of the learned Judge or which could be said to lower his authority, prestige and dignity. What is really suggested is that the learned Judge did not take into consideration matters which he could not have taken into his consideration. To suggest that a learned Judge did not take improper matters into consideration, does not in my view tend to scandalise him or lower his dignity, but on the contrary shows that the learned Judge is performing his duty fearlessly and honestly without regard for any personal acquaintance or consideration whatsoever. Had it been suggested that the learned Judge had improperly been influenced by any of the matters mentioned in this portion of the letter by Sri Ray Chaudhuri very different considerations would have arisen. But on a fair construction of this portion of the letter all it amounts to is that the writer expresses surprise that any one should have thought so poorly of him having regard to his eminence, probity and unblemished reputation both in the profession and in political and private life. I find it very difficult to understand how an attorney of twenty years' standing could ever have written such a letter and could ever have seriously written this eulogy of himself for the perusal of any learned Judge. The matters contained in this letter would, I feel sure, have never been stressed in open Court, but even so that would not make the forwarding of this letter contempt of Court.
39. Having given the matter my most earnest consideration I am unable to hold that this letter either tended directly to interfere with the decision in the suit or in any proceedings connected therewith and further did not tend to interfere indirectly with the due course of justice by reason of scandalising the learned Judge or lowering the dignity and prestige of the Judge and the Court. That being so I find Sri Ray Chaudhuri not guilty of contempt of Court and I would therefore discharge the Rule. In the circumstances I would make no order as to costs.
40. As in my view, despatch of this letter to the learned Judge does not amount to contempt of Court I do not think this is a case in which disciplinary action can be taken against Sri Ray Cnaudhuri, though sending private communications to learned Judges and practically demanding a reply is to be deplored and deprecated. It does not necessarily follow that such conduct must be regarded as so grossly unprofessional that disciplinary action is necessary. Had the writing of this letter amounted to contempt of Court then clearly disciplinary action would have been called for. But as no contempt of Court has been committed no action can be taken. I trust however that the practice of addressing private communications to learned Judges will be discontinued and that any attorney or any person connected with a case who thinks that he has a grievance will raise the matter in open Court and will not pursue the course which was followed in this case.
41. The Rule therefore relating to disciplinary action is discharged and no order is made as to costs.
Chakravartti, J.
42. (After stating the circumstances in which the Rule was issued and quoting the letter in question in extenso, the judgment proceeds as follows:) The question in the case is whether the writing of this letter amounted to contempt.
43. Before dealing with the main question, Mr. N. K. Basu, who appeared for the Attorney, raised one or two preliminary points, but he quickly abandoned them. It was said that proceedings ought to have been commenced on an affidavit and, again, that instead of proceedings in contempt, there ought to have been a complaint in Court. These contentions, however, were given up almost as soon as they were formulated.
44. It was also said that the alleged contempt was not contempt in 'facie curiae' and therefore it was not contempt at all or at least summary proceedings by way of attachment and committal would not lie. But contempt of Court does not mean contempt in Court. All that is required is contemptuous conduct directed towards the person or character of a Judge acting in a judicial capacity or in relation to his proceedings in the course of the administration of justice. It is not necessary, that he should be actually and physically sitting in Court. 'IN RE JOHNSON', (1888) 20 QBD 68.' Mr. Basu cited the case of 'R. v. FAULKNER,' (1835) 2 C M & R,' 525, particularly for the observation of Lord Abinger that
"if the Judge had received the letter not sitting in Court, it would not have amounted to contempt."
But, as the report shows, the learned Lord was-only referring to a Judge "in his private capacity" or as discharging "functions which are wholly unconnected with his power of committing." In the present case, the letter related to an act done by the Judge as a Judge, sitting in Court, and in relation to a case her was hearing and consequently it is immaterial in what part of the Court building he was . when the act constituting contempt was done towards him. Besides, the Court is not confined to the Court rooms but is present, at least when in session, in all parts of the place set apart for its own use or the use of its Judges and officers and of persons attending as witnesses, suitors or jurors. 'In the matter of RASIK LAL NAG.', 44 Cal 639. There is also no distinction in the case of Courts of Record, punishing for their own contempt, between contempts in 'facie curiae' and those 'ex facie.' If the act of writing the letter was otherwise contempt, the fact that the learned Judge received it in Chambers and not when sitting in Court, does not make it any the less contempt or contempt in 'facie curiae' or contempt punishable by summary process. As far as I understood Mr. Basu, he did not, in the end, press this point either.
45. Turning now to the contents of the letter and the object with which it was written, Mr. Basu urged, in effect, two contentions before us. He contended in the first place that the letter was harmless, inasmuch as it only offered an explanation of a matter which vitally concerned the Attorney and which had occasioned some comment from the Judge, and it was sent after the matter was over; and,, secondly, that, in any event, since the learned Judge had not actually made any order disallowing the costs of the rent receipts, the letter could not be taken as seeking the reversal of any judicial order on improper grounds or by improper methods and therefore it did not constitute contempt, however indiscreet or in questionable taste it might have been. I am unable to accept either of these contentions.
46. The letter was written after a full week from the date when the remarks were made. Mr. Basu explained that his client had been waiting for the order to be drawn up in order to see if any order against him was included, but, in my view that explanation given. by the Attorney cannot be accepted as true. The question of the time allowed to lapse before the letter was written was put to Mr. Basu almost as soon as the case was opened and he was invited to refer to his client who was present throughout in Court, and give an answer. No explanation was given at the time and the explanation ultimately offered was mentioned only after the mid-day adjournment. But apart from that want of readiness in explaining the delay, the explanation is belied tfy the letter itself. The second paragraph of the letter deals with the remarks and the source there given is that the writer had come to know of the remarks, as also the fact that no order in terms of the remarks had been made, from his Managing Clerk and his client. The informants are (represented, as having given the writer a chronological account of what had happened in Court and the account narrates how the learned Judge made a remark that he would disallow the costs, then in his order "did not make any such order with regard, to the costs" and "thereafter" proceeded to make certain further remarks. The letter makes it perfectly clear that the writer had received all his information from the two persons named and it is on that information that he is writing. If the Attorney had really waited to see in what form the order was drawn up, one Would expect him to mention that fact in his letter and to state that he had referred to the_ complete order and verified the statement of his informants that there was nothing in it against him. It is clear to my mind that the week's time was spent on deliberation and the writing of the letter was not an implusive reaction to the shock which the writer had received, as was untruly claimed, but a deliberate act.
47. In my opinion, it is useless to contend that the letter was nothing more than an explanation offered to the learned Judge in respect of a matter which had caused him to suspect misconduct on the part of the Attorney. Mr. Basu referred to the affidavit of his client in which the has stated that what he felt was that unless his conduct was explained to the learned Judge, he himself, apart from others who had been present in Court, would sustain an adverse opinion against him. This statement is far from convincing. If the Attorney was anxious to regain the good opinion, not only of the learned Judge but also of those who had heard his remarks, it is not easy to see how that purpose would be served by a private letter to the Judge and a private reply from him. In the letter itself, repeated complaint is made that the remarks had been made in open Court. If the Attorney felt aggrieved by them, the normal and proper course for him to adopt was to mention the matter in Court and obtain a vindication as public as the condemnation had been. The fact that instead of following that obvious course, he chose the method of a private communication must have a meaning and the meaning suggested by the circumstances is that he wanted to bring on the learned Judge's mind the pressure of extraneous considerations. Mr. Basu admitted that if the matter had been mentioned in open Court, most -of the things stated in the letter could not have even been mentioned, far less urged, in support of the Attorney's claim of honesty. Only the use of a private letter made a reference to those matters possible and it appears to me that the form of representation chosen itself indicates that the intention was to do more than merely offer an explanation. The contents of the letter make that intention clearer. In so far as the Attorney states in it that he could have had no mercenary motive in acting as he had done, because he was not charging the defendant anything as his costs and in so far as he points out why the rent receipts were annexed to the affidavit, he offers proper and legitimate explanation.
48. But he does a great deal more. He sets out the remarks made by the learned Judge one by one in the form of counts in an indictment and says that he protests. There he reminds the learned Judge of the long and intimate relationship which, according to him, he has had with the learned Judge's family and prefaces the reminder with a statement that he had not expected from the learned Judge what he had done. A series of rhetorical questions follow, asking the learned Judge how he, "of all persons", could have made the remarks he had made. In introducing such matters into the matter, the Attorney is not offering an explanation of any kind but clearly suggesting that the learned Judge should have borne the private relationship in mind and should at least bear it in mind now, when the Attorney is asking for redress. If, as was contended, the object is only to appeal to the learned Judge's personal knowledge of the Attorney's character - which by the way, the learned Judge hag disclaimed-it is not easy to find any reason for the detailed references to the learned Judge's father and the alleged friendship between him and the maternal grandfather of the writer. But worse follows. Attention of the learned Judge is called not only to the fact that the writer is "one of the few people" who, "inspite of divers sacrifices", have not exploited them and that he is so much in demand that "there are hundreds of people just waiting" for him, whom he is unable to oblige, but also to the fact that he is the Vice-President of the newly-formed Krishak Praja Party. How the last-mentioned circumstance could be an explanation of anything which the learned Judge had considered,-it is impossible to see, but the reference to the important position occupied by the writer in a growing political party is not without a meaning. Mr. Basu admitted that the object of writing the letter was to secure a revision of the remarks. I am entirely unable to hold that what was addressed to the learned Judge was only an explanation of the matter about which the remarks had been made. In my View, there was a clear attempt to influence the learned Judge into recalling his remarks by an appeal to private relationship, by a claim of exceptional professional success and by a hint of political importance.
49. But it was contended that even so, the letter did not constitute contempt, because it did not contain any representation or remark about the order made on the 18th July but related to a matter which did not form part of that or any other order. There was thus no attempt at interference with the course Of justice, on which alone a charge of contempt could rest. It was further contended that even as regards the remarks, the letter related to a matter which had been disposed of and comment on a matter after its disposal was not contempt.
50. Taking the second point first, a number of cases were cited to establish the proposition that after the decision of a case, the Judge was given over to criticism and that it was not contempt to criticise in good faith a public act done from the seat of justice. That proposition need not be disputed, but it has no relevancy to the present case. Here the case has not been disposed of. The suit is still pending and, as appears from the order, dated the 27th July to which I. have already referred, it is to come up before the same learned Judge within a short time. The Attorney is still the Attorney for the defendant. Even the matter of the remarks was not treated as disposed of, for the Attorney himself seeking to revive It before the learned Judge and obtained a reconsideration. It was not as if he took the remarks as made once and for all and was expressing his views on them on the merits. In my opinion, when the Attorney for a party in a pending suit addresses a private communication to the Judge with regard to certain remarks made against him in relation to his conduct of that suit and asks for a reply, he is in a very different position from a member of the public or even a party, criticising the decision in suit after its disposal. The principles applicable to the latter have no application to him.
51. I may observe in passing that the termination of a proceeding does not necessarily terminate the possibility of contempt. It may give liberty to criticise the Judge in relation to his conduct of the proceeding or his decision on it, but does not confer a licence to scandalise him. 'THE QUEEN v. GRAY', (1900) 2 Q B 36. But it is not necessary to consider the class of contempt known as scandalising the Court, because there was no scandalisation in the present case. The letter did not impute any unworthy conduct to the learned Judge and did not subject him to abuse. The impropriety of the letter lay in making a private approach to the Judge in relation to an act done by him judicially and in trying to insinuate into his mind improper considerations with a view to inducing him to undo the act.
52. What I have referred to as the first point of Mr. Basu is really an answer to what I have just said about the character of the letter. In my opinion, it is no answer at all. It is true that the learned Judge did not pass any order in terms of the remarks made by him and also that the letter did not relate to any order actually recorded. But I do not see that by reason of that circumstance, the letter must be treated as not relating to a judicial act done by the Judge or that even if the Attorney sought to obtain, by the improper means of a private communication, a modification of the Judge's view of his conduct as an attorney in the suit, his action was not such as was calculated to interfere with the due course of justice. The remarks were made by a Judge, sitting as a Judge, and were directed against an attorney for one of the parties in relation to his conduct of the matter which the Judge was hearing. There can be no doubt that the making of the remarks was a judicial act, although it did not relate to any question in issue between the parties. That the remarks were not translated into an order does not involve that they must be regarded as never made or that no effect of them survived. It, not infrequently happens that a Judge notices some irregularity of conduct in a party or a witness or a lawyer and remarks upon it, although ultimately he desists from making a punitive order in the View that the expression of disapproval would meet the ends of the case. According to the letter itself, this was exactly what happened in the present case, for the learned Judge is said to have first remarked that he would disallow the Attorney's costs, then to have, omitted to make any such order and next to have remarked that what he had said was a sufficient warning to the Attorney and he should be more careful in future. On this version of what had happened, it is clear that while the Judge did not award any punishment to the Attorney, his verdict against him remained and it was that verdict which the attorney sought to have vacated by the letter he wrote. It is impossible to hold that the Attorney did not want the learned Judge to do anything with regard to the remarks he had made, for the whole trend of the letter is to suggest that he should revise his opinion and find some means of counteracting the effect of the remarks. In fact, a reply was asked for. In those circumstances, it is of little assistance to the Attorney that he did not refer to anything contained in the order of the 18th July or any other order of the Court. Nonetheless he addressed the learned Judge on a judicial act done by him and sought an alteration of an adverse opinion of himself. judicially expressed. I cannot see any difference in substance between a communication with such an objective and a communication seeking a modification of a recorded order. If the second constitutes contempt, I cannot see why the first should not.
53. It may be conceded that apart from scandalisation of the Court, nothing is contempt which does not tend, directly or indirectly, to interfere with the due course of justice. Even in the case of scandalisation, the ultimate basis of the offence perhaps is that scandalisation interferes with the due. course of justice by lowering the dignity of the Judge and thereby impairing his authority and effectiveness. In the case of private communications in particular the law, as far as laid down in decided cases, is that communications seeking to influence the decision in a pending case constitute contempt, the reason being that the addressing of such communications "is a course calculated, if tolerated, to divert the course of justice." 'IN RE DYCE SOMBRE', (1849) I M & G 116:41 E R 1207, 'per' Cottenham, L. C. The reference to pending cases is, I think, due to the fact that the question always arose in a pending case, for I cannot imagine that if a Judge was asked to re-open a case disposed of by him and alter the decision, there would be no attempt to divert the course of justice and no contempt. But while an attempt to divert the course of justice by influencing the decision is essential, the decision cannot possibly be limited to decision of matters in dispute between the parties. A decision on the professional conduct of a lawyer acting for one of the parties would equally be decision. It is equally a matter of justice. Nor is there anything in reason to limit the rule to decisions yet to be given so as to exclude revision of decisions already rendered or to limit it to decisions formally recorded.
54. It cannot, I think, be disputed for one moment that if a person addressed a private communication to a Judge with a view to inducing him to revise a recorded order unfavourable to him, the act would amount to gross contempt. I can see no reason why the position should not be the same if the view of the Court was declared in the form of a verbal expression of opinion. A decision need not be a decision in writing. Nor, I think, can it be insisted that the decision sought to be influenced or altered must be a decision involving a penalty or a direction of a material character. A pronouncement of the Court's view of the conduct of a person, without more, would also be a decision, an attempt to alter which in an improper way would be an attempt to divert the due course of justice. If, in the present case, the learned Judge had incorporated in the order an expression of his disapproval of the Attorney's conduct, without going further and penalising him and the Attorney wrote a letter about that censure in writing, it could not, I think, be said that no contempt had been committed. I am altogether unable to see that the absence of an order in writing makes any difference. Nor is it relevant that the letter did not relate to any order made as between the parties to the suit. The scope or concern of justice in a case is not limited to adjudication of the rights of parties, but extends to all matters before the Court, so that if any attempt is made to induce the Court to take a view of the conduct of any of the lawyers which it would not, if left to its free judgment, do, then also there is an attempt to divert the course of justice.
55. No case on all fours with the present case can be found in the books, perhaps for the reason that no Attorney ever conducted himself in this manner. But I might refer to one case where two private comunications were sent by a lawyer to two Judges, one to a Master and one to the Lord Chancellor, parts of which were strikingly similar to the letter in the present case. 'IN THE MATTER OF LUDLOW CHARITIES: MR. LECHMERE CHARLTON'S CASE', (1837) 2 My & C 316. In that case, two petitions for the appointment of trustees of certain charities were referred by the Lord Chancellor to the Master in attendance during the vacation for disposal. The petitioners in one of the petitions included one Mr. Charlton, a Barrister-at-Law, who himself appeared in support of it. After the hearing, he addressed a letter to the Master in which he stated that he had been informed by his solicitor that among the papers of the Master there were certain memoranda recorded by him which had induced the Master's clerk to say that he believed that trustees had been appointed. On the supposition, based on that information, that the Master had already formed an opinion in the matter, the writer proceeded to protest against the action of the Master in threatening terms, the tendency of which was to induce the Master to alter the opinion he was supposed to have formed. A reply to the letter was asked for. The Master placed the letter in the hands of the Lord Chancellor (Cottenham, L. C.) who mentioned it in his Court, with certain remarks on Its nature and while giving certain preliminary directions, had occasion to observe that he had yet no judicial knowledge that the letter had been written by the person whose name was subscribed to it. That called forth another letter from Mr. Charlton, addressed to the Lord Chancellor, in which he admitted the authorship of the earlier letter and proceeded to make certain remonstrances to the Lord Chancellor himself. Among what he wrote were the following passages:
"I may remark in passing that though I do not presume to question your Lordship's extensive power, I do presume to assert that it has a limit beyond which your Lordship dare not force it; and in so important a question as this............I venture to dispute the groundwork of your authority; that is, whether your Lordship had the right, under the Municipal Act, to send the appointment of trustees to the Master at all.
* * * *
I shall feel called upon too, my Lord, in justice to my own character to repel the animadversions that your Lordship has cast upon my conduct, from the judicial chair in the High Court of Equity. My Lord, I. contend I preferred no calumnious insinuations against Master Brougham...............I contended, too, that I made no use of a "threat" in the manner in which your Lordship has introduced it. In brief, my Lord, I claim for myself the most disinterested and the most creditable conduct, as a counsel, a member of Parliament, and a man, which I defy your Lordship to controvert or impugn............
* * * *
This is the head and front of my offending; and when I say that through life I have been the ardent opposer of abuses, let me find them where I would, and in Ludlow particularly, I have spent large sums, incurred great obliquy, and quarrelled with intimate friends, for this sole, and, in my opinion., notorious purpose, I must say that I think the aspersions which your Lordship has thrown out against me are unnecessarily harsh and undeserved."
56. I have set out the first passage only to show that although it might seem at first sight to be couched in terms of defiance, it really questions the legal jurisdiction of the Lord Chancellor to refer the petitions to the Master and that the absence of such a passage in the present case makes no difference. The rest of the passages are in the nature of testimonials to self, remarkably akin, both in spirit and substance, to the some of the contents of the letter in the present case. It is also to be noticed that the writer characterises the remarks of the Lord Chancellor as "unnecessarily harsh", just as the Attorney in the present case describes the remarks of the learned Judge as "unjustly harsh". Charlton was offering an explanation as the Attorney in the present case claims to have been doing. Yet the Lord Chancellor, although he committed Charlton only for the letter to the Master - "I take", he said, "less notice of the letter to myself" - observed in his judgment as follows:
"And he added, in his letter to me, expressions which were, in themselves, serious contempt of this Court."
57. I am not forgetting that, at the time Charlton wrote the letter to the Lord Chancellor, the latter was considering what steps might be taken against him for his letter to the Master and therefore that matter may be said to have been pending. But it would appear that the 'expressions' to which the Lord Chancellor referred were not statements about the pending case, but only expressions of protest against the remarks he himself had made against. Charlton. Even so, however, the position was that the Lord Chancellor was going to deal with Charlton and Charlton was giving himself a certificate to the Judge who was going to deal with him. But that circumstance, in my view, does not distinguish the case from the case before Us, because so long as a private communication to a Judge relates to a judicial act and suggests that it should be done in a particular way, it is immaterial whether the act is yet to be done or it has been done already and the writer seeks a revision. The point of the quotations I have made from Charlton's case is that statements contained in a private communication very similar to those in the present case in form and content and made for a similar purpose, were held to constitute contempt.
58. In my opinion, contempt in the present case is clear. The conduct of the attorneys for the parties in a pending suit, in relation to acts done by them in that suit, is a matter within the purview of the Judicial jurisdiction of the Judge trying the suit or dealing with any connected proceedings. When, one of such attorneys on whose conduct in relation to the suit the Judge has pronounced adversely, avoids the open Court and, after deliberation, tries to make a private approach to the Judge by means of a personal letter couched in terms of familiarity and he presses upon the Judge's attention improper considerations such as his relationship with the Judge's family and his importance as a political and professional figure and quite clearly suggests that the Judge, should undo what he has done and expressly says that he should receive a reply, he adopts a course which, in the language of Lord Cottenham, "is calculated, if tolerated, to divert the course of justice" and which ought to be treated as, what it really is, "a high contempt of Court". It appears to me to be intolerable and outrageous that an attorney acting in a pending suit, whose conduct has been judicially commented on, should subject the Judge to private correspondence on the merits of the remarks and invite him to join in it, for the purpose of settling the matter, as it were, privately and amicably. In my opinion, such conduct is not merely improper but is contempt, for, it tends to divert the due course of justice, not only by seeking a revision of the particular judicial act in the instant case in a manner and on grounds which the approved rules of justice could never countenance, but also by tending to initiate a practice of making judicial acts, after they have been done, the subject of private discussion behind the scenes, between the Judge and the person affected, with a view to their modification. I am not forgetful that a Judge should not be too sensitive and must not make the mistake of regarding mere annoyance caused to himself as contempt of the Court. But in my opinion, the action of the Attorney in the present case has been such as is calculated to affect the due course of justice and is therefore contempt. Such action tends to affect the due course of justice, because it seeks reconsideration of a matter which has been judicially considered and attempts to divert such reconsideration from the publicity of the open Court to the privacy of personal correspondence and from grounds judicially recognisable to grounds repugnant to justice.
59. There is a second Rule issued on the Attorney under Clause 10 of the Letters Patent which is also before us. Since, in my opinion, the Attorney has been guilty of contempt, it follows that I must also hold that he has made himself liable to disciplinary action.
60. Since the above was written, I have had the advantage of reading the judgment of my Lord the Chief Justice who has held that the despatch of the letter to the learned Judge did not amount to contempt of Court. With the greatest respect, I am unable to take the same view for the reasons I have given. But as my Lord has held that no contempt was committed and Mr. Justice Banerjee has formed the same opinion, no useful purpose will be served by my proceeding to consider what the proper order would be on the finding at which I have arrived.
61. BANERJEE, J.: At no point of time I entertained any doubt as to the law on which this case should be decided. My doubt was as to the meaning, scope and effect of the letter written by the attorney to the learned Judge out of which these proceedings have arisen.
62. I must confess that for a considerable length of time in the course of the argument I had entertained the doubt. But it was dis-pelled when I read the order made by the learned Judge on 18th July, 1950. That order is as follows :
"1. The defendant gives an undertaking
(a) not to interfere with the entry of motor cars into the compound and their parking there,
(b) not to hold or cause to be held any public dancing within the compound,
(c) not to sell or cause to be sold liquor within the premises,
(d) not to allow any spray painting to be done except inside her own garage, &
(e) not to allow any materials belonging to the said business of spray painting , to remain in any part of the compound except inside the said garage.
2. The movement and parking of motor cars within the compound must have regard to the safety of children.
3. The costs of this application will be costs in the cause.
4. This application is disposed of on the terms set forth above."
63. The letter has been set out in extenso in the judgment of my lord the Chief Justice with which I respectfully and entirely agree. But the matter being an important one, I have thought fit to give my own reasons.
64. It has been conceded by counsel who appeared before us on behalf of the attorney that the letter was not proper and contains expressions which should not have been used. My own view is that such a letter should not be written by any attorney to a Judge acting in his judicial capacity. Indeed no one should write a private letter or make a private communication to a Judge as such, relating to matters which are pending before him or which he may have to decide.
65. But the question is, is the attorney liable to be committed for contempt. Whatever my feeling is, I must decide the case free from passion and prejudice. I must decide it according to law. For no justice can be done unless the case is decided according to law. In forming my judgment, I must lay my heart void of fore-taken opinions; else, whatever I may do or say would be measured by a wrong rule; like the person who has the jaundice, to whom everything appears yellow.
66. Now what are the considerations applicable to the case? Their Lordships of the Judicial Committee have said in 'MCLEOD v. ST. AUBYN', (1899) A C 549, at p. 561:
"Committals for contempt of Court are ordinarily in cases where some contempt ex facie of the Court has been committed or for comments on cases pending in the Courts. However, there can be no doubt that there is a third head of contempt of Court by the publication of scandalous matter of the Court itself. Lord Hardwicke so lays down without doubt in the case of 'IN RE READ AND HUGGONSON', 1.742-2. Atk 469. He says, "me kind of contempt is scandalising the Court itself." The power summarily to commit for contempt of Court is considered necessary for the proper administration of justice."
67. In 1892, the Privy Council in the matter of a Special Reference from the Bahama Islands, with reference to a letter published in the Nassau Guardian, observed:
"though it might have been made the subject-matter of proceedings for libel was not, in the circumstances, calculated to obstruct or interfere with the course of justice or the due administration of the law, and therefore. did not constitute a contempt of Court."
68. It is very difficult, if not almost impossible, to give a comprehensive definition of "contempt of Court." Some of the definitions, however, are as follows: According to Wharton's Law Lexicon, Contempt of Court means:
"a disobedience to the rules, orders, process, or dignity of a Court, which has power to punish for such offence by attachment."
69. Oswald says:
"To speak generally, contempt of Court may be said to be constituted by any conduct that tends to, bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants or their witnesses during the litigation."
70. In the case of 'RE READ v. HUGGONSON', (1742)-2 Atk 469: 26 E R 683, Lord Hard-wicke said:
"There are three different sorts of contempt. One kind of contempt is, scandalising the Court itself. There may be likewise a contempt of this Court, in abusing parties who are concerned in causes here. There may be also a contempt of this Court, in prejudicing mankind against persons before the cause is heard."
71. In Viner's Abridgement, title contempt A.; it is defined or described to be:
"a disobedience to the Court, or an opposing or a despising the authority, justice, or dignity thereof. It commonly consists in a party's going otherwise than he is enjoined to do, or not doing what he is commanded or required, by the process order, or decree of the Court." See 'MILLER v. KNOX', (1838) 4 Bing (NC) 574, at p. 588.
72. In 'R. v. GRAY', (1900), 2 QB 36, Lord Russel of Killowen, C. J., at p. 40 laid down;
"Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke, L. C, characterised as "scandalising a Court or a Judge" (In re Read and Huggonson). That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court."
73. According to Blackstone,
"contempts are either direct, which openly insult or resist the powers of the Courts, or the persons of the Judges who preside here; or else are consequential, which (without such gross insolence or direct opposition) plainly tend to create an universal disregard of their authority."
That great Jurist enumerates various kinds of contempt.
74. It is possible to give the ingredients of the offence of contempt. But it is not possible to define it. The law of contempt covers a wide field. There are various manifestations-of the offence of contempt. The law has grown as law always grows. But there is no change in the principle. And the jurisdiction is not a new-fangled jurisdiction. It is a jurisdiction as old as the common law of England, of which it forms a part. It is a jurisdiction, the history, purpose and extent of which are admirably treated in the opinion of Wilmot, C. J., in. R. v. ALMON', (1765) Wilm 243. Now to the point under consideration. Here the attorney wrote a private Jetter to the learned Judge. Has he committed contempt of Court? Every private communication to a Judge for the purpose of influencing his decision upon a pending matter, and whether or not accompanied by the offer of a bribe or by personal abuse, is a contempt of Court as tending to interfere with the course of justice. (Halsbury's Laws of England, 2nd Edn., Vol. 7, Article 10).
75. I shall now consider the authorities on this head.
76. In 1747 the then Lord Chancellor of England received a letter by the general post, signed by one Martin making mention of a bill in Chancery threatened to be filed against him and relating to the subject-mater of the said suit, and enclosing a bank note for 20/- which he desired his Lordship to accept. The signature of Martin was proved. It was held that Martin was guilty of contempt of Court. It was an offer of a bribe to a Judge to influence his decision regarding the threatened suit: 'WELLESLEY v. THE DUKE OF BEAN FORT', (1831) 2 Russ. & M. 639 at p. 674.
77. In 1837, in 'MR. LECHMERE CHARLTON'S CASE', (1837) 2 My & C. 316, a barrister appeared before a Master as counsel in support of a petition presented by himself & others; and he afterwards addressed a letter to the Master, which (inter alia) contained the following words:
"Far be it, however, from me to throw out, in this stage of the business, a threat to you in your capacity of a Judge. I have too much respect for that high office, when it is held, to be unmindful of my duty. All I ask is, that there should be a re-hearing, and that you should set yourself right where you have been led into error. All I ask, in short, is even-handed justice, in which case this letter shall never be made public, nor shall your serenity be again disturbed by any further remonstrance from your obedient and very humble servant, - E. L. Charlton."
The writer then gives his address where he said any communication would reach him. There are other threatening expressions in the letter. It was held that its tendency was to induce the Master to alter the opinion he was supposed to have formed upon the case. Letters were also written by the same gentleman to the Lord Chancellor himself. His Lordship said at page 338:
"It is quite unnecessary to advent to the letters themselves. Every gentleman at all acquainted with the proceedings in this Court must obviously see that they contain a most gross and aggravated contempt of Court; a gross contempt in the first instance, and very much aggravated by the letter to myself, which is not only itself a contempt of Court, but it shows that after the writer's attention had been called to the expressions used in his letter to the Master, and after he had had time for reflection, he had deliberately determined to adhere to the terms of that letter: and he added, in his letter to me, expressions which were in themselves a serious contempt of this Court.
The power of committal is given to Courts of justice for the purpose of securing the better and more secure administration of justice. Every writing, letter, or publication which has for its object to divert the course of justice is a contempt of the Court. It is for that reason that publications of proceedings which have already taken place, when made with a view of influencing the ultimate result of the cause, have been deemed contempts. It would be strange, indeed, if the Judges of the Court were the only persons not protected from libels, writings and proceedings, the direct object of which is to pervert the course of justice. Every insult offered to a Judge in the exercise of the duties of his office is a contempt; but when the writing or publication proceeds further, and when not by inference, but by plain and direct language, a threat is used the object of which is to induce a judicial officer to depart from the course of his judicial duty, and to adopt a course he would not otherwise pursue it is a contempt of the very highest order. The writer of these letters supposes Master Brougham to have finally made his report, and that from that report there was no appeal; and the avowed object of the letter to the Master is to induce him to alter his decision in the absence of the opposite party, by holding out threats, and concluding by saying that if the Master would depart from the decision to which he was supposed to have come, and come to one directly opposite, then that letter should never be made public, & the Master should not be disturbed by any further remonstrance from the writer. This is intelligible language which no one can misunderstand."
78. His Lordship took the view that the letter was an attempt improperly to influence the conduct of the Master in a matter pending before him with a view to obtain a further hearing, to which, if applied for in a proper manner, he would have been entitled; His Lordship further observed (p. 353):
"The writing matter scandalous with respect to the Master is, comparatively, an immaterial part of the offence. That part of the offence which I thought it my bounden duty to visit with punishment was the attempt improperly to influence the conduct of the Master in the matter pending before him. A greater offence than a person's attempt, by private communication, without the knowledge of those to whom he is opposed to influence, by private feelings, the conduct of any one invested with the duty of judicially disposing of matters pending in this Court, cannot well be stated,"
79. In 1849, the same learned Judge, IN RE DYCE SOMBRE', (1849) 1 M. & G. 116, had occasion to consider the point again. He commented upon the irregularity and impropriety of private communications to a Judge upon a matter publicly before him. He held that such communication was high contempt of Court. His pregnant observation is as follows (p. 122):
"Every private communication to a Judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is, a course calculated, if tolerated, to divert the course of justice, and is considered, and ought more frequently than it is, to be treated as, what it really is, a high contempt of Court. It is too often excused on account of the station in life of the parties, and their supposed ignorance of what is due to a Court of Justice. No such excuse can be made in the present instance. If this was not intended as a private communication, why was it made in that form? Why was it not brought before the-Court in the usual manner through the solicitor and counsel of the party, who alone can be recognised as representing him? I have received from two of the subscribers-to that letter Lords-&-assurances that nothing disrespectful to myself was intended by that communication. 1 never considered it in that light; but as Judge of the Court against which the contempt has been committed, I am bound to express my high reprobation of the course pursued."
80. From these authorities which cover a period, of more than a century, it is quite dear that the offence originally consisted in defying the order of the Court, or attempting in an improper manner to influence the decision of the Court in a matter pending before him. And in the vast majority of cases the offence in question is an actual and direct setting at defiance of the orders of the Court.
81. Scandalising the Court is contempt because it has the tendency to affect the decision of the Court in a pending matter. To scandalize the Court means to bring shame or discredit upon it, to disgrace the Court. In 'REX v. ALMON 1765 Wilm 243, to which I have made an earlier reference, Wilmot, C. J. observes in a judgment which was not delivered because-the case was allowed to drop, that the real offence in this head of contempt is the wrong; done to the public by weakening the authority and influence of a tribunal which exist for their good aloe. He adds that such conduct is pre-eminently the proper subject of summary jurisdiction. Attacks upon the Judges, he says,
"excite in the minds of the people a general dissatisfaction with all judicial determination............and whenever men's allegiance to the laws is so fundamentally shaken, it. is the most fatal and dangerous obstruction of justice, and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private individuals, but because they are the channels by which the-King's justice is conveyed to the people. To be impartial & to be universally thought so are both absolutely necessary for the giving justice that free, open and unimpaired current which it has for many age found all over this kingdom,"
These eloquent words apply with at least equal force to writings, the direct tendency of which is to prevent a tair and impartial trial. 'REX v. DAVIES', (1906) 1 K B 32 at p. 41.
82. It is necessary to preserve the purity of the stream of justice. Not only the Judge is to decide the case impartially without passion and without prejudice, but to be universally thought so.
83. The power given to a Court to commit for contempt is a giant's power but the Court need not exercise the power like a giant. The jurisdiction has to be exercised with scrupulous care, to be exercised only when the case is clear and beyond reasonable doubt. There is no presumption in its favour. As the Privy Council in 'Mcleod's Case', (1899-A C 549) said:
"the power is not to be used for the vindication of the Judge as a person. It is a weapon to be used sparingly, and always with reference to the interests of administration of justice."
84. In the light of these principles, I must decide the case. I know that it is not possible for us to do absolute justice. For to be perfectly just is an attribute of the Divine Nature. To be so to the utmost of our ability is our glory. Whatever annoyance I might have felt regarding the conduct of the attorney, I have to do him justice. Bearing that in mind, let us see whether the attorney has committed contempt of Court.
85. In the application in which the learned Judge made the order, he made certain remarks regarding the affidavit which was used on behalf of the defendant for whom the attorney acted, in connection with that application. To it were annexed copies of a number of rent, receipts. The defendant "held receipts for several years. They were similar in terms. It would have been quite sufficient to say in the affidavit that the defendant had in his possession rent receipts for several years and annex to the affidavit a copy by way of specimen. Instead of that, copies of the receipts for all the years were made and annexed to the affidavit. There seems to be no justification for it. Except as to the date, there was no difference in the terms of the receipts. The learned .judge remarked that the bulk of the affidavit had been unnecessarily increased with a view to make costs. If I may say so with respect, the remarks were' justified. I would have made the same remarks if the application had come up for hearing before me. The attorneys must bear in mind that it is their duty to minimise the costs of litigation. Therefore, in my view, no exception can be taken to the remarks made by the learned judge. Though the learned judge made strong remarks, he did not penalise the attorney. He made the costs of the application costs in the cause. He did not say, which he might have said, that in taxing the costs of the application, the costs of and incidental to the preparation of the affidavit would not be allowed to the attorney. The learned judge did not make any such order.
86. A week after the order, the attorney wrote to the learned judge the letter. Counsel for the attorney at the beginning of his argument said that the object of writing the letter to the learned judge was to get a revision or ?withdrawal of the remarks, but at the end he said that the object was to explain the attorney's conduct to the judge. All that the attorney meant to convey to the learned judge, said counsel, was that the attorney was not so low as to make unnecessary costs in that way. We accept this explanation because it is in conformity with the affidavit which the attorney has made and filed in these proceedings. I take it what the attorney meant is this:
"I am an attorney of many years' experience. I have got a large number of clients. There are other clients who would only be too glad to have my services. I occupy a high position in public life. I have done much for the country and I have made personal sacrifices . for the country. I come of a very good family, as you, the learned judge, know it very well, because your family and my family were friends. Therefore how could you think I would stoop so low?"
And this is the way, in which, in substance, the attorney's counsel presented the case before us.
87. It would have been better if the attorney had appeared in Court and made this submission to the learned Judge in open Court and not make a private communication to him. But I accept the attorney's explanation that the object of the letter was to explain his conduct to the judge.
88. It was, therefore, not a letter to get a rehearing of the application, which the learned judge had already decided, or for a review of his decision. The remarks are referable only to costs. The learned judge had already made the order that costs would be costs in the cause, and as I have already said no penalty was imposed on the attorney. Therefore, there was nothing to revise. In any event in this letter I am unable to find any attempt made to get a revision of the learned judge's order. Therefore, the object of the letter was not to influence the decision of the judge or to divert the due course of justice. I understand that on the date the learned judge made the order, he fixed a date for the hearing of the suit. I am unable to find any connection between the letter and the hearing of the suit. The letter therefore was not meant to affect the Judge's decision in a matter pending before him. I cannot hold that the letter constitutes contempt of Court on this head.
89. Again can it be said that the letter scandalised the Court? In the letter the attorney has said that the learned judge's remarks were injust. He has protested against the remarks. He reminds the judge that his family was well known to the judge's family. He said in the letter that he occupied a high position in public life and he then praises himself, a praise which he could have well left to others to sing for him. But self-love blinds even the wisest.
90. It seems the attorney wanted to remind the judge that before he made the remarks, he should have taken into consideration all these matters - his family's friendship with the judge's family etc. etc. That is not in my view scandalising the judge. On the other hand, whatever might have been the intention of the attorney, the letter on the face of it bespeaks the learned judge's impartiality and sense of justice.
91. To remind the judge of the friendship is a wrong thing. The attorney should have known better, being as he says, an attorney of experience. He had no business to mention to the judge the alleged friendship between his family and the Judge's family. The attorney should know that a judge as such cannot have any relation or friends. The person who is a judge may have. But that does not count when that person acts as a judge. As Shakespeare has said:
"Where he my brother, nay my kingdom's heir, such neighbour nearness to our sacred blood should nothing privilege him, nor partialise the unstooping firmness of my upright soul."
92. In my view there was no attempt to scandalise the Court either.
93. In the letter the attorney explains as to why he annexed copies of so many receipts. He said that according to a direction of Bachawat J., he thought he should annex copies of these receipts. He concludes the letter thus:
"I wish to repeat that I do not intend to and shall not charge my client anything for the . said affidavit at all, by reason of the facts stated herein above. One more word and I shall end. I, sincerely hope you will take this letter in the spirit in which it is written and I expect a reply from you."
94. 'IN THE MATTER OF CHARLES PIFFARD ETC.', (1864) 1 Hyd 79, a barrister, offended by the use of a strong expression on the part of a judge while sitting in Court, sent an officer to the judge's private' residence upon a pacific errand to ask for an explanation. The matter was heard by a Bench of eleven judges, Sir Barnes Peacock, C. J. presiding. It was held by nine judges out of eleven that the party sending the message and the party conveying it, were both guilty of contempt of Court.
95. The letter must be read as a whole and to justify a committal for contempt, there must be evidence in the letter itself. (See 'ANDRE PAUL TERENCE AMBARD v. THE ATTORNEY-GENERAL OF TRINIDAD AND TOBAGO', (1936) 1 All E R 704).
96. If I could read the letter to mean that the attorney was asking for an explanation from the judge for the remarks he made in Court, I would have, following 'PIFFARD'S CASE', (1864-1 Hyde 79) held him guilty. But I do not read it in that way. The letter ends: "I expect a reply from you." It may mean that the attorney wanted a reply from the learned judge to know as to whether he was satisfied with the attorney's explanation. I have already said that contempt has to be proved beyond any shadow of doubt. That has not been so proved. On this head, also, I am unable to hold that the attorney is guilty of contempt of Court.
97. As to the exercise of disciplinary jurisdiction by the Court, the grounds must be either (1) professional misconduct as would make the attorney unfit to be trusted with the interests of his clients, or (2) such moral turpitude as to render him unfit to be a member of an honourable profession.
98. I am unable to hold that either of the grounds exists in this case. And having regard to the fact that the attorney's counsel said in open Court that the letter wag not proper, I do not think that we need take any disciplinary action against the attorney, assuming that he could be proceeded against on the facts of this case under that jurisdiction. The Rules are discharged.
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