Gujarat High Court
Kamleshbhai Manilal Mehta vs Arjunbhai Patel on 7 January, 2023
Author: Sonia Gokani
Bench: Sonia Gokani
NEUTRAL CITATION
R/CR.MA/18975/2022 ORDER DATED: 07/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18975 of 2022
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KAMLESHBHAI MANILAL MEHTA
Versus
ARJUNBHAI PATEL
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Appearance:
MS URVASHI K MEHTA(11469) for the Applicant(s) No. 1
MS CHANDRIKA K MEHTA(11834) for the Applicant(s) No. 1
LD.SR.ADV. MR.YOGESH LAKHANI WITH
MR V M PATEL WITH MR PRAVING GONDALIA FOR VMP LEGAL(7210) for the
Respondent(s) No. 1
LD.SR.ADV.MR.SHALIN MEHTA AS AN AMICUS CURIAE ASSISTED BY THE LD.AGP,
MS. DHWANI TRIPATHI WITH LD.APP.MS JIRGA JHAVERI
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 07/01/2023
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. Present application is preferred under Article 215 of the Constitution of India read with Section 2(C), 11 and 12 of the Contempt of Courts Act, 1971. Initiation of this contempt proceedings has been sought against the alleged contemnor in the following factual background.
1.1 The complainant is a practicing advocate at Rajkot. According to him, the contemnor is a President of Rajkot Bar Association, who professes advocacy and he had called a General Meeting of Bar Page 1 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined Association on 19.09.2022 at the Bar Room situated at District Court, Rajkot. From the videography conducted of the meeting, he had made a request to this Court that this would necessitate initiation of contempt proceedings against the alleged contemnor for willful and deliberate disrespect shown towards the Courts and the Judges.
1.2 Learned advocate, Ms.Urvashi Mehta appeared as party-in-person and she also provided pen-drive to substantiate her version.
1.3 We requested learned senior advocate, Mr. Shalin Mehta to act as an amicus curiae assisted by the learned AGP, Ms. Dhwani Tripathi.
1.4 On 21.10.2022 this Court, after hearing Ms.Urvashi Mehta and learned senior advocate, Mr.Shalin Mehta in his capacity as an amicus curiae assisted by learned AGP, Ms. Dhwani Tripathi, passed the Page 2 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined following order:
"1.0. This petition preferred under Article 215 of the Constitution of India r/w Section 2(c), 11 and 12 of the Contempt of Court Act, 1971 seeks initiation of the Contempt proceedings against the alleged contemnor.
2.0. On 20.10.2022 this Court had requested the learned Senior Advocate Mr. Shalin Mehta to act as an amicus curie assisted by Ms. Dhwani Tripathi, learned Assistant Government Pleader. Today, we requested learned Senior Standing Counsel Mr. Hemang Shah to also take necessary instructions from the Registrar General, High Court of Gujarat as to whether on administrative side this issue has been dealt with or not.
2.1. We had also requested the amicus curie to run through the Pen Drive and on examining the copy of petition assist this Court.
2.2. It is submitted today to this Court by the learned amicus curie that the action on the part of the President of the Bar would require an immediate indulgence from the Court by issuance of the notice. The Hon'ble Supreme Court in the case of Ajay Kumar Pandey vs. Virendra Saran reported in AIR 1998 SC 3299 while considering the use of intemperate language and casting unwarranted aspersions on various judicial officers and attributing motives to them while discharging their judicial functions has held such actions Page 3 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined to be the attempts to subvert the course of justice and it is therefore, requested that the notice be issued against the President of Rajkot Bar Association. Apt would be to reproduce some of the findings of the Apex Court as to the manner of conducting oneself as a lawyer, while dealing with an act of scandalizing a Court by casting unwarranted imputations against the judge in discharge of his judicial functions.
".... An advocate has no wider protection than a layman when he commits an act which amounts to contempt of court. It is most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favourable orders. Only because a lawyer appears as a party in person, he does not get a licence to commit contempt of the court by intimidating the Judges or scandalising the courts. He cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary and which has the tendency to interfere in the administration of justice and undermine the dignity of the court and the majesty of law. These safeguards are not for the protection of any Judge individually but Page 4 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined are essential for maintaining the dignity and decorum of the courts and for upholding the majesty of law. Judges and courts are not unduly sensitive or touchy to fair and reasonable criticism of their judgments. Fair comments, even if, out-spoken, but made without any malice and without 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 a 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 the administration of justice into disrepute the courts must bitter themselves to uphold their dignity and the majesty of law."
3.0. We have had an occasion to watch the video recording and also perused the transcript and on hearing the learned amicus curie we deem it appropriate to pass the following order.
4.0 Issue notice against the respondent, as to why the action of criminal contempt be not initiated against him, making it returnable on 09.11.2022. Let, the video of the meeting which is the reason for initiating this action be removed from You Tube. The Registrar (IT) Page 5 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined shall be sent a copy of this order by the Court Master who shall ensure such removal in 24 hours' time. Copy of the order shall be given to learned Senior Standing Counsel Mr. Hemang Shah for necessary actions."
1.5 On 09.11.2022 for and on behalf of the alleged contemnor learned senior advocate, Mr. Yogesh Lakhani appeared assisted by the learned advocate Mr. Vimal Patel and learned advocate, Mr. Pravin Gondaliya.
1.6 This Court also requested at the time of issuing the notice on 21.10.2022, to the Registrar (SCMS and ICT) to remove the videos of the meeting from YouTube channel and report to this Court. The report of the Registrar (SCMS and ICT) dated 08.11.2022 indicated that the channel creator has been already instructed by an email dated 22.10.2022 to remove the videos. The videos have been deleted by the creator of the channel as per this report and when it was checked on 22.10.2022 at 11:30 a.m. no videos were found.
Page 6 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined
2. Affidavit-in-reply is filed by the alleged contemnor Mr. Arjun Gondalia, son of Shavjibhai Gondaliya inter alia contending therein that he is the president of Rajkot Bar Association, which also has an Executive Committee functioning in the interest of members. He at the outset had tendered his unconditional apology for the speech given by him on 19.11.2022 before the Member Advocates of the Rajkot Bar Association in "good faith" for resolving the grievances raised by the members. He emphasized that it was never meant to be ill-intent or deliberate attempt to run down the institution or an individual judge.
2.1 He further stated that he never intended the speech which could interfere with the course of justice and without entering into the merits of the case, he tendered his unconditional apology before this Court so that the reputation of the institution is not damaged.
Page 7 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined 2.2 It is further his say that the applicant, who approached this Court for initiating the action against him has not come with clean hands and certain false statements in the application have been made. The applicant is alleged to have a personal interest in the application because his membership was cancelled by a Resolution passed in the General Body Meeting held on 19.11.2022 in wake of various complaints received against him by other member advocates.
2.3 The applicant filed petition under Articles 129 and 215 of the Constitution of India read with Section 2(C), 11 and 12 of the Contempt of Courts Act. According to him, the petition itself is not maintainable as under Section 15 of the Contempt of Courts Act, 1971 prior consent in writing of the learned Advocate General before invocation of criminal contempt jurisdiction of a Court by a private party is a mandatory requirement. Present Page 8 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined criminal contempt proceedings since are not suo moto by this Court under Contempt of Courts Act or under Article 215 of the Constitution of India, but, initiated by the applicant as a private party without prior consent of the learned Advocate General and hence, the petition deserves to be dismissed in absence of compliance of the mandatory requirement.
3. It is further explained that advocates of the Rajkot Bar Association had given oral as well as written complaints against the applicant, who also is a practicing advocate, for soliciting the clients of other advocates and filing the Vakalatnama in pending matters without seeking 'No Objection' endorsement from other advocates. He is alleged to have indulged into such practices prior to the year 2015 and an application was also received signed by 100 advocates on 17.03.2015. He is also alleged to have indulged into quarrel and insulting the advocates in public.
Page 9 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined Therefore, the very initiation of these proceedings are seriously questioned.
3.1 It is further detailed that an application dated 30.05.2016 was received by Rajkot Bar Association from one Mr. Rohit Bhagvanbhai Giya, the learned advocate regarding the manner in which the applicant is soliciting the clients and requesting to inform the Bar Council of Gujarat for initiating the proceedings against him. Therefore, Resolution No.1 dated 01.06.2016 in a meeting held on 01.06.2016 by the Executing Committee made note of the misconduct. It is further his say that certain grievances were raised by the Members in connection with the behavior of some of the Judicial Officers more particularly, in relation to the junior advocates. For non-acceptance of application and a pursis by the judges, grievance with regard to non-acceptance of sick note was also another area of concern. Similarly, the representations were given Page 10 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined on 06.08.2022 and 08.09.2022 signed by more than 80 lawyers against some of the Judicial Officers.
3.2 In the month of October, 2021 a Circular was issued, on 18.10.2021 to be precise, bearing No.B786/2021 informing all the Judicial Officers to record the misconduct of concerned advocates against the officer during the Court proceedings or if, such lawyers speak loudly, the entire report be prepared. In view of such a Resolution, on 29.10.2021 the Bar Association called its meeting consisting of the Executing Committee Members and 35 senior advocates where representation was made to the learned Administrative Judge, High Court of Gujarat requesting to cancel the Circular. Representation was also sent to Hon'ble the Chief Justice pointing out the grievances faced.
3.3 A Meeting of Executive Committee, according to the alleged contemnor, was Page 11 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined held on 09.09.2022. There were 17 Members of the Executive Committee including the office bearers, who were present and it was resolved that the General Body Meeting should be called on 15.09.2022 for the detailed discussion on the issues raised.
There were three agendas: (1) the application received against Mr.Kamlesh Mehta, the learned advocate (2) the
difficulties faced by the junior advocates before some judges and (3) in respect of amendment in the constitution.
4. We have heard the learned senior advocate, Mr. Yogesh Lakhani assisted by the learned advocate, Mr. Vimal Patel for VMP Legal and Mr Pravin Gondaliya, for the respondent and learned senior advocate, Mr.Shalin Mehta as an amicus curiae assisted by the learned AGP, Ms. Dhwani Tripathi.
5. According to learned advocate, Ms.Urvashi Mehta, the utterances made by Page 12 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined the contemnor are unpardonable. Being fully conscious of his position as the leader of the BAR, he has chosen to utter these words to instigate others and the transcription which has been provided would clearly reveal how it would amount to the contempt of the Court. She has also questioned and challenged the contentions raised by the contemnor in relation to the usurping of the briefs by the petitioner and her colleagues. That, according to her, has no relation with this contempt. The Court shall need to independently examine that aspect.
6. Learned amicus curiae assisted by the learned AGP, Ms.Tripathi has fervently urged this Court that this behavior is unpardonable. He has further urged that whatever may be the language which is being used by these persons in the private conversation as the leader of the BAR, it is completely impermissible to use the words which have been used as are quite Page 13 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined apparent from the transcript. He has further taken this Court through the very act and the provisions of the Contempt of Courts Act urging that the ambit of the authority would take into its fold the utterances which have been made by the respondent-contemnor.
6.1 He has further submitted that without widening the scope of the provisions, this aspect will be covered. There should be no mercy so far as the request of accepting unconditional apology is concerned. It is further urged that had the utterance been from any other member of the BAR, it can be still understood. It is the leader, who is speaking for and on behalf of the BAR and also leaving deep impact on the young lawyers and its consequences must not be left sight of.
7. Learned senior advocate, Mr.Lakhani has with all humility at his command urged this Court that there is no attempt on the part of the contempnor to defend his action. At Page 14 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined the same time, the background of such meeting shall need to be regarded by the Court. He has urged that the petitioner, who has approached this Court has not revealed all correct facts.
7.1 According to him, the petitioner has many complaints against him of taking away the briefs of others and also misusing his contact by taking away the briefs of others and these complaints for the past five years had resulted into the simmering in the BAR, which was needed to be addressed. This also needed a support from the office bearers as there was no one to be turned to and against some of the utterances which were made from the dais also had caused lot of heart burning. He has further urged that despite all these conditions, there is no justification in uttering certain words and therefore, the Court may pardon him as an unconditional apology is being tendered by him.
Page 15 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined 7.2 It is reiteratively urged that he would not be contesting the election of BAR and it is being ensured to the Court that he would be mindful of his words and actions in the future.
7.3 It is urged by the learned senior advocate, Mr.Lakhani that technically this petition is not maintainable in as much as there was a requirement to follow the procedure, which in this case has not been done at the end of the petitioner. He has heavily relied on Section 15 which permits the cognizance of the criminal complaint which authorises the Supreme Court and the High Court to take action on its own motion or on a motion made by the Advocate General or any other person with the consent in writing to the Advocate General, which according to him, is missing in the instant case.
8. Having heard the learned advocates on both the sides and also on taking into Page 16 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined consideration the material on the record, firstly it is apt to mention that after the Constitution of India was promulgated in 1950, on 1st April, 1960, for consolidating the contempt law, a Bill was introduced in the Lok Sabha and Ministry of Law had set up a committee under the Chairmanship of Shri H.N.Sanyal, Additional Solicitor General of India and after Sanyal Committee gave its report, the contempt of Courts Act, 1952 was repealed and replaced by the Contempt of Courts Act, 1971 which was to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto.
8.1 Section 2(a), (b) and (c) of the Contempt of Courts Act defined the Contempt of Courts thus:
"Section 2. Definitions.--In this Act, unless the context otherwise requires,--
(a) "contempt of court" means civil contempt or criminal contempt;Page 17 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023
NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined
(b) "civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;
(c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which--
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;"
8.2 Section 10 of the Contempt of Courts Act is as follow:
"Power of High Court to punish contempts of subordinate courts.--Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself: --Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect Page 18 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself\:" Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860)."
8.3 Punishment for committing contempt is provided under Section 12 of the Contempt of Courts Act. This law is essentially for keeping the administration of justice pure and undefiled. Time and again, it has been emphasized that the dignity of the Court is to be maintained at all costs and yet, the contempt jurisdiction being a special nature should be used sparingly and with cautions. The purpose of this jurisdiction being essentially to uphold the majesty and dignity of courts of law, to protect the authority of law, its exercise is inevitable.
"12. Punishment for contempt of court.--
(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend Page 19 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined to six months, or with fine which may extend to two thousand rupees, or with both: --(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation.--An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.Page 20 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023
NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined (4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person: Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer. Explanation.--For the purposes of sub- sections (4) and (5), Page 21 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm."
8.4 The Court thus is empowered to punish the person with simple imprisonment which may extend to six months or with a fine which may extend to Rs.2000/-, or with both. The proviso to this section provides that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. Explanation to this also provides that an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. What amounts to the bona fide apology requires to be considered on the strength of the various decisions on this issue.
8.5 There are technical and legal issues raised with regard to the maintainability of this petition as also on other counts Page 22 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined and at the same time, no serious challenge is made by accepting the unconditional apology on 09.11.2022, the learned senior advocate, Mr.Lakhani appeared for and on behalf of the respondent-President and urged that no papers had been received and therefore, the same should be provided to him and he would be ensuring that there are no undesired challenges. This Court while permitting such a request had also directed the Registrar (SCMS and ICT) to remove the video from the YouTube channel. The report of Registrar (SCMS and ICT) had already come indicating that the of Courts Act are the reasons for dismissal.
9. It is further contended that various Member Advocates of the Rajkot Bar Association had given oral as well as written complaints against the applicant, who also is a practicing advocate for soliciting the clients of other advocates and filing the Vakalatnama in pending matters without seeking 'No Objection' Page 23 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined endorsement from other advocates. He is alleged to have indulged into such practices prior to the year 2015 and an application signed by 100 advocates was also received by the Rajkot Bar Association on 17.03.2015 resulted into the applicant being informed of his need to stop carrying out such activities. He had been also requested often not to do so, however, one application dated 30.05.2016 received from Mr.Rohit Bhagvanbhai Giya, the learned advocate which resulted into a Resolution No.1 dated 01.06.2016 in a meeting held on 01.06.2016 by the Executing Committee taking note of the misconduct of the applicant. This Resolution was then forwarded to the Bar Council of Gujarat requesting to initiate appropriate proceedings against the applicant.
10. He as the President of Rajkot Bar Association received various complaints at the hands of the applicant and therefore, the meeting of Executing Committee was held Page 24 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined on 09.09.2022. There were also complaints made by way of two applications dated 06.08.2022 and 08.09.2022 signed by more than 80 lawyers against some of the judges. There was also a Circular issued by the learned Principal District Judge, Rajkot on 18.10.2021 bearing No.B786/2021 informing the Presiding Officers to record the misconduct of the concerned advocates against the officers during the case proceedings if such lawyer speak loudly so that appropriate action can be taken.
11. The Resolution was passed on 29.10.2022 by the Rajkot Bar Association to make a representation to the Hon'ble Unit Judge of the Rajkot District as more than 35 senior advocates made representation and requested for cancelling such a circular. This was also sent on 01.11.2021 to the Hon'ble Chief Justice of Gujarat High Court pointing out the grievances. Since, all these grievances were needed to be addressed, the Meeting of Executing Page 25 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined Committee of Rajkot Bar Association was called on 09.09.2022. It was resolved to call the General Body Meeting which was held on 15.09.2022 for discussion on the issues and thereafter the General Body Meeting was called on 19.09.2022 at the room of Rajkot Bar Association at 01:30 p.m. Three agendas were there (A) In respect of the application received against Kamlesh Mehta, Advocate, (B) Difficulties faced by the junior advocates before some judges in the court and (C) In respect of amendment in the constitution.
12. The meeting was held of the Member Advocates of Rajkot Bar Association and this, according to the respondent- contemnor, was not a public meeting. It was a Private General Body Meeting amongst the Member Advocates of the Rajkot Bar Association. Nothing was discussed in the said meeting, it was published in public. It was a process to discuss the grievances and to come out with the solution within Page 26 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined four corners of law. No person other than the Member Advocates was allowed to attend the meeting. It was chaired by the petitioner and attended by 106 advocates apart from senior advocates of the Bar who participated in the meeting with the sole intention to resolve the issues.
13. Neither the videographer was called nor any shooting of the speech was done by anyone. It was not the petitioner, who had uploaded and published the video on the YouTube channel. He also made a request to this Court that an inquiry be made as to who had actually done this. There was an incomplete transcript which has been produced by the applicant and has given a truncated version which gives a different meaning than the meaning which has been assigned.
14. The pen drive is given to the Court where the speech is published by way of a News known as Saurashtra Kranti, Sandhya Page 27 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined Dainik. However, the Rajkot Bar Association had not invited any such news person to record the speech. The whole speech is published as news by the news network Saurashtra Kranti Sandhya Dainik recording of in-house meeting was done illegally by the said news network and it is apprehended that possibly the applicant would have supplied these details to them. Four separate Resolutions were passed in the General Body on 19.09.2022 by majority of the Members present and voted where the membership of the applicant was cancelled.
15. It was also resolved that no member advocate without "No Objection" in the Vakalatnama of the advocate appearing in the matter shall file the Vakalatnama. The Resolution No.3 was that the committee of seven senior advocates will be constituted to prepare draft amendment, which shall be placed for consideration of the General Board and the Resolution No.4 was the representation to be made to the learned Page 28 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined Principal District Judge, Rajkot against the Hon'ble four Judges namely, Mr.Chaudhary, Mr.Kale, Mr.Brahmbhatt and Mr.R.R.Patel for their alleged behavior against the juniors.
16. It is to be also noted that the contemnor while tendering apology at the initial stage of appearance also has attempted to justify the speech by saying that in a vernacular Kathiyawadi Gujarati language, which is normally spoken in the region and the language which the Member Advocates understand, the speech was given by him. The speech given in that context of the Kathiyavadi language needs to be understood in the form of other vernacular Gujarati language as in other parts the same may appear to be raw and rough. However, if it is understood in the form of Kathiyavadi Gujarati style, then the words which are spoken and expressed would appear to be normal words spoken in such language to express the intention of the Page 29 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined issue/grievances. The speech was never given with any ill-motive or with a deliberate attempt to rundown the institution or an individual judge. The meeting, which took place was for a particular class of people, it was only confined to working and process to resolve the issue and grievances. It was not a public meeting and restricted to the Member Advocates. He has also claimed that the Member Advocates of the Rajkot Bar Association have a right of freedom of speech and expression under Article 19(1)
(a) of the Constitution of India.
16.1 He has also further urged that the intention was never to act adversary, which affect the administration of justice or to impede its course or for shaking the public confidence in the judicial institution or to undermine the dignity and authority of the Court and to calculate and malign the image of the judiciary or to attack the authority of the Court. It is also further Page 30 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined his say that he has been practicing as an advocate at Rajkot since 1990 and has total respect for the judicial system, for the judges who discharge their duties. He regrets and apologizes for the speech given if it has led to transgressing the limits in expressing the grievance.
17. If one looks at the entire picture from his reply, he reiterates that he has highest regard for the judiciary and does not intend to scandalize or lower the authority of the Court in any manner. He had no intention to cast the aspersions or insinuations against the judicial officers. His grievance was essentially the treatment meted out to the juniors and also the applicant's conduct for the past many years of usurping the briefs of others. He also has attempted to justify the holding of this meeting on account of the repeated complaints received against the applicant and also in relation to the treatment meted out to the junior members of the Bar.
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18. We notice that the criticism against the judges, he attempted to give the justification by giving a reference of the use of Gujarati language at Kathiyavad region with a further justification that the Member Advocates also understand the said vernacular language. This, in our opinion, is wholly and totally untenable and unsustainable version on the part of the respondent. If this is the language used by him personally or at his residence, we have nothing to say nor are we here to amend the ways of the litigants for them to conduct themselves in their private affairs and nobody can answer it except the respondent himself.
18.1 But, it can be surely held that this is not the language used either in the public meeting nor even amongst those who are cultured, educated and respected in a private circle. The alleged contemnor to say that the Members of the Bar would Page 32 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined understand this kind of vernacular language (કાઠિ યાવાડી-Kathiavadi) and therefore, he used it in his public meeting is only a lame excuse for the contemner to shield his action behind the language and it in not manner satisfies this Court.
18.2 Kathiavadi (Gujarati) language is also relished and appreciated by language lovers enjoying the creation of the noted national poet Shri Jhaverchand Meghani and the Member of Constituent Assembly Shri Umashankar Joshi. The language used by the contemnor is insulting and derogatory. It indicates that the person concerned is not worth being considered as a human being as the literal translation of words used by him for the Judicial Officials is wholly unpalatable being diminishing and disparaging. Therefore, it is of no use to accept that justification on his part and to also belittle the entire fraternity of Bar Members by saying that they would understand only this kind of language for Page 33 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined resolution of their disputes as that by no stretch at all is befitting the Members of the Bar much less the President, who would be leading the Bar at all fronts.
19. We notice that there are certain complaints the Bar Members had raised against the present applicant with which we are not concerned at all. His reason for approaching this Court even if, it is motivated and to also create bargaining capacity since the Resolution had expelled him from the Membership, the fact remain that the Court is essentially to look at the contents of the speech of the respondent in the meeting which had been held, which by every standard needs to be held to be a public meeting and can never be said to be a private meeting. It was a meeting of the Bar even if held within the precincts of four walls attended by not less than 100 members of the Bar, most of them are juniors. The leaders are expected to groom the young members, who are Page 34 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined entering the profession or who have not as yet established themselves. It is not a place for creating the rowdyism or to incite them with the agendas which the leaders would have in their minds aiming at the elections and to continue by divide and rule policy nor is it a forum whereby maligning the judicial officers/members or belittling the judiciary to capitalize from this entire approach of confrontation rather than of cooperation as this also has a tendency of thwarting the progress of the system of which the senior members of the Bar can never be oblivious of.
19.1 Unfettered right to practice in the profession as also to contest the election of Bar Association is always saddled with the corresponding responsibility to act as in the reasonable way.
20. Therefore, from overall circumstances and the explanation which has been attempted to be given, we could notice that the issues which were raised were at the Page 35 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined behest of some of the members of the Bar, but the same had the solution which was otherwise possible to be brought within the four corners of law. If the Resolution of the learned Principal District Judge had aggrieved the Bar Members, they had already made representation to the Unit Judge and written to the the Chief Justice of the State. They could have sought the personal audience to get that issue resolved. Likewise, in relation to any of the judges once there is any grievance, the first thing that is expected is of approaching the learned Principal District Judge, who looks after the entire administration of the District and if the issue does not get resolve there, learned Administrative Judge could always be approached. If that also is not in any manner resolving the issue requesting the Chief Justice of the State , who is Administrative Head of the entire State could have been requested for redressal of the issue.
Page 36 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined 20.1 In the instant case, the same has not been done. It appears prima facie from the video CD and and the transcript that as the President of the Bar the respondent-accused has chosen to address the Bar Members under the pretext of addressing long standing issues of Bar members less with the intent of resolving the issue but, more to send the message of he being a very 'fearless and powerful' leader, can speak anything and everything about the siting judges and those in the powers and this approach of gaining the publicity at the cost of the institution by the leaders of the Bar is not only ringing alarm bells but is equally frightening for the system and deserves to be dealt with sternly. Resultant effect being that the utterances made since are already covered under the definition of the criminal contempt as defined under the Statute, the petitioner is to be held guilty of committing contempt.
21. The only question that arises for this Page 37 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined Court's consideration is as to whether the apology, which has been tendered by the petitioner at the outset without even waiting for this court to elaborately adopt the procedure under the said Act and also without insisting on technical issues to be adjudicated, is genuine and bona fide and unconditional and whether the same requires to be accepted. Apart from the reiterative requests made through the learned counsel by the respondent-contemnor for this Court to accept his unconditional apology what has further been pressed before this Court is of his ensuring the Court not to contest the election of BAR Association .
22. We are given to understand that the election has been over and he has chosen not to contest and is also not to do that in future. It is further ensured that he would in all his future actions be quite cautious, mindful and watchful of every words that he utters. His outburst in the meeting was only, according to him, in Page 38 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined private meeting within the four walls. That understanding being quite narrow, limited and substance less and although we do not endorse to the same by specifically holding that this would have a larger ramification particularly coming from the President of the BAR Association at the same time when it comes to considering his conduct, the Court notices that at no stage in the past he has faced any kind of contempt proceedings or any other disqualifications. He had been working as an Additional Public Prosecutor for six years and in none of the Court proceedings, he had been ever criticized or his credentials have been questioned by the Court. Thus, the past conduct of the petitioner being without any blemish and blot, this singular incident when has come to the notice of this Court, with this apology having been tendered by him with certain directions in wake of the pronounced decisions of this Court and of the Apex Court, we are inclined to accept his apology.
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23. This Court while considering the aspect of bona fide apology would need to find out as to whether there are any parameters laid down in the provision itself. What can be gathered is that the standards are evolved by the judicial pronouncement and what needs to be considered is (1) as to whether the apology is tendered at the first given opportunity, (2) the language of the apology whether the same is conditional or unqualified and unconditional, (3) whether the same is bone fide or is a way to escape the punishment and (4) whether there is a repeat performance of the Contempt of Courts Act.
24. We would choose to still be persuaded by the request made on the part of the learned senior advocate, Mr.Lakhani, who has urged this Court that the unqualified apology tendered by the contemnor advocate should be accepted. Noticing that at no point of time, he has indulged into any of Page 40 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined the acts, which would bring the glory of the institution down. He agreed that the apology and explanation are both incompatible and the apology, he further urged as held by the Apex Court is not the weapon of guilty to purge the contempt and yet when it is found that the matter is not so patent as would on the face of it has amounted to contempt, the apology needs to be accepted. We are urged contrarily by the learned Amicus Curie Mr. Mehta, learned Senior Advocate not to show any mercy nor to overlook gross act of blatantly dictating the District Judiciary in an attempt to establish the supremacy. He insisted that for empowering the District Judiciary, such impudent acts of leaders would need dealing with iron hands.
25. The Apex Court in case of Ranveer Yadav vs. State of Bihar, reported in 2010 (5) SCC 335 has held that before an apology can be accepted, the Court must find that it is bona fide and to the satisfaction of the Page 41 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined Court. However, it can not reject the apology just because it is qualified and conditional provided it is bona fide.
26. The decision of the Apex Court in case of MY Shareef v. Honourable Judges of the Nagpur High Court, reported in AIR (1955) SC 19 deserves the reference here and the relevant findings and observations would be needed to be profitably reproduced.
"7. On the 12th May, 1954, when the appeal was heard by this Court, we recorded the following order:-
"The appellants have tendered an unqualified apology to this court and to the High Court, and they are prepared to purge the contempt for which they have been convicted. In our opinion, the apology is a sincere expression of their regret for what happened in court at the time the transfer application was made and for the allegations made therein. We therefore adjourn this appeal for two months and direct that the apology tendered here be tendered to the Division Bench before which the contempt is said to have been committed. We are sending it to the High Court with the full confidence that the learned Judges will consider the apology in the spirit in which it has been tendered and Page 42 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined they will pass appropriate orders and send an intimation to this court as to what orders they pass."
When the case went back to the High Court, it again took an unfortunate turn. The learned Judges posed the question that they had to consider in this form "The question is whether remission of the punishment awarded is called for in view of the statement now filed by the contemnors," and it was answered thus:
"We are constrained to observe that the spirit in which the apology was tendered here is not much different from that originally shown. The idea of the contemnors is that because they have filed the apology as directed, they have a right to expect the acceptance of it by the court. How else can the absence of any prayer or what the contemnors desire be explained ? We record that there was hardly anything apologetic the way the apology was tendered....
We neither gave the extreme penalty which we might well have given, nor did we give the maximum of the lesser penalty. But for the manner of justification and the contumacy, there might not have been a sentence of fine at all."
Having approached the matter thus, the learned Judges referred to a large number of cases for the admitted proposition of law that a " sincere apology does not entitle a Page 43 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined contemnor as of right to a remission of the sentence." It was further thought that acceptance of apology would lead to an invidious distinction being made in the case of two advocates and Zikar. In the result the apology was not accepted and the report concluded with the following observations :-
"If in the circumstances of this case the apology were to be accepted, we would be encouraging the notion that it is the contemnors's right to get his apology accepted when he chooses and in whatever manner he tenders even in a case where he has aggravated the original offence. We will be unsettling established principles, and setting a bad precedent. Above all, we would be dealing a blow to the authority of the court, the consequence of which cannot be viewed with equanimity."
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10. The proposition is well settled and self-evident that there cannot be both justification and an apology. The two things are incompatible. Again an apology is not a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea, but it is intended to be evidence of real contriteness. The appellants having tendered an unqualified apology, no exception can be taken to the decision of the High Court that the application for transfer did constitute contempt because the judges were scandalized with a view to diverting the due course of justice, and that Page 44 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined in signing this application the two advocates were guilty of contempt. That decision therefore stands.
11. The fact however remains, as found by the High Court, that there was at the time these events happened considerable misconception amongst a section of the Nagpur Bar about advocates' responsibilities in matters of signing transfer applications containing allegations of this character. It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel is acting in the interests of his client, or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scandalizing the Court. They think that when there is conflict between their obligations to the Court and their duty to the client, the latter prevails. This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that counsel who sign applications or pleadings containing matter scandalizing the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds there for, with a view to prevent or delay the course of justice, are themselves guilty of contempt of Court, and that it is no duty of a counsel to his client to take any interest-in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications. Once the fact is recognized as was done by the High Court here, that the members of the Bar have not fully Page 45 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined realized the implications of their signing such applications and are firmly under the belief that their conduct in doing so is in accordance with professional ethics, it has to be held that the act of the two appellants in this case was done under a mistaken view of their rights and duties, and in such cases even a qualified apology may well be considered by a Court. In border line cases where a question of principle about the rights of counsel and their duties has to be settled, an alternative plea of apology merits consideration; for it is possible for a judge who hears the case to hold that there is no contempt in which case a defence of unqualified apology is meaningless, because that would amount to the admission of the commission of an offence. In this case the learned judges themselves had to wade through a large volume of English and Indian case-law before they could hold that the act of the appellants constituted contempt and thus it could not be said that the matter was so patent that on the face of it their act amounted to contempt. Moreover, it appears from the proceedings that the counsel were genuinely under the belief that their professional duties demanded that, when their client was under a bonafide belief that the Court was prejudiced against him and decided to apply for transfer, the were bound to take his brief and sign the application. We cannot help observing that the admitted reference by the judges to the Supreme Court in their remarks during the course of the hearing was unfortunate and seems to indicate an unnecessary and indecorous sensitiveness which may well Page 46 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined have been misunderstood by the party and the advocates. The counsel seem to have genuinely believed that they were right in what they did, though as a matter of fact if they had studied the law more deeply, they would not have done so. In these circumstances it cannot be said that what they did was wailful and their conduct in getting the law settled in this matter by raising the defence that they did was contumacious. The authorities relied upon by the High Court have no application to cases of this character. How else is the validity of a defence of this kind to be settled, except by an argument that the counsel was entitled in the interests of his client to advise a transfer and give grounds for that transfer which were bona fide believed by the client. Every form of defence in a contempt case cannot be regarded as an act of contumacy. It depends on the circumstances of each case and on the general impression about a particular rule of ethics amongst the members of the profession. The learned Judges, as already said, have themselves said that such an impression was prevalent since along time amongst a section of the Bar in Nagpur. It was thus necessary to have that question settled and any effort on the part of these two learned counsel to have that point settled cannot be regarded as contumacy or a circumstance which aggravates the contempt. We think that the expression of regret in the alternative in this case should not have been ignored but should have been given due consideration. It was made in the earliest written statement submitted by the counsel and cited above. Once however the Page 47 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined High Court found that they were guilty of contempt, they would have been well advised to tender an unqualified apology to that Court forthwith. But perhaps they were still under the delusion that they were right and the Court was in error, and that by coming to this Court they might be able to have the question of principle settled as they contended. As soon as we indicated to the learned counsel that they were in error, they and their counsel immediately tendered an unqualified apology which, as already indicated, was repeated again in absolute terms at the second hearing. We have not been able to appreciate why the learned Judges of the High Court should have doubted the genuineness of this apology. It certainly was not the object and could not be the object of the learned Judges of the High Court to humiliate senior counsel and to expect something more from them than what they had already done in this Court. While unhesitatingly deprecating very strongly the conduct of the appellants in scandalising the Court by becoming parties to an unnecessary and untenable transfer application, we still feel that in the matter of measure of punishment the High Court should have after an unqualified apology was tendered taken a different view. We have no doubt that whatever the learned Judges of the High Court did in this case, they did in the firm belief that the dignity of the Court had to be maintained and the members of the Bar, howsoever big or learned, cannot be allowed to scandalize the judges or to divert the course of justice by attempting to take a case out from one Bench to Page 48 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined another Bench of the Court when they find that the Bench is expressing opinions seemingly adverse to their clients. We have firm hope that this kind of conduct will not be repeated by counsel in any High Court in this country, and no more test cases of this kind would have to be fought out. In the peculiar circumstances of this case and in view of the circumstance that the learned Judges themselves were of the opinion that there would not have been a sentence of fine at all if there was no plea of justification and there was no contumacy, we are of the opinion that the unqualified apology was sufficient to purge the contempt committed by the two appellants as we have reached the conclusion contrary to that arrived at by the High Court that the plea of justification in this case did not amount to contumacy. It has also to be kept in view that condemnation for contempt by a High Court of senior members of the Bar is itself a heavy punishment to them, as it affects them in their professional career and is a great blot on them. There has been nothing said in the lengthy judgment of the High Court that these counsel in their long career at the Bar have ever been disrespectful or discourteous to the Court in the past. This one act of indiscretion on their part in signing the application should not have been viewed in the very stringent manner in which the High Court viewed it in the first instance and viewed it again after we had sent the case back to it. It is not the practice of this Court in special leave cases and in exercise of our over- riding powers to interfere with a matter Page 49 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined which rests in the discretion of the High Court except in very exceptional cases. After a careful consideration of the situation that arises in this case we have reached the decision that the dignity of the High Court would be sufficiently upheld if the unqualified apology tendered in this Court in the first instance and reiterated in absolute terms by Dr. Tek Chand again at the next hearing is accepted and that apology is regarded as sufficient to purge the contempt. The matter has become very stale and the ends of justice do not call for maintaining the punishment of fine on two senior counsel for acting wrongly under an erroneous impression of their rights and privileges."
27. In case of Tarun Bharat Singh vs. Union of India, reported in (1995) 1 SCC 150 the Apex Court accepted the unconditional apology on the strength of robust facts in the matter which deserve reproduction:
"11. It is a matter of extreme regret and serious concern that an educated person, like Dr Dublish should have behaved in the above manner with an advocate of this Court who was appearing for the petitioner-organisation in Writ Petition No. 509 of 1991. The conduct of Dr Dublish was certainly offensive. We would have taken serious note of the same but for the circumstance that he has tendered an unconditional apology for his behaviour which he attributes to his agitated Page 50 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined state of mind caused by, what according to him, was a totally unjustified, abrupt and unceremonious termination of the services of himself and his wife besides some other employees by the petitioner-organisation on that day. He says that he and other similarly placed employees were protesting against the same at the office premises of the petitioner- organisation. It so happened that Dr Dhavan's visit coincided with the said event. It also appears that some persons at that spot were the men of mine-owners who were demonstrating against the petitioner-organisation fighting the cause of environment and both these groups got mixed up. The petitioner-organisation, no doubt, says that they did not terminate the services of Dr Dublish but that he himself voluntarily resigned the job. While we do not wish to enter into the question whether it was a case of termination or resignation, what appears relevant is that Dr Dublish thought that he has been unjustly treated and on which account, he was highly agitated on that day and resorted to said agitational methods soon upon knowing about the loss of his job. In that agitated state of mind, Dr Dublish behaved offensively towards Dr Dhavan as well, which behaviour is without a doubt condemnable and for which he regrets now. There is yet another circumstance, viz., Dr Dublish has since left that area and is now employed at Jaipur. He has stated that he is in no manner connected with the petitioner- organisation, much less with the mine- owners or with the dispute concerning mining in Sariska Tiger Reserve area.Page 51 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023
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13. So far as Shri Ratan Katyani is concerned, he has unconditionally tendered an unqualified apology. Having regard to the fact that he too is a member of the legal profession and a social activist in that area, we accept his unconditional apology. We are sure that Shri Katyani would be careful in future and would give no occasion for any such complaint. Interlocutory Application No. 13 of 1993 is ordered accordingly. No costs.
28. In case of Dinabandhu Sahu v. State of Orissa, reported in AIR (1972) SC 180 the apology was tendered before the Apex Court and the matter was fully argued and the learned advocate on behalf of his client had sought the indulgence, which the Court had granted.
29. In case of O.P. Sharma v. High Court of Punjab & Haryana, reported in (2011) 6 SCC 86 there was a derogatory language used by an advocate against the Judicial Magistrate on his failure to obtain a desired order. When he tendered apology in a suo motu actions against him and where he Page 52 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined was sentenced by the High Court, the Apex Court held that the acceptance of apology from a contemnor could only be a matter of exception and not a rule. The Apex Court also emphasized the role and status of the lawyers to hold that they are the intellectual among the elite class and social activists amongst the down-trodden. It also highlighted the role of the lawyers in framing the constitution to hold that they are the officers of the Court in the administration of justice and the unwarranted situation or trivial issues which hamper the cause of justice are to be avoided as it is in the interest of no one. The Court went to an extent of saying that the deliberate attempt to scandalize the Court, which would shake the conscience of the litigating public in the system would cause a very serious damage to the name of the judiciary.
"8. Section I of Chapter-II, Part VI titled "Standards of Professional Conduct and Etiquette" of the Bar Council of India Rules specifies the duties of an advocate towards the Page 53 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined Court which reads as under:
"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 officer, 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. ******************* "17. The role and status of lawyers at the beginning of Sovereign and Democratic India is accounted as extremely vital in deciding that the Nation's administration was to be governed by the Rule of Law. They were considered intellectuals amongst the elites of the country and social activists amongst the downtrodden. These include the names of galaxy of lawyers like Mahatma Gandhi, Motilal Nehru, Jawaharlal Nehru, Bhulabhai Desai, C. Rajagopalachari, Dr. Rajendra Prasad and Dr. B.R. Ambedkar, to name a few. The role of lawyers in the framing of the Constitution needs no special mention. In a profession with such a vivid history it is regretful, to say the least, to witness instances of the nature of the present kind. Lawyers are the officers of the Court in Page 54 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined the administration of justice.
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20) In R.D. Saxena vs. Balram Prasad Sharma, (2000) 7 SCC 264, this Court held as under:
"In our country, admittedly, a social duty is cast upon the legal profession to show the people beckon (sic beacon) light by their conduct and actions. The poor, uneducated and exploited mass of the people need a helping hand from the legal profession, admittedly, acknowledged as a most respectable profession. No effort should be made or allowed to be made by which a litigant could be deprived of his rights, statutory as well as constitutional, by an advocate only on account of the exalted position conferred upon him under the judicial system prevalent in the country........"
28. In M.B. & Sanghi, Advocate vs. High Court of Punjab & Haryana, (1991) 3 SCC 600, this Court took notice of the growing tendency amongst some of the Advocates of adopting a defiant attitude and casting aspersions having failed to persuade the Court to grant an order in the terms they expect.
Holding the Advocates guilty of contempt, this Court observed as under:
"The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped fat the Page 55 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system the damage caused is not only to the reputation of the concerned Judge but also to the fair name of the judiciary, Veiled threats, abrasive behavior, use of disrespectful language and at times blatant condemnatory attacks like the present one are often designedly employed with a view to taming a judge into submission to secure a desired order. Such cases raise larger issues touching the independence of not only the concerned Judge but the entire institution. The foundation of our 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."
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30. In the case of R.K. Garg Advocate v. State of Himachal Pradesh, (1981) 3 SCC 166, where a lawyer hurled a shoe on the judicial officer which hit him on the shoulder, this Court opined that there is no doubt that the Bar and the Bench are an integral part of the same mechanism which administers Page 56 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined justice to the people. Many members of the Bench are drawn from the Bar and their past association is a source of inspiration and pride to them. It ought to be a matter of equal pride to the Bar. It is unquestionably true that courtesy breeds courtesy and just as charity has to begin at home, courtesy must begin with the Judge. A discourteous Judge is like an ill-tuned instrument in the setting of a courtroom. But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive.
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32. A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client in maligning the reputation of judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalize the Court which would shake the confidence of the litigating public in the system and would cause a very serious damage to the name of the judiciary.
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34. Similar affidavits have been filed by other appellants reiterating what they had stated before the High Court and the Magistrate concerned tendering unconditional apology for the incident which took place in the Court at Faridabad. They also assured this Court that they would maintain good Page 57 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined behaviour in future. Though sub-Section 1 of Section 12 of the Act enables the court to award simple imprisonment for a term which may extend to six months, proviso empowers the court that respondent may be discharged or punishment awarded may be remitted on apology being made to the satisfaction of the court. In fact, Explanation to this Section makes it clear that an apology shall not be rejected merely on the ground that it is qualified or conditional if the respondent makes it bona fide.
35. Considering the plea made by Mr. Ram Jethmalani, learned senior counsel and President of the Supreme Court Bar Association, in tendering unconditional apology, recorded even at the initial stage before the High Court and before the Magistrate, Faridabad before whom the unwanted incident had occurred and the present affidavits filed before us once again expressing unconditional apology and regret with an undertaking that they would maintain good behaviour in future and in view of the language used in `proviso' and `explanation' appended to Section 12(1) of the Act, we accept the affidavits filed by all the Appellants.
36. Shri Satish Kumar, owner, publisher, printer and Editor of `Majdur Morcha' newspaper has also filed affidavit before this Court similar to one by the other appellants. Considering the fact that the newspaper has merely published what had happened in the Court, we are of the view that it would be just and fair to apply the same relief to him also. We Page 58 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined reiterate that acceptance of an apology from a contemnor should only be a matter of exception and not that of a rule.
37.A Court, be that of a Magistrate or the Supreme Court is sacrosanct. The integrity and sanctity of an institution which has bestowed upon itself the responsibility of dispensing justice is ought to be maintained. All the functionaries, be it advocates, judges and the rest of the staff ought to act in accordance with morals and ethics.
38. An advocate's duty is as important as that of a Judge. Advocates have a large responsibility towards the society. A client's relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and justice system. An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system.
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40. As a rule, an Advocate being a member of the legal Page 59 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined profession has a social duty to show the people a beacon of light by his conduct and actions rather than being adamant on an unwarranted and uncalled for issue."
42. In the light of the above discussion and reasons which we have noted in the earlier paras and as an exception to the general rule, we accept the unconditional apology tendered in the form of affidavits in terms of proviso to Section 12(1) of the Act and discharge all the appellants."
30. It is thus very clear that the advocates, who have huge responsibility to work with diligence, sincerity and not in a confrontative way and when they have also an obligation to uphold the rule of law and to strengthen the system, which would protect not only the advocates, along with the Bench, but, the very rule of law and the entire society for the rule of law being the vehicle of strength and might. None has a right to act in any manner, which would derogate the system or thereby would undermine the authority. His dignified way in conducting himself personally and with the Court would not only bring a personal glory, but, it would Page 60 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined also groom the others and would have a potency of strengthening the system.
31. Having said that and also having noticed in the earlier paragraphs that there is no justification, which is potent enough for justifying the language used in his speech for the judicial officers with his past and unblemished career as a lawyer, we choose to pardon his behavior. While so doing it, we would surely want to send a message, loud and clear that these kinds of utterances made casually and as per the whims of the office bearers, which have a tendency of undermining the authority must are never to be endorsed nor to be tolerated.
31.1 It is also to be noted that tendency of individual members or collective Bar Association to browbeat the judges of District Judiciary or derogate the system either to hide their own limitation or to make them a scapegoat in adversarial system Page 61 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined at the time of loosing the litigation is deprecatory and deserves to be firmly dealt with. However, parameters laid down by the Apex Court coupled with absence of any blemished past conduct and his assurances of not to contest in the future as the leader of Bar so also his ensuring to be watchful of his words and conduct as the responsible member of Bar and not to encourage any fissiparous tendencies amongst the members, we are inclined to accept the request of unconditional apology.
31.2 Therefore, this acceptance of apology must also come with certain conditions/qualifications which shall be as follows:
(1) the contemnor since has already declared his intention of not to contest the election of the Rajkot Bar Association, this Court has nothing further to add to that declaration as he would undertaken the same before Page 62 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined this Court in writing and it will be expected he would abide by his own version before this Court.
(2) let there be an express apology tendered by him by calling a General Body Meeting and he would also tender it by writing a letter addressed to the learned Principal District Judge by individually apologizing to each Judge.
(3) the Bar Association shall get his apology published for the use of his language for making it known to one and all. New body of the Rajkot Bar Association shall publicize the same in the newspapers this aspect of his apology.
(4). As the new body has now been formed of the Rajkot Bar Association, it will convene a General Body Meeting where the present respondent shall express his apology which he has expressed before this Court in relation to his utterances. Let this be recorded Page 63 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023 NEUTRAL CITATION R/CR.MA/18975/2022 ORDER DATED: 07/01/2023 undefined by the BAR for its personal use if need be the same can be also called for.
(5) Let the report of compliance also be sent to the Registrar ( Judicial) through the Principal District Judge, Rajkot.
32. On acceptance of unconditional apology and with the above directions and conditions, we purge the contemnor- Respondent of the contempt And, this application is accordingly disposed of.
33.We place on record our deep appreciation for the praiseworthy endeavours of assistance rendered by the learned Senior Advocate Mr. Shalin Mehta assisted by Ms.Tripathi, Learned AGP as Amicus Curiae.
(SONIA GOKANI, J) (MAUNA M. BHATT, J) M.M.MIRZA Page 64 of 64 Downloaded on : Sun Sep 17 20:34:21 IST 2023