iminal Appeal No51 of 1968
Appeal by special leave from the judgment and order dated February 2 1968 of the Bombay High Court in Criminal Application No 393 of 1967
Appellant appeared in person
MC Bhandare section B Wad and B D Sharma for the respondent
The Judgement of the Court was delivered by Grover J
This is an appeal by special leave from a judg ment of the Bombay High Court finding the appellant who is an Advocate guilty of contempt of court and sentencing him to simple imprisonment for a term of four weeks and a fine of 538 Rs 1000 
It was directed that in default of payment of the fine he would have to undergo simple imprisonment for a further period of four weeks
He was also ordered to pay the costs of the Assistant Government Pleader in the High Court and the Government Pleader before the Sessions Judge
The material facts may be stated In March 1966 a suit was filed against the appellant by D N Santani who is also an Advocate for recovery of Rs 640 in the court of the Civil Judge Junior Division kalyan
The plaintiff in that suit had engaged H I Jagiasi as his Advocate
In the written statement filed by the appellant he made certain allegations against Jagiasi and alleged inter alia that the latter was responsible for the suit
Jagiasi filed a criminal complaint for defamation in August 1966 against the appellant in the court of Shri P D Sayyid Judicial Magistrate at Kalyan
The appellant has set out a number of incidents and matters in his petition for special leave to appeal which it is not necessary for our purpose to mention
It would suffice to say that on October 15 1966 the appellant filed an application before the Judicial Magistrate saying that he intended to apply for transfer of the case to some other court
On October 28 1966 he presented a transfer application in the court of the Sessions Judge
Thana
The transfer application was ultimately dismissed by the Assistant Judge and Additional Sessions Judge on March 8 1967 before whom it came up for disposal
Meanwhile it appears that the appellant applied for transfer of the civil suit which had been filed by D R Santani to the court of the District Judge
The suit was stayed and we have been informed that ultimately it was transferred sometime in the year 1967 from the court of Shri M B Baadkar from whose court transfer was sought
It has further been stated at the Bar and that statement has not been challenged that the civil suit was ultimately dismissed in August 1969
While dismissing the transfer application of the appellant in the criminal complaint filed by Jagiasi in the court of Shri P D Sayyid the Additional Sessions Judge recorded an order that a report be submitted to the High Court for considering the conduct of the appellant and the course adopted by him in making the transfer application and in making amputations or aspersions against the Judicial Officers and to take action for contempt of court under section 3 2 of the  hereinafter called the Act 
This was done after reproducing three paragraphs from the transfer application and expressing an opinion that the appellant had attempted to attack the integrity and honesty of the courts of the Judicial Magistrate and the Civil Judge and to scandalize and to malign the same
The High Court made an 539 order on December 1 1967
The following part of that order may be reproduced He made an application to the Sessions Judge for transfer of the proceedings to another Court and the ground objected to by the learned Sessions Judge is as follows  The Magistrate below is on friendly relations with the complainant the respondent No 1 in the present petition and he even enjoys the hospitality of the respondent No 1 some times alone and some times in company of the Civil Judge J D Kalyan Shri M B Baadkar whois also on friendly relations with the respondent No1 and who also enjoys the hospitality of the respondent No 1 The learned Sessions Judge had called for report from the Magistrate Mr P D Sawed and was apparently satisfied after consideration of all the affidavits produced before him that the allegations was baseless
He there  fore referred the matter to this court for suitable action being taken against the respondent Advocate for his making such allegations and interfering with the course of justice and scandalizing or maligning the Courts below 
It was further stated in that order that the appellant had asked for an opportunity to establish the truth of the allegation made above which had been made both because of his personal knowledge and also because of information obtained from others
A list of witnesses was furnished by the appellant whom he proposed to examine
The High Court directed the District Judge to regard the evidence and to submit his report along with the evidence and the reports of the two judges
It was expressly stated that the inquiry was to be confined to the allegations which had been quoted above
The show cause notice which was issued to the appellant by the High Court omitting unnecessary portions was as follows  Whereas upon reading letter No 2434 dated 5th April 1967 forwarded by the 2nd Addl
Sessions Judge Thana along with the Record and proceedings of Cri
Transfer Application No 10866 on his file and the Record and Proceedings in Cri
Case No 2949 of 1966 of the Court of the Judicial Magistrate F C Kalyan requesting to take action under the against the Advocate Mr G L Bhatia who has made serious allegations against the Judicial 540 Officers Shri Baadkar and Shri Sayyad in Transfer Cri
Application No  10866 in para one in the Court of the 2nd Addl
Sessions Judge Thana etc And whereas this Court has on 15th June 1967 passed the following order  Notice to Mr Bhatia Advocate to show cause why action for contempt of Court should not be taken against him
Notice to G P also
A copy of D J s letter to be sent to Mr Bhatia along with the notice
 The District Judge in accordance with the orders of the High Court submitted a report giving his own findings on the evidence recorded by him and
also after taking into consideration the reports of Sarvshri Baadkar and Sayvid which had been called for from them apparently after the witnesses produced by the appellant had given their evidence and copies of their depositions had been sent to the two Judges
The appellant raised two preliminary objections before the High Court
The first was that the District Judge could only submit a record of evidence and could not give his findings and secondly he could not take into consideration the reports of the two judges which had not been shown to the appellant
Another objection raised was that the reports of the Judicial Officers could not have been relied upon because the appellant had no opportunity to cross examine them
The High Court repelled all these objections
From the statement of preliminary facts it is clear that the High Court relied only on the allegations contained in para 1 of the application of transfer which have already been set out before and contents of which were that Shri Sayyid was on friendly relations with Jagiasi and that he had even enjoyed his hospitality sometimes alone and sometimes in the company of Shri Baadkar
We have laid a certain amount of stress on the aforesaid allegation made in para 1 of the transfer application because that application consisted in substance of three paragraphs
It will be desirable owing to the nature of this case to set out all the allegations made in the transfer application 1The Magistrate below is on friendly relations with the complainant the Respondent No 1 in the present petition and he even enjoys the hospitality of the Respondent No 1 some times alone and some times in company of the Civil Judge J D Kalyan Shri M B Baadkar who is also on friendly relations with the Respondent No 1 and who also enjoys the hospitality of the Respondent No 1
541 2
The Magistrate below is prejudiced against the present application
3The Magistrate below has not taken and does not appear to take impartial disinterested view of the case in question
a Evidently the complainant was not actuated by mere or bonafide professional interest
He was the author of false litigation for a false and fabricated claim
That matter Suit No 213 of 1966 was still pending hearing and adjudication
The com plaint in question could not as such be filed in all fairness and it ought not to have been entertained at least without the preliminary enquiries or at any rate it ought to have been stayed
b That was not done and the process was ordained to be urgently issued and served and the socalled summons was served on the applicant a day or two before the date of hearing to harass and handicap him in his professional commitments
c Even the said summons was not accompanied by copy of the complaint as mandatorily required by section 204b of the Code of Criminal Procedure and the applicant was left guessing as to what the said summons related to
d On 15th October 1966 when the case in question was Sr
No 10 12 on the Board and it was preceded by even part heard cases the trial Magistrate did not permit this application even leave for a while to enable him to go to Civil Court at a distance of furlong or so to obtain leave of the Court from his professional engagements and the trial Magistrate observed that he would take up the case there and then and just now and in the next moment the complainant was in the Box ready for finishing the case as though by previous understanding
4The applicant respectfully refrains from entering into further details in this regard and he would do the same if called upon
For the present suffice to say that in view of what is stated above there is well founded apprehension in the mind of the applicant he would not get justice unless the case is transferred to some other Court of the competent jurisdiction
542 The question which immediately arises is whether an allegation of the nature made in para 1 in the circumstances of the present case in a transfer application would amount to contempt of the two judges Sarvshri Sayyid and Baadkar
The High Court made a detailed examination of the evidence adduced before the District Judge and also relied on the reports of Sarvshri Sayyid and Baadkar
It came to the conclusion that the allegations made by the appellant had not been proved
It was observed that these allegations in the above quoted paragraph which means paragraph 1 were quite serious
The High Court was also influenced by the fact that the appellant had pitched the case higher and tried to prove that the two judges concerned were continuously receiving from Mr Jagiasi presents of large value in the shape of sarees and other articles and thus receiving bribes so as to indiscreetly favour Mr Jagiasi and the litigants whom he represented in their Court
The appellant was not even willing to tender an apology and his position as an Advocate was naturally regarded as making the contempt all the more serious
The appellant who has argued the case himself has raised the following main contentions  1The Act is unconstitutional and invalid
It violates Articles 20 and 21 of the Constitution
2No procedure has been provided in the Act and therefore if is bad
3Even the normal procedure which should be followed in such cases has not been followed
4The High Court was not entitled to call for a report from the District Judge or to delegate its functions including the examination of witnesses to the District Judge
5The show cause notice issued by the High Court containing the charge of contempt was confined only to paragraph 1 of the transfer application
The statements made in that paragraph could not by themselves constitute contempt
In our opinion it is wholly unnecessary to decide points 1 to 4 because the appellant must succeed on the 5th point
This court has after a review of all the relevant decisions laid down in Perspective Publications P Ltd  Anr
vs State of Maha rashtra1 inter alia the following principles  1It will not be right to say that the committals for contempt for scandalizing the court have become obsolete
1  543 2The summary jurisdiction by way of contempt must be exercised with great care caution and only when its exercise is necessary for the proper administration of law and justice
3It is open to any one to express fair reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him
4A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the court
The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculat ed to interfere with the due course of justice or the proper administration of law by his court
It is only in the latter case that it will be punishable as contempt
5Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public
To borrow from the language of Mukherjea J as he then was Brahma Prakash Sharma s case the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court s administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties
In that case it was held that the imputation in an article of impropriety lack of integrity and oblique motives to a judge of the High Court in the matter of deciding a suit constituted contempt of court
The question whether an action can be taken under section 3 of the Act if in a transfer application allegations are made against a judge which are of such nature as to constitute contempt of his court does not appear to be res Integra
In State of Madhya Pradesh vs Revashankar1 aspersions of a serious nature had been made against a Magistrate in a transfer petition
 One of such aspersions was that the Magistrate in whose court the proceedings were pending was a party to a conspiracy with certain others the object of which was to implicate the complainant in a false case of theft and that a lawyer appearing for the accused persons in whose favour the Magistrate was inclined had declared 1 544 that he had paid a sum of Rs 500 to the Magistrate
It was also asserted that the applicant was sure that he would not get impartial and legal justice from the Magistrate
It was held that the aspersions taken at their face value amounted to what is called  scandalizing the court  itself and the attack on the Magistrate tended to create distrust in the popular mind and impair the confidence of the people in the courts
This decisions is quite apposite for the purposes of the present case
It decides that allegations made even in a transfer application casting aspersions on a judicial officer can constitute contempt of his court within section 3 of the Act
It is difficult to comprehend that the mere statement that a Magistrate is friendly with a party who happens to be an advocate and enjoys his hospitality or has friendly relations with him will constitute contempt unless there is an imputation of some improper motives as would amount to scandalizing the court itself and as would have a tendency to create distrust in the popular mind and impair the confidence of the people in the courts
The allegations contained in para 1 of the transfer application may or may not amount to defamation of the two judges namely Sarvashri Sayyid and Baadkar but to constitute contempt the other tests which have been discussed above must be fulfilled
As noticed before the High Court confined the action which was to be taken only to the matter stated in paragraph 1 and did not choose or decide to include or consider paragraphs 2 or 3 either in the show cause notice or in the judgment the following part of which may be reproduced 
We have considered the whole of the evidence on record that can be relied upon on behalf of the condemner on the one side and by the State in support of the case for action against the condemner
We have with some anxiety considered the arguments advanced by the contemner in support of his case that the evidence is sufficient to prove the allegations made by the contemner in the above quoted paragraph
We find it impossible to hold in his favour that he has proved that Mr Sayyid had friendly relations with Mr Jagiasi and was enjoying the hospitality of Mr Jagiasi either alone or in company with Mr Baadkar
He has failed to prove that Mr Baadkar had friendly relations with Mr Jagiasi and enjoyed the hospitality of Mr Jagiasi
It is true that a party cannot make such allegations even in a transfer application which may fall within the rule laid down in Revashankar s1 case or in the Perspective Publication s case2 and which may amount to scandalizing the court in the sense pointed out in these decisions
In the State vs The Editors  1 2 1969 2 SCR779
545 Publishers of Eastern Times and Prajatantra1 Jagannadhadas CJ as he then was delivering the judgement of the Division Bench after an exhaustive examination of the decided cases where the jurisdiction of the court for this class of contempt had in fact been exercised observed A review of the cases in which a contempt committed by way of scandalising the court has been taken notice of for punishment shows clearly that the exercise of the punitive jurisdiction is confined to cases of very grave and scurrilous attack on the court or on the Judges in their judicial capacity the ignoring of which would only result in encouraging a repetition of the same with a sense of impunity and which would thereby result in lowering the prestige and authority of the court
There are not many decisions in which punishment has been inflicted for committing contempt of court by making scurrilous allegations in an application for transfer of a case from one court to another
Mention may however be made of one of such cases Swarnamayi Panigrahi vs B Nayak  Ors
2 There during the pendency of certain rent suits filed before the Rent Suit Collector by the landlord who was the wife of the Chief Justice of the Orissa High Court the tenant filed certain transfer applications before the Additional District Collector making statements like these  1
The lower court openly identified himself with the plaintiff Shrimati Swammayi Panigrahi and is so partial to her that no justice or impartial decision can be expected from him 2He has gone out of the course prescribed by law and has taken over the function of witness and court in himself in such a way that there is no parallel to it in the history of litigation in India and 3That opposite party wields extraordinary in fluence in the State as she is the wife of Shri Lingarai Panigrahi Chief Justice of Orissa High Court
It is being openly talked about that the conclusions are foregone
It was observed that though some latitude has to be given in a transfer application but the question was whether or not the applicant in that case had exceeded the limits permissible under the law
As a rule applications for transfer were not made merely 1 2 AIR 1959 Orissa 89
546 because the trying judge was alleged to be incompetent but there may be circumstances beyond the judge s control such as the acquaintance with one of the parties or personal interest in the subject matter of the proceedings which in law would be considered as preventing him from giving an unbiased decision
It was held that the applicant had exceeded the limits and had gone out of his way not only to malign the personal integrity and judicial honesty of the lower court but had also directly attacked the whole administration of justice headed by the Chief Justice of the State
It is noteworthy that on an allegation made in a transfer application the judge against whom the allegation is made is often afforded an opportunity of giving explanation by the higher court and he can dispel any cloud that might have been cast on his fairness and integrity
The higher court takes action for transfer after full consideration of all the circumstances of the case including the report of the judge against whom the allegations are made
In this way it can well be said that cases in which applications for transfer are made stand on a slightly different footing from those where a party makes an allegation either inside or outside the court of a scandalizing nature imputing improper motives to the judge trying the case
The Allahabad High Court in Emperor vs Murli Dhar  Another1 was of the view that where an accused person in an application for transfer of a case made an assertion that the persons who had caused the Proceedings to be instituted were on terms of intimacy with the officer trying the case and therefore he did not expect a fair and impartial trial was not guilty of offence under section 228 Indian penal Code there being no intention on the part of the applicant to insult the court his object being merely to procure a transfer of his case
It is true that
in the garb of a transfer application a person cannot be allowed to commit contempt of court by making allegations of a serious and scurrilous nature scandalizing the court and imputing improper motives to the judge trying the case
But then the nature of the allegations will have to be closely examined and so long as they do not satisfy the requirements of what May be regarded as contempt of court no punishment can possibly be inflicted
The appellant in the present case is an advocate and it is most unfortunate that though at the stage of the transfer application be made certain allegations in para 1 about the social intimacy between Jagiasi and Sarvashri Sayyid and Baadkar the two judicial officers with the apparent object of securing a transfer of the case he proceeded to take the highly ill advised step of attempting to substantiate the allegation so made
We are however not concerned with any charge relating to the matters subsequent to the notice which was issued by the High Court with regardto the allegations for which punishment has been 1 ILR 8 All 284
547 imposed on the appellant
That notice on the face of it discloses no such allegation which could be regarded as falling within the rule laid down by this Court and by a series of decisions of the Privy Council in which this head of contempt ie scandalizing court has come up for examination
Most of those decisions have been referred to in the case of Perspective Publications P Ltd1
In addition we may mention Debi Prasad Sharma  Others vs Emperor2 in which in a newspaper report the Chief Justice of a High Court was untruly alleged to have committed an ill advised act in writing to his
subordinate judges asking them to collect subscriptions for the War Fund
According to their lordships there was no criticism of any judicial act of the Chief Justice nor any imputation was made for anything done or omitted to be done by him in the administration of justice nor was there any criticism of him in his administrative capacity
In the opinion of their lordships the proceedings in contempt were misconceived
In our judgment the allegations contained in para 1 of the transfer application were not such as would amount to contempt of court
We cannot help observing that the appellant did not show the sense of responsibility in making the allegations in question which is expected from an advocate and in further attempting to substantiate them which he failed to do
The appeal is allowed and the order passed by the High Court is hereby set aside
Parties will bear their own costs in this Court
SC Appeal allowed
1  2 AIR 1943 PC 202


Summary:
An advocate in a transfer application in respect of a criminal complaint filed before the Sessions Judge made certain allegations against two judicial officers before whom the criminal complaint and a civil suit were pending
While dismissing the transfer application the Additional Sessions Judge who heard  the application recorded an order that a report be submitted to the High Court for considering the conduct of the applicant as to the course adopted by him in making imputations or aspersions in the transfer petition against the judicial officers and to take action for contempt of court under section 33 of the 
Paragraph 1 of the transfer application stated that the Magistrate below is on friendly relations with the complainants the respondent No 1 in the present petition and he even enjoys the hospitality of the Respondent No 1 sometimes alone and sometimes in company of the Civil Judge J D Kalyan Shri M B Boadkar who is also on friendly relations with the respondent No 1 and who also enjoys the hospitality of the respondent No 1
There were other allegations in the transfer petition
The show cause notice issued by the High Court containing the charge of contempt was confined only to paragraph 1 of the transfer appli cation
The High Court held that the appellant was guilty of contempt of court and he was sentenced accordingly
Allowing the appeal
HELD  1 The show cause notice on the face of it disclosed no such allegation which could be regarded as falling within the rule laid down by this Court in which the head of contempt ie scandalizing the Court had come up for examination
In Perspective Publications P Ltd vs State of Maharashtra  this Court has laid down certain principles as to the law of contempt
They are  i It will not be right to say that Committals for contempt for scandalizing the Court have become obsolete
iiThe summary jurisdiction by way of contempt should be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice
iiiAny one may express fair reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or make a proper or fair comment on any decision given by him
ivA distinction must be made between a mere libel or defamation of a judge and what amounts to contempt of court
The test in each 537 case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with due course of justice or the proper administration of law by the court it is only in the latter case that it will be punishable as contempt
542 H vAlternatively the test will be whether the wrong is done to the judge personally or it is done to the public
The publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity ability of fairness of the judges or to deter actual and prospective litigants from lacing complete reliance upon the courts administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties
543 E 2Allegations made even in a transfer application casting aspersions on a judicial officer can constitute contempt of his court within section 3 of the Act
However cases in which applications for transfer are made stand on a slightly different footing from those where a party makes an allegation either inside or outside the court of a scandalizing nature imputing improper motives of the judge trying the case but even in the case of a transfer application a person cannot be allowed to commit contempt of court by making allegations of a serious nature scandalizing the court and imputing improper motives to the judge trying the case
544 B 546 D In the present case the mere statement that a Magistrate is friendly with a party who happens to be an advocate and enjoys his hospitality or has friendly relations with him will not constitute contempt unless there is an imputation of some improper motives as would amount to scandalizing the court itself and as would have a tendency to create distrust in the popular mind and impair the confidence of the people in the courts
544 C State of Madhay Pradesh vs Revashankar  State vs
The Editors and Publishers of Eastern Times and Prajatantra and Swaranamavi Panigrahi vs B Nayak  Ors AIR 1959 Orissa 89 referred to and discussed