According to the reference letter the ACJM was conducting judicial work, when the contemnor advocates entered the courtroom and enquired as to how the court is working when a strike call had been given by the advocates. When the ACJM told them that the court could never be on strike and those wanting to work cannot be forced to shun the same, the guilty advocates resorted to sloganeering, use of abusive language thus obstructing the functioning of the court. A serious charge was also levelled against the ACJM without any substantial justification in respect of the judicial order passed by him in granting interim bail ignoring the resolution passed by the body of advocates that the order was passed in league and collusion with accused person.
The High Court held that the suggestion that the advocates were on a strike cannot be a justification for alleged misbehaviour. The Court relying on Supreme Court rulings in Common Cause (A Registered Society) vs. Union of India and Others (1995) 5 SCC5, Indian Council of Legal Aid and Advice vs. Bar Council of India (1995) 1 SCC 732 among others held that a call, which has the effect of paralysing judicial function ex facie, amounts to a direct interference in the administration of justice and is a ‘criminal contempt’ under Section 2(c) of the Act, 1971. The Court further held that though it did not intend to lay down any code of conduct for advocates but certainly do not hesitate in observing that no advocate has any business to condemn a judge by abusing etc. If there is any lacking on part of a judicial officer touching his integrity, advocates may not remain silent spectator, but should come forward in appropriate manner before the proper authority. But there cannot be a license to raise finger over competency and integrity etc. of a judicial officer, casually or negligently, or on other irrelevant grounds.
IN THE HIGH COURT OF ALLAHABAD
Contempt Application (Criminal) No. 12 of 2013
Decided On: 02.07.2015
Appellants: In Re: Mahendra Prasad Shukla Advocate and Ors.
Hon'ble Judges/Coram:Sudhir Agarwal and Dinesh Gupta, JJ.
1. Reference vide letter dated 15.4.2013 was made by Shri Amit Kumar Prajapati, Additional Chief Judicial Magistrate, Sonbhadra (hereinafter referred to as 'ACJM') stating that on 12.4.2013 after lunch hours when he was discharging judicial function in Court, hearing miscellaneous and bail applications, Advocates Govind Narayan, Umakant Singh, Ravindra Singh, Titu Prasad Gupta, Roshan Lal Yadav, Ashwani Kumar Singh, Bhola Singh, Rajesh Kumar Srivastava, Vikash Shakya, Pravej Akhtar, Jagjeevan Singh etc. were present for hearing of their applications and bail applications, Manoj Kumar Pandey, Secretary, Bar Association, Sonbhadra appeared in Court and enquired from aforesaid advocates, who were present in Court as to why they are working in Court. In the mean time, about 15-20 more advocates alongwith Mahendra Prasad Shukla, Om Prakash Rai and Om Prakash Pathak, Advocates entered the court room and said that advocates are abstaining from judicial work, then how the court is functioning. The Presiding Officer tried to convince them that court is not abstaining from judicial work and those advocates who are willing, shall be allowed to work, whereupon the aforesaid advocates, namely, Mahendra Prasad Shukla, Om Prakash Rai and Om Prakash Pathak got annoyed and started shouting, "Nyayalay Chor aur Beiman hai" and despite the advocates are abstaining from judicial work, court is functioning. They also started using abusive language, which is not to be disclosed. In the court room itself the aforesaid advocates raised slogans "nayayalay murdabad, adhivakta ekta zindabad", on account whereof, the court functioning had to be deferred for some time. In that way Mahendra Prasad Shukla, Om Prakash Rai and Om Prakash Pathak and 15- 20 other advocates obstructed functioning of the court.
2. It is further stated that on 21st May, 2013 also, about 40-50 advocates entered the court room of Chief Judicial Magistrate (hereinafter referred to as 'CJM') and prevented those advocates, who were working and asked not to work whereupon CJM, Sonbhadra said that those advocate who are willing to work, cannot be stopped from functioning and it is duty of court to attend cases of litigants and advocates, who are present in court and willing to work whereupon the disturbing advocates started raising slogans "nayayalay murdabad adhivakta ekta zindabad" and creating obstruction in judicial work. Mahandra Prasad Shukla was General Secretary of Bar Association at that time and he was also present in court room of CJM, creating obstruction in judicial work.
3. Reference letter further states that Mahendra Prasad Shukla, Advocate treats himself an authority onto himself and in the habit of misrepresentation and disturbing court function. He used to attempt to create undue pressure upon judicial officers by showing contemptuous conduct, time and again. In Case No. 208/97 State v. Santosh and others, pending in court of CJM, in which Mahendra Prasad Shukla himself was an advocate, he produced forged surety and other documents in favour of accused Santosh Singh. In this connection complainant Jaswant Singh submitted an affidavit on 2.2.2013 in the court of CJM and when his brother enquired about fictitious surety from Mahendra Prasad Shukla, advocate, then Mr. Shukla threatened him to destroy. Taking cognizance of the offence, CJM, on 16.2.2013, ordered to register FIR against Mahendra Prasad Shukla, Advocate.
4. Reference letter further says that conduct of Mahendra Prasad Shukla, Om Prakash Rai and Om Prakash Pathak, advocates and other 15-20 advocates, shown in his court, not only has the effect of scandalizing the court but also lower down its authority since the aforesaid act was committed openly, in presence of litigating public in court room, and same amounts to a criminal contempt.
5. Under the order of Hon'ble The Chief Justice, dated 26.3.2015, the reference letter was placed before Bench having determination of criminal contempt. A Division Bench consisting of Hon'ble Ravindra Singh and Anil Kumar Agarwal, JJ. On 30.9.2013, after perusing Reference Letter dated 15.4.2013, issued notices to Mahendra Prasad Shukl, Om Prakash Rai and Om Prakash Pathak, Advocates to file reply, why proceedings of criminal contempt may not be initiated against them and they may not be charged for the same. Besides, the Court also directed District Judge, Sonbhadra to inquire into the matter and find out names of 15-20 other advocates, who also participated in disturbing activities in court room of ACJM, Sonbhadra as stated by him in his letter dated 15.4.2013.
6. Pursuant to aforesaid order, District Judge, Sonbhadra made inquiry and submitted report dated 21.10.2013 giving names of 8 advocates, who were also present in court of ACJM on 12.4.2013 after lunch hours and had created obstruction in judicial function while accompanying the aforesaid three advocates to whom, notices were already issued by this Court. These eight advocates are Shesh Narain Dixit alias Bablu Dixit, Atma Prakash Tripathi, Chandra Prakash Chaubhey alias Guddu Chaubhey, Kalp Nath Singh, Shiv Raj Singh, Brij Kishor Singh, Prabhakar Ram Pathak, Satydeo Pandey.
7. The District Judge, Sonbhadra mentioned the names of aforesaid advocates in view of statements of Advocates Jagjeevan Singh, Roshan Lal Yadav, Titu Prasad Gupta, Ravindra Singh. The statements of aforesaid advocates were also supported by Shri Tarkeshwar Tiwari, the then Assistant Clerk (Criminal) and Shri Raj Karan, Stenographer, posted in court of Additional Chief Judicial Magistrate, Sonbhadra.
8. After perusing the aforesaid report of District Judge, Sonbhadra, this Court, vide order dated 11.11.2013, issued notices to aforesaid eight advocates.
9. All the Contemnors, sought for copy of inquiry report submitted by District Judge, Sonbhadra. On 5.5.2014, under the order of Court, the same was supplied to them, which has been acknowledged by all the contemnors in the order-sheet dated 5.5.2014. Thereafter, contemnors filed replies pursuant to notice issued to them.
10. The general defence taken by all 11 contemnors is as under:
"(i) Mahendra Prasad Shukla:
He had gone to appear in the Court of Additional Chief Judicial Magistrate to oppose a bail application whereupon the Presiding Officer declined to hear him stating that he should get no-objection from Bar Association which has passed a resolution to abstain from the Court and he was not allowed to participate in judicial proceedings and his name has been wrongly mentioned.(ii) Om Prakash Rai:
His name has wrongly been included and actually he was not present.(iii) Om Prakash Pathak:
He was not present in the Court Room and did not disturb the proceedings, as alleged, and his name has wrongly been mentioned.(iv) Shesh Narayan Dixit:
As a matter of fact, at that time when the alleged incident is claimed to have taken place, he was present and working in the Court of District Judge and his name has been included on account of enmity of some other Advocates, who have some enmity with him.(v) Atma Prakash Tripathi:
His name has been included due to enmity. He has not done any act, as alleged.(vi) Chandra Prakash Chaubey:
He was not present in the Court Room when the alleged incident took place.(vii) Kalp Nath Singh:
He has actually worked in the aforesaid Court of Additional Chief Judicial Magistrate and no incident took place in his presence and at that time when the alleged incident took place, he was not present in the Court.(viii) Shiv Raj Singh:
He has gone to work in the Court and has not created any disturbance in Court proceedings.(ix) Brij Kishor Singh:
He has gone in the Court to appear in a matter and has not caused any disturbance in the Court proceedings. He has also not used any abusive language etc. as alleged and his name has been included on account of enmity of some other Advocates.(x) Prabhakar Ram Pathak:
He was not present in the Court.(xi) Satyadeo Pandey:
On the date of alleged incident, he was at Allahabad and his name has wrongly been mentioned."
11. Before this Court, the contemnors in general also tendered apology. The same was considered on 19.2.2015 and the Court passed following order:
"Heard Sri Sudhir Mehrotra, Special Counsel for the High Court, learned A.G.A. for the State of U.P.
All the contemners are present in the court.
It is submitted by learned counsel for the contemners that contemners are practising lawyers, on a call of strike the alleged incident has occurred, they tender unconditional apology. Considering the same, it is directed that in case all the contemners tender unconditional apology before Sri Amit Kumar Prajapati, the then Addl. C.J.M. Sonbhadra within three weeks from today, the apology shall be tendered in writing before Sri Amit Kumar Prajapati who shall send his response on it to this court within one week thereafter.
List on 23.3.2015. On that day all the contemners shall appear in person. "
12. Shri Shesh Narayan Dixit and Shri Atma Prakash Tripathi, Advocates vide letter dated 24.2.2015, Shri Brij Kishor Singh, Advocate, vide letter dated 3.3.2015, Shri Mahendra Prasad Shukla, Shri Om Prakash Rai, Shri Om Prakash Pathak, Shri Shiv Raj Singh, Shri Kalp Nath Singh and Shri Satyadeo Pandey, Advocates vide letter dated 9.3.2015 filed their affidavits before Shri Amit Kumar Prajapati, the then ACJM, Sonbhadra tendering unconditional apology. Shri Chandra Prakash Chaubhey, Shri Om Prakash Rai and Shri Prabhakar Ram Pathak filed their separate affidavits to the same effect.
13. Learned court below vide letter dated 20.3.2015 informed about aforesaid act of tendering apology on the part of contemnors but further pointed out that contemnors have not committed these acts of contempts for the first time, but earlier also similar act was done but Judicial Officers condoned their act and did not proceed further. The conduct of contemnors is seriously contemptuous and condemnable. He thereafter, left the matter to be considered by this Court.
14. All the entire aspects were considered by Court on 9.4.2015. Having satisfied that it was not a case where contemnors deserve to be discharged on acceptance of apology, this Court framed charges against all the contemnors. The three contemnors No. 1, 2 and 3, namely, Shri Mahendra Prasad Shukla, Shri Om Prakash Rai and Shri Om Prakash Pathak, Advocates were charged as under:
"That you Mahendra Prasad Shukla, Advocate on 12.4.2013 after lunch at 2.00 P.M. while the Court was discharging judicial function of hearing Misc. Applications/Bail Applications of Advocates present, you along with Om Prakash Rai and Om Prakash Pathak and 15-20 other Advocates entered the Court Room and said, this infuriated you and said you abused the Court and also raised slogan in the Court Room On account thereof proceedings of the Court were stopped. In this way you have not only scandalized the Court, but have also lowered down the authority of the Court besides interfering in administration of justice, thus, all of you have committed criminal contempt defined under Section 2(c) read with Sections 10, 14 and 15 of Contempt of Courts Act, 1971 (hereinafter referred to as "Act, 1971") punishable under Section 12 of Act, 1971."
15. Rest of the eight contemnors, namely Sri Shesh Narayan Dixit, Atma Prakash Tripathi, Chandra Prakash Chaubhey, Kalp Nath Singh, Shiv Raj Singh, Brij Kishor Singh, Prabhakar Ram Pathak and Satyadeo Pandey, were charged as under:
"That all of you Shesh Narayan Dixit, Atma Prakash Tripathi, Chandra Prakash Chaubhey, Kalp Nath Singh, Shiv Raj Singh, Brij Kishor Singh, Prabhakar Ram Pathak and Satyadeo Pandey on 12.4.2013 after lunch at 2.00 PM while the Court was discharging judicial function of hearing Misc. Application/Bail Application of Advocates present, entered in the Court Room along with Mahendra Prasad Shukla, Om Prakash Rai, Om Prakash Pathak, Advocates, used indecent words against the Court and also created obstruction in judicial proceedings. Thus all of you have committed criminal contempt defined under Section 2(c) read with Sections 10, 14 and 15 of Act, 1971 punishable under Section 12 of Act, 1971."
16. The contemnors were also given opportunity to file their replies to the charge levelled against them.
17. In reply to the charge framed against contemnors, replies have been filed by Mahendra Prasad Shukla, (contemnor No. 1), Om Prakash Pathak (contemnor No. 3), Shesh Narayan Dixit (contemnor No. 4), ShriKalp Nath Singh (contemnor No. 7), Shiv Raj Singh (contemnor No. 8), Brij Kishor Singh (contemnor No. 9), Satyadeo Pandey (contemnor No. 11).
18. Shri V.C. Mishra, learned Senior Advocate assisted by S/Shri Alok Kumar, Shukla Yasharth Srivastava and Ashok Verma, Advocates appeared on behalf of contemnors, Shesh Narayan Dixit, Atma Prakash Tripathi, Brij Kishor Singh, Shiv Raj Singh and Kalp Nath Singh.
19. Shri V.P. Srivastava, learned Senior Advocate assisted by Shri Ajay Shankar Pathak, Advocate has appeared on behalf of contemnors No. 1, 3 and 11 i.e. Mahendra Prasad Shukla, Om Prakash Pathak and Satyadeo Pandey, respectively.
20. Shri Vinod Kumar Rai, Advocate has put-in appearance on behalf of Om Prakash Rai (contemnor No. 2). Shri Rudra Kant Mishra, Advocate has put-in appearance on behalf of contemnor Nos. 6 and 10 i.e. Chandra Prakash Chaubhey and Prabhakar Ram Pathak.
21. Shri V.P. Srivastava, learned Senior Advocate appearing for contemnor Nos. 1, 3 and 11 stated that though the aforesaid contemnors have filed their replies to the charge but they are not contesting the matter and surrendering themselves to the court, admitting guilt, and seeks mercy.
22. However, Shri V.C. Mishra, learned Senior Advocate, has advanced elaborates arguments in defence, which have been adopted by other learned counsel appearing for other contemnors.
23. Shri V.C. Mishra, contended that Reference Letter was made by the then ACJM, Sonbhadra disclosing only three names i.e. contemnor Nos. 1, 2 and 3, and therefore, no proceedings against any other contemnors is admissible under law as the investigation directed by this Court, to be made by District Judge, to find out names of other 15-20 advocates, mentioned in Reference Letter, and Report submitted by District Judge, Sonbhadra, identifying names of contemnors 4 to 11, is neither contemplated under Act 1971 nor Rules framed by Court, therefore, the aforesaid report and proceedings initiated on the basis thereof, are wholly illegal. The investigation directed by this Court to be made by District Judge, Sonbhadra and report submitted by learned District Judge is wholly unauthorized and illegal, hence no contempt proceeding would lie against those advocates, who were named in inquiry report submitted by District Judge. The said inquiry report as also subsequent proceeding initiated against contemnor Nos. 4 to 11, are illegal and lack jurisdiction.
24. Coming on the merit of the matter, Shri V.C. Mishra urged that names of contemnor Nos. 4 to 11 have been given by advocates, who have rivalry to these contemnors. Mentioning names of contemnors 4 to 11, by two or three advocates before District Judge, Sonbhadra, was on account of animosity. They have been falsely implicated. There is no otherwise evidence that these contemnors were present or committed any illegal act etc. which may come within the ambit of the term "criminal contempt" as defined under Section 2(c) of Act, 1971. He further contended that statement of advocates taken note by District Judge, Sonbhadra in his report, is wholly hearsay and cannot be relied since contemnors have not been given any opportunity to cross examine those advocates, who deposed and disclosed names of contemnors. He further contended that contemnors in compliance of this Court's order dated 19.2.2015, tendered unconditional apology before Presiding Officer, who made a reference to this Court and he has accepted the same, therefore proceedings are liable to be dropped against all the contemnors.
25. Shri Sudhir Mehrotra, learned Special Counsel nominated by this Court to assist, however, submitted that Reference Letter dated 15.4.2013 as well as inquiry report submitted by District Judge, Sonbhadra are self speaking, clearly showing highly derogatory conduct of contemnors disturbing court proceedings, which clearly amount to "criminal contempt". The Presiding Officer has also reminded that contemnors have not committed these acts for the first time but repeatedly. He also submitted that power of this Court to punish for contempt, is not confined to Reference letter received from subordinate court but the court can have information subsequently or otherwise also, either from subordinate court or on its own or under order of this Court. He submitted that the Reference letter made by subordinate court is not to be read as a plaint. The term 'Reference' under Section 15 of Act, 1971 is nothing but an information communicated by subordinate court to this Court, since ultimate power for punishing contemnors for committing contempt of subordinate court vests in this Court. The authority of this Court is not confined to the letter of reference. The 'reference' is not defined in the Act 1971. It simply constitutes an information received from subordinate court. In a given case, after initial information, the court may require some further information, which may also come from subordinate court or otherwise and all that information will satisfy the term 'Reference'.
26. All the learned counsels appearing for contemnors unanimously submitted that since contemnors have tendered apology, court should accept the same and discharge all of them.
27. We have heard learned counsel for parties as also relevant statutory provisions and exposition of law laid down under various authorities of this Court as well as various other courts and Apex Court.
28. Here the contemnors though 11, but are apparently in two sets. First set includes contemnors 1 to 3 and second set includes contemnors 4 to 11 i.e. Therefore, we find it appropriate to discuss the matter of two sets of contemnors separately. First of all we proposes to discuss factual aspects, and thereafter, the legal submissions involving both the sets.
29. So far as contemnor Nos. 1 to 3 are concerned, they have been charged of using scurrilous language in court of ACJM, Sonbhadra, preventing litigants and advocates in pursuing their matters before court, abstaining judicial function and raising slogans in Court room. All the aforesaid acts, if true, do satisfy definition of 'criminal contempt' under Section 2(c) of Act, 1971. No individual reply has been filed by contemnor 2 to the charge levelled against him. The contemnors 1 and 3 have filed their affidavits in reply to charge framed against them.
30. The defence taken by Mahendra Prasad Shukla (contemnor 1) in affidavit sworn on 6.5.2015 is that, he is an advocate practising in District Court, Sonbhadra, has 21 years length of practise and his enrollment with Bar Council of U.P. is of 1994. He earlier filed an affidavit dated 9.12.2013 tendering unconditional apology. On 9.2.2015, when matter was taken up, he said that he is not contesting proceedings on merit and is tendering unconditional apology. The Court then permitted him to tender such apology before court below and in compliance thereof, he filed apology vide affidavit dated 9.3.2015 before Shri Amit Kumar Prajapati, now posted as Civil Judge (Senior Division), Muzaffar Nagar at Kairana and tendered apology. Coming on merit, he said that Kalp Nath Singh (contemnor 7) lodged First Information Report dated 20.3.2013, registered as Case Crime No. 164/2013 under Section 406 and 420 I.P.C., P.S. Pannuganj, District Sonbhadra against six persons including one Jag Jeevan Singh, Advocate, who has been named as a witness in reference letter sent by court below. Copy of report is Annexure No. 1 to the Affidavit. Some of the accused, namely, Jagjeevan Singh, Advocate, Jang Bahadur alias Bachcha came to this court in Writ Petitions No. 6087 of 2013 and 6086 of 2013 for seeking quashing of First Information Report. The writ petitions were disposed of vide orders dated 10.4.2013 and both orders are similar. One of the order dated 10.4.2013 reads as under:
"Heard the learned counsel for the petitioner and the learned A.G.A.
This petition has been filed by the petitioner with a prayer to quash the F.I.R. of case crime No. 164 of 2013, under sections 420, 406 IPC, P.S. Pannuganj, District Sonbhadra.
From the perusal of the F.I.R it appears that on the basis of allegation made therein the prima facie cognizable offence is made out. There is no scope of interfering in the F.I.R Therefore, the prayer for quashing the F.I.R is refused.
However, considering the facts, it is directed that in case petitioner appears before the court concerned within 30 days from today and applies for bail, the same shall be heard and disposed of expeditiously if possible on the same day by the courts below.
With this direction, this petition is finally disposed of."
(emphasis added)
31. Trial in the aforesaid matter was pending in the court of Chief Judicial Magistrate, Sonbhadra and 12.4.2013 was the date fixed. Since court was vacant, the case was taken-up in the court of ACJM, Shri Amit Kumar Prajapati on 12.4.2013, when court granted interim bail to one of the accused, Sat Pal alias Bablu. Despite knowledge of order dated 10.4.2013 passed by this Court, Shri Amit Kumar Prajapati, the then ACJM, Sonbhadra, in league and collusion with Jagjeevan Singh, Advocate, granted interim bail to another accused Satpal alias Bablu on 12.4.2013. Since the aforesaid criminal case relates to number of farmers who were cheated by accused persons, they raised their voice. With the incident as alleged in reference letter sent by then ACJM, the contemnor 1 has no concern. However, contemnor 1, appearing on behalf of informant was opposing bail application and had filed Vakalatnama on 12.4.2013 before the concerned ACJM. Subsequently, bail application was rejected by CJM on 17.4.2013. Shri Jagjeevan Singh, Advocate was expelled from membership of Sonbhadra Bar Association vide resolution dated 7.2.2012. On 11.4.2013, there was an emergency meeting of Sonbhadra Bar Association in which a decision was taken for abstaining judicial work on 12.4.2013 on account of dissimilarity in holidays in Civil Court and State Government Offices and also for frequent power cuts. The incident, took place on 12.4.2013, between complainant and accused persons, and not judicial officer and contemnor 1. The day of incident, i.e. 12.4.2013, was last working day of the then ACJM, Shri Amit Kumar Prajapati in District Court, Sonbhadra. Regarding the said incident, a news was published in local Hindi Newspaper 'Hindustan' Varanasi Edition dated 13.4.2013. The Sonbhadra Bar Association, Sonbhadra also passed a resolution on 16.4.2013 against Shri Jagjeevan Singh, Advocate as well as the then ACJM, Shri Amit Kumar Prajapati, against their conduct. The copy of resolution has already been placed on record as Annexure No. 9 to the Affidavit, which is reproduced as under:
"In the meeting held on this 16.04.2013, the undignified conduct of Shri Jagjivan Singh Advocate, so called office bearer of the District Bar Association, Sonbhadra, as also the ways of discharge of judicial work by Shri Amat Prajapati, ACJM, Sonbhadra was discussed following which resolutions were passed by majority as under:--
1. In the court premises, acts not befitting the conduct of advocates have continued to be done every now and then by Shri Jagjivan Singh, so called office bearer of the District Bar Association, Sonbhadra and his fellow advocates in the name of the association; and efforts have continuously been done by the said advocates through the so called association to manage the judicial process by influencing some judicial officers as well, which vitiates the atmosphere of the court premises. Only in view of Shri Singh's doings, he has been expelled from the primary membership of the Bar by the previous working committee and the same has been conveyed to the Bar Council of Uttar Pradesh. With one accord, his work and conduct and also that of the concerned judicial officer is condemned and it is decided that the act of Shri Jagjivan Singh, who after getting the information regarding transfer of ACJM Sonbhadra Amat Prajapati, used abusive language and issued threats in the court premises before the presiding officer on 12.04.2013 against the resolution passed by the Bar, did not befit the conduct of an advocate and the acquiescence of even the presiding officer in the matter raises doubts.
2. The aforesaid act is vehemently condemned and it is decided as well that talks in the aforesaid context be held with the District Judge, thus apprising him about the said activities and requesting for proper action against the concerned persons."
(English translation by Court)
32. He (contemnor-1) has further said that the reference has been made directly to this Court addressed to Registrar General, High Court on 15.4.2013. It has been made by Shri Amit Kumar Prajapati, the then ACJM after his transfer from Sonbhadra to another district. When he granted interim bail, he was aware of his transfer to another district. The reference has been made against law and process since it ought to have been forwarded by District Judge and not directly. With regard to incident, which took place in the court of CJM, a resolution was passed by Bar Association, Sonbhadra on 20.2.2013 against the conduct of Chief Judicial Magistrate, Sonbhadra. Copy of said resolution is annexed as Annexure No. 10 to the Affidavit, which is reproduced as under:
"On this 20.02.2013, as per prior notice, meeting of the general house was held at which points on the agenda were discussed following which resolutions were passed by majority as under:
1. The order of the CJM, Sonbhadra dated 16.01.2013, which has been approved by the District Judge on 18.01.2013 and is utterly impractical, be recalled with immediate effect.
2. The tenure of CJM, Sonbhadra in the district is coming to an end and his transfer is due this year, stay whereof has been applied for by him, which was opposed on the ground that the members are very dissatisfied with the working of CJM, Sonbhadra; on the basis of which resolution for his tenure not to be extended was also passed by majority; and a 10-member-delegation was formed who, after a meaningful parley with the District Judge on the aforesaid points, shall apprise the house about the latter's opinion and the action taken, on the basis of which proceedings shall be held as per the resolution to be passed by convening a meeting on 23.02.2013.
For implementation of the aforesaid work, the advocates will, as a mark of protest, desist from the judicial work on 21.02.2013 and 22.02.2013. On 23.03.2013, the proposed meeting of the general house will be held again, due to which judicial work shall not be possible on the said date as well.
In connection with the aforesaid resolutions passed by majority, it was also resolved that due correspondence be also made with the concerned officers."
(English translation by Court)
33. Another resolution was passed by Bar Association, Sonbhadra on 5.3.2013 against Shri Krishna Kumar, the then CJM, also proposing to abstain from judicial work from 6.3.2013. The contemnor 1 has also referred to a similar resolution passed on 15.3.2013 against the then CJM, besides the complaint dated 14.2.2013, submitted by advocates of district court, Sonbhadra to District Judge, Sonbhadra. Shri Amit Kumar Prajapati, presiding officer of court ought to have made a complaint to the District Judge, Sonbhadra and not to sent reference directly to this court. With respect to role of contemnor 1, the District Judge, Sonbhadra has not conducted any inquiry. The reference has been made since contemnor 1 was opposing interim bail, granted by court below, illegally in league and collusion with Jagjeevan Singh, Advocate. Shri Amit Kumar Prajapti had an apprehension of the complaint made at the instance of members of District Bar Association, Sonbhadra, therefore, with false allegation, reference has been made. The District Judge has not examined clerk of court of Judicial Magistrate, who was presenting the matter before Shri Amit Kumar Prajapati, the then ACJM, though he was an important witness of the incident. The District Judge, Sonbhadra has not recorded statement of Manoj Kumar Pandey, Secretary, Bar Association, Sonbhadra, though he had also come in the court and his name is also mentioned by one Titu Prasad Gupta, Advocate in his statement, deposed before District Judge, Sonbhadra, during inquiry. The eye witnesses i.e. the court employees have not disclosed the name of any of the contemnors.
34. The reply given by contemnor 3 Shri Om Prakas Pathak is also almost the same as is of contemnor 1. He has also made allegations against court below that he passed illegal order of interim bail in league and collusion with one Jagjeevan Singh, Advocate and another accused in the same matter. Though he has stated that Shri Mahendra Prasad Shukla (contemnor No. 1). was counsel for complainant in the said case but regarding his own role and presence, he has not said, anything, very specifically. However, in para 57, contemnor 3 has said that contemnor 1 is practising and junior to him, therefore, only with a malafide intention and to harass, contemnor 3 has falsely been mentioned in reference by court below.
35. Shri V.P. Srivastava, learned Senior Advocate representing Contemnors, at the time of argument, did not advance any argument on merits and stated that contemnors, whom he is representing, surrender before the court and seek mercy.
36. From the facts disclosed above, we have no doubt that there was a resolution passed by Bar Association Sonbhadra for abstaining judicial work on 12.4.2013. It is also evident that court of ACJM was actually functioning on 12.4.2013. He was discharging judicial work. Some advocates and litigants were also present as per own admission of even contemnor 1, who was present in Court for opposing bail application in Case Crime No. 164 of 2013, having filed his vakalatnama on the same day. Contemnor 1, in his defence, has said that it is complainants, whom he was representing, who are farmers, raised their voice but no evidence or material has been placed on record to fortify it. Grudge of contemnor 1 is cemented by his own assertion in reply affidavit sworn on 6.5.2015 that judicial order passed by ACJM granting interim bail was in league and collusion with one of accused Jagjeevan Singh, Advocate. However, in this regard he has not placed any material to show that said Presiding Officer was in collusion with one or more accused persons. The mere fact that on 12.4.2013, this Court permitted petitioner-Jagjeevan Singh, Advocate to surrender in court, does not mean that court below acted illegally, particularly when, he was granted 30 days time to surrender in the Court. Moreover nothing has been placed on record to show that order of this Court dated 10.4.2013, was actually communicated by any of the parties or to be court below.
37. The subsequent resolutions of Bar Association Sonbhadra, which has been relied by contemnors 1 and 3 also make it clear that advocates were annoyed of the fact that overlooking their resolution, the Court had actually functioned and discharged judicial work. It appears that Advocates and particularly contemnors 1 and 3, were under impression that whatever resolution they pass, sitting in Bar Association, the courts are bound to obey the same, ignoring the fact that a resolution of abstention of judicial work is per-se illegal and amounts to an intentional act of "criminal contempt" on the part of the Body, or person (s) who pass such resolution, and liable for punishment under Act, 1971. Time and again, is the last more than two decades, Courts have repeatedly held that strike of lawyers, abstaining from judicial work is not per-se illegal but amounts to obstruction in functioning of courts of law and obstruction in judicial function, falling within the ambit of "criminal contempt" defined under Section 2(c) of Act, 1971.
38. The suggestion that advocates were on strike does not provide any justification for making such allegations, inasmuch as, repeatedly, Apex Court as well as this Court have held that a call of strike by advocates except of a rare occasion, is per se illegal. A call, which has the effect of paralysing judicial function ex facie, in our view, amounts to a direct interference in the administration of justice and is a 'criminal contempt' under Section 2(c) of the Act, 1971. The strike by Advocates disturbing the Court proceedings has been held illegal by the Court in Common Cause (A Registered Society) v. Union of India and Others (1995) 5 SCC 511, Indian Council of Legal Aid and Advice v. Bar Council of India MANU/SC/0134/1995 : (1995) 1 SCC 732, K. John Koshy v. Dr. Tarkeshwar Prasad Shaw MANU/SC/1313/1998 : (1998) 8 SCC 624, Mahavir Prasad Singh v. Jacks Aviation Private Ltd. MANU/SC/0706/1998 : (1999) 1 SCC 37 and Ex-Captain Harish Uppal v. Union of India MANU/SC/1141/2002 : (2003) 2 SCC 45. The authorities of Apex Court in above these cases, support and lay down the above exposition of law.
39. Before this Court, contemnors 1 and 3 have not hesitated in condemning the conduct of Presiding Officer is derogatory language through in respect of discharge of judicial function on 12.4.2013, despite resolution passed by Bar Association. As per own impression of contemnors 1 to 3 and Bar Association Sonbhadra, audacity of Presiding Officer of court below in continuing to discharge judicial function despite resolution of abstention from judicial work passed by Advocates was an uncondonable act justifying act of obstruction and disturbance in Court functioning besides condemnation by raising slogans. This assumption is also reflected in subsequent resolution of Bar Association, which has been relied by contemnors 1 to 3 in their reply affidavits. They appears to have assumed that though court below is an independent judicial authority but in one or other way, subordinate to them, bound to obey their resolution, how-soever illegal it is. This attitude and assumption on the part of Bar Association in general and contemnors 1 to 3 in particular, is per-se not only illegal but amounts to a gross criminal contempt on their part. Nothing more than this can have the effect of lowering authority and majesty of Court of law. On one hand, Advocates could dare to prevent a court of law from functioning and further they could dare to threat and obstruct the court as well as Presiding Officer when it continued to function ignoring such resolution of Body of Advocates. A serious charge has been levelled against Presiding Officer in respect of judicial order passed by him in granting interim bail that it was in league and collusion with accused persons but not substantiated.
40. In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, MANU/SC/0071/1970 : AIR 1970 SC 2015, it has been held that imputation of mala fides, bias or prejudice, ridiculing the efficiency of Judges, are always considered to mean scandalizing the courts. Official capacity in this regard cannot be differentiated into judicial and administrative capacities. Both are interlinked. Vilificatory criticism of a Judge functioning as a Judge, even in purely administrative or non-adjudicatory matters, amounts to contempt of court if such a criticism substantially affects the 'administration of justice' and lowers the authority or dignity of the court, or creates a distrust in the public mind as to the capacity of the Judges to mete out even-handed justice.
41. Contemnor No. 1 was admittedly present in Court. He was shouting and disturbing in court's function as is evident from reply given by him. He has referred to the resolution of Bar Association that despite decision of abstinence from judicial work, court of ACJM was actually functioning and he passed judicial orders also in some cases. The affidavit of contemnor 1 filed before this Court, clearly shows that contemnor No. 1 representing a party in bail application and opposing bail, was interested in postponement of matter without any order but he could not succeed. He has not been able to restrain him to hurl scurrilous language on Presiding Officer in respect of judicial order passed by him, granting interim bail, stating that said order was passed in league and collusion with accused persons. Contemnor No. 3 has also used same language, sworn in its reply affidavit. Contemnor No. 3 has not sworn that he was not present in court but present elsewhere. Contemnor 2 has not submitted any reply to the charge levelled against him. Even otherwise none of the contemnors 1 to 3 have actually contested at the time of hearing. Before this Court to show that such acts have not been committed by them or were actually not committed by them.
42. We have no hesitation in holding the charge levelled against contemnors 1, 2 and 3, proved.
43. Now we proposes to come to the case of contemnors 4 to 11. The names of these contemnors have not been disclosed in Reference Letter dated 15.4.2013 sent by Shri Amit Kumar Prajapat. Their names have been disclosed through report submitted by District Judge, Sonbhadra pursuant to inquiry conducted, vide Court's order dated 30.9.2013.
44. Shri V.C. Mishra, learned Senior Advocate contended that under Section 15(2) of Act, 1971, the Court can take cognizance of only the 'reference' made by subordinate court and not to any subsequent proceedings. There is no provision, which permits this court to direct subordinate court to make some inquiry to find out names of persons, who have committed an act of 'criminal contempt' and then to proceed against them. According to learned Senior Counsel this procedure adopted by court is without any authority of law having no sanction, and therefore, is a nullity.
45. What we find from entire argument of Shri V.C. Mishra, learned Senior Counsel, that power to punish for criminal contempt of subordinate court vests only under Section 15(2) of Act, 1971 and beyond that this court possesses no otherwise power to proceed even if there is an act or omission on the part of one or the other Advocate (s), constituting 'criminal contempt' and this information has been received by court, not on a reference made by subordinate court or on a motion made by Advocate General, but otherwise.
46. This aspect has been considered in S.K. Sarkar, Member, Board of Revenue, Lucknow v. Vinay Chandra Mishra, MANU/SC/0506/1980 : AIR 1980 (1) SC 436, Court said, if Section 15(2) is interpreted as confining motion to be taken by High Court only on the basis of a report of subordinate court or motion by Advocate General or any person with his consent, it will have the effect of nullifying the constitutional guarantee, and inherent power of a court. Section 10 of Act, 1971 specifically shows that every High Court shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts, itself. Ambit of procedure for the court regarding Section 15(2) actually specifies one of the mode of procedure so that frivolous cases of criminal may not flood a court of record. Two modes are prescribed in subsection 2 of Section 15 where an information will come to court from authenticated body or if on initial scrutiny, which will have the least chances on bringing a frivolous matter before the court. In the case of S.K. Sarkar (supra), the Supreme Court clearly opined that if High Court is prima facie satisfied that the information received by it regarding commission of contempt of a subordinate court is not frivolous, and the contempt alleged is not merely technical or trivial, it may, in its discretion, act suo motu and commence proceedings against the contemner. However, this mode of taking suo motu cognizance of contempt of a subordinate court should be resorted to sparingly where the contempt concerned is of a grave and serious nature.
47. In the present case, Court has not proceeded on its own but basic facts were already placed before it in Reference Letter dated 15.4.2013. Learned subordinate court clearly stated that besides three names mentioned therein, there were 15-20 more advocates, who were indulged in activities causing obstruction in judicial function, which ultimately disturbed courts work. Therefore, it was open to the court to take steps for identification of these 15-20 advocates. The District Judge, Sonbhadra thus was rightly required to make an inquiry and find out names of such advocates. The District Judge, Sonbhadra made an inquiry and submitted report in which he named eight advocates i.e. contemnors 4 to 11. In initial affidavits filed by aforesaid contemnors 4 to 11, Shesh Narayan Dixit, Atma Prakash Tripathi, Chandra Prakash Chaubey, Praphakar Ram Pathak, Satyadeo Pandey, denied their very presence in Court when incident took place. Rest contemnors have denied to have caused any disturbance in court or that they were present in court but not at the time when incident took place. However, after framing of charge, defence taken by different contemnors in their reply, is as under:
Contemnor 5 (Atma Prakash Tripathi):
48. It is said that he is a senior advocate in District Bar Association, Sonbhadra and has never been charged for committing contempt. He had been President of District Bar Association, Sonbhadra for six years. His name has been disclosed by an advocate having rivalry i.e. Jag Jeevan Singh, Advocate, and Tarkeshwar Tiwari, Clerk (Criminal) of Court. With regard to animosity with Jag Jeevan Singh, he said that he was President when Jag Jeevan Singh, Advocate was expelled from membership of Bar Association.
49. With regard to Tarkeshwar Tiwri, Clerk (Criminal) of Court, it is said that he is residing in same village where contemnor 5 is residing and some complaint has been made by contemnor Atma Prakash Tripathi against Tarkeshawr Tiwari before District Magistrate as well as Nagar Palika Parishad, Sonbhadra causing animosity against him.
50. In the entire affidavit of contemnor 5, sworn on 26.4.2015, we do not find that he has denied the charge stating that he was not present in court room and did not participate in activities disturbing court function etc. In para 15, he admits to have submitted unconditional apology before court below. Moreover, in order to substantiate his defence that he was not present in court or has not done anything, nothing has been brought on record except that in initial letter/reference, his name was not disclosed.
51. So far as complaint made against Tarkeshwar Tiwari, Clerk (Criminal) of Court is concerned, this Court finds a letter dated 12.8.2013, submitted by District Magistrate signed by five persons i.e. Shesh Narayan Dixit, Atma Prakash Tripathi, Kamlesh Pandey, Vinod Kumar Shukla, Satyadeo Pandey etc. From that letter, by itself, it cannot be said that an employee of court can make a false statement against contemnor 5. It is not in dispute that Tarkeshwar Tiwari, was an Assistant Clerk (Criminal) posted in court of ACJM, Sonbhadra on relevant date and was present in Court, he had the occasion to witness incident and recognize the persons, who caused the incident in subordinate court.
Contemnor-11 Satyadeo Pandey:
52. Another affidavit in reply to charge has been filed by contemnor 11 Satyadeo Pandey. His reply is almost similar to that of contemnors 1 to 3. He has also said in para 15 that ACJM passed an order of interim bail in league and collusion with one Jag Jeevan Singh, Advocate, who was pursuing bail of Saya Pal alias Bablu. It is not his case that he was not in court when incident took place but elsewhere. A bare denial that no incident took place, would not help contemnor 11 in any manner. There is nothing to substantiate it. It is at least evident from affidavit submitted by contemnor 11, that a serious disturbance was caused in the Court of ACJM since he was discharging judicial function ignoring resolution of Bar Association of abstention of advocates from judicial work. Conduct of contemnor 11 in scandalizing the court also and further stands reaffirmed by what he has said in para 15 of affidavit submitted in reply to charge.
53. Rest of contemnors having refrained to file reply to the charge, clearly justify inference to be drawn by Court, against them.
54. We, therefore, reject submission of learned Senior Counsel, Shri V.C. Mishra regarding his objection to procedure followed by Court by obtaining report from District Judge in respect of other advocates, who have obstructed court's functioning on 12.4.2013, and hold charge levelled against contemnors 4 to 11 proved.
55. Of late, we find a deep increasing tendency of advocates in making scurrilous allegations against presiding officers of subordinate Courts. They do not hesitate in going to the extent of dishonouring of Presiding Officer as well as the Court by abusing and misbehaving, openly, in presence of public at large, which includes litigants, clerks and others, in Courts or inside the Court campus. If an order has not been passed by a Judicial Officer to the liking of an advocate, remedy lies elsewhere but no one can have liberty to create a situation/an ugly scene, by raising abusive slogans against officer(s) as well as the Court. If this would not have the effect of lowering authority and majesty of the Court, what else can be.
56. When there is a deliberate attempt to scandalize a judicial Officer of subordinate Court, it is bound to shake confidence of litigating public in the system and has to be tackled strictly. The damage is caused not only to the reputation of concerned Judge, but, also to the fair name of judiciary. Veiled threats, abrasive behaviour, use of disrespectful language, and, at times, blatant condemnatory attacks, like the present one, are often designedly employed with a view to tame a Judge into submission to secure a desired order. The foundation of our system is based on the independence and impartiality of the men having responsibility to impart justice i.e. Judicial Officers. If their confidence, impartiality and reputation is shaken, it is bound to affect the very independence of judiciary. Any person, if allowed to make disparaging and derogatory remarks against a Judicial Officer, with impunity, is bound to result in breaking down the majesty of justice.
57. We cannot ignore the fact that much cherished judicial independence needs protection not only from over zealous executive or power hungry legislature but also from those who constitute, and, are integral part of the system. Here is a case where the contemnors have shown behaviour like member of an unruly mob of hooligans. An Advocates forgetting the higher status conferred upon them, making them Officers of the Court, have chosen to malign Judicial Officer of the Subordinate Court.
58. An Advocate's duty is as important as that of a Judge. He has a large responsibility towards society. He 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. He should conform to the requirements of law. He plays a vital role in preservation of society and justice system. He is under an obligation to uphold the rule of law. He must ensure that the public justice system is enabled to function at its full potential. He, who practices law, is not merely a lawyer, but acts as a moral agent. This character, he cannot shake off, by any other character on professional character. He derives from the belief that he shares sentiment of all mankind. This influence of his morality is one of his possession, which, like all his possession, he is bound to use for moral ends. Members of the Bar, like Judges, are the officers of the Court. Advocacy is a respectable noble profession on the principles. An Advocate owes duty not only to his client, but to the Court, to the society and, not the least, to his profession.
59. We do not intend to lay down any code of conduct for the class of the peoples known as "Advocates", but certainly have no hesitation in observing that no Advocate has any business to condemn a Judge by abusing etc. for a judicial order has not passed. If there is something lacking on the part of a Judicial Officer touching his integrity, Advocates, being Officers of the Court, may not remain a silent spectator, but should come forward, raising their voice in appropriate manner before the proper authority. But there cannot be a licence to any member of Bar to raise his finger over competency and integrity etc. of a Judicial Officer, casually or negligently, or on other irrelevant grounds. Here the competence and capacity of the concerned Judicial Officer has been attempted to be maligned commenting upon his integrity and honesty. It deserves to be condemned in the strongest words. No one can justify it in any manner. Thinking of intrusion of such thought itself sounds alert. It is a siren of something which is not only very serious, but imminent. It is a concept or an idea which should not have cropped up in anybody's mind, connected with the system of justice, and if has cropped up, deserves to be nipped at earliest, else, it may spreads its tentacles to cover others and that would be a dooms day for the very institution.
60. This Court has a constitutional obligation to protect subordinate judges. In Smt. Munni Devi and others v. State of U.P. and others, MANU/UP/2869/2012 : 2013(2) AWC 1546 this Court in para 10, has said:
"10. Be that as it may, so far as the present case is concerned, suffice is to mention that the Constitution makers have imposed constitutional obligation upon the High Court to exercise control over subordinate judiciary. This control is both ways. No aberration shall be allowed to enter the Subordinate Judiciary so that its purity is maintained. Simultaneously Subordinate Judiciary can not be allowed to be attacked or threatened to work under outside pressure of anyone, whether individual or a group, so as to form a threat to objective and independent functioning of Subordinate Judiciary."
61. Criticism of an order of a Court cannot be equated with making scurrilous attack on the conduct and integrity of the Judicial Officer/Presiding Officer of the Court. In the present case, an open attack by misbehaviour and abuse has been shown against concerned Judicial Officer. Wild imaginary allegations against conduct of Judicial Officer without having any material to substantiate the same cannot be tolerated, inasmuch as, it not only brings into disrepute the entire justice system but is likely to cause serious erosion in the confidence of public in case such tendency is not snuffed at the earliest.
62. The Judicial Officer/Judges had no platform to stand and clarify the circumstances in which the order has been passed by them. They have no platform to defend themselves. The strength of judiciary comes from the strong public opinion which it has in the system. If unsubstantiated flimsy, imaginary, fanciful allegations be allowed to be made by a party, who did not find an order in its favour, it will demolish the very foundation of the system of justice. Every order passed by the Court will be in favour of one of the party and against another. The loosing party cannot be allowed to challenge the very conduct/integrity of Judicial Officer in passing the order and that too without any material to support such an allegation. If we allow such a trend to remain unnoticed, or condone the same without any appropriate action, it will not only encourage such tendency amongst other but the resultant situation may came a serious blow to the system of administration of justice, which is one of the founding pillar of constitutional scheme and has to be protected by all legal and reasonable means.
63. In the above background and considering the facts that the charge is proved against the contemnors, now, we have to consider about the sentence on which counsel for contemnors as well as the contemnors have stated in the Court that they are throwing themselves to the mercy of the court and showing magnanimity, benevolence and a lenient view.
64. Now coming to question of punishment, abusing and shouting in court, causing obstruction in judicial function and attempt to prevent the Court from discharging its judicial function, is a serious act of "criminal contempt". Of late, the court on administrative side, is informed that very frequently advocates are abstaining from judicial function, by taking recourse to all legal and illegal means and measures to prevent judicial officers from discharging their judicial functions. In most of the cases, for one or other reasons, subordinate courts refrain from making Reference to this Court, in hope of maintaining cordial administrative relation & atmosphere but that is not happening. The advocates have taken, as a matter of grant, that they can prevent court from functioning, on mere asking, and nothing will happen against them. The audacity of Bar Association in passing resolutions condemning Presiding Officer (s) of Court, who function despite resolution of Bar Association is Writ Large. Regarding obstruction in judicial work, the incident shows the extent to which Body of advocates can go to intimidate judicial officer, if he/she works ignoring resolution of advocate's Body. In fact this act of Bar Association is also nothing but a serious 'criminal contempt' but since that matter is not before us, therefore, we are not taking action against it.
65. In the above background and considering the fact that the charge is proved against all the contemnors, now, we have to consider about quantum of sentence on which, counsel for contemnors as well as the contemnors have stated in the Court that they are throwing themselves to the mercy of Court and showing magnanimity, benevolence, this Court should take a lenient view.
66. We impose punishment of simple imprisonment of three months upon all contemnors and a fine of Rs. 2000/-. In case of non payment of fine, they shall undergo simple imprisonment for a further period of two months.
67. Besides above, in order to maintain discipline and avoid nuisance in the District Sonbhadra, we also direct that contemnors shall not enter the premises of District Judgeship, Sonbhadra for a period of six months. The aforesaid period of restriction shall commence with effect from 10th July, 2015.
68. Besides, the conduct of all contemnors shall remain under constant watch of District Judge, Sonbhadra for a period of two years. If any of them shows any otherwise objectionable conduct, causing interference in peaceful and smooth functioning of Court etc. the District Judge shall immediately report the matter to the Court suo-motu.
69. So far as amount of fine is concerned, contemnors may deposit the same either in this Court or with the District Judge, Sonbhadra or with the Chief Judicial Magistrate, Sonbhadra by 18.7.2015..
70. Contempt application is disposed of in the manner as above.
71. After delivery of judgement, the contemners pray that sentence imposed by this Court vide judgement of date be suspended to enable them to avail statutory remedy of appeal under Section 19 of Contempt of Courts Act, 1971 (hereinafter referred to as "Act, 1971") before the superior court.
72. In the circumstances, we suspend the sentence for a period of 60 days to enable them to avail remedy of appeal. In case, the appeal is not filed or if filed but no otherwise order is passed in the appeal, the contemners shall surrender before Chief Judicial Magistrate, Sonbhadra, who would immediately take appropriate steps for serving out sentence by contemnors as directed in the judgement of date passed in this contempt application.
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