Himachal Pradesh High Court
Court On Its Own Motion vs Vikas Sanoria on 24 August, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. OPC No.5 of 2018.
Reserved on : 23.08.2018.
Date of decision: 24th August, 2018.
Court on its own motion .....Petitioner.
Versus
Vikas Sanoria ....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes
For the Petitioner : Mr. Ashok Sharma,
Advocate General, as
Amicus Curiae.
For the Respondent : In person.
Tarlok Singh Chauhan, Judge.
This Court after noticing that the respondent had made certain scurrilous and indecent attacks against the Judicial Magistrate 1st Class-7, Shimla, initiated suo motu criminal contempt proceedings in Cr.OPC No.4 of 2018 titled 'Court on its own motion versus Vikas Sanoria'. The respondent, who happens to be an Advocate, after putting in 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 2 appearance in those proceedings thereafter had posted the following comments on his face book account:
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"Court on its motion___(Loose motion___,),,, since daughter of sitting JUSTICE saheb. To dekhte jnaabjee.....haha."
2. On the basis of the aforesaid comments, the instant contempt proceedings against the respondent were initiated, who vide his statement dated undertook not to post such scurrilous and offensive posts on r 02.08.2018, his face book account. It is after such an undertaking that the case was adjourned to 16.08.2018 so as to observe his conduct. However, the indulgence and sympathy shown by this Court appeared to be totally misplaced as it thereafter emboldened the respondent-contemnor to cast uncalled for and unwarranted aspersions and makes scurrilous and indecent attacks against this Court and its Judges in wild, intemperate and even in abusive language, constraining the Court to pre-pone the matter to 09.08.2018 when the matter was adjourned for 10.08.2018 for appearance of the respondent. On 10.08.2018, the respondent was charge-
sheeted and the charge reads thus:-
::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 3"Charge We (Justice Tarlok Singh Chauhan and Justice .
Chander Bhusan Barowalia), do hereby charge you (Vikas Sanoria) as under:
That you on or about July 29, 2018 published various posts on your facebook account mentioning thereby, "Court on its own motion_(Loose Motion_,),,,since daughter of sitting JUSTICE saheb. To dekhte jnaabjee....haha", "Sunday, 29 July 2018, 6:26 PM....13 min. 23 seconds duration of call...Just abuses. From the XUV 500.. Jai ho Judicial system Ji.. Koyeenaa....wait n watch ji..", "Jabb Jabb phone se resentment/krodh/gaali millegi..FB post dallegi prevailing discrepancies vaaste..Judicial System ji haha @ XUV 500.. Koyeenaa Wait n Watch ji," "Presently favourite Justice he he.. Feeling BLESSED ji..WAQT.."
Annexures 1 to 5 of the present charge, which posts tend to scandalize the High Court of Himachal Pradesh and thereby committed an offence punishable under Section 12 of Contempt of Courts Act, 1971 and within the cognizance of this Court.
And we hereby direct that you be tried by this Court on the above said charge.
sd/-
(Tarlok Singh Chauhan) Judge sd/-
(Chander Bhusan Barowalia) Judge The contents of the aforesaid charge together with Annexures-1 to 5 were read over and explained to the respondent, in vernacular, to which he pleaded not ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 4 guilty and claimed trial as per his statement recorded separately."
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3. Today, the case was fixed for evidence and the respondent stated that he does not want to lead any oral evidence and his reply by way of affidavit itself be read as evidence. His statement was taken on record.
4. The so-called justification and explanation as contained in the reply-affidavit is reproduced in r verbatim and reads thus:-
"1.That the facebook posts annexed alongwith CROPC No.05/2018 have been posted from my facebook I.d. during the month of July/Aug., 2018.
2. That the posts were made inadvertently by me in a fit of rage/anger as it took seven days to get the vehicle release application decided by the concerned JMIC at Distt. Court, Shimla,H.P. pertinent to mention here that over all it took around 29 days to get the vehicle released.
3.That due to undue delay in obtaining release orders of the vehicle in question, I was deprived of my professional fee in entirety. Not only this the surety required at that time of getting the vehicle released had to be arranged by me.
4.That during this entire course I lived under continuous threat of damage to my office, car, threat of life/hurt etc. etc.to me alongwith my wife and minor daughter as the vehicle owner's ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 5 younger brother had delivered multiple telephonic threats/abuses and to that effect a complaint was .
made in writing to the SHO, P.O. West, Shimla, H.P. i.e. GD No.072, GD date and time 01/08/2018, 23:23 Hours.
5.That during this compelling adverse circumstances, I lost my cautious/temper/balance of mind oftenly for a period of more than 40 days commencing w.e.f. 13/07/2018.
6. That my acts/posts on social media are/were a result of mental torture/telephonic abuses on the part of younger brother of the vehicle owner, besides financial losses incurred, liability towards the lawyer engaged by me to prefer criminal revision in the Court of Ld. Distt. Judge, Shimla, H.P. and also financial liability towards the surety of the vehicle in question.
7.That in case any Judicial Officer (Hon'ble Justices of H.P. High Court, Ld. Distt. Judge,Shimla, H.P. or any of the subordinate Judicial Officers) must have felt offended due to my social media posts, I regret for the same and tender my apologies by the means of this affidavit with a further undertaking not to repeat the same in the future.
8. That a direction be also passed to all Subordinate Judicial Officers, to deal with matters sensitively after proper application of mind/law as at times it's the Lawyer community which is to be blamed for being not able to obtain desired ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 6 results due to insensitive handling of the matter by the concerned Subordinate Judicial Officers."
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5. However, upon cross examination by the learned Advocate General, who was specially appointed to assist this Court as Amicus Curiae, the respondent acknowledged that all the comments in his face book in Ext. RW-1/B (7 leafs) were posted by him and referred to the Judges of this Court r to as also to JMIC-7 of the District Court, Shimla. However, he feigned ignorance as to whether these postings contemptuous and in fact amount to interference with the were due process of law and administration of justice and further stated that he was not in a position to state as to whether these postings scandalize the Court.
6. Evidently, the language used by the respondent is intemperate and contemptuous and above all, this petition is loaded with sarcasm and innuendos and, therefore, this court has no hesitation to conclude that the respondent has made deliberate attempt to interfere with the due course of judicial proceedings and such action could be construed to be obstructive or attending to obstruct the administration of justice.
::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 77. The genesis of this case evidently appears to be an application moved by the respondent for the release of .
his client's vehicle. However, since the orders passed by the Court were not to the liking of the respondent, therefore, he took to proxy war not only against the said Magistrate, but made disparaging and contemptuous remarks against this Court when it initiated proceedings of contempt against him.
8. Judiciary cannot be reduced to the position of flies in the hands of wanton boys. Judge bashing is not and cannot be a substitute for constructive criticism. The Hon'ble Supreme Court in Haridas Das versus Usha Rani Banik (Smt) and others APU Banik, (2007) 14 SCC 1 observed as under:-
"1. "Judge bashing" and using derogatory and contemptuous language against Judges has become a favourite pastime of some people. These statements tend to scandalize and lower the authority of the Courts and can not be permitted because, for functioning of democracy, an independent judiciary to dispense justice without fear and favour is paramount. Its strength is the faith and confidence of the people in that institution. That cannot be permitted to be undermined because that will be against the public interest.::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 8
2. Judiciary should not be reduced to the position of flies in the hands of wanton boys. Judge bashing is not .
and cannot be a substitute for constructive criticism.
Xxx xxxx xxxx
12. There is guarantee of the Constitution of India that there will be freedom of speech and writing, but reasonable restriction can be imposed. It will be of relevance to compare the various suggestions as prevalent in America and India. It is worthwhile to note that all utterances against a Judge or concerning a pending case do not in America amount to contempt of Court. In Article 19 the expression "reasonable restrictions" is used which is almost at par with the American phraseology "inherent tendency" or "reasonable tendency". The Supreme Court of America in Bridges v California (1911) 86 Law Ed. 192 said:
"What finally emerges from the clear and present danger cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely serious and the degree of imminence extremely high before utterances can be punished."
13. The vehemence of the language used is not alone the measure of the power to punish for contempt of Court. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The stream of administration of justice has to remain unpolluted so that purity of Court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore required to be well taken care of to maintain the sublimity of Court's environment; so also to enable it to administer justice ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 9 fairly and to the satisfaction of all concerned. To similar effect were the observations of Lord Morris in Attorney General v. Times Newspapers 1974 AC 273 .
at page 302. It was observed that when "unjustifiable interference is suppressed it is not because those charged with the responsibilities of administration of justice are concerned for their own dignity, it is because the very structure of ordered life is at risk if the recognised Courts of the Land are so flouted and their authority wanes and is supplanted. "
14. To similar effect were the observations of Hidayatullah , C.J. (as the learned Judge was then) in Rustom Cowasijee Cooper vs. Union of India (1970) 2 SCC 298) (SCC p.301, para 6) "6. There is no doubt that the Court like any other institution does not enjoy immunity from fair criticism. No Court can claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges. They do not think themselves to be in possession of all truth to hold that wherever others differ from them are in error. No one is more conscious of his limitations and fallibility than a Judge. But because of his training and the assistance he gets from learned counsel he is apt to avoid mistakes more than others. While fair and temperate criticism of the Court even if strong, may not be actionable, but attributing improper motives or tending to bring Judges or Courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must be and will be taken. Respect is expected not only from those to whom the judgment of the Court is acceptable but also from those to ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 10 whom it is repugnant. Those who err in their criticism by indulging in vilification of the institution of Court, administration of justice .
and the instruments through which the administration acts, should take heed for they will act at their own peril."
15. There is an abundance of empirical decisions upon particular instances of conduct which has been held to constitute contempt of Court. We shall now refer to a few. Lord Russel of Killowen, L.C. J, has laid down in Reg v. Gray 1900(2) QB 36 at 40 as follows:
(All ER p.62 C) "Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or to lower his authority, is a contempt of Court."
16. It cannot be denied that judgments are open to criticisms and in the said case it was observed : (Gray case, ALL ER p.62 D-E) "Judges and Courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no Court could or would treat that as contempt of Court".
Indeed, Section 5 of the Act now provides that a person shall not be guilty of contempt of Court for publishing any fair comment on the merits of any case which has been heard and finally decided. But, if such a defence is taken, it is always open to test whether the publication alleged to be offending was by way of fair comment on the merits of the case or was personal scurrilous abuse of a Judge as a Judge, for abuse of a Judge or a Court or attacks on the personal character of a Judge are clearly punishable contempt. As stated in para 27 at page 21 of Volume- 9 of Halsbury's Laws of England; Fourth Edition,:
::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 11"The punishment is inflicted, not for the purpose of protecting either the Court as a whole or the individual Judges of the Court .
from a repetition of the attack, but of protecting the public, and specially those who either voluntarily or by compulsion are subject to the jurisdiction of the Court, from the mischief they will incur if the authority of the tribunal is undermined or impaired."
17. The view was echoed by this Court in Re. D.C. Saxena v. Chief Justice of India (AIR 1996 SC 2481) In the same volume of Halsbury's Laws of England at para 27 it is stated thus:
"Any act done or writing published which is calculated to bring a Court or a Judge into contempt or to lower its authority or to interfere with the due course of justice or the lawful process of the Court, is a contempt of Court."
18. The above proposition has been approved and followed by Lord Atkin in Andrew Paul Terence Ambrad v. The Attorney General of Trinidad and Tobago, (AIR 1936 PC 141). It was observed as follows: (AIR pp 145-46) "No wrong is committed by any member of the public who exercised the ordinary right of criticism in good faith in private or public the public act done in the seat of justice. The path of criticism is public way, the wrong headed are permitted to err therein, provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice and are genuinely exercising a right of criticism and not acting in malice or attempting to impart the administration of Justice, they are immune. Justice is not a cloistered virtue; she ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 12 must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men."
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19. Lord Justice Donovan in Attorney General v. Butterworth: 1963(1) QB 696 after making reference to Req. V. Odham's Press Ltd ex parte A.G.: 1957(1) QB 73 said:
"whether or not there was an intention to interfere with the administration of justice is relevant to penalty not to quit".
This makes it clear that an intention to interfere with the proper administration of justice is an essential ingredient of the offence of contempt of court and it is enough if the action complained of is inherently likely so to interfere. In Morris v. Crown Office:
1970(1) All E.R. 1079 page 1081, Lord Denning M.R. said that:
The course of justice must not be deflected or interfered with. Those who do it strike at the very foundations of our society.
In the same case, Lord Justice Solmon spoke: (All ER p.1087 b-c) "The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented."
20. Frank Further, J. in Offutt v. U.S. 1954(348) U.S. 11 expressed his view as follows: (L.Edp.16) "It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage."
21. In Jennison v. Baker : 1972(1) All E.R. 997 at page 1006 it is stated:
::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 13"The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope."
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22. Chinappa Reddy, J. speaking for the Bench in Advocate General, State of Bihar v. Madhya Pradesh Khair Industries: (1980 (3) SCC 311) citing those two decisions in the cases of Offutt and Jennison (supra) stated thus:
"It may be necessary to punish as a contempt a cause of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and vital stake in the effective and orderly administration of justice, because unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for contempt of Court not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest but to protect and to vindicate the right of the public and the administration of justice shall not be prevented, prejudiced, obstructed or interfered with."
23. Krishna Iyer, J. in his separate judgment In Re. S. Mulgaokar: (1978 (3) SCC 339) while giving broad guidelines in taking punitive action in the matter of contempt of Court has stated: (SCC p 353, para 33) ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 14 ".....if the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond .
condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream."
24. In Brahma Prakash Sharma and others v. The State of Uttar Pradesh: (AIR 1954 SC 10) this Court after referring to various decisions of the foreign countries as well as of the Privy Council stated thus: (AIR p.14, para 12) "It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the Court's administration of justice, or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties. It is well established that it is not necessary to prove affirmative that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely or tends in any way to interfere with the proper administration of law...."
25. It may be noted here that in the illustrated case S. Mulgaokar's case (supra) it was held that :(SCC p.347, para 16) "16.The judiciary cannot be immune from criticism. But, when such criticism is based on obvious distortion or gross mis-
statement and make in a manner which seems designed to lower respect of the ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 15 judiciary and destroy public confidence in it, it cannot be ignored."
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26. Though certain imputations against the Judge may be only libelous against that particular individual, it may at times amount to contempt also depending upon the gravity of the allegations. In Brahma Prakash Sharma's case (supra) this Court held that: (AIR p.14, para 12) "[A] defamatory attack on a Judge may be a libel so far as the judge is concerned and it would be open to him to proceed against the libell or in a proper action if he so chooses. If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such Court, it can be punished separately as contempt."
The same view has been taken in Perspective Publications (P) Ltd v. The State of Maharashtra (AIR 1971 SC 221) and C.K. Daphtary and others v O.P. Gupta and others (AIR 1971 SC 1132).
Therefore, apart from the fact that a particular statement is libelous, it can constitute criminal contempt if the imputation is such that the same is capable of lowering the authority of the Court.
The gravity of the aforesaid statement is that the same would scandalize the court.
27. The right to criticize an opinion of a court, to take issue with it upon its conclusions as to a legal proposition, or question its conception of the facts, so long as such criticisms are made in good faith and are in ordinarily decent and respectful language and are not designed to willfully or maliciously misrepresent the position of the Court, or tend to bring it into disrespect, or lessen the respect due to the authority to which ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 16 a Court.....is entitled, cannot be questioned.... The right of free speech is one of the greatest guarantee to liberty in a free country like ours, .
even though that right is frequently and in many instances outrageously abused..... If any considerable portion of a community is led to believe that either because of gross ignorance of the law or because of a wrong reason, it cannot rely upon the courts to administer justice that portion of the community, upon some occasion, is very likely to come to the conclusion that it is better not to take any chances on the courts failing to do their duty.
28. Judiciary is the bed rock and handmaid of democracy. If people lose faith in justice parted by a Court of law, the entire democratic set up would crumble down. In this background, observations of Lord Denning M.R. in Metropolitan Properties Ltd. v. Lennon (1968) 3 All E.R. 304 are relevant:
"Justice must be rooted in confidence, and confidence is destroyed when right minded people go away thinking - the Judge is based."
29. Considered in the light of the aforesaid position in law, a bare reading of the statements makes it clear that those amount to a scurrilous attack on the integrity, honesty and judicial competence and impartiality of judges. It is offensive and intimidating. The contemnor by making such scandalising statements and invective remarks has interfered and seriously shaken the system of administration of justice by bringing it down to disrespect and disrepute. It impairs confidence of the people in the Court. Once door is opened to this kind of allegations, aspersions and imputations, it may provide a ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 17 handle to the disgruntled litigants to malign the Judges, leading to character assassination. A good name is better than good riches.
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Immediately comes to one's mind Shakespeare's Othello, Act II, Scene iii, 167:-
"Good name in man and woman, dear my Lord is the immediate jewel of their souls; who steals my purse, steals trash; its something, nothing; 'T was mine, its his, and has been slate to thousands; But he that filches from me my good name, Robs me of that which not enriches him And makes me poor indeed."
30. Majesty of law continues to hold its head high notwithstanding such scurrilous attacks made by persons who feel the law Courts will absorb anything and every thing, including attacks on their honesty, integrity and impartiality. But it has to be borne in mind that such divinity and magnanimity is not its weakness but its strength. It generally ignores irresponsible statements which are anything but legitimate criticism. It is to be noted that what is permissible is legitimate criticism and not illegitimate insinuation. No Court can brook with equanimity something which may have tendency to interfere with the administration of justice. Some people find judiciary a soft target because it has neither the power of the purse nor the sword, which other wings of democracy possess. It needs no reiteration that on judiciary millions pin their hopes, for protecting their life, liberty, property and the like. Judges do not have an easy job. They repeatedly do what rest of us (the people) seek to avoid, make decisions, said David Pannick in his book "Judges". Judges are mere mortals, but they are ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 18 asked to perform a function which is truly divine.
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31. What is contempt of Court has been stated in lucid terms by Oswald in Classic "Book on Contempt of Court". It is said:
"To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and demonstration of law into disrespect and disregard or to interfere with or prejudice parties, litigant or their witnesses during the litigation."
"Contempt in the legal acceptance of the r term, primarily signifies disrespect to that which is entitled to legal regard, but as a wrong purely moral or affecting an object not possessing a legal status, it has in the eye of the law no existence. In its origin all legal contempt will be found to consist in an offence more or less direct against the sovereign himself as the fountainhead of law and justice or against his palace where justice was administered. This clearly appears from old cases."
32. Lord Diplock, speaking for the Judicial Committee in Chokolingo v. Attorney General of Trinidad and Tobago (1981) 1 All E.R. 244, summarized the position thus:
"Scandalising the Court is a convenient way of describing a publication which, although it does not relate to any specific case either part of pending or any specific Judge, is a scurrilous attack on the judiciary as a whole which is calculated to undermine the authority of the Courts and public confidence in the ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 19 administration of justice. Thus, before coming to the conclusion as to whether or not the publication amounts to a .
contempt, what will have to be seen is, whether the criticism is fair, temperate and made in good faith or whether it is something directed to the personal character of a Judge or to the impartiality of a Judge or court. A finding, one way of the other, will determine whether or nor the act complained of amounted to contempt."
33. Mahajan, J in Aswini Kumar Ghose v. Arabinda Bose, (AIR 1953 SC 75), observed as follows: (AIR p.76, paras 2-3) "2. No objection could have been taken to the article had it merely preached to the Courts of law the sermon of divine detachment. But when it proceeded to attribute improper motives to the Judges, it not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of this Court..... It is obvious that if an impression is created in the minds of the public that the Judges in the highest Court of the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined.....
3......We would like to observe that it is not the practice of this Court to issue such rules except in very grave and serious cases and it is never over-
::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 20sensitive to public criticism; but when there is danger of grave mischief being done in the matter of administration of .
justice, the animadversion cannot be ignored and viewed with placid equanimity....."
34. There can be no quarrel with the proposition that anyone who intends to tarnish the image of judiciary should not be allowed to go unpunished. By attacking the reputation of Judges, the ultimate victim is the institution. The day the consumers of justice loose faith in the institution that would be the darkest day for mankind. The importance of judiciary needs no reiteration."
9. We are of the opinion that until and unless immediate action is not taken, Judge bashing will become the norm and it will become difficult to preserve and protect the institution of Judiciary.
10. 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. Therefore, even if the respondent found that the Court was not exceeding to his request, even then he was not expected to be discourteous to the Court or to fling hot words or epithets or use disrespectful, derogatory or threatening language in the comments posted on his face ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 21 book which has the effect of overbearing the Court. The 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 expected from the lawyer as was held by the Hon'ble three Judges Bench of the Hon'ble Supreme Court in IN RE: Vinay Chandra Mishra (the alleged contemnor) (1995) 2 SCC 584 wherein it was observed as under:
"33. 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 manner 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 notwithstanding his denials, and disclaimers, the contemner had undoubtedly tried to browbeat, 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 ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 22 has tried to justify his conduct. He has started narration of his version of the incident by taking exception 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 questions he want 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 th contemner was in all probability perturbed by the fact that the learned Judge was asking him questions. The leaned Judge's version, ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 23 therefore, appear 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 ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 24 is also an argument. The lawyer is not entitled to indulge in unbecoming conduct either by showing his .
temper or using unbecoming language."
11. It is held by the Hon'ble Supreme Court in the matter of Mr. 'G', A Senior Advocate of the Supreme Court [1955] 1 SCR 490, the Court, in dealing with cases of professional misconduct is not concerned.
"with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-
professional character....He (a legal practitioner) is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has so long been admitted; and if he departs from the high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action."
12. In Lalit Mohan Dass vs. Advocate General, Orissa [1957] SCR 167, the Hon'ble Supreme Court observed :-
A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 25 may even submit that a particular order is not correct and may ask for a review of that order. At the same .
time, a member of the Bar is an officer of the Court and owes a duty to the court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant was adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision. Scandalising the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; it brought into disrepute the whole administration of justice. From that point of view, the conduct of the appellant was highly reprehensible."
13. The Bar Council of India under Section 49(1) (c ) of the Advocates Act, 1961 has prescribed Standards of Professional Conduct and Etiquette to be observed by Advocates - the relevant part of which is reproduced below:
"An Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 26 privileged member of the community, and a gentleman, bearing in mind that what may be lawful and normal for .
a person who is not a member of the Bar, or for a member of the Bar in his nonprofessional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain cannons of conduct and etiquette adopted as general guides; yet specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned.
Section I - Duty to the Court.
1. An advocate shall, during the presentation of his case and while otherwise acting before a Court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial office, it shall be his right and duty to submit his grievance to proper authorities.
2. An advocate shall maintain towards the Courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
3....
4. An advocate shall use his best efforts to restrain and prevent his client from restoring to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties which the advocate ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 27 himself ought not to do. An advocate shall refuse to represent the client who persists in such improper .
conduct. He shall not consider himself a mere mouthpiece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings and using intemperate language during arguments in Court......"
14. As observed above, a lawyer is an officer of the Court and is expected to conduct himself in a manner that behoves his privileged position in the Court. Advocates are required to conduct themselves at all time as gentlemen; this conduct assumes greater significance in a court of law when he/she stands to assist the Court. It is expected that they would stand to augment the process of justice instead of acting in a manner which tends to obstruct the functioning of the Court and the administration of justice.
15. Unlike the contemnor in Haridas Das case (supra), who sought shelter from the contempt proceedings under the nebulous umbrella of illiteracy, the present respondent is an advocate, who has been practicing in the Courts of the State.
The objectionable language used is rather contemptuous language used by him, thus cannot be ignored.
::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 2816. As observed above, no affront to the majesty of law can be permitted. The fountain of justice cannot be .
allowed to be polluted by disgruntled litigants or lawyers.
The protection is necessary for the Courts to enable them to discharge their judicial functions without fear. A litigant for that matter or even a lawyer cannot be permitted to browbeat the Court or terrorize or intimidate the Judges or malign the Presiding Officer(s) with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities are permitted and in the result administration of justice would become a casualty and the rule of law would receive a setback. It is most unbefitting for a litigant or a lawyer to make imputations against the Judges only. They cannot be permitted to use language which is intemperate and unparliamentary. A litigant or the lawyer cannot cast uncalled for, scurrilous and indecent attacks against the Courts and its Judges in wild, intemperate and even in abusive language. The safeguards provided by the law are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the courts. No doubt, fair comments, even if, outspoken, but made without any malice or ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 29 attempting to impair the administration of justice and made in good faith, in proper language, do not attract any .
punishment for contempt of court. However, when from the criticism deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring down the administration of justice into disrepute, the courts must bestir themselves to uphold the dignity and the majesty of law. No system of justice can tolerate such unbridled licence on the part of a person to permit himself the liberty or scandalizing a court by casting unwarranted, uncalled for an unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice.
17. Indeed, no lawyer can be permitted to browbeat the court or malign the Presiding Officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities are permitted or tolerated and justice would become a casualty and Rule of Law would receive a set back. The Judges are obliged to decide cases impartially and without any fear or favour.
::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 30Litigants cannot, be allowed to 'terrorize' or 'intimidate' judges with a view to 'secure' orders which they want. This is .
basic and fundamental and no civilized system of administration of justice can permit it. Not only are the aspersions cast by the respondent derogatory, scandalous and uncalled for, but also tend to bring the authority and administration of justice into disrespect.
18. This all has been done calculatedly by the respondent in order to undermine the authority of the Courts and public confidence in the administration of justice.
Contempt of Court is to keep a blaze the glory around the judiciary and to deter the people from attempting to render justice contemptible in the eyes of public. A libel upon the Court is a reflection upon the sovereign people themselves.
The respondent has tried to convey to the people that the administration of justice is weak or in incompetent hands and that the fountain of justice is tainted. Therefore, it is necessary to regulate the judicial process free from fouling the fountain of justice to ward off the people from undermining the confidence of the public in the purity of fountain of justice and due administration. Justice thereby remains pure, untainted and unimpeded. If the people's ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 31 allegiance to the law is so fundamentally shaken, it is the most vital and most dangerous obstruction of justice calling .
for urgent action.
19. The respondent has indulged in scandalizing the Court, which means hostile criticism of Judges as Judges or judiciary. The gravamen of the offence is lowering the dignity or authority or an affront to majesty of justice. The respondent has challenged the authority of the Court and has, therefore, interfered with the performance of duties of Judge's office or judicial process or administration of justice that has the tendency of bringing the Judges or judiciary into contempt. If the attempts of the respondent are encouraged the judicial independence would vanish eroding the very edifice on which the institution of justice stands. Any action on the part of a litigant which has the tendency to interfere with or obstruct the due course of justice has to be dealt with sternly and firmly to uphold the majesty of law. None can be permitted to intimidate or terrorize Judges by making scandalous unwarranted and baseless imputations against them in the discharge of their judicial functions so as to secure orders which the litigant "wants".
::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 3220. The rule of law is the foundation of a democratic society and the judiciary is the guardian of the rule of law. If .
the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the Courts has to be respected and protected at all costs. It is for this reason that the Courts are entrusted with the extraordinary power of punishing those for contempt of court who indulge in acts whether inside or outside the Courts, which tend to undermine the authority of the Courts and bring them in disrepute and disrespect thereby obstructing them to discharge their official duties without fear or favour. This power is exercised by the Courts not to vindicate the dignity and honour of any individual Judge who is personally attacked or scandalized but with a view to uphold the majesty of law and the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted to shake the very foundation itself. Thus, it is now settled that abuses, attribution of motives, vituperative terrorism and scurrilous and indecent attacks on the impartiality of the Judges in the ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 33 pleadings, applications or other documents filed in the Court or otherwise published which have the tendency to .
scandalize and undermine the dignity of the Court and the majesty of law amounts to criminal contempt of court.
21. No doubt, the lawyer has the freedom of expression and liberty to project his case forcefully, but it has to be remembered that while exercising this liberty he is required to maintain dignity, decorum and order in the Court proceedings. Liberty of free expression cannot be permitted to be treated as a licence to make reckless imputations against the impartiality of the Judges deciding the cases.
Even criticism of the judgment has to be in a dignified and temperate language and without any malice. (See:
D.C.Saxena vs. Hon'ble the Chief Justice of India (1996) 5 SCC 216, In Re: Ajay Kumar Pandey (1996) 6 SCC 510, Ajay Kumar Pandey, Advocate, in RE: (1998) 7 SCC 248, S.K.Sundaram: IN RE (2001) 2 SCC 171 and Arundhati Roy, IN RE (2002) 3 SCC 343).
22. The Hon'ble Supreme Court in M.B. Sanghi Vs. High Court of Punjab & Haryana (91) 3 SCC 600, while examining the similar case has observed as under (SCC p.602, para 2).
::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 34"2..........The foundation of judicial system which is based on the independence and impartiality of those .
who man it will be shaken if disparaging and derogatory remarks are made against the presiding judicial officers with impunity. It is high time that we realise that the much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. An independent judiciary is of vital importance to any free society".
23. In Asharam M.Jain vs. A.T. Gupta, (1983) 4 SCC 125, while dealing with the issue, this Court observed as under: (SCC p.127, para 3) "3......The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges. It is not that judges need be protected; judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to be protected."
24. In Jennison vs. Baker [1972] 1 All E.R. 997, 1006, it was observed (QB p.66 H) ".....'The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.' "
::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 3525. In Vishram Singh Raghubanshi Vs. State of Uttar Pradesh (2011) 7 SCC 776, the Hon'ble Supreme .
Court noted the dangerous trend of making false allegations against judicial officers and observed as under:
"18. The dangerous trend of making false allegations against judicial officers and humiliating them requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none. "Liberty of free expression is not to be confounded or confused with license to make unfounded allegations against any institution, much less the Judiciary". A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial officers merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system, would cause a very serious damage to the Institution of judiciary. An Advocate in a profession should be diligent and his conduct should also be diligent and conform to the requirements of the law by which an Advocate plays a vital role in the preservation of society and justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable. (Vide: O.P. Sharma & ::: Downloaded on - 25/08/2018 23:00:41 :::HCHP 36 Ors. v. High Court of Punjab & Haryana, (2011) 5 SCALE 518)."
.
26. As regards the apology tendered by the respondent, the same apparently is conditional. We really do not find any remorse on the part of the respondent as even today, he has not even offered to purge himself of the contempt by deleting the comments posted on his facebook. How the respondent/contemnor would purge himself of the contempt has been clearly laid down by the Hon'ble Supreme Court in Pravin C. Shah vs. K. A. Mohd.
Ali and another, 2001 (8) SCC 650, wherein, it has been observed as under:
"23. Now we have to consider the crucial question -
How can a contemnor purge himself of the contempt? According to the Disciplinary Committee of the Bar Council of India, purging oneself of contempt can be done by apologising to the court. The said opinion of the Bar Council of India can be seen from the following portion of the impugned order:
Purging oneself of contempt can be only by regretting or apologising in the case of a completed action of criminal contempt. If it is a case of civil contempt, by subsequent compliance with the orders or directions the contempt can be purged off. There ::: Downloaded on - 25/08/2018 23:00:42 :::HCHP 37 is no procedural provision in law to get purged of contempt by an order of an appropriate court.
.
24. Purging is a process by which an undesirable element is expelled either from ones own self or from a society. It is a cleansing process. Purge is a word which acquired implications first in theological connotations. In the case of a sin, purging of such sin is made through the expression of sincere remorse coupled with doing the penance required. In the case of a guilt, purging means to get himself cleared of the guilt. The concept of purgatory was evolved from the word purge, which is a state of suffering after this life in which those souls, who depart this life with their deadly sins, are purified and render fit to enter into heaven where nothing defiled enters. (vide Words and Phrases, Permanent Edn., Vol.35A, page
307). In Blacks Law Dictionary the word purge is given the following meaning: To cleanse; to clear or exonerate from some charge or imputation of guilt, or from a contempt. It is preposterous to suggest that if the convicted person undergoes punishment or if he tenders the fine amount imposed on him the purge would be completed.
25. We are told that a learned single Judge of the Allahabad High Court has expressed a view that purging process would be completed when the contemnor undergoes the penalty (vide Dr. Madan Gopal Gupta vs. The Agra University and ors., AIR 1974 Allahabad 39). This is what the learned single Judge said about it:::: Downloaded on - 25/08/2018 23:00:42 :::HCHP 38
In my opinion a party in contempt purged its contempt by obeying the orders of the court or by .
undergoing the penalty imposed by the court.
26. Obeying the orders of the court would be a mode by which one can make the purging process in a substantial manner when it is a civil contempt. Even for such a civil contempt the purging process would not be treated as completed merely by the contemnor undergoing the penalty imposed on him unless he has obeyed the order of the court or he has undone the wrong. If that is the position in regard to civil r contempt the position regarding criminal contempt must be stronger. Section 2 of the Contempt of Courts Act categorises contempt of court into two categories. The first category is civil contempt which is the willful disobedience of the order of the court including breach of an undertaking given to the court. But criminal contempt includes doing any act whatsoever which tends to scandalise or lowers the authority of any court, or tends to interfere with the due course of a judicial proceeding or interferes with, or obstructs the administration of justice in any other manner.
27. We cannot therefore approve the view that merely undergoing the penalty imposed on a contemnor is sufficient to complete the process of purging himself of the contempt, particularly in a case where the contemnor is convicted of criminal contempt. The danger in giving accord to the said view of the learned single Judge in the afore-cited ::: Downloaded on - 25/08/2018 23:00:42 :::HCHP 39 decision is that if a contemnor is sentenced to a fine he can immediately pay it and continue to commit .
contempt in the same court, and then again pay the fine and persist with his contemptuous conduct. There must be something more to be done to get oneself purged of the contempt when it is a case of criminal contempt."
27. Therefore, the apology at this stage cannot be accepted. Apology is an act of contrition. Unless apology is offered in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to an act of a cringing coward.
28. Apology is not a weapon of defence to purge the guilty of their offence nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness.
29. As was noted by the Hon'ble Supreme Court in L.D. Jaikwal Vs. State of U.P. (1984) 3 SCC 405:
"We are sorry to say we cannot subscribe to the "slap-say sorry-and forget" school of thought in administration of contempt jurisprudence. Saying "sorry" does not make the slapper, poorer, nor does ::: Downloaded on - 25/08/2018 23:00:42 :::HCHP 40 the cheek which has taken the slap smart less upon the said hypocritical word being uttered through .
those very slaps.
Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to "say" sorry-it is another to "feel" sorry ."
In (T.N. Godavarman Thirumulpad Vs. Ashok Khot &b Another, AIR 2006 SC 2007)."
30. Even otherwise, it is more than settled that an apology for criminal contempt of court must be offered at the earliest since a belated apology hardly shows the "contrition which is the essence of the purging of contempt". Of course, an apology must be offered and that too clearly and at the earliest opportunity. However, even if the apology is not belated but the court finds it to be without real contrition and remorse, and finds that it was merely tendered as a weapon of defence, the Court may refuse to accept it. Even otherwise, the apology is to be accepted as a matter of course and the court is not bound to accept the same.
31. Evidently, in this case, the respondent even after this Court had issued notice, as observed above, relentlessly ::: Downloaded on - 25/08/2018 23:00:42 :::HCHP 41 continued to post the adverse comments not only against the Judicial Magistrate, District Judge, Shimla but even also .
this Court or rather contemptuous comments on its facebook account. Being a member of the bar it was the duty of the respondent not to demean and disgrace the majesty of justice. There was no occasion for the respondent to have attributed insinuation and cast bald and unsubstantiated allegations against the judges r that too right across the board i.e. Judicial Magistrate, District and Sessions Judge,Shimla and this Court. He has remained clearly oblivious to the fact that the judicial process is based on probity, fairness and impartiality which is unimpeachable. Such an act especially by member of Bar who is another cog in the wheel of justice is highly reprehensible and deeply regretted.
32. The trend of targetting and making wild allegations against the Judges would lead to a catastrophe and, therefore, has to be stopped and dealt with an iron fist to curb and control the growing trend of "Judges bashing".
This message has to go out and must be loud and clear.
::: Downloaded on - 25/08/2018 23:00:42 :::HCHP 4233. In view of the aforesaid discussion, it is clearly evident that the respondent has indulged himself in .
scandalizing the Court and his act amounts to interference with the due course of judicial proceedings, apart from scandalizing and lowering the dignity of this Court. The charges framed against the respondent stand duly proved.
Accordingly, the respondent is convicted under Section 12 of the Contempt of Courts Act.
34. We, now come to the question of sentence. The Hon'ble Supreme Court in a case where a lawyer had hurled a shoe against the Presiding Judge had been sentenced to simple imprisonment of six months and fine of Rs.200/- by this Court, modified the said judgment by awarding one month imprisonment. However, the fine was raised from Rs.200/- to Rs. 1,000/- (Refer: R.K.Garg versus State of H.P., ILR 1981 (HP) 94).
35. Taking cue from the aforesaid judgment, we sentence the respondent to simple imprisonment for one month and to pay a fine of Rs.10,000/-. In addition thereto, the respondent is directed to purge the contempt by deleting his face book account and at the same time the ::: Downloaded on - 25/08/2018 23:00:42 :::HCHP 43 Registrar General of this Registry is directed to take up the matter with regard to deletion of the face book account of .
the respondent with the concerned Agency and ensure that the same is deleted by the concerned Agency.
36. Before parting with the case, we must record our appreciation for the valuable assistance rendered by the Court in this matter.
r to learned Advocate General, who was asked to assist the (Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 24th August,2018.
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