1954 Supreme(SC) 132

SUPREME COURT OF INDIA
15th October 1954
M.C. MAHAJAN C.J.I., S.R. DAS, GHULAM HASAN, BHAGWATI AND JAGANNADHA DAS JJ.
M. Y. Shareef and another, Appellants
Versus
 Hon ble Judges of the Nagpur High Court and others, Respondents.
Criminal Appeal No. 72 of 1952.
Advocates appeared
Dr. Bakshi Tek Chand, Sr. Advocate, (Messrs. Hardyal Hardy, B. R. Mandlekar, B. D. Kathalay, Ganpat Rai and K. L. Arora, Advocates, with him), for Appellants; Mr. C. K. Daphtary, Solicitor-General for India, (Messrs. T. P. Naik and I. N. Shroff, Advocates, with him), (for No. 1); Mr. T. L. Shevde, Advocate-General for the State of Madhya Pradesh, (Messrs. T. P. Naik and I. N. Shroff, Advocates, with him), (for No. 2); and Messrs. B. Ben and I. N. Shroff, Advocates, (for No. 3), for Respondents.

Headnote:Contempt of Court-Advocate signing application or pleading which scandalizes the Court-Advocates obligations to the Court and duty to the client-Defence of justification or in the alternative apology-Propriety -Whether to be accepted.

       Counsel signed application on behalf of his client for transfer which contained matter scandalising the Court. The application was signed by the client himself also. The learned Judges of the Court ordered notice to issue to the client and his two counsel to show cause why they should not all be committed for contempt for scandalizing the Court, with a view to preventing the due course of justice by making statements in the transfer application impeaching the impartiality of the Judges.

       In his written statement one counsel averred that he could not honestly admit that he scandalised the court and committed contempt either in fact or in law and that he had no animus against the Judges. He asserted that by signing the application he did not scandalize or intend to scandalize the Court and that he bona fide thought that an application could be made for transferring a case in the High Court from one Bench to another. In the last paragraph of his statement he stated" whatever the circumstances, I do see how much this application for transfer dated the 23rd, August, 1950, has hurt the feelings of the HonbIe Judges and I very much regret that all this should have happened."

       The other counsel also put in a similar written statement. He asserted that when the transfer application was made he did not now or believe the law to. Be that it could not be made, and rightly and wrongly he was always under the impression that an application could, be made for transferring a case in the High Court from one Bench to another. He also expressed similar regret for what had happened”

       On 16.10.50, further written statement was filed by one counsel, and in paragraph 7 of that statement he said as follows :

       " I was grieved to know that the accusation, against me in these proceedings should be of malice and mala fide for my taking up Zikars brief in connection with his application for transfer, dated the 23rd August, 1950. If I am thus defending the proceedings, I am doing so for vindicating my professional honour and personal self-respect and it would be a misfortune if this Was all going to be construed as aggravating the contempt, as hinted by the Honble Court during my counsels arguments, though remotely. But even as I am making my defence, it is , I admit, quite likely that I committed an error of judgment in acting as I did, causing pain to the Honble Judges, which I deeply regret, as I have already done before and so has my counsel on my behalf in the Course of his arguments. "

       The other counsel also put in a similar reply. The Honble Judges, however, did not accept these statements as a genuine expression of regret for what the contemners had done, and finding the two advocates guilty of contempt, sentenced them to fine. While proposing the sentence they observed; " We are not sure if the sentences we have awarded are adequate to the gravity of the offence, but on this occasion we refrain from being stern and bringing the full power of the court into play considering the misconceptions about the advocates responsibility that seem to have so far prevailed at any rate in a section of the Bar." Leave to appeal to the Supreme Court was refused but was granted by that Court. On the 12th May 1954, when the appeal was heard by the Supreme Court, the appellants tendered an unqualified apology to the Supreme Court and to the High Court and expressed their preparedness to purge the contempt for which they had been convicted. The Supreme Court recorded a note to that effect and sent the case back to the High Court with the direction that the apology tendered there be tendered to the Division Bench before which the contempt was said to have been. committed. The learned Judges of the Division Bench of the High Court did not, however, accept the apology.

       Held (allowing the appeal): (1) The proposition is well settled and self-evident that there cannot be both justification and an apology. The two things are incompatible. Again an apology is not a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea, but it is intended to be evidence of real contriteness. The appellants having tendered an unqualified apology, no exception can be taken to the decision of the High Court that the application for transfer did constitute contempt because the judges were scandalized with a view to diverting the due course of justice, and that in signing this application the two advocates were guilty of contempt. That decision therefore stands.

       (2) 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. Counsel who sign applications or pleading containing matter scandalizing the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds there for, with a view to prevent or delay the course of justice, are themselves guilty of contempt of court, and 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 from refraining from making allegations of his nature in such applications.

       (3) 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 their signing such applications and at 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.

       (4) Every form of defence in a contempt case cannot be regarded as an act of contumacy. It depends on the circumstances of each case and on the general impression about a particular rule of ethics amongst the members of the profession. The expression of regret in the alternative in this case should not have been ignored but should have been given due consideration.

        (5) In view of the facts of this case, the plea of justification did not amount to contumacy, and the unqualified apology was sufficient to purge the contempt committed by the two appellants. - Article 136-Interference with exercise of discretion. Held: It is not the practice of Supreme Court in special leave cases and in exercise of its overriding powers to interfere with a matter which rests in the discretion of the High Court except in very exceptional cases.