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L.D. JAIKWAL

v . • •

STATE OF U.P.

May 17, 1.984

. [A.P. SEN AND M.P. THAKKAR, JJ .]

Contempt a/Courts Act 1971, Section 2(c)Jl)

Ad_vocate making written app/ichtion couched in sc.uri/lous language-Itn-putarion-Judgt! a corrupt Judge' 'and-_conta1ni11ating the seat of ju'stice'.- High

Gour~ convicting a_nd sentencig advocate_for contemPt of Court - appeal 10 . Supre1ne Court-Written apology'tendered to Judge 'as directed by the suPreme.

Court ·whether sufficient to set aside coni, iction by Ei[gh Cou'rt.

The appellant was a senior advocte. He was required to_ appear before the Special Judge to make his submissiori on the question of sentence to be imposed UpOn his cliept who was conVicted for an offence under s.5 (2) of the Prevention of Corru"ption Act, 1947: As .he appeared in a shirt-and-trous'!roUtfit aud n•t in Court attire, the Judg~ asked him to-<ippe"ar_ in the prescribed. formal attii"e for be_ing heard in his professional capacity. The appellant took um brage and left the.Court. -Sonle other advqcate appeared in the matter and the accused having being found gi:iilty of_the-thqrge ot corruption the Judge impOsed. a sentence of _four years R._I. ·

The appellarit niade a written application to the Judge couched in scurillous -lan8uage making the imputation that the Judge-was a 'corruPt Jlldge~ and added that he was 'contaminating the seat Of justice' ; andforwarded Copies, of the application, withOut occasion or Deed to the AdrnjnisttatiVe Judge, Chief Secretary and Other authOrities.

The 'High Court initiated contempt proceedings, found 't_heappellarit _guilty of having con1mitte<t cfiminal contempt under s. 2(c)(l) of the.Contempt of. , Courts Ao::t, 1971 and after affording fUll opportunity Of hear-ing, iinposed a . 1'Jt . sen.teoce Of simple imprisonment for one Week and a fine _of. Rs. 500. ·

Dismissing the Apl,·

HELD : 1. eonsideratiOns regarding maintenance of theindependence of the :i.uiiciary and' the morale of the Judges dema.nd that the appellant should not escape with iinpunify on the mere .tendering of an apology which in any case does not wipe_ o.ut the mischief. If uch a apology Were to be accepted, as a rule, an<i not as '.an eception, it \vo_uld vfrtua-IJy be tantamount to issuing 'licence' to i; Candalize corts and .commit OOQ.tompt of court with impunity. The

High ourt was justifiedin impoing a substantive Sentence and .the said sentence cannot be said to be excessive or out of proponion.[838E ; 837E ; 83.SFJ

834 SUPRl!ME COURT REPORTS. [19841.3 s.c.R.

No J adge can takea deCiSiori which does Dot displease one side or the other. By the vety flature of his work.he as to decide matters against One-or

oher_ of the parties. lf the fact that heenders a decision which is resented to -by a liigarit or _his lawyer Were to expose hitri to such a risk, it .will sound the death knell of the institution. The day must be dreaded when a Judge cannat work with independence ·-by (eaSon O:f tl1e fear that a disgruntleid member of the_ Bar can publicly humiliate him and heap disagree on himwith._lmpunity, if any ot his_ otdets, or the decision rendered by him displeas_es any-of the 'Advoc.ates ·-.11ppearing in the miittcr. A line has therefore to be drawn some ..

Where, some day, by some one, That -is why the Court is impelled to act (rather than merely. sermonise) much as the.Court dis1ike.s im:posiiig punish~ ment whilst.excising: tQe contempt jufisdiction; Wbih rto doubt has to be.

eercised .very sparingly and withcircurnspection. [837ll ; 838A-Bl . 2: An attituCI~ of unerited enienc.y cannot be adopted at the cost of princip.le an; d at the ex;1ense Of the Judge who has .been scanqalized. TO pursue a popl.llist line of showing indulgence _is not very difficult in fact jt is more difficult to resist the temptation .to do sO rather 'than tc;> ad4, Cre to. the m3.il~ studded. path of duty. Institutiorial perSpective demahds that considerations of populism are not allowed to.obstruct the path of duty. [338C]

. In the .instnt cse, the aPpeUan t sought to justify hiS co_ndct before the High C.ourt on the gronnd of the treatment alloged to have .been meted out'to him by the Special Jµdge. '.No remOr_se was felt.

No sorrow Was epfessed.

No apology was off erred. He .expressed his sorrow only before this Court •• saylng that ha had lost his m¢nta1 balaace, alld was granted ; an oPportunity to tender® apology. He appeared before the Special Judge and tendered a written apOJOgy indicaiing that be was doing so : ('as Qirected by the Hon'ble Si1prme Court. 0 This circumstance showS.it Was a -paper' apology, and that' the eXpression of sorrow came from bis pen, not fr6m-his heart.. It is one: thing to "say"

sorryit:_ is another to ."fetl" sorry. This Court cannot subscribe to the' ·

'slapsay sorryand forget' .school of thought in administration of contempi jurisdiction. [886H; 837A-C] ·

CRiMINAL APPELLAIB JUR1so1cr10N : Criminal Appeal No . . 611 of 1982.

From.the Judgment and Order dated the 5t!\ November, 1982 of the Allahabad High Court in Criminal Contempt Case No.

144/SL. •

N.N. Sharma, Mrs. Pankaj Appellant.

Verma & Mrs. Vijay Gupta for the

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Dalveer Bhandari for the Respondent. ·

T]le Judgment of the Court was delivered by . . ' . .

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L.D. JAIKWAL v. U.P. STATE (Thakkar, J.) 835

THAKKAR, J. We are sorry to say we cannot. subscribe to the 'slap-say sorry-and forget' school of thought in administration of contempt j11risprudence, Saying 'sorry' does. not make the slapper poorer. Nor does the cheek which has iakell the slap smart less upon the said hypociitical word being uttered through the very lips which not long ago slandered a judicial officer without the slightest compunction. •

An Advocate whose client had been convicted by the learned Special Judge, Dehra4un; was required to appear before the learned . Judge to make his submissious on the question of 'sentence' to be imposed on the accused. upon his being found guilty of au of(ence . under Section 5(2) of the Prevention of Corruption Act by the Court.

The learned Advocate app'eared in a shirt-and-trouser-outfit in disregard of the rule requiring him to appear only in Court attire

when appearing in his professional Gapacity, The learned Judge aske.d him to. appear in the prescribed formal attire for being heard in his professio.nal capacity. The learned Advocate apparently took umbrageand left the Court. Some .other Advocate appeared on: behalf of. accused who had been found guilty of a . chatge of corruption. The learned. Judge iplposed a senteqce of 4 .

years' R.I. which may have been considered to be on the high side.

The matter in that case could have been carried to the High Court by way of an appeal, both, on the question of conviction as iilso, on the question of sentence.· But so far as the Court of the Special Judge was concerned; as .the judgment had been pronounced anci nothing more remained to be done by that Court, the matter should have rested there. The. appellant, a senior Advocate of longstanding (not an immature inexperienced junior), however made a wriiten application to the learned Special Judge couched .in scurillous language making the !tnputation that the Judge was a "corrupt

Judge'' and adding that he was . "contaminating the seat of justice".

A threat was also held 'OU! that a complaint was being lodged to higher authorities that he was corrupt and did not deserve to be retained in service .. The offending portion may better be quoted :- . .

"I am making a complaint against you to the' highest authorities in the country, that you are corrupt and do not deSe!'Ve to be retained in service. The earlier people like . ypu are bundled out the better for us all. ·

As for (juantUm of sentence, I will neyer bow down before you. You maY, award the mm11m senten9e. Any,

836 SDPREME COURT JiEPORTS (1984] 3 s.c.&. ,. -

way, you should feel ashamed of yourself that you are con taminating the seat of justice." • There is no known. pr.ovision for making such an application after a matter is disposed of by a Judge. Nor was any legal pur' pose to be .served by making such an application ..

Obviously application was made to terrorize and harass the . Judgfor imposing a sentence which perhaps be considered to be on

the high side whether or .not it was really .so was for the higher.

Co11rt to decide.

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C As pointed.out carler, it was however notperinissible to adopt. a course of intimidatfori in order to frighten the Judge. His malicious purpose in making the application is estaplished by another telltale

circumstance by forwarding copy _of this application, witho11t any • occassion or need for it, to severaLauth.orities and; diginitaries. ·

. . (·

I. Administrative Jl!dge, Allahabad for favour of requisitioning case file S.T. No. 2 from.Dehradun and scann ing through the facts.

 2, Chief Secretary, Uttar Pradesh.Government Lucknow ..

3. Director~ Vigilance Commission; U.P., Lucknow:

.4. Prime Minister, Secretariat, Delhi..

5: State Counsel, Shri Pooran Singh, Court of Shri V.K. ·

Agarwal, Dehradun.

6. Shri D. Vira, I.C.S., Chaifman, Indian Police Comniis,

J ..

F sion, Delhi.

7. President, Bar Association, Dehradu~.

8. The Hon'ble. Chief fostice of Bharat ... . . .

The High Court of Allahabad intitiate.d contempt proceedings, found the appellant gulity of having committed.criminal contempt . under Section 2(c)(l) of. the Contempt of Courts Act, 197-1, after affording him full opportunity of hearing, and imposed a sentence of S:L for 1 week and a fine of Rs. 500/- (in default to undergo a further term of s:L for 1 week). Hence this appeal.

" Before the High Court the appellant sought to justify his

onduct on the ground of the treatment alleged to have been meted

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• LD. JA.iKWAI, v. U.i>. STATE (Thakkar, J.) . 837 " .out to him by the learned Judge. No remorse was felt. No .sorrow ·

was expressed. No apology was offered. Only when the appellant approached this Court he expressed his sorrow before this Court saying that he had lost his mental , balance. Upon finding that thi~ Court was reluctant to hear him even on the question of sentence, . . ' . as he had not even tendered his apology to the learned Judge who was scandalized, he .prayed for three weeks' time to.give him an opportunity to do:so. His request was granted. He appeared before the learned Judge and tendered a written apology wher.ein he stated that he was doing so "as directed by the Him'ble Supreme Court." . This circumstance in a way shows that it was a 'paper' apology and the expression of sorrow came from his pen, not from his heart.

For, it is one thing to "say" sorry-it is .another to "feel" .sorry. It is in this context that we have been obliged to make the opening remarks at the commencement of this judgment ..

We do not think that merelybecause the appellant hhs tendered his apology we should set asid~ the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making tlie grossest imputations against him has to do, is to go ahead and scap:dalize him, and later on .tender a formal empty apology which costs him practically nothing. ' ·

If such an apology were to be accepted, as a. rule, and not as an exceptiou; it would in virtually be tentamount to issuing a 'licenc.e' to scandalize courts and commit contempt of court with impunity; •

It will be rather difficult to persuade members of the.Bar, w)lo care for their self-respect, to join the judiciary if they are expected to pay such a price fodt. And no sitting Judge will feel free to decide any matter as pet the dictates of his conscience' on account

C>f .the fear .of being scandalized and persecuted by an Advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation . were to .be countenanced, advocates ·- . -. . who can cow down the Judges, make them fall in line with their wishes, by threats of character ass.asination and persecution, will be preferred by the litigants to the advocates who are. mindful of profes sional ethics and believe in maintaining the decorum of Courts. .

No Judge cah take a decision . which doi;~ not displease one side or the.othe.r. By the very nature of his work he has to decide . matters against one or other of the parties; If the fact that he

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SUPREME .COURT REPORTS

. (1984) 3 S.C.R.

renders a decision wh!th fa resented to by a. litigant or his laWyer ' were to expose him to.such risk, jt wmsound the death knell of the instituti0n, A line has therefore to be drawn somewhere, some day, by some orie. That is why the Court is impelled to act (rather than merely sermonize), much as the Court dislikes imposing punishment. whilst exerCising the'contempt jurisdictiop, which no doubt has to be . exercised very sparingly and with cir9umspection. we do not think that we can adopt an attitude of unmerited leniency at the cost of

priftcipe and at the expense <;>f th~ Judge who' has been sca.ndallzed.

We are fully aware that it is not very difticult to .show magnanimity when some one else is the victim rather than when oneself is the victim: To pµrslle a populist line of showing indulgence is not. very difficult-iii fact it is more difficult to resist the temptation to do so rather than to adhere to the nail-studded path of duty. Institutional perspective demands tlrnt considerations of populism are not allowed to obstructthe .path of duty.. We, therefore, . cannot take a lenient . or indulgent view of this matter,. the day. must be dreaded when a Judge cannot w9rk with independence by reason of the fear that a disgruntled member of the Bar can publicly humiliate him and heap disgrace ori.himwith impunity, if any of his orders, or .the decision rendered. by him,· displeases any of the Advocates appearing in the matter. . ',' . .

We firmly believe that considerations. regarding maintenance of the independence of'l)le judiciary and the morale of the Judges demand that we do not allow the appellant to escape with impnity on the mere tendering of an apology which in any case does not wipe out the mischief. We are of the opinion tba t the High Court was therefore justified in imposing a substantive sentence. And the sentence imposed cannot be said to be excessive or out of propor-

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G Appeal is accordingly dismissed. •

N.V.K.

Appeal dismssed.

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