Gujarat High Court
Suo Motu vs Yogesh J Bhatt & on 29 September, 2014
Bench: M.R. Shah, K.J.Thaker
R/CR.MA/389/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 389 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE K.J.THAKER sd/
=============================================
1. Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair copy NO
of the judgment ?
4. Whether this case involves a substantial question NO
of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5. Whether it is to be circulated to the civil judge ? NO ============================================= SUO MOTU....Applicant(s) Versus YOGESH J BHATT & 1....Respondent(s) ============================================= Appearance:
SUO MOTU for the Applicant(s) No. 1MR US BRAHMBHATT, ADVOCATE for the Respondent(s) No. 2 MR.D K.PUJ, ADVOCATE for the Respondent(s) No. 1 MS CHETNABEN JOSHI, ADVOCATE for the Respondent(s) No. 2 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE K.J.THAKER Date : 29/09/2014 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Present suo motu Contempt Proceedings are initiated against the respondents herein for the criminal contempt committed by them by making reckless and baseless serious allegations of corruption Page 1 of 12 R/CR.MA/389/2013 CAV JUDGMENT made against all the Courts / Judicial Officers in the Bhuj Court and more particularly, Shri S.N. Padhya, learned Magistrate, made by them in their complaint dated 3.4.2012. It is required to be noted that respondent no.2 is Practicing Advocate and respondent no.1 is his client.
2.0. That by order dated 1.5.2014, the Division Bench of this Court has framed the following charge against both the respondents and for the following charge both respondent nos. 1 and 2 are to be tried for criminal contempt within the definition of Section 2(c) of the Contempt of Courts Act. The charge against respondents no. 1 and 2 reads as under:
"You Shri Yogesh J Bhatt residing at A60, Mundra Relocation Site, Dist. Bhuj Kutch and Shri Mehboobali s/o Alimohmad Bawa residing at near Jublee Hospital, Sarpath Gate, Bhuj, Kutch while making the complaint / complaints against all the Courts and the Judicial Officer in Bhuj Court have made serious allegation of corruption in the complaint dated 3.4.2012 and thereafter when you Yogesh J Bhatt was called upon to appear before the Registrar Vigilance, Gujarat High Court and to substantiate the allegations made against all the Courts / Judicial Officer in Bhuj Court and more particularly, Shri S.N. Padhya, learned Magistrate. However thereafter, you Yogesh Bhatt failed to substantiate the same and on the contrary you stated that when you are called upon to appear before the Registrar Vigilance, Gujarat High Court, you are harassed. That thereafter, in the reply before this Court you Yogesh Bhatt has stated that though the complaint in the subsequent replies bear his signature, however the contents are not of your but the same was by you Shri Mehboobali s/o Alimohmad Bawa and as per you Yogesh Bhatt, Shri Mehboobali s/o Alimohmad Bawa has misused the blank papers having his signature. That in the affidavit in reply Page 2 of 12 R/CR.MA/389/2013 CAV JUDGMENT filed by you Shri Mehboobali s/o Alimohmad Bawa you have categorically admitted that the correction made in the complaint dated 3.4.2012 "Sari Aevi Rakam" (huge amount) is made by you and it is in your handwriting. Thus, both of you are party to the said complaint making serious, reckless and baseless allegations made against the Judicial Officers at Bhuj and Shri S.N. Padhya, learned Magistrate.
Your aforesaid conduct of making serious reckless and baseless allegation against the Judicial Officers at Bhuj and Shri S.N. Padhya, learned Magistrate tantamount to scandalize or tends to scandalize or lowers or tends to lower the authority of, any Court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner, which amounts to criminal contempt under Section 2(c) of the Contempt of Courts Act, which is liable to punish under Section 12 of the said Act. We are authorize to initiate contempt proceedings under the said act against you."
3.0. In response to the aforesaid charge framed against the respondents, respondents have appeared through their respective advocates. Shri Puj, learned advocate has appeared on behalf of the respondent no.1 contemnor and Shri Brahmbhatt, learned advocate has appeared on behalf of respondent no.2 contemnor who is practicing Advocate.
4.0. Today, when the present application is taken up for final hearing, learned Advocates for the respective respondents have stated at the bar that both respondent nos. 1 and 2 are personally present in the Court. Shri D.K. Puj, learned Advocate for the respondent no.1 and Shri Brahmbhatt, learned Advocate for the respondent no.2 have stated at the Page 3 of 12 R/CR.MA/389/2013 CAV JUDGMENT bar that under the instructions from their respective respondent nos. 1 and 2 who are personally present in the Court that both the respondents contemnor pleaded guilty and they admitted the charge frame against them. Shri Brahmbhatt, learned advocate for the respondent no.2 advocate has candidly admitted that respondent no.2advocate has committed blunder and / or mistake in making correction in his own writing in the complaint dated 3.4.2012 signed by the respondent no.1, which was addressed to the Hon'ble Chief Justice. He has stated at the bar that respondent no.2 tendered unconditional apology. He has requested the Court to accept unconditional apology tendered on behalf of respondent no.2 looking to his age. Similarly, Shri Puj, learned advocate for the respondent no.1 has also stated at the bar that respondent no.1 also tendered unconditional apology and has requested to accept unconditional apology and pardon him.
5.0. Both the learned Advocates appearing on behalf of the respective respondents have therefore, requested to accept the unconditional apology tendered on behalf of respondents and to pardon him.
6.0. Heard the learned Advocates for the respective respondents at length. At the outset, it is required to be noted that both the respondents herein are facing charge of 'criminal contempt' within the definition of Section 2(c) of the Contempt of Courts which is reproduced herein above. Both the respondents are personally present in the Court. They have appeared through their Advocates. As recorded herein above, both the respondents have pleaded guilty. However, have requested to pardon them by tendering unconditional apology. Therefore, the short question which is posed for consideration of this Court is whether to accept the apology tendered by respondents contemnors and to pardon Page 4 of 12 R/CR.MA/389/2013 CAV JUDGMENT them and / or to punish them suitably for "Criminal Contempt" within the definition of Section 2(c) of the Contempt of Courts Act?
7.0. From the charge framed against the respondents and even from the complaint made by the concerned respondents dated 3.4.2012 which was addressed to Hon'ble the Chief Justice, the respondents made reckless, baseless and serious allegations of corruption against all the Courts / Judicial Officers in Bhuj Court, more particularly, Shri S.N. Padhya, learned Magistrate. It is required to be noted that as the allegations against the Courts and the Judicial Officers in the Bhuj Court were very serious allegations of Corruption and therefore, Hon'ble the Chief Justice of the High Court and the High Court Administration took the matter very seriously and sent the complaint to the Registrar (Vigilance) for further inquiry / investigation which was numbered as Vigilance Case No.209 of 2012 and the respondents herein were called by the Registrar (Vigilance) to appear before them for recording their statements and their statements were recorded, however they failed to substantiate their allegations made in the complaint against the Courts / Judicial Officers in Bhuj Court and thereafter the Division Bench of this Court initiated the suo motu contempt proceeding against the respondents and aforesaid charge was framed against them and they have admitted the charge. However, have requested to accept the apology tendered by them and to pardon them. Thus, as such the respondents made baseless and frivolous serious allegations of corruption against all the Courts and Judicial Officers in Bhuj Court, which they failed to substantiate and as such the aforesaid conduct on the part of the respondents would tantamount to "criminal contempt"
within the definition of Section 2(c) of the Contempt of Courts Act. As observed herein above, when the respondents have admitted the charge, the only question which is required to be considered by this Court is to Page 5 of 12 R/CR.MA/389/2013 CAV JUDGMENT whether in the facts and circumstances of the case, to accept the apology tendered by the respondents or not and whether to pardon them or not ?
7.1. In the case of Vishram Singh Raghubanshi vs. State of UP reported in AIR 2011 SC 2275, the Hon'ble Supreme Court while considering the contempt jurisdiction and relating to similar situation, in para 11 to 17 has observed and held as under:
"11.It is settled principles of law that it is the seriousness of the irresponsible acts of the contemnor and degree of harm caused to the administration of justice, which would decisively determine whether the matter should be tried as a criminal contempt or not."
12. The court has to examine whether the wrong is done to the Judge personally or it is done to the public. The act 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. (See: Brahma Prakash Sharma and Ors. v. The State of U.P., AIR 1954 SC 10; and Perspective Publications (P.) Ltd. and Anr. v. The State of Maharashtra, AIR 1971 SC 221).
13. In the case of Delhi Judicial Service Association v. State of Gujarat and Ors., AIR 1991 SC 2176 : (1991 AIR SCW 2419), this Court held that the power to punish for contempt is vested in the Judges not for their personal protection only, but for the protection of public justice, whose interest requires that decency and decorum is preserved in courts of justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties; any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court would amount to criminal contempt and the courts must take serious cognizance of such conduct.
14. In E. M. Sankaran Namboodiripad v. T. Narayanan Nambiar, AIR 1970 SC 2015, this Court observed that contempt of court has various kinds, e.g. insult to Judges; attacks upon them; comment on pending proceedings with a tendency to prejudice fair trial; obstruction to officers of Courts, witnesses or the parties; scandalising the Judges or the courts; conduct of a person which tends to bring the authority and administration of the law into disrespect or disregard.
Page 6 of 12 R/CR.MA/389/2013 CAV JUDGMENTSuch acts bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. In a given case, such a conduct be committed "in respect of thewhole of the judiciary or judicial system".
The court rejected the argument that in particular circumstances conduct of the alleged contemnor may be protected by Article 19(1)(a) of the Constitution i.e. right to freedom of speech and expression, observing that the words of the second clause, of the same provision bring any existing law into operation, thus provisions of the Act 1971 would come into play and each case is to be examined on its own facts and the decision must be reached in the context of what was done or said.
15.Thus, it is apparent that the contempt jurisdiction is to uphold majesty and dignity of the law courts and the image of such majesty in the minds of the public cannot be allowed to be distorted. Any action taken on contempt or punishment enforced is aimed at protection of the freedom of individuals and orderly and equal administration of laws and not for the purpose of providing immunity from criticism to the Judges. The superior courts have a duty to protect the reputation of judicial officers of subordinate courts, taking note of the growing tendency of maligning the reputation of judicial officers by unscrupulous practising advocates who either fail to secure desired orders or do not succeed in browbeating for achieving ulterior purpose. Such an issue touches upon the independence of not only the judicial officers but brings the question of protecting the reputation of the Institution as a whole.
16.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 Page 7 of 12 R/CR.MA/389/2013 CAV JUDGMENT justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable. (Vide:
O.P. Sharma and Ors. v. High Court of Punjab and Haryana, (2011) 5 SCALE 518) : (2011 AIR SCW 2980).
17. This Court in M.B. Sanghi v. High Court of Punjab and Haryana and Ors., (1991) 3 SCC 600 : (AIR 1991 SC 1834 :
1991 AIR SCW 2011), observed as under:
"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 officer with impunity?.It is high time that we realise that 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".
7.2. While dealing with the question whether in such a situation apology tendered by the contemnor should be accepted or not, the Hon'ble Supreme Court in para 18 to 20, 23 to 25 has observed and held as under:
"18. This leads us to the question as to whether the facts and circumstances referred hereinabove warrant acceptance of apology tendered by the appellant.
The famous humorist P. G. Wodehouse in his work "The Man Upstairs (1914)" described apology :
"The right sort of people do not want apologies, and the wrong sort take a mean advantage of them."
The apology means a regretful acknowledge or excuse for failure. An explanation offered to a person affected by one's action that no offence was intended, coupled with the expression of regret for any that may have been given. Apology should be unquestionable in sincerity. It should be tempered with a sense of genuine remorse and repentance, and not a calculated strategy to avoid punishment.
19. Clause 1 of Section 12 and Explanation attached thereto enables the court to remit the punishment awarded for committing the contempt of court on apology being made to the satisfaction of the court. However, an apology should not be rejected merely on the ground that it is qualified or tempered at a belated stage if the accused makes it bona fide. There can be cases where the wisdom of rendering an apology dawns only at a later stage.
20.Undoubtedly, an apology cannot be a defence, a justification, or an appropriate punishment for an act which is in contempt of Page 8 of 12 R/CR.MA/389/2013 CAV JUDGMENT court. An apology can be accepted in case the conduct for which the apology is given is such that it can be "ignored without compromising the dignity of the court", or it is intended to be the evidence of real contrition. It should be sincere. Apology cannot be accepted in case it is hollow; there is no remorse; no regret; no repentance, or if it is only a device to escape the rigour of the law. Such an apology can merely be termed as paper apology.
23. 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 a contempt". 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. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment, it ceases to be an apology and becomes an act of a cringing coward. (Vide : Mulkh Raj v. The State of Punjab, AIR 1972 SC 1197; The Secretary, Hailakandi Bar Association v. State of Assam and Anr., AIR 1996 SC 1925 : (1994 AIR SCW 1969); C. Elumalai and Ors. v. A.G.L. Irudayaraj and Anr., AIR 2009 SC 2214 : (2009 AIR SCW 2917); and Ranveer Yadav v. State of Bihar, (2010) 11 SCC 493) :
(2010 AIR SCW 3693).
24. In Debabrata Bandopadhyay and Ors. v. The State of West Bengal and Anr., AIR 1969 SC 189, this Court while dealing with a similar issue observed as under:
"?..Of course, an apology must be offered and that too clearly and at the earliest opportunity. A person who offers a belated apology runs the risk that it may not be accepted for such an apology hardly shows the contrition which is the essence of the purging of a contempt. However, a man may have the courage of his convictions and may stake his on proving that he is not in contempt and may take the risk. In the present case the appellants ran the gauntlet of such risk and may be said to have fairly succeeded."
25. This Court has clearly laid down that apology tendered is not to be accepted as a matter of course and the Court is not bound to accept the same. The court is competent to reject the apology and impose the punishment recording reasons for the same. The use of insulting language does not absolve the contemnor on any count whatsoever. If the words are calculated and clearly intended to cause any insult, an apology if tendered and lack penitence, regret or contrition, does not deserve to be accepted. (Vide: Shri Baradakanta Mishra v. Registrar of Orissa High Court and Anr., AIR 1974 SC 710; The Bar Council of Maharashtra v. M.V. Dabholkar etc., AIR 1976 SC 242; Asharam M. Jain v. A.T. Gupta and Ors., AIR 1983 SC 1151; Mohd. Zahir Khan v. Vijai Singh and Ors., AIR 1992 SC 642 : (1992 AIR SCW 287); In Re: Sanjiv Page 9 of 12 R/CR.MA/389/2013 CAV JUDGMENT Datta, (1995) 3 SCC 619 : (1995 AIR SCW 2203); and Patel Rajnikant Dhulabhai and Ors. v. Patel Chandrakant Dhulabhai and Ors., AIR 2008 SC 3016 : (2008 AIR SCW 5076))."
8.0. The similar view has been expressed by the Hon'ble Supreme Court in the case of Amicus Curae vs. Prashant Bhusan and Anr reported in 2010 (3) GLH 40.
9.0. Considering the aforesaid law laid down by the Hon'ble Supreme Court and the observations of the Hon'ble Apex Court, the question posed in the present suo motu contempt proceedings and the unconditional apology tendered by the respondents and their prayer to pardon is required to be considered. It is required to be noted that in the present case both the respondents have tendered apology after the charge came to be framed against them for the criminal contempt and when they were put to trial. As observed herein above, as such both respondents have pleaded guilty and they have admitted the charges framed against them. Therefore, as such both the respondents have committed criminal contempt within the meaning of Section 2(c) of the Contempt of Courts. It is required to be noted and even so observed by the Hon'ble Supreme Court in the case Vishram Singh Raghubanshi(supra) there is growing tendency of maligning the reputation of the judicial officers which is required to be curbed with heavy hand. The tendency to make reckless and baseless serious allegation against the Judicial Officers / Officers of the Court is increasing and because of such baseless and frivolous complaints, Judicial Officers are always under pressure. It affects not only concerned Judicial Officers but it affects entire institution as a whole and same shall not be in the larger interest of judicial system. In the present case, respondent no.2 is a practicing Advocate. He ought to have properly Page 10 of 12 R/CR.MA/389/2013 CAV JUDGMENT advised his client i.e. respondent no.1. On the contrary, in the complaint dated 3.4.2012 he made correction in his own handwriting which are more serious. In the complaint dated 3.4.2012 signed by the respondent no.1, he has made correction in his own handwriting (as admitted) by using word "by taking huge amount". Once the charge is framed and the respondents have pleaded guilty, both the respondents are required to be held guilty for the "criminal contempt" within the definition of Section 2(c) of the Contempt of Courts Act. The Act and Conduct on the part of the respondents is not pardonable at all. Sufficient damage has already been caused to the institution as a whole and judicial system and the day has now come to curb it with heavy hand.
10. In view of the above and for the reasons stated above, both the respondents are held guilty for the "criminal contempt" within the definition of Section 2(c) of the Contempt of Courts Act. However, in the facts and circumstances of the case and after hearing the respondent nos. 1 and 2 who are personally present in the Court, we impose the sentence of seven day S.I and are sentenced to undergo seven day Simple imprisonment with fine of Rs.2000/. Fine to be paid within a period of two weeks from today, failing which and in default to deposit the fine, the respondents to undergo further 15 days simple imprisonment. Rule is made absolute to the aforesaid extent.
sd/ (M.R.SHAH, J.) sd/ (K.J.THAKER, J) After the pronouncement of the judgment, learned advocates appearing on behalf of the respective respondents have stated at the bar Page 11 of 12 R/CR.MA/389/2013 CAV JUDGMENT that the concerned respondents will surrender before the concerned Magistrate within a period of one week from today.
Under the circumstances, time to surrender is granted upto 7.10.2014. The concerned respondents to surrender before the concerned Magistrate for undergoing sentence on or before 7.10.2014.
sd/ (M.R.SHAH, J.) sd/ (K.J.THAKER, J) kaushik Page 12 of 12