aggellants s - 1. hVER$U3 BE§°§E£§EJE§H cemswli 2H§A2T£3§A§HJ§2 mwgkg C91} A gm \CN Girish Chandra Shanna son of Late R.S.3barma aged -about- 42 years. Occupation- Advocate, resicient of z Baiga Para, burg (Chhattisgarh) . Ku. Nee-ta Jain Daughter o£ Shri sgjjan Mal Bctbara. ageri about- 38 years, Occupation- Advocate, resident Qf — Mahavir Coiony, mug, Tahsil agm‘i Distt. wurg {Chhatti§§§rh) . WSW 3W 3W8 yeans‘, Omatimrw$er~vkm mignatian :- WM-ag&st~xate, Pram Prakash Pan&ey son 915 Ram Ratan I5anaey. aged about- 48 years. Occupatima— ?oiitic£an , Fresent Designation : - Spa aker, Chhattisgarh. Le 51 ative i Assembl y, Chhattisgarb State, Raimu (Chhattisgarh) a Pf,ah1a& Kumar ‘l‘iwari son of D.K. Tiwari, ag"e& about». ’72 yea:s. Occupation z—aAdvocate, t.Responéents z— C0M\@\¢€,%Cwyk O-Mw oKé5LLcP 4294L"@1‘)‘ M4 gqrrmp Awwwuw” I;‘¢yvy.mr¢’1¢i b1 W W M Auk / Tw 0 a$K J/\1 \‘ 2c ¥w /‘ > 3. ::2:= resi§ent of - Brahman Fara,Durg, Gppcsite .auxga Mandir, Burg. Ziesignatian :- At present— Member, Chh attisgarh State Bar Council, Bilaspur (C.G.) . shri s.K. Shrivastava son of vunknown , aQSd amut— So years. Occupation ’k— service. Designaticn :— Chief Prosecution Officer, Burg (C¢G.). R.P. Shanna son of Unknown . aged — 53 yeaxs . Occupation- service , At present‘ District Additional District Super intenaent o£ Police, At present working ax Superintendent of APolice,‘ Durg. Tahsil an& Distt. Durg (C.G.). Rajeev P’anaey son cf Late Rm. Panaey, aged —about— 46 years. Occupation z- Advocate, Presant Designation : President, Diatrict Ba: Association, Durg , Tahsil and Distt. Burg (Chhattisgarh) . resident of z Padmanabhpur. Durg. (C.G. ) State Government of Chhattisgarh. Through :- ‘ 5‘ 7. ((Mv;. Yb; (Mita‘wib £34 M jm wlmw 4/ W1 gcVILvj‘M; @wn/N’W‘LMV ,W4 PEAL UNDER $EC‘1‘ION 341 CRIMmAL Y’ROCEBKIRE I CDIDE,1973. --—_-—-—~—- .— — -,. . Chhatwagar—hx ’p0l¥Ct§+m%‘m I; K’a’FVIMQJ h hmvoql’l/I‘ y. 15%.!) U QC? (C§) HIGH COURT OF gm} MARI-I : B£%_P_§R _ , CRIMINAL APPEAL NO.801 ,OEEM Giriah Chandra Shanna & Another Vs. Jagdamba Rai 85 Others \ ORDER Post for: 3/12/2004 Sdl- z? Fakhruddin Judge i, . i 1 ' ‘ ‘ (a? HIGH CCU TO CHHA ISG :BI A UR CRIMINAL APPEAL NO.801 OF 2004 Girish Chandra Sharma & Anather Vs. Jagdamba Rai as Others Shri Santosh Yadu for the appellants. Appellant no. 1‘ appears in Person. Shn' Pramod Vanna, Add1.A.G., appears for the State. Respondent no. 1 appears in person. Shri M.D. Dhote appears for respondent no.2. Shri Y.C. Sharma appeals for mspondent no.3. Shri Ajay Shrivastava appears for respondent no.4. Shri Awadh Tripathi apgeaxs for respondent no.6. ORDER Heard the learned counsel for the parties. 2 . The appellants have preferred this appeafunder Section 841 Cr.P.C. arising out of the order dated 27/8/2004 passed by the Sessions Judge, Burg in Misc. Criminal Case No.32f 2004. 3. Learned counsel S/Shri Dhotc, Shanna, Shrivastava and Tripathi submit that the memo of appeal has not been properly worded. It is submitted that in the memo of appeal the language used is scandalous and vexatious at some places. 4. Counsel for the appellants and appellant no. 1 present in the Court stafed that the appellants have highest respect for the Court. They have no personal grudge. They never intended and are sorry. It is stated that they want to withdraw the matter. Time was gven to the appellant to tile an application in this regard. The application has been tiled and the copy has been supplied to other \ \side. It was called for on request. The arguments were heard. / / _/ x ‘wi a?“ ’ 5. A perusal of thc memo of appeal shows that the appellants had impleaded respondent no.1 by name and by designation. Respundent no. 1 is a Judicial Magistrate. He ought not to have joined as a party. His joining is unjustified and is deleted. ‘ 1 Respondent no.3 is an Advocate and the Member of the $tate Bar Council. While giving description, his membership\has been shown. pf This is not required. Respondeni no.4 is a Prosecutor. He has been joined by name. He appeared on behalf of the prosecution. Respondent no.6 has been joined in The capacity of President, District Bar Association. Likewise respondent no.7 / Chief Secretary has been joined unnecessarily and he has nothing to do. ‘ i ‘ 6. It is noted’ that the parties have been joined without going through the relevant provisions. Joining of theparties has to be in accordance with law. ,7. It is worthwhiie to mention here that the name of the Governor has also been mentioned as witness. Great care is required. Article 361 of the Constitution of India is pertinent. Article 36 1 relates to the protection of President and Governors and Rajpram ukhs, which reads as under: “361. A Pro§e@n oi: President and Governors and Rammmukhs. ~ (1) The President or the Governor or Rqjpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his once orfor any act done or purporting to be done by him in the exercise and peifornwnce of those powers and duties: Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the Provided investigation further of that a charge naming under in this article ciause 61: shatl be 1‘ construed as restricting the right of any person to bring l apprapn’ate proceedings against the Government aflndia or the Government of a State. (2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court dwtng his term of office. (3) No process for the arrest or imprisonment of the President, or the Governor of‘a State, shall issue from any court during his term of twice. ' (4) ‘No civil proceedings in which relief is claimed against the President, or the Governor ofa State, shall be instituted during his termof office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his oW as President, or as Governor ofsuch State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or lejt at his office stating L the nature of the proceedings, the cause of action f7, therefor, the name, description and place of residence of ‘ J the party by whom such proceedings are to be instituted ~ and the reliefwhich he claims. " A(AHW" Even if some. documents or some facts are ‘lré‘quired to be established calling such record, Governor ought not to have been cited as the witness. There is a procedure prescribed if certain document. is required. 8. A11 these questions are important when the appellants themselves are the Advocates. Great caution is required. It is pertinent to refer the following passage mentioned in Chapter II of the Bar Council of India Rules: “Art advocate shall, at all times, comfort himself in a manner befitting his status as an officer of the court, a privileged member of the community; and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member ofthe Bar, or for a member of the Bar in his non- professional capacity may still be improper for an advocate.” 9. The appellants should not forget that they are Advocates and as such enrolled as Members of the Bm‘. Bar certainly has duty to $ be fearless and act independently, but that docs not mean it should intimidate the Judges and officers of Court including Defence Lawyers and Prosecutor. The duty of the Advocate is also not to indulge in intimidation of the Judges and Officers of the Court. Their duty is to uphold dignity of the Court. It is only then that the Bar’s dignity enhances. If the Bar puts the Jhdges to indignity, a day will come that the public will have no faith in the institution. It is really an intimidation on the part of a lawyer to join a Magstrate/Chief Judicial Magistrate and his colleagues who discharge their duty to put them in the dock for trial. 10. In AK. Singh vs. Virendra Kumar Jain reported in 2001 (2) WJR 15, .it has been observed as under: “independence ofjudictary in its function necessarily warrants that the Judges at the lowest rank and rung of ladder should be able to act without fear of harassment or intimidation. It is really an intimidation on the part of a lawyer to )ile a complaint against a Magistrate to put him in the dock for trial for alleged offences which do not exist. It is the duty of the supervising Judge to see that his subordinates act fairly, but also that they act fearlessly and not in constant fear of intimidation by some unscrupulous member of the Bar or those who appear before them If one level of Judges by shear ignorance of law or carelessness or deliberately permit its subordinate «Judges to be harassed or intimidated like this, the whole judicial system sugars and administration of justice is put to great risk. It brings the system into disrepute and makes the concerned Judge a laughing stock at both levels. " It was in Leeladhar Baurasi vs. Shiv Mohan Sing}: Parihar reported in 1993 (1) MPJR 336 that the matter Was considered by the Madhya Pradesh High Court, wherein a A complaint against the Judge éontaining scandalous allegations 11. relating to act done in discharge of judicial duty was held to be abuse of the process of law. 12. “ Section 3 of the Judges Protection Act is also relevant and quoted below: ‘3. Additional protection to Mes- (1) Notwithstanding anything containedk in any other iaw for the time being in force and subject to‘ the provisions ofsub-section (2), no Court shall entertain or continue any civil criminal proceedings against any person who is or was a Judge for any act, thing or word committed done spoken by him when, .in the Of; actingorintheOf,‘ aotingorpwportingtoactin discharge ofhis official orjudicial duty orfunction. ’ 13. It is to be noted that forceful advocacy and use of strong language is one thing but to impute to it unjudicial motives for which there is no reasonable basis is anothervtbing and has to be dealt with in accordance with law. It is undeniable that no judiciary can function unless there is strong,\ efficient, conscientious and independent Bar and a weak inefiicient and unconscientious Bar is a somewhat ineffective corrective to an erring Court. 14. It is however to be remembered that the practice of law is not a business which is open to all those who desire to engage in it. It i is a personal right and privilege of an Advocate to represent his client, and claim audience in Court in order to plead for him. An advocacy is an exalted and a learned profession in which privileg and duty coincide: the professional lawyer’s privilege being also his duty and his duty being also hisprivilege. This indeed is essential if the quality of justice in our country is to be of the expected high ‘order as contemplated by our Constitution. ,/ / ‘\ e 15. An Advocate in our set-up practiccs not cnly law, but also the science of the correct use of language. The words are indeed his tools with which he works. His is accordingly a word-bound profession. The language he uses must, therefore, be precise, dignified, respectful and persuasive, free from injudicious annoyance or offence. Being entrusted with the duty and privilege of securing for his client justice according to law an Advocate is entitled to appropriate freedom and scope in criticising the impugned judgments and orders and in addressing arguments and making submissions on behalf of his client. Oral arguments by an Advocate, from their very nature, are relatively speaking accorded greater latitude than written memorandum bfappeal or revision. But this privilege, which is also his duty, does not extend to impuu‘ng extraneous unjudicial motives to the subordinate Courts, which cannot be substantiated or held to he reasonably justified on the record. If, however, they can be so substantiated, then a submission or pleading would amount to actionable contempt of Court. 16. Being an omcer of the Court, it is the duty of the Advocate to i uphold‘the dignity and prestige of the Courts in which he practices as also of the Courts, the orders of which it is his professional privilege and duty to criticize, consistently with his loyalty to his client’s cause, which he is engaged to plead in accordance with law. The language an Advocate uses should be sober. l7. In the aforesaid connection, it is useful to refer the decision of :9 e p the Delhi High Court in the case of Banarsilal vs. Smt. Neelam \ and others reported in Am 1969 Delhi 304, wherein it has been held as under: forcejw advocacy and even use ofstrong tanguage in criticising on appeal or revisixm the impugned decisions of subordinate Courts is not contempt but forcejitl advocacy and use of strong language does not mean that an advocate can scandcdize the Court or impute to it unjudicial motives for which there is no reasonable basis on the circumstances ofthe case. E is undeniable that no Judtctary can function with the requisite ejjiciency in a set-up like ours unless there is strong, efficient, conscientious and independent Bar and a weak inegjicient and unconscientious Bar is a somewhat inen'ective corrective to an em‘ng Court. The practice of law is not a business which is open to all those who desire to engage in it. It is a persona! right and privilege of an Advocate to represent his client, and claim audience in Court in order to plead for him. ‘An advocacy is an exalted and a learned profession in which privilege and duty comcide: the professional lawyer’s priviiege being also his dutg' and his duty being also his privilege. This indeed is essential if the quality ofjustice in our country is to be of the expected high order as contemplated by our Constitution. An Advocate in our set—up practices not only law, but , also the science of the correct use of language. The words are indeed his tools with which he works. His is accordingly a word-bound profession. The language he uses must, therefore, be precise, digngied, respectful and persuasive, free from injudicious annoyance or Ojfence. Being entrusted with the duty and privilege of securing for his client justice according to Zaw an Advocate is entitied to appropriatefreedom and scope in criticising the impugned judgments and orders and in addressing arguments and making submissions on behalf of his client Oral arguments by an Advocate from their very nature are relatively speaking accorded greater latitude than written memorandum of appeal or reviswn But this pnvtlege which is also his duty, does not extend to imputing extraneous unJudzaal motives to the subordinate Courts which cannot be substantiated or held to be reasonably justgied on the record. if; however, they can be so substantiated, then I am unable to accede that such a submission or pleading would amount to actionable contempt of Cowt. Being an officer of the Court, it seems to be an Advocate’s duty to uphold the dignity and prestige of the Courts in which he practices as also”of the Courts, the orders of which it is his professional privilege and duty to \ ‘ criticize, consistently with his loyalty to his client’s cause, which he is engaged to plead in accordance with law. The administration ofjustice cannot be impaired by clothing the professional advocate with the #eedom to fairly and temperately criticize in good faith the impugnedjudgments and orders. When the judicial impartiality and practice of Courts has solid foundation in their traditional Judtcwus objectivity and ej§iciency, as illustrated by their day-to- day functioning in the public gaze, the mere strong language in criticizing their orders, cannot mar their image. Such Courts should not be hyper-sensitive in this matter. " 18. Since the appeal is being withdrawn, 1t is permitted to be withdrawn and the learned counsel appearing stated that they have the respect for all the Courts including the Courts of Chief Judicial Magistrate and District Judge andtsinoe this is reiterated at the Bar, the application for withdrawal is allowed. However, the Advocates and the appellants to be very careful in future and they should strictly follow the rules framed by the Bar Council of India 19. In View of what has been stated above, the appeal stands disposed of as withdrawn. 20. Before parting, it is made clear that whatever has been stated above in this onier is with respect to the appeal before this Court and this Court has not expressed any opinion in the matter penditig before any other Court. In case any matter is pending before any other Court, the same shall be decided on its own merits strictly in accordance with law. Stil- Hande/ — . i Fakhruddin ' ll: Judge / {g/ i 12,!2004. s