RAKESH TIWARI, ADVOCATE versus ALOK PANDEY, C.J.M.
[2019] 7 S.C.R. 893, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Ratio
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RAKESH TIWARI, ADVOCATE
v.
ALOK PANDEY, C.J.M.
(Criminal Appeal No. 1223 of 2015)
MAY 10, 2019
[ARUN MISHRA AND NAVIN SINHA, JJ.]
Contempt of Courts Act, 1971 – High Court found that the
appellant-advocate along with 2-3 junior advocates entered the
chamber of the CJM and misbehaved as well as attempted to assault
him – Appellant was convicted for his undesirable conduct by the
High Court under the Contempt of Courts Act – Appellant was
sentenced to simple imprisonment of six months and a fine of
Rs.2000/- and in case of non-payment of fine, to undergo simple
imprisonment for a further period of 15 days – Appellant was further
directed not to enter the premises of the District Judgeship for six
months and to remain under a constant watch of the District Judge
for a period of two years – On appeal, held: Advocate in question
acted contrary to the obligations – He has set a bad example before
others while destroying the dignity of the Court and the Judge –
Considering the nature of misconduct, while upholding the
conviction for criminal contempt, the sentence of the appellant
modified: (i) the sentence of imprisonment of 6 months suspended
for a further period of 3 years subject to his maintaining good and
proper conduct with a condition that appellant not to enter the
premises of the District Judgeship for further period of 3 years in
addition to what already undergone – In case of non-violation of
aforesaid condition the sentence after 3 years to be
remitted (ii)
However, sentence of imprisonment to be activated, in case of breach
of any condition by the concerned advocate during the period of
three years – (iii) Appellant to deposit Rs.2000 as imposed by the
High Court and in case of failure to deposit the said amount,
appellant directed not to enter the premises of District Judgeship
for a period of three months.
Professional Ethics – Advocates – Held: The role of a lawyer
is indispensable in the justice delivery system – He has to follow the
professional ethics and also to maintain high standards – He has to
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assist the court and also defend the interest of his client – He has to
give due regard to his opponent and also to his counsel – What may
be proper to others in the society, may be improper for him to do as
he belongs to an intellectual class of the society and as a member
of the noble profession, the expectations from him are accordingly
higher – Advocates are held in high esteem in the society – The
dignity of court is in fact dignity of the system of which an advocate
being officer of the court.
Disposing of the appeal, the Court
HELD: 1. In the instant case, the advocate has acted
contrary to the obligations. He has set a bad example before others
while destroying the dignity of the court and the Judge. The action
has the effect of weakening of confidence of the people in courts.
The judiciary is one of the main pillars of democracy and is
essential to peaceful and orderly development of society. The
Judge has to deliver justice in a fearless and impartial manner.
He cannot be intimidated in any manner or insulted by hurling
abuses. Judges are not fearful saints. They have to be fearless
preachers so as to preserve the independence of the
judiciary which is absolutely necessary for survival of democracy.
[Para 15] [903-E-G]
2. The act stated amounts to criminal contempt of court.
The High Court has noted that the concerned advocate did not
apologise and has maligned and scandalised the subordinate court.
He has
made bare denial and has not shown any remorse for his
misconduct. Considering the gravamen of the allegations the High
Court has imposed the imprisonment of SI for 6 months with fine
of Rs.2000 and in default to pay fine or to undergo SI for 15 days.
He has been restrained from entering the judgeship of Allahabad
for a period of 6 months that was to commence from 15.7.2015
and he had been kept under watch for a period of 2 years.
Considering the nature of misconduct, while upholding the
conviction for criminal contempt, his sentence is modified in the
following manner :
1. The sentence of imprisonment of 6 months shall remain
suspended for further period of 3 years subject to his maintaining
good and proper conduct with a condition that he shall not enter
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the premises of the District Judgeship, Allahabad for a further
period of three years in addition to what he has undergone already.
The period shall commence from 1.7.2019 to 30.6.2022. In case
of non violation of aforesaid condition the sentence after three
years shall be remitted.
2.  However, sentence of imprisonment may be activated
by this Court in case it is found that there is breach of any
condition made by the concerned advocate during the period of
three years.
3.  He shall deposit fine of Rs.2000 as imposed by the High
Court. In case of failure to deposit fine he shall not enter
the premises of District Judgeship for a period of three months.
[Para 16] [903-H; 904-A-E]
Mr. ‘G’, A Senior Advocate of the Supreme Court AIR
1954 SC 557; Lalit Mohan Das v. Advocate General,
Orissa AIR 1957 SC 250 : [1957] SCR 167; Supreme
Court Bar Association v. Union of India & Anr. (1998)
4 SCC 409 : [1998] 2 SCR  795 ; Pravin C. Shah v.
K.A. Mohd. Ali & Anr. (2001) 8 SCC 650 : [2001] 3
Suppl.  SCR  675 ; Bar Council of India v. High Court
of Kerala (2004) 6 SCC 311 : [2004] 1 Suppl. SCR 
649 ; R K Anand v. Registrar, Delhi High Court (2009)
8 SCC 106:[2009] 11 SCR 1026 – relied on.
Case Law Reference
[1957] SCR 167
 relied on
Para 10
[1998] 2 SCR  795 
relied on
Para 11
[2001] 3  Suppl.  SCR  675
relied on
Para 12
[2004] 1 Suppl.  SCR 649
relied on
Para 13
[2009] 11 SCR 1026
relied on
Para 14
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1223 of 2015.
From the Judgment and Order dated 10.07.2015 of the High Court
of Judicature at Allahabad in Contempt Application (Criminal) No. 8 of
2013.
RAKESH TIWARI, ADVOCATE v. ALOK PANDEY, C.J.M.
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Vishwajit Singh, Pankaj Singh, Ms. Ridhima Singh, Ms. Vijaya
Singh, Ms. Akansha Singh, Mr. Sushmit Chauhan (for M/s. Vidhi
International), Advs. for the Appellant.
Yashvardhan, Jagjit Singh Chhabra, Advs. for the Respondent.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. The appellant, advocate, has been convicted for his undesirable
conduct by the High Court vide impugned judgment and order under the
Contempt of Courts Act and has been sentenced to simple imprisonment
of six months and a fine of Rs.2000/- and in case of non-payment of fine,
to undergo simple imprisonment for a further period of 15 days. He has
also been directed not to enter the premises of the District Judgeship,
Allahabad for a period of six months w.e.f. 15.7.2015 and the contemnor
shall remain under constant watch of the District Judge, Allahabad, for a
period of two years; and in case of any objectionable conduct, causing
interference in peaceful and smooth functioning of the court, the District
Judge has been asked to report the matter to the High Court.
2. The contemnor has been charged with criminal contempt to the
following effect:
“Sri Rakesh Tripathi, Advocate, on 21st December, 2012 during
lunch hour without taking permission from C.J.M., Allahabad
entered into his chamber along with 2-3 colleagues and at the said
point of time he started hurling filthy abuses to the CJM and the
matter did not end there, as he also raised
his hand to beat the
Chief Judicial Magistrate and also threatened him of dire
consequences. The contemnor also asked the C.J.M.  as to why
he has not passed an order for lodging F.I.R. when he had asked
for the same. This act on the part of the contemnor constitutes
criminal contempt within the meaning of Section 2(c) of Contempt
of Courts Act, 1971, as this act has not only lowered the authority
of the Court but also scandalised the Court and the same has also
the tendency of interference with the due course of administration
of justice.”
3. The reply was filed by the contemnor to the effect that he had
filed an application on behalf of Akhilesh Kumar Shukla on 19.10.2012
under section 156(3) Cr.P.C. which was heard by C.J.M. of Allahabad
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on 30.10.2012 and 8.11.2012 was the date fixed for passing the order.
The contemnor alleged that before pronouncement of the order on
8.11.2012 he saw one of the accused, Sharad Tandon, General Manager,
District Industries Centre, Allahabad, sitting in the chamber of the CJM.
He apprehended that his client will not get justice, hence, he moved an
application on 8.11.2012 before the Chief Judicial Magistrate not to pass
any order since the contemnor was willing to file a transfer application
before the District Judge, Allahabad. The CJM assured not to pass any
order but actually passed an order on the same day by converting
application filed under section 156(3) Cr.PC into a complaint case
registered as Case No.13500 of 2012. The CJM took away the application
from record. Thereafter, the contemnor moved an application before
the District & Sessions Judge, Allahabad on 9.11.2012 making a complaint
against the CJM, Allahabad.
4. Another application was filed by the contemnor on 30.11.2012
under section 156(3) Cr. P.C. by counsel appearing on behalf of Alok
Kumar Shukla. He stated to the CJM that he had moved an application
before the Sessions Judge, Allahabad, hence, CJM should not pass any
order. The same should be placed before the Sessions Judge, Allahabad
for assigning the same to some other court. In January, 2013 the
contemnor came to know that the CJM had passed an order on
18.12.2012 treating the application registered as Complaint Case No.1919/
2013. Initially, it was registered as Miscellaneous Application No.1747/
XII/2012. Non-bailable warrant has been issued in the same. He did not
enter into the chamber of the CJM on 21.12.2012, neither abused nor
threatened him to beat. The advocates were on strike on the said date.
There was no question of entering the chamber of CJM or to use filthy
language.
5. The High Court has found the contemnor along with 2-3 junior
advocates entered the chamber of the CJM and misbehaved as well as
attempted to assault him. No application was filed by him on 8.11.2012
before the CJM not to pass any order. It was a concocted story. The
Magistrate did not reject the application outright and required the
complainant to adduce evidence which course was available to him.
The contemnor did not pursue the matter and got the earlier case dismissed
as not pressed and filed second application. On this the CJM has again
registered the complaint case. The matter is pending in which non-bailable
warrant has been issued against the accused. The allegation of sympathy
RAKESH TIWARI, ADVOCATE v. ALOK PANDEY, C.J.M.
[ARUN MISHRA, J.]
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towards accused by the Magistrate has been found to be unfounded,
baseless and figment of imagination of contemnor. The defense taken
has not been substantiated by the contemnor.
6. The High Court has observed that considering the increasing
tendency of the advocates in making scurrilous allegations against the
Presiding Officers of subordinate courts has to be curbed. The acts of
abusing and misbehaving are on increase. The action of the advocate
amounts to lowering the dignity and majesty of the court. A deliberate
attempt to scandalise a judicial officer of subordinate court is bound to
shake the confidence of the litigant public in the system and has to be
tackled strictly. Damage is not only to the reputation of the Judge but
also to the fair name of the judiciary. Judges cannot be tamed by such
tactics into submission to secure a desired order. The foundation of the
system is based on independence and impartiality of the Judges as well
as responsibility to impart justice. In case their confidence, impartiality
and reputation are shaken the same is bound to adversely affect the
independence of the judiciary.
7. In our opinion, an advocate is duty bound to act as per the
higher status conferred upon him as an officer of the court. He plays a
vital role in preservation of society and justice delivery system. Advocate
has no business to threaten a Judge or hurl abuses for judicial order
which he has passed. In case
of complaint of the Judge, it was open to
the advocate to approach concerned higher authorities but there is no
licence to any member of the Bar to indulge in such undignified conduct
to lower down the dignity of the Court. Such attempts deserve to be
nipped at the earliest as there is no room to such attack by a member of
noble profession.
8. The role of a lawyer is indispensable in the justice delivery
system. He has to follow the professional ethics and also to maintain
high standards. He has to assist the court and also defend the interest of
his client. He has to give due regard to his opponent and also to his
counsel. What may be proper to others in the society, may be improper
for him to do as he belongs to an intellectual class of the society and as
a member of the noble profession, the expectations from him are
accordingly higher. Advocates are held in high esteem in the society.
The dignity of court is in fact dignity of the system of which an advocate
being officer of the court. The act of the advocate in the present case is
not only improper but requires gross condemnation.
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9. It has been observed by this Court in the matter of Mr. ‘G‚‘, A
Senior Advocate of the Supreme Court in AIR 1954 SC 557 that an
advocate has to conduct himself in a manner befitting the high and
honourable profession. Following observations have been made in
para 41 :
“41.
.......
“with ordinary legal rights, but with the special and rigid rules
of professional conduct expected of and applied to a specially
priviledged class of persons who, because of their priviledged
status, are subject to certain disabilities which do not attach to
other men and which do not attach even to them in a non-
professional character.  ... He [a legal practitioner} is bound to
conduct himself in a manner befitting the high and honourable
profession to whose privileges he has so long been admitted;
and if he departs from the high standards which that profession
has set for itself and demands of him in professional matters,
he is liable to disciplinary action.”
10. Similarly in Lalit Mohan Das v. Advocate General, Orissa
AIR 1957 SC  250, this Court observed :
“A member of the Bar undoubtedly owes a duty to his client
and must place before the Court all that can faitly and reasonably
be submitted on behalf of his client.  He may even submit that a
particular order is not correct and may ask for a review of that
order.  At the same time, a member of the Bar is an officer of the
Court and owes a duty to the Court in which he is appearing.  He
must uphold the dignity and
decorum of the Court and must not do
anything to bring the Court itself into disrepute.  The appellant
before us grossly overstepped the limits of propriety when he
made imputations of partiality and unfairness against the Munsif
in open Court.  In suggesting that the Munsif followed no principle
in his orders, the appellant was adding insult to injury, because
preliminary point of jurisdiction and Court fees, which order had
been upheld by the High Court in revision.  Scandalising the Court
in such manner is really polluting the very fount of justice; such
conduct as the appellant indulged in was not a matter between an
individual member of the Bar and a member of the judicial service;
it brought into disrepute the whole administration of justice. From
RAKESH TIWARI, ADVOCATE v. ALOK PANDEY, C.J.M.
[ARUN MISHRA, J.]
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that point of view, the conduct of the appellant was highly
reprehensible.”
11. The main question urged is as to the sentence to be imposed in
the case. In Supreme Court Bar Association v. Union of India &
Anr. (1998) 4 SCC 409, this Court has laid down that though it is not
permissible for a court to suspend the licence to practice but at the same
time it is open to this Court or the High Court to debar an advocate from
appearing in the court. This Court has laid down that though suspension
of a lawyer is not permissible to be ordered but when he is convicted
under the contempt of court, it is possible for this Court or the High
Court to prevent the advocate to appear in the court. The Court has
observed:
“80. In a given case it may be possible, for this Court or the High
Court, the prevent the contemner advocate to appear before it till
he purges himself of the contempt but that is much different from
suspending or revoking his license or debarring him to practice as
an advocate. In a case of contemptuous, contumacious,
unbecoming or blameworthy conduct of an Advocate-on-Record,
this court possesses jurisdiction, under the Supreme Court Rules
itself, to withdraw his privilege to practice as an Advocate-an-
Record because that privilege is conferred by this Court and the
power to grant the privilege includes the power to revoke or
suspend it. The withdrawal of that privilege, however, does not
amount to suspending or
revoking his license to practice as an
advocate in other courts or Tribunals.”
(emphasis supplied)
12. In Pravin C. Shah v. K.A. Mohd. Ali & Anr. (2001) 8 SCC
650, this Court observed that an advocate found guilty of contempt cannot
have an unreserved right to appear in court, the court may refuse to
hear him:
“17. When the rules stipulate that a person who committed
contempt of court cannot have the unreserved right to continue to
appear and plead and conduct cases in the courts without any
qualm or remorse, the Bar Council cannot overrule such a
regulation concerning the orderly conduct of court proceedings.
Courts of law are structured in such a design as to evoke respect
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and reverence for the majesty of law and justice. The machinery
for dispensation of justice according to law is operated by the
court. Proceedings inside the courts are always expected to be
held in a dignified and orderly manner. The very sight of an
advocate, who was found guilty of contempt of court on the
previous hour, standing in the court and arguing a case or cross-
examining a witness on the same day, unaffected by the
contemptuous behavior he hurled at the court, would erode the
dignity of the court and even corrode the majesty of it besides
impairing the confidence of the public in the efficacy of the
institution of the courts. This necessitates vesting of power with
the High Court to formulate rules for regulating the proceeding
inside the court including the conduct of advocates during such
proceedings. That power should not be confused with the right to
practice law. While the Bar Council can exercise control over the
latter the High Court should be in control of the former.
***
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***
20. Lord Denning had observed as follows in Hadkinson vs.
Hadkinson 1952 (2) All ER 567: (All ER p.575B-C)
“…I am of the opinion that the fact that a party to a cause has
disobeyed an order of the court is not of itself a bar to his being
heard, but if his disobedience is such that, so long as it continues,
it impedes the course of justice in the cause, by making it more
difficult for the court to ascertain the truth or to enforce the
orders which it may
make, then the court may in its discretion
refuse to hear him until the impediment is removed or good
reason is shown why it should not be removed.”
***
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35. It is still open to the respondent Advocate to purge himself of
the contempt in the manner indicated above. But until that process
is completed respondent Advocate cannot act or plead in any court
situated within the domain of the Kerala High Court, including the
subordinate courts thereunder. The Registrar of the High Court
of Kerala shall intimate all the courts about this interdict as against
the respondent-advocates.”
(emphasis supplied)
RAKESH TIWARI, ADVOCATE v. ALOK PANDEY, C.J.M.
[ARUN MISHRA, J.]
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13. In Bar Council of India v. High Court of Kerala (2004) 6
SCC 311, this Court has observed thus:
“29. Punishment for commission of contempt and punishment for
misconduct, professional or other misconduct, stand on different
footings. A person does not have a fundamental right to practice
in any court. Such a right is conferred upon him under the provisions
of the Advocates Act which necessarily would mean that the
conditions laid down therein would be applicable in relation thereto.
Section 30 of the Act uses the expressions “subject to”, which
would include Section 34 of the Act.”
(emphasis supplied)
14. In R K Anand v. Registrar, Delhi High Court (2009) 8 SCC
106, this Court has observed that advocate can be disallowed from
appearing in court on being found guilty of contempt of court:
“238. In Supreme Court Bar Assn. the direction prohibiting an
advocate from appearing in court for a specified period was viewed
as a total and complete denial of his right to practice law and the
bar was considered as a punishment inflicted on him. In Ex. Capt.
Harish Uppal it was seen not as punishment for professional
misconduct but as a measure necessary to regulate the court’s
proceedings and to maintain the dignity and orderly functioning of
the courts. We may respectfully add that in a given case a direction
disallowing an advocate who is convicted of criminal contempt
from appearing in court may not only be a measure to
maintain
the dignity and orderly functioning of the courts but may become
necessary for the self-protection of the court and for preservation
of the purity of court proceedings.  Let us, for example, take the
case where an advocate is shown to have accepted money in the
name of a judge or on the pretext of influencing him; or where an
advocate is found tampering with the court’s record; or where an
advocate is found actively taking part in faking court orders (fake
bail orders are not unknown in several High Courts!); or where
an advocate has made it into a practice to browbeat and abuse
judges and on that basis has earned the reputation to get a case
transferred from an “inconvenient” court; or where an advocate
is found to be in the habit of sending unfounded and unsubstantiated
allegation petitions against judicial officers and judges to the
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superior courts. Unfortunately, these examples are not from
imagination. These things are happening more frequently than we
care to acknowledge.
239. We may also add that these illustrations are not exhaustive
but there may be other ways in which a malefactor’s conduct and
actions may pose a real and imminent threat to the purity of court
proceedings, cardinal to any court’s functioning, apart from
constituting a substantive offense and contempt of court and
professional misconduct. In such a situation the court does not
only have the right but it also has the obligation cast upon it to
protect itself and save the purity of its proceedings from being
polluted in any way and to that end bar the malefactor from
appearing before the courts for an appropriate period of time.
240. It is already explained in Ex. Captain Harish Uppal that a
direction of this kind by the Court cannot be equated with
punishment for professional misconduct. Further, the prohibition
against appearance in courts does not affect the right of the lawyer
concerned to carry on his legal practice in other ways as indicated
in the decision. We respectfully submit that the decision in Ex-
Capt. Harish Uppal v. Union of India places the issue in correct
perspective and must be followed to answer the question at issue
before us.”
(emphasis supplied)
15. In the instant case the advocate has acted contrary to the
obligations. He has set a bad example before others while destroying
the dignity
of the court and the Judge. The action has the effect of
weakening of confidence of the people in courts. The judiciary is one of
the main pillars of democracy and is essential to peaceful and orderly
development of society. The Judge has to deliver justice in a fearless
and impartial manner. He cannot be intimidated in any manner or insulted
by hurling abuses. Judges are not fearful saints. They have to be fearless
preachers so as to preserve the independence of the judiciary which is
absolutely necessary for survival of democracy.
16. The act stated amounts to criminal contempt of court. The
High Court has noted that the concerned advocate did not apologise and
has maligned and scandalised the subordinate court. He has made bare
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denial and has not shown any remorse for his misconduct. Considering
the gravamen of the allegations the High Court has imposed the
imprisonment of SI for 6 months with fine of Rs.2000 and in default to
pay fine or to undergo SI for 15 days. He has been restrained from
entering the judgeship of Allahabad for a period of 6 months that was to
commence from 15.7.2015 and he had been kept under watch for a
period of 2 years. Considering the nature of misconduct, while upholding
the conviction for criminal contempt, we modify the sentence in the
following manner :
1.
The sentence of imprisonment of 6 months shall remain
suspended for further period of 3 years subject to his
maintaining good and proper conduct with a condition that he
shall not enter the premises of the District Judgeship, Allahabad
for a further period of three years in addition to what he has
undergone already.  The period shall commence from 1.7.2019
to 30.6.2022.  In case of non violation of aforesaid condition
the sentence after three years shall be remitted.
2.
However, sentence of imprisonment may be activated by this
Court in case it is found that there is breach of any condition
made by the concerned advocate during the period of three
years.
3.
He shall deposit fine of Rs.2000 as imposed by the High Court.
In case of failure to deposit fine he shall not enter the premises
of District Judgeship for a period of three months.
17. The appeal is,
accordingly, disposed of.  No costs.
Ankit Gyan
Appeal disposed of.