1 907 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. SUO MOTU CONTEMPT PETITION No. 9 OF 2007 High Court on its own motion. ...PETITIONER ..Versus.. 1. Shri Dattatray Narayan Samant, aged 77 years, Secretary, Maharashtra Vidya Vikas Mandal, Nehru Nagar, Kurla (E), Mumbai – 400 024. 2. Shri C.S. Joshi, Advocate, Opposite Bank of Maharashtra, Gokhale Road, Naupada, Thane (W) – 400 602. ... Respondents (Contemners) .......... Mr. Ujwal Agandsurve, Advocate appointed as Amicus Curiae Mr. C.S. Joshi, Advocate for respondent No.1, and in person for himself. .......... CORAM: A.M. KHANWILKAR AND P.D. KODE, JJ. DATE: 3RD JUNE, 2011 2 907 JUDGMENT (Per P.D. Kode, J.):- 1. The suo motu contempt action against the respondents/contemners emerges out of show cause notice issued on 17.8.2007 and, thereafter, matter being admitted on 20.11.2007. For the sake of convenience, the order dated 17th August, 2007 is reproduced thus:- “1. During the course of hearing of this Civil Application, learned counsel for the respondents – Central Bank of India pointed out certain improper words used by the applicant in relation to a learned Judge of this Court. The said words occur in the main paragraph No. 14 and also in some paragraph nos. 2 an 3 of the C.A. No.1936 of 2007. 2. The learned counsel for the applicant further stated that the “false statement” referred to in sub- paragraph No.3 is attributable to the learned Judge who decided the matter. Prima facie, the use of such language by the applicant and his advocate who has drafted the application constitutes criminal contempt of Court. (vide M.Y. Shareef vs Judges of the Nagpur High Court AIR 1955 SC 19). 3. Hence, issue notice to the applicant and Advocate Mr. C.S. Joshi who states that he has drafted the petition, to show cause why action for criminal contempt of Court should not be initiated against them. Notice made returnable after two weeks before the appropriate Division Bench taking up contempt matters. 4. Civil Application No. 1936 of 2007 adjourned for four weeks.” 3 907 2. The Court was constrained to issue said show cause notice while considering Civil Application No.1936 of 2007 taken out in Writ Petition No.7445 of 2005 by/for respondents therein i.e. contemner No.1 and drafted by his Advocate i.e. contemner No.2; after the counsel for the petitioner in said writ petition invited the offending averments in paragraph No.14 and also in some part of paragraphs 2 and 3 of the civil application. Paragraph 14 of the said application is to the following effect :- “The advocate for the applicants complained to the Chief Justice of Bombay High Court, on 5.5.2006 to the Chief Justice of Bombay High Court,on 5.5.2006 for malpractices of J. Kakade i.e. (i) without assignment, how circulation granted in the matter ? (ii) Even during the course of argument J. Kakade failed to understand this matter not pertains to him, is total non application of mind or deliberate act. (iii) False statement that advocate was not present on 25.4.2006 and 26.4.2006. On 25.4.2006, the advocate was personally present and on 26.4.2006 junior Shri Garge Advocate requested to keep back the matter. (iv) As per the Appellate Side Rules, assignments are important. It was incumbent on the Court to recall the said order and to direct the office to place the matter before proper forum. 4 907 (v) If matter is admitted on merit and stay is granted why J. Kakade not referred order of Ms. Nishita Mhatre dated 25.10.2006, raised query of order of Small Cause Court and compliance of admission/ under-taking given by the respondent herein.” (emphasis supplied) The said matters from paragraph No.14 recited hereinabove are hereinafter termed as “impugned or offending matters/averments” for the sake of brevity. 3. It will be useful to advert to paragraph 11 of the decision in M.Y. Shariff’s case. The same reads thus:- “The fact, however, remains, as found by the High Court that there was at the time these events happened considerable miscon-ception amongst a section of the Nagpur Bar about advocates’ responsibilities in matters of signing transfer application containing allegations of this 5 907 character. It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel is acting in the interests of his client, or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scandalizing the Court. They think that when there is conflict between their obligations to the Court and their duty to the client, the latter prevails. This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that counsel who sign applications or pleadings containing matter scandalizing the court without reasonably satisfying themselves about the prima facie existence of adequate grounds therefor, with a view to prevent or delay the course of justice, are themselves guilty of contempt of court, and that it is no duty of a counsel to his client to take any interest in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications. Once the fact is recognized as was done by the High Court here, that the members of the Bar have not fully realized the implications of 6 907 their signing such applications and are firmly under the belief that their conduct in doing so is in accordance with professional ethics, it has to be held that the act of the two appellants in this case was done under a mistaken view of their rights and duties, and in such cases even a qualified apology may well be considered by a Court. In border line cases where a question of principle about the rights of counsel and their duties has to be settled, an alternative plea of apology merits consideration; for it is possible for a judge who hears the case to hold that there is no contempt in which case a defence of unqualified apology is meaningless, because that would amount to the admission of the commission of an offence. In this case the learned judges themselves had to wade through a large volume of English and Indian case-law before they could hold that the act of the appellants constituted contempt and thus it could not be said that the matter was so patent that on the fact of it, their act amounted to contempt.” (emphasis supplied) 4. During the course of hearing before the Bench presided by S/Shri Bilal Nazki and A.A. Kumbhakoni, JJ., on 22.8.2008, in spite of the contemner No.2 was heard for both the respondents for a long time, still he wanted to read affidavits 7 907 filed by him and his client, contemner No.1, which were scandalous. Therefore, he was not allowed to proceed further in the matter and, instead, the Court allowed him to file written arguments. Inasmuch as, allowing him to continue oral arguments in the open Court may have resulted in denigrating the majesty of the Court itself. However, in order to be fair to the contemner No.2, it was recorded that after considering the written arguments filed by him, Court may give him a chance of hearing orally. The contemners in the written arguments however, submitted that they desire to argue the matter in chamber for ventilating the factual position. Accordingly, the contemners were given a chance to make the oral submissions before us after the matter was assigned to our bench. 5. It is the thrust of the submission of contemner No.2 for the contemners that show cause notice is liable to be dismissed as : (i) matters stated in impugned part of paragraph 14 relate to a complaint made by him to the Chief Justice regarding the manner in which the matter had proceeded on 25.4.2006, 8 907 26.4.2006 and 2.5.2006 before the learned Judge; and the said complaint was ordered to be listed by the Chief Justice before another bench; (ii) the said matters are true, fair and correct reproduction of events occurred on the said date, required to be stated/pleaded in the application taken out; (iii) there being truth in the said matters stated, it is a defence available u/s. 13 of the Contempt of Courts Act. 6. Having regard to the defence advanced by the contemners for defending themselves; and the proceeding being initiated due to the impugned matters recited in paragraph No.14 of the Civil Application filed before the Court, makes it necessary to consider the background and the purpose for which said Civil Application was taken out and the matters stated therein. The same is necessary for determining whether stating of said impugned matters was necessary and/or whether there was any justification for pleading such matters in the 9 907 application and/or whether stating such matters constitute criminal contempt. 7. The said Civil Application was taken out by/for contemner No.1 – landlord and original plaintiff in T.E. Suit No.4653 of 2003 initiated against the tenant in the Court of Small Causes at Bombay for recovery of possession and the arrears of rent. Contemner No.1 had mainly prayed in the said Civil Application for; “(a) vacating the stay granted by J. Kakade on 26.4.2006 in terms of prayer clause (b) of Writ Petition No.7445 of 2005. (b) peremptorily fixing the matter for final hearing as per order of Chief Justice at Exh. 6. (c) providing cost of the application.” 8. The main case set out in the said application is to the effect that said T.E. Suit No.4653 of 2003 was decreed in favour of contemner No.1 on 14.3.2005 by Additional Chief Judge, Small Causes Court, Bombay; and Appeal No.454/2005 preferred by tenant Central Bank of India was dismissed by the 10 907 Appellate Bench of the said Court on 15.9.2005 in the morning session. Upon application then made by the advocate for Bank for staying execution of decree the appellate court directed to deposit the arrears with effect from October 1991 after subtracting Rs.3,00,000/- loan amount, as a condition precedent for grant of stay. Upon the request of advocate for the tenant- Bank, matter was kept back in the noon session. Advocate Nathani for Bank appeared along with officer of Bank and made a statement that Bank-respondent was ready and willing to deposit the arrears and thereon, the appellate court granted conditional stay to the execution of decree till 18.11.2005 subject to appellant – Bank complying the statement made of clearing dues from 1991 after deducting Rs.3,00,000/- loan amount within 15 days. At the end of expiry of the said period, appellant/tenant Bank instead filed a Writ Petition No. 6552 of 2005 with the contention that no instructions were given to the advocate to make such a statement and as such the same was not binding upon the bank. Accordingly, vide order passed on 19.10.2005, said Writ Petition was disposed with a direction to approach the appellate court within a week for clarification of the order. As within a week no orders could be 11 907 obtained, the Bank filed another Writ Petition No.7445 of 2005 in which vide order dated 25.10.2005, the execution of a decree passed was stayed till the application made by the respondents/Bank before appellate court in pursuance to order dated 19.10.2005 passed in Writ Petition No.6552 of 2005 with a rider that in the event of adverse order being passed against the Bank, then not to act upon the said decree for a period of one week thereafter. 9. It is further averred that the notice/application taken by Bank for modification of conditional order before appellate court was decided and rejected by judgment and order passed on 7th to 10th April 2006. The contemner No.1 is said to have received the copy of the same on 21.4.2006. Thereafter, the said Writ Petition No.7445 of 2005 appeared before the Bench presided over by Shri Kakade, J. 10. It is significant to note that in paragraph nos.9,10 and 11, the contemners aver that advocate of contemner No.1 (i.e. contemner No.2) attended the said matter on 25.4.2006 but prayed for adjournment as he did not have the papers with him 12 907 as he had come to the Court directly after arriving from Delhi on the same day by train. At his request, the matter was adjourned to 26.4.2006. On 26.4.2006, the said matter i.e. Writ Petition was shown at Sr.No.1, but, due to the traffic problem advocate for applicant (contemner No.1) i.e. contemner No.2 requested the Court through his colleague Shri Garge Advocate to keep back the matter. Instead of keeping back the matter, the learned Judge admitted the matter and granted blanket stay to the execution. It was also the case of the applicant that respondent- bank had played fraud on court and upon contemner No.1 without disclosing the order of the Appeal Court (i.e. order dated 7/10 April, 2006 rejecting modification of conditional order) and without disclosing the fact of non-payment of arrears of rent and undertaking given by the Bank, obtained the order of stay to the execution of decree. 11. It is further averred in paragraph Nos. 12 and 13 of the said Civil Application that being aggrieved by the said order, contemner No.1 on the very day mentioned at 11.25 a.m. before the same learned Judge who passed the order in the earlier part of the day to point out that the matter was not assigned to 13 907 his bench because his assignment was only of the Rent Act and the M.E.P.S. Act matters, whereas the matter under reference was of Transfer of Property Act. But, it is asserted that the learned Judge refused to consider that objection and stated that whatever breach committed is committed. Admittedly, contemner No.1 preferred review petition under stamp No.10577 of 2006 in the said Writ Petition, even the said review petition was also dismissed by the learned Judge on 2.5.2006 stating as not maintainable. 12. Thereafter averring the impugned matters in paragraph No.14, it is further stated in paragraph Nos.15 & 16 of the Civil Application that since July 2006 the matter was at the stage of final hearing but had not reached. Thereafter, the matter disappeared from the final hearing board. The contemner No.1 then took out Civil Application No.971 of 2007 in August 2006 with a prayer to direct the Bank to comply the order dated 15.9.2005 passed by the Small Causes Court in Appeal No.454 of 2005. However, the said Civil Application was withdrawn by contemner No.2 as the prayer therein was not proper. 14 907 Ultimately, contending that the Bank is retaining possession without honouring the orders of the appellate bench of Court of Small Causes; as per the provisions of law for retaining the possession party must clear all the dues due to him; adopting evasive strategy by claiming that no advocate was instructed, the admission of advocate being not binding upon them in spite of the fact in the noon session (before Small Causes Court) advocate had made a statement on due instruction; the Bank had not disclosed before the High Court on 26.4.2006 about the order passed by Small Causes Court on 7/10 April, 2006 dismissing the notice No.281, the contemner No.1 had prayed for relief as stated earlier. 13. The exhaustive narration about the matters stated in the said Civil Application makes it abundantly clear that the same was primarily taken out for vacating stay granted by the learned Single Judge of this Court on 26.4.2006 and for peremptorily fixing of matter for final hearing. 14. Though in present proceedings we are neither concerned nor required to consider the merits of the rival claims 15 907 in the said Civil Application and/or even the background of taking out of such application at such a stage even after the main matter was admitted and review petition rejected, the whole exercise of narrating the events has been made for the limited purpose to ascertain whether narration of impugned matters in paragraph 14 of the Civil Application was essential for taking out such application and/or for justifying prayers made therein. 15. We may agree with the submission of the contemners that making a written complaint to the higher authority i.e. in the instant case, the Chief Justice, about the events as unfolded during the hearing of the case before the learned Single Judge, by itself, would not amount to a criminal contempt, so long as it is not a publication. However, we are unable to accept the further submission that, for the same reason, reproduction of the contents of that communication sent to the learned Chief Justice concerning the events occurred on 25.4.2006 and 26.4.2006 before the learned Single Judge, in a formal application moved before the Court, would not amount to criminal contempt. We may add that making a complaint to the learned Chief Justice of this Court regarding the matters 16 907 pertaining to the administration of justice though by itself may not constitute a criminal contempt, still, reiteration of the fact of making such a complaint by reproducing the contents thereof in a formal application moved before the Court would not necessarily fall outside the ambit of criminal contempt if the same is covered within four corners of the definition of criminal contempt under the Contempt of Courts Act, 1971. 16. Reverting to the contents of paragraph 14 of the Civil Application, on the face of it, the same is suggestive of intentional impropriety committed by the learned Judge of this Court. In that, it mentions that complaint was made to the learned Chief Justice on 5th May, 2005 about the ‘malpractices’ committed by the learned Judge. The justification for such allegation, amongst others, was that circulation of the matter was granted by the learned Judge without assignment. Admittedly, the matter was pertaining to dispute between landlord and tenant, albeit under the provisions of the Transfer of Property Act. Indeed, the assignment of the learned Judge, at the relevant time, was pertaining to the disputes covered by the Rent Act and MEPS Act matters. It is, however, too much to assert that the 17 907 learned Judge was responsible for the mentioning made by the advocate for the writ petitioner pointing out that his client, who was tenant in the disputed premises, was to shortly lose possession. The blame, if at all, lies on the advocate for the writ petitioner for not ascertaining as to whether the matter pertained to the assignment of the concerned Judge, before whom, it was circulated. 17. The matter does not rest at that. The second circumstance alleged in paragraph 14 of the civil application is that, during the course of argument, the learned Judge failed to understand that the matter did not pertain to his assignment. It would be a different matter if the contemners had restricted themselves to such allegation; but they went on to further assert that it was a case of total non-application of mind or “deliberate act of the learned Judge”. This is nothing short of attributing motives to the learned Judge of this Court, without any basis at all. It is not as if the contemners would be rendered remedyless because of the stay granted on 26th April, 2006. They could have applied for vacating the said order, which they did attempt unsuccessfully. By no standard, the litigant, much less 18 907 the advocate, can be permitted to allege motives and insinuations to the Judges of this Court, without substantiating such serious allegation. The litigants and advocates cannot be allowed to make such allegation merely on the basis of the inference deduced by them. It is not unknown that, during the hearing, the arguments become heated exchange between the advocates appearing for the opposite parties, and, in a given case, even the Judge may make some strong observation, which, by itself, cannot be the basis to attribute motives. Notably, in the present case, the contemners have gone to the extent of reiterating the complaint made to the learned Chief Justice that the learned “Judge recorded false statement” in the proceedings that advocate was not present on 25th and 26th April, 2006. Once again, this is strongly worded criticism of the proceedings as recorded. The expression ‘false’ pre-supposes that such record was intentionally created by the Judge with ulterior purpose. It would have been a different matter, if the contemners were to allege that the proceedings as recorded were incorrect, without attributing any motives to the learned Judge. 19 907 18. As aforesaid, it would be one thing to make a confidential complaint to the learned Chief Justice, including about the unfairness in the hearing of the case. Unless the party making such grievance is backed by firm evidence, the question of allowing such party to make unscrupulous and untenable personal allegation against the Judges of this Court even in the communication to the learned Chief Justice cannot be countenanced. At any rate, the party cannot be permitted to take shelter on the basis of argument that he / she has merely reproduced the contents of the complaint made to the learned Chief Justice containing such serious allegation. As a matter of fact, reproducing the unsubstantiated allegation in the formal Civil Application filed before the Court on affidavit, against the Judge of the Court, as stated in the complaint made to the learned Chief Justice, in itself is publication thereof and is nothing short of reiterating the said allegation, without producing any positive evidence to substantiate the said allegation of personal motives attributed to the learned Judge. Considered from any angle, reproduction of such allegation in the application has the inevitable effect of influencing the Court, which would hear the Civil Application. Ordinarily, the Civil Application of 20 907 this nature is placed before the same Judge, who had occasion to pass the earlier order. Such allegation against the Judge concerned is bound to result in a piquant situation that the Judge may have to recuse from the matter, as a result of which, if the proceedings were to be placed before another Court, there would be no opportunity for the concerned Judge to dispel the falsity of the allegations concerning the events unfolded on the given date in the matter. Suffice it to observe that allowing the party to make such allegation in the application merely because the party assumes the existence of such fact, without any supporting evidence to substantiate the same would be disastrous and affecting the majesty of the Court itself. We are conscious of the fact that, in view of the amended provisions of the Contempt of Courts Act, the party is entitled to take a defence that the fact so alleged by him is truthful. However, at the same time, it is not possible for the Court to accept such defence of the contemners, which is founded on mere surmises and conjectures, and not on the basis of real existing facts. Allowing the party to tread upon such a dangerous path is bound to result in scandalising and lowering the dignity and authority of the Court. As observed in M.Y. Sharif’s case, even the advocate, who signs an application 21 907 containing such pleadings which would scandalise the Court, would be vicariously responsible along with his client. As a matter of fact, it is the duty of the counsel to his client to advise his client to refrain from making allegation of this nature in the application moved before the Court. 19. We would now examine the matter from another perspective. In the Civil Application, primarily, two reliefs were claimed: The first relief was to vacate the stay order granted on 26th April, 2006 by the concerned Judge of this Court. The second relief was to peremptorily fix the main petition for final hearing. In the context of the said prayers, there was absolutely no need to reproduce the allegation