Back
SUPREME COURT OF INDIA
Kuldip Singh, J.S. Verma and P.B. Sawant, JJ.
In Re: Vinay Chandra Mishra (the alleged contemner)
Contempt Petition (Crl.) No. 3 of 1994
Decided on 10.3.1995
Held, that the Supreme Court is not only the highest Court of record, but under various provisions of the Constitution, is also charged with the duties and responsibilities of correcting the lower courts and tribunals and of protecting them from those whose misconduct tends to prevent the due performance of their duties. The latter functions and powers of this Court are independent of Article 129 of the Constitution. When, therefore, Article 129 vests this Court with the powers of the court of record including the power to punish for contempt of itself, it vests such powers in this Court in its capacity as the highest court of record and also as a court charged with the appellate and superintending powers over the lower courts and tribunals as detailed in the Constitution. To discharge its obligations as the custodian of the administration of justice in the country and as the highest court imbued with supervisory and appellate jurisdiction over all the lower courts and tribunals, it is inherently deemed to have been entrusted with the power to see that the stream of justice in the country remains pure, that its course is not hindered or obstructed in any manner, that justice is delivered without fear or favour and for that purpose all the courts and tribunals are protected while discharging their legitimate duties. To discharge this obligation, this Court has to take cognizance, of the deviation from the path of justice in the tribunals of the land, and also of attempts to cause such deviations and obstruct the course of justice. To hold otherwise would mean that although this Court is charged with the duties and responsibilities enumerated in the Constitution, it is not equipped with the power to discharge them. (Para 7)
Further Held: The contemner has also contended that notwithstanding the decision in Delhi Judicial Service Association case (supra), the matter should be referred to a larger Bench because according to him, the decision does not lay down the correct proposition of law when it gives this Court the jurisdiction under Article 129 of the Constitution to take cognizance of the contempt of the High Court. Neither the contemner nor the learned counsel appearing on his behalf has pointed out to us any specific infirmity in the said decision. We are not only in complete agreement with the law laid down on the point in the said decision but are also unable to see how the legal position to the contrary will be consistent with this Court's wide ranging jurisdiction and its duties and responsibilities as the highest Court of the land as pointed out above. Hence, we reject the said request. (Para 8)
(ii) Constitution of India – Art.129 & 142 - Contempt of Court Act, 1971 - Criminal Contempt - Offence of criminal contempt of court for having interfered with and obstructed course of justice by trying to threaten, overawe and overbear Court by using insulting, disrespectful and threatening language Contemner, a senior member of Bar and also Chairman of Bar Council of India, President of High Court Bar Association held guilty of offence - Exemplary punishment need to be imposed - Sentence of SI for a period of six weeks - Sentence win remain suspended for a period of four years - Contemner shall stand suspended from practising as an advocate for a period of three years - All elective and nominated offices/posts held by him in his capacity as an advocate, shall stand vacated.
Held: Normally, no Judge takes action for in facie curiae contempt against the lawyer unless he is impelled to do so. It is not the heat generated in the arguments but the language used, the tone and the matter in which it is expressed and the intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the court and to threaten and obstruct the course of justice. After going through the report of the learned Judge and the affidavits and the additional affidavits filed by the contemner and after hearing the learned counsel appearing for the contemner, we have come to the conclusion that there is every reason to believe that not with standing his denials, and disclaimers, the contemner had undoubtedly tried to browb eat, threaten, insult and show disrespect personally to the learned Judge. This is evident from the manner in which even in the affidavits filed in this Court, the contemner has tried to justify his conduct. He has started narration of his version of the incident by taking exception to the learned Judge's taking charge of the court proceedings. We are unable to understand what exactly he means thereby. Every member of the Bench is on par with the other member or members of the Bench and has a right to ask whatever question he wants to, to appreciate the merits or demerits of the case. It is obvious that the contemner was incensed by the fact that the learned Judge was asking the questions to him. This is clear from his contention that the learned Judge being a junior member of the Bench, was not supposed to ask him any question and if any questions were to be asked, he had to ask them through the senior member of the Bench because that was the convention of the Court. We are not aware of any such convention in any court at least in this country. Assuming that there is such a convention, it is for the learned Judges forming the Bench to observe, it inter se. No lawyer or a third party can have any right or say in the matter and can make either an issue of it or refuse to answer the questions on that ground. The lawyer or the litigant concerned has to answer the questions put to him by any member of the Bench. The contemner has sought to rely on the so-called convention and to spell out his right from it not to have been questioned by the learned Judge. This contention coupled with his grievance that the learned Judge had taken charge of the proceedings, shows that the contemner was in all probability perturbed by the fact that the learned Judge was asking him questions. The learned Judge's version, therefore, appears to be correct when he states that the contemner lost his temper when he started asking him questions. The contemner has further admitted that he got "emotionally perturbed" and his "professional and institutional sensitivity got deeply wounded" because the learned Judge, according to him, apparently lost his temper and told him in no unconcealed terms that he would set aside the order in toto disregarding what he had said. The learned Judge's statement that the contemner threatened him with transfer and impeachment proceedings also gets corroboration from the contemner's own statement in the additional affidavit that he did tell the learned Judge that a Judge got himself transferred earlier on account of his inability to command the goodwill of the Bar due to lack of mutual reverence. No one expects a lawyer to be subservient to the Court while presenting his case and not to put forward his arguments merely because the Court is against him. In fact, that is the moment when he is expected to put forth his best effort to persuade the Court. However, if, in spite of it, the lawyer finds that the court is against him, he is not expected to be discourteous to the court or to fling hot words or epithets or use disrespectful, derogatory or threatening language or exhibit temper which has the effect of overbearing the court. Cases are won and lost in the court daily. One or the other side is bound to lose. The remedy of the losing lawyer or the litigant is to prefer an appeal against the decision and not to indulge in a running battle of words with the court. That is the least that is expected of a lawyer. Silence on some occasions is also an argument. The lawyer is not entitled to indulge in unbecoming conduct either by showing his temper or using unbecoming language.
The incident had undoubtedly created a scene in the court since even according to the contemner, the exchange between the learned Judge and him was "a little heated up" and the contemner asked the learned Judge "whether he was creating scene to create conditions for getting him self transferred as also talked earlier". He had also to remind the learned Judge that "a Judge got himself transferred earlier on account of his inability to command the goodwill of the Bar due to lack of mutual reverence". He has further stated in his affidavit that "the entire Bar at Allahabad" knew that he was unjustly "roughed" by the Judge and was being punished for taking "a fearless and non-servile stand" and that he was being prosecuted for "asserting" a right of audience and "using the liberty to express his views when a Judge takes a course which in the opinion of the Bar is irregular". He has also stated that any punishment meted out to the "outspoken" lawyer will completely emasculate the freedom of the profession and make the Bar a subservient tail wagging appendage to the judicial branch which is an anathema to a healthy democratic judicial system. He has further stated in his petition for taking contempt action against the learned Judge that the incident was "witnessed by a large number of advocates." (Para 13)
Further Held: To resent the questions asked by a Judge, to be disrespectful to him, to question his authority to ask the questions, to shout at him, to threaten him with transfer and impeachment, to use insulting language and abuse him, to dictate the order that he should pass, to create scenes in the Court, to address him by losing temper, arc all acts calculated to interfere with and obstruct the course of justice. Such acts tend to overawe the court and to prevent it from performing its duty to administer justice. Such conduct brings the authority of the court and the administration of justice into disrespect and disrepute and undermines and erodes the very foundation of the judiciary by shaking the confidence of the people in the ability of the court to deliver free and fair justice. (Para13)
Consequently Held: Since the contemner is a senior member of the Bar and also adorns the high offices such as those of the Chairman of the Bar Council of India, the President of the D.P. High Court Bar Association, Allahabad and others, his conduct is bound to infect the members of the Bar allover the country . We are, therefore, of the view that an exemplary punishment has to be meted out to him. (Para 20)
(iii) Criminal Contempt - Summary procedure adopted - No scope for examining Judge or Judges of Court before whom contempt is committed.
Held: In the present case, although the contempt is in the face of the court, the procedure adopted is not only not summary but has adequately safeguarded the contemner's interests. The contemner was issued a notice intimating him the specific allegations against him. He was given an opportunity to counter the allegations by filing his counter affidavit and additional counter/supplementary affidavit as per his request, and he has filed the same. He was also given an opportunity to file an affidavit of any other person that he chose or to produce any other material in his defence, which he has not.done. However, in the affidavit which he has filed, he has requested for an examination of the learned Judge. We have at length dealt with the nature of in facie curiae contempt and the justification for adopting summary procedure and punishing the offender on the spot. In such procedure, there is no scope for examining the Judge or Judges of the court before whom the contempt is committed. To give such a right to the contemner is to destroy not only the raison d' etre for taking action for contempt committed in the face of the court but also to destroy the very jurisdiction of the Court to adopt proceedings for such conduct. It is for these reasons that neither the common law nor the statute law countenances the claim of the offender for examination of the Judge or Judges before whom the contempt is committed. Section 14 of our Act. i.e., the Contempt of Courts Act, 1971 deals with the procedure when the action in taken for the contempt in the face of the Supreme Court and the High Court. Sub-section (3) of the said section deals with a situation where in facie curiae contempt is tried by a Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed. The provision in specific terms and for obvious reasons, states that in such cases it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, to appear as a witness and the statement placed before the Chief Justice shall be treated as the evidence in the case. The statement of the learned Judge has already been furnished to the contemner and he has replied to the same. We have, therefore, to proceed by treating the statement of the learned Judge and the affidavits filed by the contemner and the reply given by the learned Judge to the said affidavits, as evidence in the case. (Para 10)
(iv) Constitution of India - Art. 129 & 142 - Criminal Contempt - Contemner, a senior member of legal profession - Unconditional apology tendered in Court - Apology is not a free and frank admission of misdemeanor - No sincere regret for disrespect he showed to learned Judge and Court - From very inception, contemner has been defiant and belligerent - Apology tendered to be rejected.
Held: The contemner has obviously misunderstood his function both as a lawyer representing the interests of his client and as an officer of the court. Indeed, he has not tried to defend the said acts in either of his capacities. On the other hand, he has tried to deny them. Hence, much need not be said on this subject to remind him of his duties in both the capacities. It is, however, necessary to observed that by indulging in the said acts, he has positively abused his position both as a lawyer and as an officer of the Court, and has done distinct dis-service to the litigants in general and to the profession of law and the administration of justice in particular. It pains us to note that the contemner is not only a senior member of the legal profession, but holds the high offices of the Chairman of the Bar Council of India, Member of the Bar Council of D.P., Chairman and Member, Executive Council and Academic Council of the National Law School University of India at Bangalore and President of the High Court Bar Association, Allahabad. Both as a senior member of the profession and as holder of the said high offices, special and additional duties were cast upon him to conduct himself as a model lawyer and officer of the court and to help strengthen the administration of justice by upholding the dignity and the majesty of the court. It was in fact expected of him to be zealous in maintaining the rule of law and in strengthening the people's confidence in the judicial institutions. To our dismay, we find that he has acted exactly contrary to his obligations and has in reality set a bad example to others while at the same time contributing to weakening of the confidence of the people in the courts.
The contemner has no doubt tendered an unconditional apology on 7th October, 1994 by withdrawing from record all his applications, petitions, counter affidavits, prayers and submissions made at the Bar and to the court earlier. We have reproduced that apology verbatim earlier. In the apology he has pleaded that he has deeply and regretfully realised that the situation, meaning thereby the incident, should never have arisen and the fact that it arose has subjected him to anguish and remorse and a feeling of moral guilt. That feeling has been compounded with the fact that he was a senior advocate and was holding the elective posts of the President of the High Court Bar Association and the Chairman of the Bar Council of India which by their nature show that he was entrusted by his professional fraternity to set up an example of an ideal advocate. He has guiltily realised his failure to approximate to this standard resulting in the present proceedings and he was, therefore, submitting his unconditional apology for the incident in question. We have not accepted this apology, firstly because we find that the apology is not a free and frank admission of the misdemeanor he indulged in the incident in question. Nor is there a sincere regret for the disrespect he showed to the learned Judge and the Court, and for the harm that he has done to the judiciary. On the other hand, the apology is couched in a sophisticated and -garbed language exhibiting more an attempt to justify his conduct by reference to the circumstances in which he had indulged in it and to exonerate himself from the offence by pleading that the condition in which the "situation" had developed was not an ideal one and were it ideal, the "situation" should not have arisen. It is a clever and disguised attempt to refurbish his image and get out of a tight situation by not only not exhibiting the least sincere remorse-for his conduct but by trying to blame the so-called circumstances which led to it. At the same time, he has attempted to varnish and reestablish himself as a valiant defender of his "alleged duties" as a lawyer. Secondly, from the very inception his attitude has been defiant and belligerent. In his affidavits and application, not only he has not shown any respect for the learned Judge, but has made counter-allegations against him and has asked for initiation of contempt proceedings against him. He has even chosen to insinuate that the learned Judge by not taking contempt action on the spot and instead writing the letter to the Acting Chief Justice of the High Court, had adopted a devious way and that he had also come to Delhi to meet "meaningful" people. These allegations may themselves amount to contempt of court. Lastly, to accept any apology for a conduct of this kind and to condone it, would tantamount to a failure on the part of this Court to uphold the majesty of the law, the dignity of the court and to maintain the confidence of the people in the judiciary. The Court will be failing in its duty to protect the administration of justice from attempts to denigrate and lower the authority of the judicial officers entrusted with the sacred task of delivering justice. A failure on the part of this Court to punish the offender on an occasion such as this would thus be a failure to perform one of its essential duties solemnly entrusted to it by the Constitution and the people. For all these reasons, we unhesitatingly reject the said so called apology tendered by the contemner. (Para 13)
(v) Constitution of India - Arts. 129 & 142 - Contempt of Court by advocates - Contempt Jurisdiction of Supreme Court under Art. 129 - Independent of statutory law of contempt Powers of Supreme Court under Art. 142(1) cannot be diluted by statutory provisions Disciplinary jurisdiction of State Bar Council and Bar Council of India to take action for professional misconduct is different from jurisdiction of courts to take action for contempt of court.
Held, that the disciplinary jurisdiction of the State Bar Council and the Bar Council of India to take action for professional misconduct is different from the jurisdiction of the courts to take action against the advocates for the contempt of court. The said jurisdiction co-exist independently of each other. The action taken under one jurisdiction does not bar an action under the other jurisdiction. (Para 16)
Further Held: In the matter of disciplinary jurisdiction under the Advocates Act, this Court is constituted as the final Appellate authority under Section 38 of the Act as pointed out earlier. In that capacity this Court can impose any of the punishments mentioned in Section 35 (3) of the Act including that of removal of the name of the Advocate from the State roll and of suspending him from practice. If that be so, there is no reason why this Court while exercising its contempt jurisdiction under Article 129 read with Article 142 cannot impose any of the said punishments. The punishment so imposed will not only be not against the provisions of any statute, but in conformity with the substantive provisions of the Advocates Act and for conduct which is both a professional misconduct as well as the contempt of court. (Para 17)
Consequently Held: What is further, the jurisdiction and powers of this Court under Article 142 which are supplementary in nature and are provided to do complete justice fn any matter, are independent of the jurisdiction and powers of this Court under Article 129 which cannot be trammeled in any way by any statutory provision including the provisions of the Advocates Act or the Contempt of Courts Act. As pointed out earlier, the Advocates Act has nothing to do with the contempt jurisdiction of the court including of this Court and the Contempt of Courts Act, 1971 being a statute cannot denude, restrict or limit the powers of this Court to take action for contempt under Article 129. It is not disputed that suspension of the advocate from practice and his removal from the State roll of advocates are both punishments. There is no restriction or limitation on the nature of punishment that this Court may award while exercising its contempt jurisdiction and the said punishments can be the punishments the Court may impose while exercising the said jurisdiction. (Para 18)
(vi) Constitution of India - Arts. 129 & 215 and Art. 19(1)(a) & 19(1)(g) read with Arts. 19(2) & 19(6) - Power of Supreme Court under Art. 129 not subject to provisions of Arts. 19(1)(a) & 19(1)(g) - Freedom of speech and expression cannot be used for committing contempt of court Right to continue to practise is subject to law of contempt.
Held: Article 19 [1] (a) guarantees freedom of speech and expression which is subject to the provisions of Article 19 [2] and, therefore, to the law in relation to the contempt of court as well. Article 19 [1] (g) guarantees the right to practise any profession or to carry on any occupation, trade or business and is subject to the provisions of Article 19 (6) which empowers the State to make a law imposing reasonable restrictions, in the interests of general public, on the exercise of the said right and, in particular, is subject to a law prescribing technical or professional qualifications necessary for practising the profession or carrying on the occupation, trade or business. On our part we are unable to see how these provisions of Article 19 can be pressed into service to limit the power of this Court to take cognizance of and punish for the contempt of court under Article 129. The contention that the power of this Court under Article 129 is subject to the provisions of
Articles 19 [1] (a) and 19 [1] (g), is unexceptional. However, it is not pointed out to us as to how the action taken under Articles 129 would be violative of the said provisions, since the said provisions are subject to the law of contempt and the law laying down technical and professional qualifications necessary for practising any profession, which includes the legal profession. The freedom of speech and expression cannot be used for committing contempt of court nor can the legal profession be practised by committing the contempt of court. The right to continue to practise, is subject to the law of contempt. The law does not mean merely the statute law but also the constitutional provisions. The right, therefore, is subject to the restrictions placed by the law of contempt as contained in the statute in the present case, the Contempt of Courts Act, 1971 as well as to the jurisdiction of this Court and of the High Court to take action under Articles 129 and 215 of the Constitution respectively. We, therefore, do not see any conflict between the provisions of Articles 129 and 215, and Article 19 [1] (a) and Article 19[1] (g) read with Articles 19 [2] and 19 [6] respectively. (Para 18)
Result: Contempt petition disposed of accordingly.
JUDGMENT
P.B. Sawant, J. - On 10th March, 1994, Justice S.K. Keshote of the Allahabad High Court addressed a letter to the Acting Chief Justice of that Court as follows:
"No. SKK/ALL/8194 10.3.1994
Dear brother Actg. Chief Justice,
Though on 9.3.1994 itself I orally narrated about the mis-behaviour of Sh. B.C. Misra with me in the Court but I thought it advisable to give you same in writing also.
On 9.3.1994 I was sitting with Justice Anshuman Singh in Court No. 38. In the list of fresh Cases of9.3.1994 at Sr. No. 5 FAFO Record No. 22793 MIs. Bansal Forgings Ltd. v. U.P.F. Corp. filed by Smt. S.V. Misra was listed. Sh. B.C. Misra appeared in this caSe when the case was called.
Brief facts of that case
M/s. Bansal Forgings Ltd. took loan from U.P. Financial Corporation and it made default in payment of insta1mentof the same Corporation proceeded against the Company u/s. 29 of the U.P. Financial Corporation Act. The Company filed a Civil Suit against the Corporation and it has also filed an application for grant of temporary injunction. Counsel for the Corporation suo moto put appearance in the matter before Trial Court and prayed for time for filing of reply. The learned trial court passed an order on the said date that the Corporation will not seize the factory of the Company. The, Company shall pay the amount of instalment and it will furnish also security for the disputed amount. The court directed to furnish security on 31.1.1994 and case was fixed on 15.3.1994.
Against said order of the trial court this appeal has been filed and arguments have been advanced that Court has no jurisdiction to pass the order for payment of instalment of loan and further no security could have been ordered.
I put a question to Shri Misra under which provision this order has been passed. On putting of question he started to shout and said that no question could have been put to him. He will get me transferred or see that impeachment motion is brought against me in Parliament. He further said that he has turned up many Judges. He created a good scene in the court. He asked me to follow the practice of this Court. In sum and substance it is a matter where except to abuse me of mother and sister he insulted me like anything. What he want to convey to me was that admission is as a course and no arguments are heard, at this stage.
It is not the question of insulting of a Judge of this institution but it is a matter of institution as whole. In case dignity of Judiciary is not being maintained then where this institution will stand. In case a senior Advocate, President of Bar and Chairman of Bar Council of India behaves in Court in such manner what will happen to other advocates.
Since the day I have come here I am deciding the cases on merits. In case a case has merits it is admitted but not as a matter of course. In this court probably advocates do not like the consideration of cases on their merits at the stage of admission. In case dignity of judiciary is, not restored then it is very difficult for the Judges to discharge their Judicial function without fear and favour.
I am submitting this matter to you in writing to bring this mis-happening in the Court with the hope that you will do something for restoration of dignity of Judiciary.
Thanking you,
Yours sincerely.
Sd/
(Jus. S.K. Keshote).”
The Acting Chief Justice Shri V.K. Khanna forwarded the said letter to the then Chief Justice of India by his letter of 5th April, 1994. The learned Chief Justice of India constituted this Bench to hear the matter on 15th April, 1994.
On 15th April, 1994, this Court took the view that there was a prima facie case of criminal contempt of court committed by Shri Vinay Chandra Mishra [hereinafter referred to as the "contemner"] and issued a notice against him to show cause why contempt proceedings be not initiated against him. By the same order, Shri D.P. Gupta, the learned Solicitor General of India was requested to assist the Court in the matter. Pursuant to th
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
