Rajasthan High Court - Jaipur
6. At This Juncture, It May Be Stated That ... vs . Harwan Investment & Trading Pvt. Ltd. ... on 14 July, 2014
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
DB CRIMINAL CONTEMPT PETITION NO. 4/14.
SUO MOTO CONTEMPT PROCEEDINGS UNDER ARTICLE 2 AND 5 OF THE CONSTITUTION OF INDIA READ WITH SECTION 15 OF THE CONTEMPT OF COURTS ACT, 1971 HON'BLE MS. JUSTICE BELA M. TRIVEDI 14.07.2014
1.(A) Is the High Court, which is in loco parentis of the subordinate courts and the guardian of the rule of law, expected to be a silent spectator, where the dignity, security and the morale of the subordinate courts i.e. the backbone of the judiciary are put to stake, and when the very foundation of the judiciary i.e. the trust and faith of the people is sought to be shaken by a fraction of lawyers?
(B) Should a losing litigant, who is a lawyer by profession, be permitted to interfere with the judicial proceedings and to create an atmosphere of fear and pressure in the court room, and humiliate or browbeat the Judge, showing the strength and support of the President of the Bar Association and other lawyers, in order to get the desired orders from the court?
(C) Do the lawyers enjoy any immunity from undergoing the normal process of law, required to be followed by the other ordinary litigants?
2. These are some of the issues which have cropped up since last one week, and which have constrained and prompted this court to initiate these suo moto proceedings in exercise of the powers conferred under Article 215 of the Constitution of India, read with Section 15 of the Contempt of Courts Act, 1971 (hereinafter referred to as 'the said Act').
3. At the outset it may be stated that due to call of strike given by the Bar Associations at the District Court, Jaipur and the High Court, the judicial work in all courts at Jaipur, including at the High Court and many other courts outside the Jaipur, has been hampered and paralysed since last one week, merely because the Addl. District & Sessions Judge, Court No. 13, Jaipur City, Jaipur passed an adverse order against Shri Bharat Bhushan Pareek in his personal matter of eviction on 7.7.14. The array of incidents as brought to the notice of this court and stated in the copies of the orders passed by the Addl. District & Sessions Judge, Court No. 13, Jaipur City, Jaipur, Shri Mahendra Choudhary (hereinafter referred to as 'the concerned Judge') and also stated in the representations made by the Rajasthan Judicial Service Association, Jaipur, Rajasthan Nyayik Karamchari Sangh and others, as also reported in the daily newspapers, may be stated as under :-
3(i) On 5.7.14, the concerned Judge passed the detailed order after hearing both the parties, issuing possession warrant against the judgment debtor Shri Bharat Bhushan Pareek, who is also a lawyer by profession, on he having failed to comply with the order passed by the High Court in the SB Civil First Appeal being No. 453/03 (pending before this court), arising out of the decree of eviction dated 25.7.03. The said warrant was made returnable on 4.8.14.
3(ii) On 7.7.14, the judgment debtor Shri Pareek submitted an application seeking stay against the possession warrant issued by the court on 5.7.14. On the said application, the concerned Judge issued notice to the decree-holder and fixed the matter on 18.7.14. It appears that the judgment debtor Mr. Pareek again submitted another application for expediting the hearing of his application. The concerned Judge ordered to keep the said application alongwith the execution proceedings fixed on 4.8.14.
3(iii) After passing of the said orders, when the concerned Judge was dictating the order to his stenographer in some other matter, the judgment debtor Shri Bharat Bhushan Pareek alongwith other members of the Bar including Shri Gopesh Gumbaj, the President of the Bar, Shri Balraj Choudhary, former Secretary of the Bar and Shri Balram Jhakhar started shouting that the possession warrant was wrongly issued and that he (the Judge) was biased. Mr. Pareek also appears to have stated that he wanted to approach the Supreme Court by filing the SLP and, therefore, the proceedings be stayed. The other members of the Bar present in the Court also started shouting that the matter being of the advocate Shri Pareek, some time be granted. Since the judgment debtor Shri Pareek was threatening and browbeating the court with the support of the other members of the Bar, and they all were interfering with the course of judicial proceedings, the concerned Judge passed the following order:-
07.07.14 ???????? ???? ???????? ?? ?? ?? ??? ???? ???? ??? ???????? ?? ??? ?????? 04.08.14 ??? ??? ???
???????? :- ???? ????? ?? ????????????? ??? ???? ?? ??? ????? ????-???? ????? (????????) ???? ??? ?? ??????? ?? ??? ??????? ??? ??????? ???? ????? ??????, ?????, ????? ????? ????? ? 4-5 ?????????? ?? ????? ??? ???? ??? ???? ??? ??. ???? ?????????? ???? ?? ??? ??????? ??????? ?????? ?? ????? ???? ??? ?? ?? ???? ????? ???-??? ?? ???????? ??? ?? ??? ?? ?????? ??? ????? ?????? ???? ?? ???? ?????? ??? ???? ???? ?? ?? ?????? ???? ?? ?? ?? ?? ???? ????????? ???? ??? ???? ?? ??? ??? ?? SLP ??? ?? ??? ?? ??? ???? ????? ???? ??????? ?? ?? ??? ?? ?????????? ?? ????? ?? ??? ?? ???? ????? ?? ?????? ???? ????? ?? ???-?????? ???? ??????? ?? ????? ?? ??????? ????? ??? ???? ???????? ???? ??? ?? ?? ??????? ?? ??????? ??? ??? ??? ?? ???? ???????? ????????? ???? ???? ????? ?????? ?? ??? ???????? ?? ??? ????? ??. ??? ????????? ???? ???? ?? ??? ???"
3(iv) On 8.7.14, the lawyers had abstained themselves from work in all courts due to call of strike given by the Bar Associations.
3(v) On 9.7.14 as transpiring from the copies of representations made by the Rajasthan Judicial Service Association, Rajasthan Nyayik Karamchari Sangh and from the letters written by the Senior Reader of Court No. 13, Shri Rajesh Mathur as also the letter written by the Assistant Nazir addressed to the District & Sessions Judge, a big crowd of lawyers came to the Court Room No. 13 at about 10.45 A.M. and started shouting slogans against the concerned Judge in abusive language. They also forced the staff members of the said court and other courts to leave the court rooms and tried to damage the furniture of the court rooms. On having succeeded in forcing the staff members to leave the court rooms, they latched the doors of the court rooms from outside. They also compelled the other Judges who were sitting on the Dias of the other court rooms to retire in the Chambers, and kept on ransacking the courts and threatening and abusing the Judges and the staff members.
4. The said incident was also reported in the newspapers. The copies of the orders, representations, letters and the clippings of the newspapers are on record and shall be treated as part of these proceedings. It is pertinent to note that in support of the aforesaid incident, the Bar Associations of the courts at Jaipur including of the High Court have given the call of strike and boycott the courts till the concerned Judge is transferred to some other court by the High Court.
5. Apart from the catena of decisions of the Apex Court declaring such strike and boycotts of the courts as illegal, here is a case wherein the judgment debtor who is the lawyer, with the support of other members of the Bar, had tried to interfere with the judicial proceedings and threaten and browbeat the court, undermining the dignity and authority of the concerned court on 7.7.14. It is needless to say that any person who scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or prejudices or tends to prejudice or interferes or tends to interfere with the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice in any manner, would be committing a criminal contempt within the meaning of Section 2(c) of the said Act. In the instant case Shri Pareek, the judgment debtor in the case, Shri Gopesh Gumbaj, the President of the Bar Association, Shri Choudhary, former Secretary, Shri Balram and other few lawyers, as mentioned in the order dated 7.7.14 passed by the concerned Judge, had in fact interfered and thwarted the judicial proceedings and caused obstruction in the administration of justice and thereby had rendered themselves liable for committing the criminal contempt of subordinate court, presided over by the concerned Judge, for which this court takes cognizance as contemplated under Section 15 of the said Act.
6. At this juncture, it may be stated that the judicial function cannot be and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by the litigants or by the counsels, and the High Courts are duty bound to insulate the judicial functionaries within their territory from being demoralised, as observed by the Apex Court in case of Mahabir Prasad Singh Vs. Jacks Aviation Pvt. Ltd. (1999) 1 SCC 37. It is also settled proposition of law that the High Courts in India are superior courts of record, having inherent and plenary powers as contemplated under Article 215 of the Constitution of India. The Apex Court in case of M.V. Elisabeth & Ors. Vs. Harwan Investment & Trading Pvt. Ltd. AIR 1993 SC 1014, has observed that unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers.
7. It has also been repeatedly held by the Apex Court that the rule of law is the foundation of the democratic society and the judiciary is the guardian of the rule of law. The confidence, which the people repose in the courts of justice cannot be allowed to be tarnished, diminished or wiped out by the contemptuous behaviour of any person. The foundation of the judiciary is the trust and the confidence of people in its policy to deliver fearless and impartial justice. When the foundation itself is shaken by the acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. It is for this purpose that the High Courts are entrusted with the extraordinary powers under Article 215 of the Constitution, of punishing for the contempt of courts, those who indulge in acts which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalising it. As observed by the Apex Court in case of Rajendra Sail Vs. M.P. High Court Bar Association & Ors. (2005) 6 SCC 109, when the court exercises this power, it does not do so to vindicate the dignity and honour of the individual Judge, who is personally attacked or scandalised, but to uphold the majesty of the law and the administration of justice.
8. As per the settled legal proposition, though a fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt, if it is made in good faith and in public interest, nonetheless the litigant or the lawyer losing in the court cannot be permitted to impute motives to the Judges and to the institution in the name of fair criticism, which would otherwise damage the image and the majesty of law. It is true that the High Court should be very slow in initiating contempt proceedings against any person and more particularly the lawyers who are the integral part of the system, in the administration of justice, however, it is also the bounden duty of the High Court to protect the dignity and morale of the subordinate courts, as also to preserve the public faith in the institution. In the instant case the judgment debtor Shri Pareek, alongwith other lawyers having interfered with the course of justice and due administration of law, by threatening the concerned Judge and causing interference and obstruction in the judicial proceedings, and also scadalising the subordinate courts, any lenient view would tentamount to failure on the part of this court to discharge its duty as loco parentis of the subordinate courts.
9. In the instant case, the concerned Judge has not made a formal reference to the High Court under Section 15(2) of the said Act, probably because after the incident on 7.7.14, he has proceeded on leave, however the court is of the opinion that no such reference as such is required to be made. The High Court is empowered to take cognizance of criminal contempt of subordinate courts on its own motion, as contemplated under Section 15(1) of the said Act. So far as criminal contempt of subordinate courts is concerned, it may be noted that as per section 10 of the said Act, the High Court has the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it, as it has in respect of contempt of itself. Section 11 also empowers the High Court to enquire into or try contempt of itself or of any of subordinate court to it, whether the contempt alleged to have been committed is within or outside the local limits of its jurisdiction. As per Section 15 of the said Act, the High Court can take action on its own motion in case of a criminal contempt other than a contempt referred to in Section 14 of the said Act. In this regard, it may further be noted that sub-section 1 would cover all cases of criminal contempt including the cases of criminal contempt of subordinate courts, even if no reference is made by the concerned subordinate courts, whereas sub-section 2 of Section 15 would cover the cases where the subordinate court makes a specific reference to the High Court for taking cognizance of the criminal contempt of the subordinate court. The provision as contained in sub-section 2 is the provision which enables the subordinate to make reference to the High Court, which could not be read as a provision curbing the inherent powers of the High Court to take action on its own motion in respect of the criminal contempt of subordinate courts. The powers of the High Court to take action on its own motion as envisaged under sub-section 1 of Section 15 are in confirmity with the inherent powers envisaged under Article 215 of the Constitution of India. The view of this court that the High Court could exercise inherent powers under Article 215 of the Constitution read with Section 15 of the said Act, in respect of the criminal contempt as the subordinate court, without any reference by the subordinate court, is also fortified by the views of the Orissa High Court and the Delhi High Court. It has been held by the Orissa High Court in case of State of Orissa Vs. R.N. Patra 1976 Cr.L.J., 440, relying upon the Full Bench decision of the Delhi High Court that sub-section (1) of Section 15 is comprehensive in its terms and sub-section (2) makes provision for a reference by subordinate court in respect of cases which do not otherwise come to the notice of the High Court.
10. So far as the incident, which took place on 9/7/2014 is concerned, certain glaring facts have emerged from the representations made by the Rajasthan Judicial Services Association, Jaipur and Judicial Staff Association. It appears that as a fallout of the order dated 7/7/2014 passed by the concerned Judge, on 9/7/2014 a big crowd of lawyers rushed into the Court No.13 and started ransacking the court room and damaging the furniture of the Court room and the Chamber, tried to break other articles lying there, abused the concerned Judge in flimsy language (of course the Judge having been forced to proceed on leave after the incident of 7/7/2014, was not present). They also forced the staff members of the said Court to leave the Court room and threatened them, if they re-entered, and then latched the Court room from outside. It further appears that the said crowd then went to the Chamber of the District Judge and tried to malign the atmosphere by creating scenes for about 15 to 20 minutes, and then they went to the other Court rooms and compelled the Presiding Officer to retire from the dais and then latched the Court rooms from outside, creating an atmosphere of terror. They also tried to cause damage to the properties of the Court. It further appears that one of the litigants who tried to protest against such misbeaviour of the lawyers, was severally beaten. One another Class IV Peon was also mishandled and abused. One lawyer who wanted to appear in the court was also humiliated and abused. All the judges and the staff members and the litigants were put to a very helpless situation by the unrulely crowd of lawyers. Such acts of the concerned lawyers are not only shameful and disgusting, but are absolute unworthy of becoming the lawyers.
11. Since the names of the lawyers who were involved in the said incident of 9/7/2014, have not been disclosed in any of the representations, may be due to the fear and terror created by the said crowd, the Registrar (Admn.) is required to be directed to hold a preliminary enquiry with regard to the said incident and to take all necessary actions against the persons involved, as may be found proper in the administration of justice and in accordance with law. He shall also take necessary actions to ensure the security and safety of the all concerned in the Subordinate Courts at Jaipur.
12. The High Court had not taken any stringent action so far in this regard, only with a view to see that the harmonious relationships between the bar and the bench are not spoiled, and the lawyers resume the work at the earliest after going on a token strike of a day or two, however, instead of calling off the strike, the concerned Presidents and Secretaries of the Bar Associations at the District and High Court, have decided to continue the strike till further decision. It is needless to say that the Apex Court in catena of the decisions has held such strikes and boycotts as illegal, as the strike/boycott by the lawyers affects not just the members of the legal profession, but obstructs the process of the Court, which is intended to secure justice, and also causes untold hardships to the litigants. To cite a few are the decisions in case of Ramon Services Pvt. Ltd. vs. Subhash Kapoor (2001) 1 SCC 118, U.P. Sales Tax Service Assn. Vs. Taxation Bar Assn. (1995) 3 SCC 716 and Ex.Capt. Harish Uppal Vs. Union of India & Anr. (2003) 2 SCC 45.
13. It is also very unfortunate that the Bar Councils who have to perform the public duty and are charged with the obligation to protect the dignity of the profession and maintain the professional standards and etiquettes have also failed to discharge their duties, by not taking any actions against the Advocates giving calls for strike or boycott. A beneficial reference of the observations made by the Apex Court in case of Ex.Capt. Harish Uppal Vs. Union of India & Anr.(supra) may be made in this regard. It is expected that the concerned Bar Councils and the Bar Associations will rise to the occasion and call off the strike at the earliest and resume the Court work.
14. Since the lawyers Shri Bharat Bhushan Pareek, Shri Gopesh Gumbaj, Shri Rajesh Choudhary and Shri Balraj Jhakhar as named by the concerned Judge in his order dated 7/7/14 had tried to interfere with the judicial proceedings and caused obstruction in the administration of justice, the court in exercise of the powers conferred under Article 215 of the Constitution of India, prima facie finds them responsible for committing the criminal contempt of the subordinate court, being the Court of Addl. District & Sessions Judge No.13, Jaipur City, Jaipur, within the meaning of Section 2(c) of the said Act and takes cognizance of such criminal contempt against them as contemplated under Section 15 of the said Act.
15. In the aforesaid premises, the following directions are given:-
(a) The office is directed to register the matter as suo moto contempt proceedings under Article 215 of the Constitution of India read with Section 15 of the Contempt of Courts Act, 1971 for the purpose of record.
(b) The office is directed to issue notices under Section 17 of the Contempt of Courts Act 1971, to Mr. Bharat Bhushan Pareek-the judgment debtor, Shri Gopesh Gumbhaj, the President of the Bar association, Jaipur, Shri Rajesh Choudhary, Former General Secretary of the Bar Association Jaipur and Shri Balraj Choudhary, the lawyer, whose addresses may be obtained by the office from the concerned Bar Associations. The notice shall be accompanied by the instant order and the other materials on record to be made returnable on 23.7.14.
(c) Since every case of criminal contempt under Section 15 is required to be heard and determined by the Bench of not less than two Judges, as per Section 18 of the said Act, the office is directed to place the matter before the Chief Justice for necessary consideration.
(d) The Registrar (Administration) is directed to hold a preliminary inquiry with regard to the incident of 9.7.14 and take all necessary actions against the persons involved, as may be found proper and in accordance with law, and also to take necessary action to ensure the security and safety of all concerned in the subordinate courts.
(e) A copy of this order be sent to the Chairman, Bar Council of Rajasthan and Chairman, Bar Council of India for necessary consideration and action.
(f) A copy of this order be also sent to the President and Secretary of the High Court Bar Association for doing the needful, for resuming the work at the earliest.
(g) A copy of this order be placed in the file of SBCFA No. 453/03 pending before this court. It is clarified that the concerned executing court shall be at liberty to proceed further with the execution proceedings pending before it, in accordance with law.
(BELA M. TRIVEDI) J.
MRG All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
MRG/P