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The High Court in a very lengthy judgment in which very large number of authorities were considered and discussed, held that the application for transfer constituted contempt because the Judges were scandalized with a view to diverting the due course of justice. The two advocates who signed and prosecuted the application were found guilty of contempt. As regards the plea of error of judgment, this is what the learned Judges said:-

" The attitude of defiant justification adopted by them in spite of our pointing out at a very early stage in these proceedings that we would be prepared to consider any mistake on their part renders it difficult for the court to accept the belated plea of an error of judgment. Even the expression 'error of judgment' was not so much mentioned in the argument until the last day of the argument. We have already shown in para. 100 how it was introduced in the two statements on 16th October, 1950, quite contrary to fact. If the two advocates felt that there was an error of judgment on their part, it would have been more appropriate to make a candid and clear admission of that and make reparation for the injury done by an adequate apology. We cannot treat the expression 'I very much regret that all this should have happened' as an apology at all. Nor were we ever asked to treat it as such. What is it that the two advocates regret ? -So man things have happened since 21st August, 1950. Any expression of regret to merit consideration must be genuine contriteness for what the contemners have done."

When the appeal came back to us, we asked Dr. Tek Chand who appeared for the two advocates whether his clients were even now genuinely sorry for signing the transfer application and whether the expression of regret made in this Court was a genuine expression of their feelings, Dr. Tek Chand replied in the affirmative and emphatically said "

Absolutely".

In this situation, the question for consideration in the appeal now is whether the two appellants have purged the contempt by tendering an unqualified apology in this Court as well as to the High Court, the genuineness of which has been again emphasized by their counsel before us, or whether the sentence of fine awarded to them by the High Court should necessarily be maintained for upholding the authority and dignity of the Court 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 in signing this application the two advocates were guilty of contempt. That decision therefore stands. 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 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 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 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 q uestion 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 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 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.