TMI Blog2014 (6) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... in the reference would not constitute criminal contempt in its strict sense - notices issued against the opposite parties are liable to be discharged. The lawyers and other representatives of the litigants in the subordinate courts and Tribunals are expected to conduct themselves in a manner which protects the dignity and decorum of the judicial proceedings - the opposite party No.1 in his representation dated 28.08.2012 is not worthy of approval - It is the duty of lawyers to protect the dignity and decorum of the judiciary - If lawyers fail in their duty, the faith of the people in the judiciary will be undermined to a large extent - lawyers are the custodians of civilization - Lawyers have to discharge their duty with dignity, decorum and discipline. - Contempt No. - 310 of 2013 - - - Dated:- 28-5-2014 - Hon'ble Imtiyaz Murtaza And Hon'ble Devendra Kumar Upadhyaya,JJ. For the Petitioner : Govt. Advocate For the Respondent : Rajan Roy ORDER (Delivered by Hon'ble Devendra Kumar Upadhyaya,J) The opposite parties-(1) S.K.Garg, a practicing Advocate and (2) Pradeep Kumar Kapoor, the Chartered Account practicing in the Income Tax Appellant T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the members, therefore the appeals be adjourned till such time a decision is taken by the President of the ITAT on the letter of Lucknow Income Tax Tribunal Bar Association dated 25.08.2012. On the said letter, an order by the Senior Member of ITAT, Lucknow, Sunil Kumar Yadav (hereinafter referred to as complainant ), on whose reference the present proceedings have been initiated, was passed on 27.08.2012 stating therein that since the Bar has expressed its reservations through representation to the President of ITAT against the combination of the Bench, the matters are adjourned to 01.10.2012. A separate order was passed on the same day by the Accountant Member, B.R. Jain stating therein that certain practitioners before the Tribunal have joined hands in forum-shopping . The allegations in the application are motivated, false, frivolous and, thus, unacceptable. The Accountant Member further expressed in the said letter that being junior member of the Bench, he did not object to the discretion being exercised by the Senior Member of the Bench in adjourning the hearing of the cases. It has further been stated that during hearing of appeals in the cases of M/s Rotomac Glob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presents a party so that such cases may be transferred either at Agra Bench or Delhi Bench. The complainant in his reference has further stated that the contents of the adjournment application moved through Pradeep Kumar Kapoor, the authorized representative and those of the representation dated 28.08.2012 were read in open court by the opposite party No.2-Pradeep Kumar Kapoor during the course of hearing on 30.08.2012. Complainant further states that the representation addressed to the President, ITAT made by opposite party No.1 contains scandalous and scurrilous allegation against the complainant, besides criticizing the orders authored by the complainant in several cases. The reference made by S.K. Yadav contains extracts from the orders authored by him as Senior Member of the Bench as mentioned in the representation dated 28.08.2012 and it also quotes extensively the extracts from the representation dated 28.08.2012 made by the opposite party No.1. It has further been stated in the reference that the adjournment application made by the opposite party No.2-Pradeep Kumar Kapoor was disposed of by passing an order whereby the complainant recused himself from all the cases being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Contempt of Court Act. As observed above, on the application moved by Pradeep Kumar Kapoor-opposite party no.2, the complainant passed an order on 30.08.2012 recusing himself in all the cases being represented by S.K.Garg-opposite party no.1. However, the other member of the ITAT, namely, B.R.Jain, the Accountant Member passed a separate order in the following terms:- Per B.R.Jain, Accountant Member It is neither proper nor considered necessary at this stage to agree or comment on the subjective views expressed by the learned Judicial Member in the noting hereinabove. However, for the sole reason that S.K.Yadav recuses himself from hearing in all the cases which are being represented by S.K.Garg, learned Advocate the grant of adjournment on that ground is not objected . Sd/- B.R.Jain Accountant Member 30.06.2008 From the facts narrated in the reference made by S.K.Yadav, it appears to us that there was a difference of approach between the two learned members of ITAT, Lucknow Bench in dealing with the situation which had arisen on account of resolution passed by Lucknow Income Tax Tribunal Bar Association and on account of representation dated 28.08.2012 mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he representation dated 28.08.2012 he had also made certain complaints about the functioning of the complainant-S.K.Yadav, the Judicial Member of ITAT. In his reply, he further stated that as per information provided to him by the opposite party no.2-Pradeep Kumar Kapoor on 30.08.2012, the complainant after going through the application for adjournment took offence and ordered Pradeep Kumar Kapoor to read certain paragraphs of the adjournment application and also the extracts from the representation dated 28.08.2012. S.K.Garg further states that it was only on the direction of the complainant-S.K.Yadav, the Judicial Member, that the opposite party no.2 read out certain paragraphs of the adjournment application and few lines from his representation dated 28.08.2012 with great reluctance. It has also been stated in the reply filed by the opposite party no.1 that on 31.08.2012 when the Members of Income Tax Bar Association which had condemned the resolution dated 25.08.2012 passed by the Income Tax Tribunal Bar Association appeared before the Bench, the complainant-Judicial Member observed that unless members of the Bar come forward to condemn the remarks made by a counsel in a let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd protection is given from Hon'ble President in this regard with an assurance that such type of complaint/representation would not be entertained and erring advocate would be dealt with severely It has also been stated that the Accountant Member of the Tribunal passed a separate order on the same order sheet and observed that the view expressed by the complainant- S.K.Yadav, the Judicial Member, cannot be treated to be the views/decision of the Division Bench. The separate order recorded by the Accountant Member on 06.09.2012 is quoted below:- Per B.R.Jain, Accountant Member The reasons assigned and views expressed hereinabove by my learned brother Shri S.K.Yadav for his refusal to hear all the appeals are purely subjective. The same cannot be taken as the views/decision of the Division Bench. I, therefore, disassociate myself therefrom and disagree with my learned brother thereon. The representation made by a particular advocate to the Hon'ble President, ITAT is yet to be decided/enquired into by him and at this stage it is beyond the scope of our duties to comment otherwise thereon or even require resolution from any Bar Association. I am, being a government s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the cases by means of order dated 30.08.2012 there was no occasion for him to have issued any such direction to the Assistant Registrar of the Tribunal. Further submission made by opposite party no.1 is that the complainant, who is Judicial Member of the Tribunal, himself brought the contents of the representation dated 28.08.2012 made by him in full 'public view' by making copy of the said representation available to Income Tax Tribunal Bar Association by asking the lawyers and other professionals representing the parties before the TIAT to condemn his letter/representation dated 28.08.2012 and by passing an order whereby he put condemnation of his representation as a pre-condition to hear the appeals of the members of the Bar, by means of order dated 06.09.2012. He has also stated that the contents of the letter dated 28.08.2012 were also made public by directing the Assistant Registrar of the ITAT by means of order dated 07.09.2012 to send notices to the assessees represented by him. In the background of the aforesaid facts, it has been submitted that reference made by the complainant cannot be treated to be a reference by a subordinate court' within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court can be taken by taking recourse to the three following procedures: (a) This Court can take action in respect of criminal contempt suo-motu, that is to say, on its own motion. (b) the criminal contempt proceedings can be initiated on a motion made by the Advocate General. (c) Such proceedings can also be initiated by any other person with the consent of the Advocate General in writing. Apart from the above three modes of initiation of criminal contempt proceedings, in the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court itself or on a motion made by the Advocate General. So far as taking the cognizance of a matter relating to any criminal contempt of a subordinate court is concerned, as per the provisions contained in Section 15 (2) of the Act, this Court can initiate proceedings in case any such reference is made to it by the subordinate court or in a case where any such motion is made by the Advocate General. It is also worthwhile to mention that this Court apart from exercising in power to punish under the Contempt of Courts Act also exercises the said powers under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recluded from taking cognizance of the issue relating to alleged criminal contempt suo-motu in the light of the information gathered from the reference, in view of the law laid down by the Hon'ble Apex Court in the case of S.K. Sarkar Member, Board of Revenue, U.P. Lucknow (supra). Nonetheless, this Court has to exercise its discretion either to refuse or entertain or take cognizance of the alleged criminal contempt on the basis of information available on record. It is well settled that Section 15 of the Contempt of Courts Act does not specify the basis or sources of information on which this Court can act on its own motion. Thus, apart from acting on the modes as prescribed under Section 15 (1) and (2) of the Contempt of Courts Act, this Court can take cognizance suo-motu treating the reference made by the complainant in the instant case as a piece of information. We, accordingly, do not find any reason why the contents of the reference can not be utilized by this Court to initiate suo-motu proceedings. Thus, the competence or incompetence of the reference becomes immaterial. We would not examine as to whether in the facts and circumstances and also on the basis of mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial standards. From a reading of the reference made by the complainant for initiation of the proceedings for criminal contempt, we find that the complainant has emphasized on the reading of the contents of the adjournment application and the extracts from the representation made by the opposite party No.1 dated 28.08.2012 during course of hearing on 30.08.2012 in open court, which in his view, amounts to publication of the words written in the representation which are scandalous and which tend to interfere with due course of the judicial proceedings. Criminal contempt has been defined under Section 2(c) of the Contempt of Courts Act which reads as under:- 2(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 proceedings; or (III) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of ITAT, Lucknow Bench was still under consideration before the President of ITAT at Mumbai. One may agree or disagree with the contents of the representation/application dated 28.08.2012 made by the opposite party No.1 to the President , ITAT, however, the circumstances in which it is alleged that the contents thereof were read by the opposite party No.2 also need to be taken into account while arriving at a conclusion as to whether the said act of opposite party No.2 would amount to committing criminal contempt of the Tribunal. The language used in the representation dated 28.08.2012 though, cannot be said to be in good taste, which we also do not appreciate, as the words like deeper evil , conspiracy and ill motivated have been used but the same in itself may not amount to criminal contempt. The emphasis of the representation made by the opposite party No.1, prima-facie, appears to be on judicial precedences not allegedly being followed by the complainant and on the alleged judicial indiscipline and impropriety . It is well settled that proceedings under the Contempt of Courts Act are quasi-criminal in nature and hence, no action under the Act can be taken unl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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