Gujarat High Court
Haresh K. Jani And Ors. vs Sarabhai Ramanbhai Shah And Anr. on 28 April, 1987
Equivalent citations: AIR1987GUJ215, (1987)2GLR870, AIR 1987 GUJARAT 215, (1987) 2 GUJLH 92, 1987 CRI LR (GUJ) 326, 1987 (2) 28 GUJLR 870, (1987) 28 GUJ LR 870, 1987 CRILR(SC MAH GUJ) 326
Author: G.T. Nanavati
Bench: G.T. Nanavati
ORDER
1. These applications are filed by some advocates, Bar Associations, the Bar Council of India, and the Bar Council of Gujarat. They want to intervene and be impleaded as parties-respondents in Miscellaneous Criminal Application No. 2729 of 1986 (hereinafter referred to as "the main application"). The main application is directed against Kersup Jehanbux Shethna, the respondent therein, who is the President of the Gujarat High Court Advocates' Association, and Chairman of the Special Action Committee, and is for moving this Court to take suo motu action against the respondent therein under the Contempt of Courts Act, 1971 (hereafter referred to as "the Act") for having committed various acts referred to in the main application. There is a further prayer to the effect that the respondent therein and the Special Action Committee, as well as the Gurarat High Court Advocates' Association, should be restrained from boycotting work of Courts etc., in the entire State. Pending the admission, hearing and final disposal of the main application, it is prayed that the respondent, i.e. Kersup Jehanbux Shethna be restrained from continuing the boycott of any court whatsoever and to direct him to make a public statement that, no call for boycotting of any Court whatsoever is in operation. In the body of the main application, the petitioner has referred the action of the respondent therein, which allegedly amounts to contempt of Court. This petition came up for hearing on 31-12-1986 before the Division Bench of our High Court hearing contempt petitions. On that day, the said Division Bench passed the following order :
"Mr. Barejia seeks permission to delete paragraphs 5 to 12 of the petition. Permission granted. Paragraphs 5 to 12 shall stand deleted. Amendment to be carried out forthwith."
"Facts stated in paragraphs 1 to 4 having been brought to our notice, we suo motu issue Rule against the respondent. Rule returnable on 19-1-1987. Notice to the learned Advocate General with a request to assist the Court."
2. In the main application, number of Miscellaneous Criminal Applications have been filed wherein the petitioners seek to get themselves impleaded as parties-respondents in the main application. Those applications were heard by us on 29-1-1987. Miscellaneous Criminal Application No. 170 of 1987 is filed by the Bar Council of Gujarat. In the said application, it is mainly averred that the Bar Council is vitally concerned with the outcome of the proceedings in the main application as the issues pertaining to the conduct of the legal profession are involved in the main application, and it is one of the functions of the Bar Council to safeguard the rights, privileges and interests of the Advocates. Therefore, it wants to participate in the proceedings in order to oppose the main application. Miscellaneous Criminal Application No. 169 of 1987 is filed by the Bar Council of India on similar grounds and it also wants to intervene as a respondent in order to oppose the main application. Mr. V. B. Patel has filed Miscellaneous Criminal Application No. 128 of 1987 on behalf of the Gujarat High Court Advocates' Association, wherein it is stated that the allegations made in the main application are against the entire class of lawyers and the members of the Gujarat High Court Advocates' Association having passed the resolutions referred to in the main application, it is vitally concerned with and directly involved in the subject-matter of the main application. Other applications filed by the individual advocates or associations of advocates contain similar averments and on that basis, they want to implead themselves as parties-respondents for the purpose of opposing the main application.
3. Mr. Vakil, the learned counsel appearing for the Bar Council of Gujarat, contended that the Bar Council of Gujarat is vitally interested in safeguarding the interest and independence of the legal profession, and it is one of its functions to safeguard rights, privileges and interests of the Advocates. In view of the questions arising for consideration of this Court in the main application, it has passed a resolution to intervene and oppose the main application. It was further contended by Mr. Vakil that inasmuch as in para 16(B) of the main application, there is a prayer for restraining the Special Action Committee as well as the Gujarat High Court Advocates' Association from boycotting the work of the Court etc., in the entire State, the Bar Council of Gujarat is vitally interested in opposing the said prayer. Mr. Vakil elaborated it by stating that the Court has power to grant injunction and as such the Bar Council, in order to protect the interests of the advocates and Associations, should be impleaded as party respondent to oppose the said prayer for interim relief. Mr. Vakil drew our attention to various decisions of the Supreme Court for the purpose of stressing his contention regarding the locus standi of the Bar Council to get itself impleaded. Mr. Vakil further said that in case the Bar Council of the State is allowed to intervene, it will be in a position to advance various arguments opposing the proposed action. We do not consider it necessary now to set out the various arguments which the Bar Council of the State proposed to advance in case it is allowed to intervene. Mr. H. B. Shah, the learned counsel appearing for the Bar Council of India, adopted the arguments of Mr. Vakil. Mr. Kansara, the learned counsel appearing for the Ahmedabad Bar Association, after adopting the arguments of Mr. Vakil contended that though the main application is ostensibly against Mr. Shethna, in fact it is against the whole class of lawyers practising in the State of Gujarat. Thus, according to Mr. Kansara, if at all anybody is guilty for passing any of the resolutions which is said to be contempt of Court, it is the entire class of lawyers who have passed the said resolutions and as such, all those, who participated in the meetings in which the said resolutions were passed, should be brought on record. Mr. V. B. Patel, the learned counsel appearing for the Gujarat High Court Advocates' Association, submitted that the Association must be permitted to put forth its reply in detail and it cannot be said that it is sufficient to permit the Association to put forth its arguments alone. Mr. Raval, the petitioner in person, who is an Advocate and who has filed Miscellaneous Criminal Application No. 155 of 1987, stated that if it is held that the acts referred to in the main petition amount to contempt, the petitioner will smilingly accept any punishment that will be given by the Court. All other counsel have adopted these arguments.
4. The learned Advocate-General, who was asked to assist court, has submitted that the resolution of the Bar Council of Gujarat is only for the purpose of intervening and opposing the main application and not for impleading itself as party respondent to the said appliction. Even if the petitioners in these Miscellaneous Criminal Applications are allowed to get themselves impleaded, they must be directed to confine their arguments to the allegations made in paras 1 to 4 and 13 to 16A and the Annexures and the contents of the return of the respondent Mr. Shethna yet to be filed. The learned Advocate-General further submitted that the respondents, if impleaded, may not be permitted to file their replies except for the purpose of setting forth their arguments. Referring to the Rules framed by the High Court which are called "Contempt of Courts (Gujarat High Court) Rules, 1984" (hereafter referred to as "the Rules") the learned Advocate-General submitted that there is absolutely no provision either for intervening or for impleading and as such, there is no procedure through which the respondents can get themselves impleaded, but the learned Advocate-General submitted that the Court can always get the assistance by hearing such of those parties interested in the matter and it can permit them to file the return. Apart from other cases, the learned Advocate-General also brought to our notice the decision reported in 1981 Cri LJ 250. In that, case the Bench of the Madras High Court, dealing with the prayer for impleading as parties in a contempt proceeding has observed :
"Section 23 of the Contempt of Courts Act empowers the Supreme Court or the High Court, as the case may be, to make rules not inconsistent with the provisions of the Act, providing for any matter relating to its procedure. In accordance with this section, this High Court has framed rules. We are, therefore, governed by the Act and the Rules in the matter of procedure also and we find that there is no provision either in the Act or in the Rules for third parties being allowed to intervene in contempt proceedings. In view of this position, we cannot accede to the request of the Advocates' Association that we formulate a procedure of our own and allow the petitioners seeking intervention."
The learned Advocate-General submitted that in the alternative, the Court can, in the first instance, permit the petitioners in these applications to put forth their arguments confining the same to the charges framed and if the Court, after hearing such arguments, prima facie, comes to the conclusion that it amounts to contempt, then, it can permit the petitioners to put forth their replies to the charges framed and decide the issue finally after hearing their arguments. Mr. Bharat Surti the learned Advocate appearing for the respondent in the main application, stated that his client has no objection to the joinder of the concerned applicants application in these applications as parties - respondent in the main application.
5. It has been always regarded as well settled law that so far as criminal contempt is concerned, it is a matter entirely between the Court and the alleged contemner. So far as the contempt jurisdiction is concerned, the only actors in the drama are the Court and the alleged contemner. In AIR 1974 SC 2255 : (1975 Cri LJ 1), the Supreme Court has held as follows :
"The motion or reference is only for the purpose of drawing attention of the Court to the contempt alleged to have been committed and it is for the Court on a consideration of such motion or reference to decide, in exercise of its discretion, whether or not to initiate a proceeding for contempt. The Court may decline to take cognizance and to initiate a proceeding for contempt either because in its opinion no contempt prima facie appears to have been committed or because even if there is prima facie contempt it is not a fit case in which action should be taken against the alleged condemner. The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference may in its discretion decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for the contempt commences with the initiation of the proceeding for contempt, whether suo motu or on a motion or a reference."
For the purpose of disposal of the above applications, it is unnecessary for us to get into other decisions of the Supreme Court as regards the nature of contempt if at all it is found to have been committed in this case. We are also of the view that, merely because there is nothing in the Act or the Rules regarding impleading or intervening, the Court is not powerless to issue suo motu notice and implead the parties concerned. However, it will be for the Court to decide in each case, depending upon the acts alleged to have been done, and the issues involved therein, as to who should be permitted to be joined as a party to that proceeding. It is a matter of discretion of the Court, and nobody can insist that he should be joined as a party or that action should be taken against him as well. Again, it is settled law that the contemner must know the actual contempt alleged to have been committed by him before he is directed to file his reply, if any. The Bench of our High Court, suo motu issued the Rule against Mr. Shethna, the respondent in the main application, and confined the Rule to the allegations made in paras 1 to 4 only. As per S. 15(3) of the Act, it is necessary that every motion or reference made should specify the contempt of which the person charged is alleged to be guilty. As per the Rules, in every motion by the High Court, the contemner should know the nature of the contempt alleged and also other material facts on the basis of which such contempt notice is issued. At the time of hearing of the present applications, we indicated the nature of the contempt and the alleged acts for which the respondent in the main application is likely to stand charged. They are to the following effect :
"(1) That you, Mr. K. J. Shethna, as the Convener of the Special Action Committee and the President of the Gujarat High Court Advocate's Association, stated that a sitting Judge, Shri A. P. Ravani are responsible for what has happened in the appointment of Justice P. M. Chauhan and scuttling the names of others :
(2) That you, as the Convener of the Special Action Committee and the President of the Gujarat High Court Advocates' Association, were a party to the resolution passed in the joint meeting of the advocates of the Gujarat Bar Associations held at Ahmedabad on Friday, the 21st November, 1986, wherein it was stated as under :
"This meeting condemns the callous attitude of the Government towards administration of justice and the role played by the black sheep in higher judiciary in influencing the Government in making the appointment of the Judges of the higher and lower judiciary." (3) That you, as the Convener of the Special Action Committee of the Presidents of the Bar Associations of Gujarat, presided over the meeting of the said Committee held on 28-11-1986 wherein the following resolution was passed :
"Role played by Shri Justice A. P. Ravani .........in the whole episode be and is hereby condemned."
"The members of the Special Action Committee appreciate the spirit to the strong demand of the participants of the rally for the removal of Shri Justice A. P. Ravani as the High Court Judge and to boycott his Court."
(4) That you, as the President of the Gujarat High Court Advocates' Association, presided over the meeting of the Association on 1st December, 1986, wherein the following resolution was passed.
"Mr. Justice A. P, Ravani be removed as a High Court Judge and his Court be boycotted."
to which you were a party.
And thereby you have committed acts which would lower down and which have lowered down the image and prestige of judiciary in the eyes of people at large."
6. We thus specified the contempt with which Mr. Shethna is likely to be charged. We have yet to receive the reply from the contemner on which we have to decide the issues in question. We have to further consider whether the confidence in Courts and the faith in justice has in any way been diminished by such actions to which the contemner was a party.
7. We make it clear that the material we are going to consider in this case shall be restricted to those charges which we have indicated in the above paragraph. We are more concerned about the fact as to how far that material will go beyond permissible limit to attract the mischief of criminal contempt alleged against the contemner rather than roping in as many advocates as possible in these charges. Even if one is held to liable, the Court will not necessarily be harsh in punishment. .
8. Imposition and quantum of punishment will depend upon how best it can act to avoid such recurrence in future. Nobody can as of right ask the Court to treat them as contemners nor insist upon the Court to issue notice for contempt. Contempt proceedings are not the forum to test as to whether anyone other than the person against whom notice for contempt was issued, will come under t he mischief of contempt since they are simlarly situated as the contemner we feel that such a situation should never arise, and the situation where the Bar as a whole is committed for contempt should not be permitted to arise. Such unseemly awkward situation should always be avoided and to this end, every member of the Bar in the interest of judiciary and its dignity should strive hard. We, as Judges, are more concerned with the dignity of the Bench and the Bar. Emotion on either side will affect the majesty of the Court and the dignity of the profession. Contempt proceedings are not for advancing arguments which are outside the material to which the Court focusses its attention to decide as to whether that material amounts to contempt or not.
9. We are quite aware of the argument advanced by the petitioners in these applications to the effect that if the charges levelled against the respondent in the main application tend towards the mischief of contempt, every one who was a party to such resolutions mentioned in the charges may be hauled up for contempt at a future date. If a Bench consisting of five Judges decides that these resolutions and actions mentioned in the charges amount to contempt of Court, no Bench, numerically lesser than this Bench, will hold otherwise. Unless such of those petitioners, who volunteer that they are parties to such resolutions, are permitted to be impleaded, allowed to put in their replies and permitted to argue, it will be as good as deciding their cases ex -parte, violating al principles of natural justice. No doubt, this aspect is also required to be borne in mind while deciding these applications. If the advocates, as a class, commit any act in excess with their uninhibited emotions and without any restraint, and if the act falls within the mischief of contempt of Court, it should be taken more as contempt of advocates themselves rather than against Judges, as the advocates are part and parcel of the court. In such a situation, the Court will act with tolerance and take only those steps which are necessary for maintaining unfailing dignity of the Court. Unless taking of an action against all the advocates becomes absolutely necessary in order to maintain the dignity of the Court, the Court would not embark upon such a course. That is the reason why instead of roping in all the Advocates, the Court issued notice to Mr. Shethna only. Such selective issue of Rule is the result of the discretion exercised by this Court. For all these reasons, we do not think that all the advocates and their associations should be joined as parties - respondents in the main application. Interests of such persons can very - well be protected either by permitting them to help the Court as interveners and allow them to advance the arguments in respect of those charges only or permit the Bar Council of India, Bar Council of Gujarat and the Gujarat High Court Advocates' Association to intervene and advance arguments only to the extent of the charges indicated hereinabove. Considering all the aspects of the case, and in light of the discussions we have made in the paragraphs supra, we are of the view that the Bar Council of India. Bar Council of Gujarat and the Gujarat High Court Advocates' Association only have to be allowed to intervene and advance arguments to the extent of the charges indicated hereinabove. These bodies will amply protect every member of the Bar who associates himself with the above said resolutions and utterances which have been made specific in the charges indicated hereinabove, since those bodies referred above are effective representative bodies to safeguard the interest of every advocate enrolled in this State. We may also mention here that this Bench will take particular care as to how best to safeguard the interest of those who have not been directly impleaded as party-respondent in spite of the fact that those persons speak out that they are associated with the resolutions and utterances mentioned in the charges enumerated above.
10. After giving our anxious thought to whole issue before us in these applications, and in view of the reasoning stated in the paragraphs supra, we allow the applications filed by the Bar Council of India, Bar Council of Gujarat and the Gujarat High Court Advocates' Association granting them liberty to intervene, and advance arguments only to the extent to the charges referred to hereinabove. The applications filed by other parties are dismissed. There will be no order as to costs.
11. Order accordingly.