RAKESH TIWARI, ADVOCATE versus ALOK PANDEY, C.J.M. on 10 May 2019

1. The sentence of imprisonment of 6 months shall remainsuspended for further period of 3 years subject to his maintaininggood and proper conduct with a condition that he shall not enterH

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the premises of the District Judgeship, Allahabad for a furtherperiod of three years in addition to what he has undergone already.The period shall commence from 1.7.2019 to 30.6.2022. In caseof non violation of aforesaid condition the sentence after threeyears shall be remitted.

2. However, sentence of imprisonment may be activatedby this Court in case it is found that there is breach of anycondition made by the concerned advocate during the period ofthree years.

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3. He shall deposit fine of Rs.2000 as imposed by the HighCourt. In case of failure to deposit fine he shall not enterthe premises of District Judgeship for a period of three months.[Para 16] [903-H; 904-A-E]

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Mr. ‘G’, A Senior Advocate of the Supreme Court AIR1954 SC 557; Lalit Mohan Das v. Advocate General,Orissa AIR 1957 SC 250 : [1957] SCR 167; SupremeCourt Bar Association v. Union of India & Anr. (1998)4 SCC 409 : [1998] 2 SCR 795 ; Pravin C. Shah v.K.A. Mohd. Ali & Anr. (2001) 8 SCC 650 : [2001] 3Suppl. SCR 675 ; Bar Council of India v. High Courtof Kerala (2004) 6 SCC 311 : [2004] 1 Suppl. SCR 649 ; R K Anand v. Registrar, Delhi High Court (2009)8 SCC 106:[2009] 11 SCR 1026 – relied on.

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Case Law Reference

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1223 of 2015.

From the Judgment and Order dated 10.07.2015 of the High Courtof Judicature at Allahabad in Contempt Application (Criminal) No. 8 of2013.

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AVishwajit Singh, Pankaj Singh, Ms. Ridhima Singh, Ms. VijayaSingh, Ms. Akansha Singh, Mr. Sushmit Chauhan (for M/s. VidhiInternational), Advs. for the Appellant.

Yashvardhan, Jagjit Singh Chhabra, Advs. for the Respondent.

The Judgment of the Court was delivered byBARUN MISHRA, J.

1. The appellant, advocate, has been convicted for his undesirableconduct by the High Court vide impugned judgment and order under theContempt of Courts Act and has been sentenced to simple imprisonmentCof six months and a fine of Rs.2000/- and in case of non-payment of fine,to undergo simple imprisonment for a further period of 15 days. He hasalso been directed not to enter the premises of the District Judgeship,Allahabad for a period of six months w.e.f. 15.7.2015 and the contemnorshall remain under constant watch of the District Judge, Allahabad, for aperiod of two years; and in case of any objectionable conduct, causingDinterference in peaceful and smooth functioning of the court, the DistrictJudge has been asked to report the matter to the High Court.

2. The contemnor has been charged with criminal contempt to thefollowing effect:

“Sri Rakesh Tripathi, Advocate, on 21[st] December, 2012 duringElunch hour without taking permission from C.J.M., Allahabadentered into his chamber along with 2-3 colleagues and at the saidpoint of time he started hurling filthy abuses to the CJM and thematter did not end there, as he also raised his hand to beat theChief Judicial Magistrate and also threatened him of direFconsequences. The contemnor also asked the C.J.M. as to whyhe has not passed an order for lodging F.I.R. when he had askedfor the same. This act on the part of the contemnor constitutescriminal contempt within the meaning of Section 2(c) of Contemptof Courts Act, 1971, as this act has not only lowered the authorityof the Court but also scandalised the Court and the same has alsoGthe tendency of interference with the due course of administrationof justice.”

3. The reply was filed by the contemnor to the effect that he hadfiled an application on behalf of Akhilesh Kumar Shukla on 19.10.2012under section 156(3) Cr.P.C. which was heard by C.J.M. of AllahabadH

on 30.10.2012 and 8.11.2012 was the date fixed for passing the order.The contemnor alleged that before pronouncement of the order on8.11.2012 he saw one of the accused, Sharad Tandon, General Manager,District Industries Centre, Allahabad, sitting in the chamber of the CJM.He apprehended that his client will not get justice, hence, he moved anapplication on 8.11.2012 before the Chief Judicial Magistrate not to passany order since the contemnor was willing to file a transfer applicationbefore the District Judge, Allahabad. The CJM assured not to pass anyorder but actually passed an order on the same day by convertingapplication filed under section 156(3) Cr.PC into a complaint caseregistered as Case No.13500 of 2012. The CJM took away the applicationfrom record. Thereafter, the contemnor moved an application beforethe District & Sessions Judge, Allahabad on 9.11.2012 making a complaintagainst the CJM, Allahabad.

4. Another application was filed by the contemnor on 30.11.2012under section 156(3) Cr. P.C. by counsel appearing on behalf of AlokKumar Shukla. He stated to the CJM that he had moved an applicationbefore the Sessions Judge, Allahabad, hence, CJM should not pass anyorder. The same should be placed before the Sessions Judge, Allahabadfor assigning the same to some other court. In January, 2013 thecontemnor came to know that the CJM had passed an order on18.12.2012 treating the application registered as Complaint Case No.1919/2013. Initially, it was registered as Miscellaneous Application No.1747/XII/2012. Non-bailable warrant has been issued in the same. He did notenter into the chamber of the CJM on 21.12.2012, neither abused northreatened him to beat. The advocates were on strike on the said date.There was no question of entering the chamber of CJM or to use filthylanguage.

5. The High Court has found the contemnor along with 2-3 junioradvocates entered the chamber of the CJM and misbehaved as well asattempted to assault him. No application was filed by him on 8.11.2012before the CJM not to pass any order. It was a concocted story. TheMagistrate did not reject the application outright and required thecomplainant to adduce evidence which course was available to him.The contemnor did not pursue the matter and got the earlier case dismissedas not pressed and filed second application. On this the CJM has againregistered the complaint case. The matter is pending in which non-bailablewarrant has been issued against the accused. The allegation of sympathy A

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Atowards accused by the Magistrate has been found to be unfounded,baseless and figment of imagination of contemnor. The defense takenhas not been substantiated by the contemnor.

6. The High Court has observed that considering the increasingtendency of the advocates in making scurrilous allegations against theBPresiding Officers of subordinate courts has to be curbed. The acts ofabusing and misbehaving are on increase. The action of the advocateamounts to lowering the dignity and majesty of the court. A deliberateattempt to scandalise a judicial officer of subordinate court is bound toshake the confidence of the litigant public in the system and has to betackled strictly. Damage is not only to the reputation of the Judge butCalso to the fair name of the judiciary. Judges cannot be tamed by suchtactics into submission to secure a desired order. The foundation of thesystem is based on independence and impartiality of the Judges as wellas responsibility to impart justice. In case their confidence, impartialityand reputation are shaken the same is bound to adversely affect theDindependence of the judiciary.

7. In our opinion, an advocate is duty bound to act as per thehigher status conferred upon him as an officer of the court. He plays avital role in preservation of society and justice delivery system. Advocatehas no business to threaten a Judge or hurl abuses for judicial orderEwhich he has passed. In case of complaint of the Judge, it was open tothe advocate to approach concerned higher authorities but there is nolicence to any member of the Bar to indulge in such undignified conductto lower down the dignity of the Court. Such attempts deserve to benipped at the earliest as there is no room to such attack by a member ofnoble profession.F

8. The role of a lawyer is indispensable in the justice deliverysystem. He has to follow the professional ethics and also to maintainhigh standards. He has to assist the court and also defend the interest ofhis client. He has to give due regard to his opponent and also to hiscounsel. What may be proper to others in the society, may be improperGfor him to do as he belongs to an intellectual class of the society and asa member of the noble profession, the expectations from him areaccordingly higher. Advocates are held in high esteem in the society.The dignity of court is in fact dignity of the system of which an advocatebeing officer of the court. The act of the advocate in the present case isHnot only improper but requires gross condemnation.

9. It has been observed by this Court in the matter of Mr. ‘G‚‘, ASenior Advocate of the Supreme Court in AIR 1954 SC 557 that anadvocate has to conduct himself in a manner befitting the high andhonourable profession. Following observations have been made inpara 41 :

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“with ordinary legal rights, but with the special and rigid rulesof professional conduct expected of and applied to a speciallypriviledged class of persons who, because of their priviledgedstatus, are subject to certain disabilities which do not attach toother men and which do not attach even to them in a non-professional character. ... He [a legal practitioner} is bound toconduct himself in a manner befitting the high and honourableprofession to whose privileges he has so long been admitted;and if he departs from the high standards which that professionhas set for itself and demands of him in professional matters,he is liable to disciplinary action.”

10. Similarly in Lalit Mohan Das v. Advocate General, OrissaAIR 1957 SC 250, this Court observed :

“A member of the Bar undoubtedly owes a duty to his clientand must place before the Court all that can faitly and reasonablybe submitted on behalf of his client. He may even submit that aparticular order is not correct and may ask for a review of thatorder. At the same time, a member of the Bar is an officer of theCourt and owes a duty to the Court in which he is appearing. Hemust uphold the dignity and decorum of the Court and must not doanything to bring the Court itself into disrepute. The appellantbefore us grossly overstepped the limits of propriety when hemade imputations of partiality and unfairness against the Munsifin open Court. In suggesting that the Munsif followed no principlein his orders, the appellant was adding insult to injury, becausepreliminary point of jurisdiction and Court fees, which order hadbeen upheld by the High Court in revision. Scandalising the Courtin such manner is really polluting the very fount of justice; suchconduct as the appellant indulged in was not a matter between anindividual member of the Bar and a member of the judicial service;it brought into disrepute the whole administration of justice. From A

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[2019] 7 S.C.R.

Athat point of view, the conduct of the appellant was highlyreprehensible.”

11. The main question urged is as to the sentence to be imposed inthe case. In Supreme Court Bar Association v. Union of India &Anr. (1998) 4 SCC 409, this Court has laid down that though it is notBpermissible for a court to suspend the licence to practice but at the sametime it is open to this Court or the High Court to debar an advocate fromappearing in the court. This Court has laid down that though suspensionof a lawyer is not permissible to be ordered but when he is convictedunder the contempt of court, it is possible for this Court or the HighCourt to prevent the advocate to appear in the court. The Court hasCobserved:

“80. In a given case it may be possible, for this Court or the HighCourt, the prevent the contemner advocate to appear before it tillhe purges himself of the contempt but that is much different fromsuspending or revoking his license or debarring him to practice asDan advocate. In a case of contemptuous, contumacious,unbecoming or blameworthy conduct of an Advocate-on-Record,this court possesses jurisdiction, under the Supreme Court Rulesitself, to withdraw his privilege to practice as an Advocate-an-Record because that privilege is conferred by this Court and theEpower to grant the privilege includes the power to revoke orsuspend it. The withdrawal of that privilege, however, does notamount to suspending or revoking his license to practice as anadvocate in other courts or Tribunals.”

F12. In Pravin C. Shah v. K.A. Mohd. Ali & Anr. (2001) 8 SCC650, this Court observed that an advocate found guilty of contempt cannothave an unreserved right to appear in court, the court may refuse tohear him:

“17. When the rules stipulate that a person who committedGcontempt of court cannot have the unreserved right to continue toappear and plead and conduct cases in the courts without anyqualm or remorse, the Bar Council cannot overrule such aregulation concerning the orderly conduct of court proceedings.Courts of law are structured in such a design as to evoke respect H

and reverence for the majesty of law and justice. The machineryfor dispensation of justice according to law is operated by thecourt. Proceedings inside the courts are always expected to beheld in a dignified and orderly manner. The very sight of anadvocate, who was found guilty of contempt of court on theprevious hour, standing in the court and arguing a case or cross-examining a witness on the same day, unaffected by thecontemptuous behavior he hurled at the court, would erode thedignity of the court and even corrode the majesty of it besidesimpairing the confidence of the public in the efficacy of theinstitution of the courts. This necessitates vesting of power withthe High Court to formulate rules for regulating the proceedinginside the court including the conduct of advocates during suchproceedings. That power should not be confused with the right topractice law. While the Bar Council can exercise control over thelatter the High Court should be in control of the former.

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20. Lord Denning had observed as follows in Hadkinson vs.-Hadkinson 1952 (2) All ER 567: (All ER p.575BC)

“…I am of the opinion that the fact that a party to a cause hasdisobeyed an order of the courtis not of itself a bar to his beingheard, but if his disobedience is such that, so long as it continues,it impedes the course of justice in the cause, by making it moredifficult for the court to ascertain the truth or to enforce theorders which it may make, then the court may in its discretionrefuse to hear him until the impediment is removed or goodreason is shown why it should not be removed.”

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35. It is still open to the respondent Advocate to purge himself ofthe contempt in the manner indicated above.But until that processis completed respondent Advocate cannot act or plead in any courtsituated within the domain of the Kerala High Court, including thesubordinate courts thereunder. The Registrar of the High Courtof Kerala shall intimate all the courts about this interdict as againstthe respondent-advocates.”

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13. In Bar Council of India v. High Court of Kerala (2004) 6SCC 311, this Court has observed thus:

“29. Punishment for commission of contempt and punishment formisconduct, professional or other misconduct, stand on differentfootings.A person does not have a fundamental right to practicein any court. Such a right is conferred upon him under the provisionsof the Advocates Act which necessarily would mean that theconditions laid down therein would be applicable in relation thereto.Section 30 of the Act uses the expressions “subject to”, whichwould include Section 34 of the Act.”

14. In R K Anand v. Registrar, Delhi High Court (2009) 8 SCC106, this Court has observed that advocate can be disallowed fromappearing in court on being found guilty of contempt of court:

“238. In Supreme Court Bar Assn. the direction prohibiting anadvocate from appearing in court for a specified period was viewedas a total and complete denial of his right to practice law and thebar was considered as a punishment inflicted on him. In Ex. Capt.Harish Uppal it was seen not as punishment for professionalmisconduct but as a measure necessary to regulate the court’sproceedings and to maintain the dignity and orderly functioning ofthe courts. We may respectfully add that in a given case a directiondisallowing an advocate who is convicted of criminal contemptfrom appearing in court may not only be a measure to maintainthe dignity andorderly functioning of the courts but may becomenecessary for the self-protection of the court and for preservationof the purity of court proceedings. Let us, for example, take thecase where an advocate is shown to have accepted money in thename of a judge or on the pretext of influencing him; or where anadvocate is found tampering with the court’s record; or where anadvocate is found actively taking part in faking court orders (fakebail orders are not unknown in several High Courts!); or wherean advocate has made it into a practice to browbeat and abusejudges and on that basis has earned the reputation to get a casetransferred from an “inconvenient” court; or where an advocateis found to be in the habit of sending unfounded and unsubstantiatedallegation petitions against judicial officers and judges to the superior courts. Unfortunately, these examples are not fromimagination. These things are happening more frequently than wecare to acknowledge.

239. We may also add that these illustrations are not exhaustivebut there may be other ways in which a malefactor’s conduct andactions may pose a real and imminent threat to the purity of courtproceedings, cardinal to any court’s functioning, apart fromconstituting a substantive offense and contempt of court andprofessional misconduct.In such a situation the court does notonly have the right but it also has the obligation cast upon it toprotect itself and save the purity of its proceedings from beingpolluted in any way and to that end bar the malefactor fromappearing before the courts for an appropriate period of time.

240. It is already explained in Ex. Captain Harish Uppal that adirection of this kind by the Court cannot be equated withpunishment for professional misconduct. Further, the prohibitionagainst appearance in courts does not affect the right of the lawyerconcerned to carry on his legal practice in other ways as indicatedin the decision.We respectfully submit that the decision in Ex-Capt. Harish Uppal v. Union of India places the issue in correctperspective and must be followed to answer the question at issuebefore us.”

15. In the instant case the advocate has acted contrary to theobligations. He has set a bad example before others while destroyingthe dignity of the court and the Judge. The action has the effect ofweakening of confidence of the people in courts. The judiciary is one ofthe main pillars of democracy and is essential to peaceful and orderlydevelopment of society. The Judge has to deliver justice in a fearlessand impartial manner. He cannot be intimidated in any manner or insultedby hurling abuses. Judges are not fearful saints. They have to be fearlesspreachers so as to preserve the independence of the judiciary which isabsolutely necessary for survival of democracy.

16. The act stated amounts to criminal contempt of court. TheHigh Court has noted that the concerned advocate did not apologise andhas maligned and scandalised the subordinate court. He has made bare A

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Adenial and has not shown any remorse for his misconduct. Consideringthe gravamen of the allegations the High Court has imposed theimprisonment of SI for 6 months with fine of Rs.2000 and in default topay fine or to undergo SI for 15 days. He has been restrained fromentering the judgeship of Allahabad for a period of 6 months that was tocommence from 15.7.2015 and he had been kept under watch for aBperiod of 2 years. Considering the nature of misconduct, while upholdingthe conviction for criminal contempt, we modify the sentence in thefollowing manner :

1. The sentence of imprisonment of 6 months shall remainsuspended for further period of 3 years subject to hisCmaintaining good and proper conduct with a condition that heshall not enter the premises of the District Judgeship, Allahabadfor a further period of three years in addition to what he hasundergone already. The period shall commence from 1.7.2019to 30.6.2022. In case of non violation of aforesaid conditionDthe sentence after three years shall be remitted.

2. However, sentence of imprisonment may be activated by thisCourt in case it is found that there is breach of any conditionmade by the concerned advocate during the period of threeyears.

E3.He shall deposit fine of Rs.2000 as imposed by the High Court.In case of failure to deposit fine he shall not enter the premisesof District Judgeship for a period of three months.

17. The appeal is, accordingly, disposed of. No costs.

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Ankit Gyan

Appeal disposed of.

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