TMI Blog2016 (7) TMI 1593X X X X Extracts X X X X X X X X Extracts X X X X ..... fused to tender apology for his conduct. His affidavit in support of stay vacation/modification and supplementary affidavit did not show any remorse and he had justified himself again and again, which also shows that he had no regards for the majesty of law. It is a well settled proposition of law that in deciding whether contempt is serious enough to merit imprisonment, the Court will take into account the likelihood of interference with the administration of justice and the culpability of the offender. The intention with which the act complained of is done is a material factor in determining what punishment, in a given case, would be appropriate. In the case at hand, the High Court has rightly held that the appellant was guilty of criminal contempt. We are however, inclined to set aside the sentence for imprisonment in view of advance age of the appellant. Whether on conviction for criminal contempt, the appellant can be allowed to practise? - HELD THAT:-Inspite of various observations no action appears to have been taken at any level. The result is that a person convicted of even a most heinous offence is eligible to be enrolled as an advocate after expiry of two ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, and earlier contempt referred to in the judgement and to initiate appropriate proceedings against the appellant for professional misconduct. Reference to larger Bench and the Issue 2. On 27th January, 2006, this appeal was admitted by this Court and that part of the impugned judgment, which imposed the sentence, was stayed and the appellant was directed not to enter the Court premises at Etah (U.P.). Keeping in view the importance of the question involved while admitting the appeal on 27th January, 2006, notice was directed to be issued to the Supreme Court Bar Association as well as to the Bar Council of India. The matter was referred to the larger Bench. Learned Solicitor General of India was requested to assist the Court in the matter. 3. On 6th March, 2013 restriction on entry of the appellant into the court premises as per order dated 27th January, 2006 was withdrawn. Thereby, the appellant was permitted to enter the court premises. The said restriction was, however, restored later. On 20th August, 2015, notice was issued to the Attorney General on the larger question whether on conviction under the Contempt of Courts Act or any other offence involving moral turp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve and how was this order passed against my relative? No Judicial Officer has, ever, dared pass an order against me. Then, how did you dare do so? When any Judicial officer passes an order on my file against my client, I set him right. I shall make a complaint against you to Hon ble High Court , and he threatened me: I will not let you remain in Etah in future, I can do anything against you. I have relations with highly notorious persons and I can get you harmed by such notorious persons to the extent I want to do, and I myself am capable of doing any deed (misdeed) as I wish, and I am not afraid of any one. In the Court compound, even my shoes are worshipped and I was prosecuted in two murder cases. And I have made murderous assaults on people and about 15 to 20 cases are going on against me. If you, in future, dare pass an order on the file against my client in which I am a counsel, it will not be good for you . Due to the above mentioned behaviour of Shri Mahipal Singh Rana, Advocate, the judicial work was hindered and aforesaid act of Shri Mahipal Singh falls within the ambit of committing the contempt of Court. In this very succession, on 13.5.2003, while I was hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional misconduct, the proper course was to take action against the appellant under the provisions of the Advocates Act, 1961. It was also contended that summary procedure under the Act could not have been followed by the Court for the purpose of punishing the appellant. Moreover, it was also submitted that the appellant was not at all present before the learned Civil Judge (Senior Division), Etah on 16.4.2003 and 13.5.2003. 11. Ultimately, after hearing the parties concerned, the High Court did not accept the defence of the appellant and after considering the facts of the case, it delivered the impugned judgment whereby punishment has been imposed upon the appellant. The High Court observed: 22. Extraordinary situations demand extraordinary remedies. The subordinate courts in Uttar Pradesh are witnessing disturbing period. In most of the subordinate courts, the Advocates or their groups and Bar Associations have been virtually taken over the administration of justice to ransom. These Advocates even threaten and intimidate the Judges to obtain favourable orders. The Judicial Officers often belonging to different districts are not able to resist the pressure and fall prey to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom intimidating the judicial officers and from vitiating the atmosphere conducive for administration of justice in the judgeship at Etah. 31. The Supreme Court held that Section 20 of the Contempt of Courts Act, has to be construed in a manner which would avoid anomaly and hardships both as regards the litigant as also by placing a pointless fetter on the part of the court to punish for its contempt. In Pallav Seth the custodian received information of the appellant having committed contempt of taking over benami concerns, transferring funds to these concerns and operating their accounts, from a letter dated 5.5.1998, received from the Income Tax Authorities. Soon thereafter on 18.6.1998 a petition was filed for initiating action in contempt and notices were issued by the Court on 9.4.1999. The Supreme Court found that on becoming aware of the forged applications the contempt proceedings were filed on 18.6.1998 well within the period of limitation prescribed by Section 20 of the Act. The action taken by the special court by its order dated 9.4.1999 directing the applications to be treated as show cause notice, was thus valid and that the contempt action was not barred by Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage. 38. We find that the denial of incidents and allegations of malafides against Shri Onkar Singh Yadav, the then Civil Judge (Senior Division) Etah have been made only to save himself from the contumacious conduct. 39. Shri Mahipal Singh Rana, the contemnor has refused to tender apologies for his conduct. His affidavit in support of stay vacation/modification and supplementary affidavit do not show any remorse. He has justified himself again and again, in a loud and thundering voice. 40. We find that Shri Mahipal Rana the contemnor is guilty of criminal contempt in intimidation and threatening Shri Onkar Singh Yadav the then Civil Judge (Senior Division) Etah in his court on 16.4.2003 and 13.5.2003 and of using loud and indecent language both in court and in his pleadings in suit No. 515/2002. He was discharged from proceeding of contempt in Criminal Contempt Petition No. 21/1998 and Criminal Contempt No. 60 of 1998 on his tendering unconditionally apology on 3.8.1999 and 11.11.2002 respectively. He however did not mend himself and has rather become more aggressive and disrespectful to the court. He has virtually become nuisance and obstruction to the administration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that contempt proceedings were barred by limitation. The incidents in question are dated 16th April, 2003 and 13th May, 2003 while notice was ordered to be issued on 28th April, 2004. 13. The learned counsel, thus, submitted that the action initiated against the appellant was not just and proper and the impugned judgment awarding punishment to the appellant under the Act is bad in law and therefore, deserved to be set aside. In the alternative, it is submitted that the appellant was 84 years of age and keeping that in mind, the sentence for imprisonment may be set aside and instead, the fine may be increased. 14. On the other hand, the learned counsel appearing for the State of Uttar Pradesh submitted that the impugned judgment was just, legal and proper and the same was delivered after due deliberation and careful consideration of the relevant facts. He submitted that looking at the facts of the case, the High Court rightly came to the conclusion that the appellant was not only present in the Court on those two days i.e. on 16.4.2003 and 13.5.2003, but the appellant had also misbehaved and misconducted in such a manner that his conduct was contemptuous and therefore, the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection to all the Courts be given to communicate about conviction of an advocate for an offence involving moral turpitude to the concerned State Bar Council or the Bar Council of India immediately upon delivering the judgment of conviction so that proceedings against such advocates can be initiated under the Advocates Act, 1961. 16. The Learned Additional Solicitor General of India appearing on behalf of Union of India, submitted that normally in case of all professions, the apex body of the professionals takes action against the erring professional and in case of legal profession, the Bar Council of India takes disciplinary action and punishes the concerned advocate if he is guilty of any misconduct etc. Reference was made to Architects Act, 1972, Chartered Accountants Act, 1949, Company Secretaries Act, 1980, Pharmacy Practice Regulations, 2015, Indian Medical Council (Professional Conduct Etiquettes and Ethics) Regulations, 2002, National Council for Teacher Education Act, 1993, Cost and Works Accountants Act, 1959, Actuaries Act, 2006, Gujarat Professional Civil Engineers Act, 2006, Representation of Peoples Act, 1951, containing provisions for disqualifying a person from co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that no error has been committed by the High Court while coming to the conclusion that the appellant had committed contempt of Court under the provisions of the Act. 20. We do not agree with the submissions of the learned counsel for the appellant that the appellant did not appear on those two days before the Court. Upon perusal of the facts found by the High Court and looking at the contents of the letters written by the concerned judicial officers, we have no doubt about the fact that the appellant did appear before the Court and used the language which was contemptuous in nature. 21. So far as the allegations made by the appellant with regard to the complaints made by him against the complainant judge, after having held that the appellant had appeared before the Court and had made contemptuous statements, we are of the opinion that those averments regarding the complaints are irrelevant. The averments regarding the complaints cannot be a defence for the appellant. Even if we assume those averments about the complaints to be correct, then also, the appellant cannot use such contemptuous language in the Court against the presiding Judge. 22. There is no merit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court could invoke its appellate power under Section 38 of the Advocates Act[Para 79]. In a given case, this court or the High Court can prevent the contemnor advocate from appearing before it or other courts till he purges himself of the contempt which is different from suspending or revoking the licence or debarring him to practise[Para 80]. 26. Reference may be made to the following observations in SCBA case (supra): 79. An advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for professional misconduct , on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r invoking its powers under Section 38 of the Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders. Of course, the appellate powers under Section 38 would be available to this Court only and not to the High Courts. We, however, hope that such a situation would not arise. 80. In a given case it may be possible, for this Court or the High Court, to prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practice as an Advocate-on- Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practice as an advocate in other courts or tribunals. 81. We are conscious of the fact that the conduct of the contemner in V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cil of India. It is a matter entirely concerning the dignity and the orderly functioning of the courts. The right of the advocate to practise envelops a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions etc. Rule 11 has nothing to do with all the acts done by an advocate during his practice except his performance inside the court. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by the Bar Council in exercise of its disciplinary powers. The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must have the major supervisory power. Hence the court cannot be divested of the control or supervision of the court merely because it may involve the right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority to be entrusted with this responsibility. xxxxx 24. Purging is a process by which an undesirable element is expelled either from one s own self or from a society. It is a cleaning process. Purge is a word which acquired implications first in theological connotations. In the case of a sin, purging of such sin is made through the expression of sincere remorse coupled with doing the penance required. In the case of a guilt, purging means to get himself cleared of the guilt. The concept of purgatory was evolved from the word purge , which is a state of suffering after this life in which those souls, who depart this life with their deadly sins, are purified and rendered fit to enter into heaven where nothing defiled enters (vide Words and Phrases, Permanent Edn., Vol. 35-A, p. 307). In Black s Law Dictionary the word purge is given the following meaning: To cleanse; to clear. To clear or exonerate from some charge or imputation of guilt, or from a contempt. It is preposterous to suggest that if the convicted person undergoes punishment or if he tenders the fine amount imposed on him the purge would be completed. xxxxx 27. We cannot therefore approve the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that regulation of right of appearance in courts was within the jurisdiction of the courts. It was observed, following Pravin C. Shah (supra), that the court must have major supervisory power on the right to appear and conduct in the court. The observations are: 46. Before a contemner is punished for contempt, the court is bound to give an opportunity of hearing to him. Even such an opportunity of hearing is necessary in a proceeding under Section 345 of the Code of Criminal Procedure. But if a law which is otherwise valid provides for the consequences of such a finding, the same by itself would not be violative of Article 14 of the Constitution of India inasmuch as only because another opportunity of hearing to a person, where a penalty is provided for as a logical consequence thereof, has been provided for. Even under the penal laws some offences carry minimum sentence. The gravity of such offences, thus, is recognised by the legislature. The courts do not have any role to play in such a matter. 29. Reference was also made to the following observations in Harish Uppal (supra): 34 The right to practise, no doubt, is the genus of which the right to appear and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that there is no absolute right to an advocate to appear in a court. An advocate appears in a court subject to such conditions as are laid down by the court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in court will always remain with the court. Thus even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be subject to conditions laid down by the Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other. 30. In R.K. Anand (supra) it was held that even if there was no rule framed under Section 34 of the Advocates Act disallowing an advocate who is convicted of criminal contempt is not only a measure to maintain dignity and orderly function of courts, it may become necessary for the protection of the court and for preservation of the purity of court proceedings. Thus, the court not only has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e people and whose members are monetarily accessible and affordable to the people. xxxxxxxx 335. Here we must also observe that the Bar Council of India and the Bar Councils of the different States cannot escape their responsibility in this regard. Indeed the Bar Council(s) have very positively taken up a number of important issues concerning the administration of justice in the country. It has consistently fought to safeguard the interests of lawyers and it has done a lot of good work for their welfare. But on the issue of maintaining high professional standards and enforcing discipline among lawyers its performance hardly matches its achievements in other areas. It has not shown much concern even to see that lawyers should observe the statutory norms prescribed by the Council itself. We hope and trust that the Council will at least now sit up and pay proper attention to the restoration of the high professional standards among lawyers worthy of their position in the judicial system and in the society. 31. In Re: Sanjiv Dutta Ors.[(1995) 3 SCC 619], it was observed that the members of legal profession are required to maintain exemplary conduct in and outside of the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unpleasant duty. We say no more. 32. In Bar Council of Maharashtra versus M.V. Dabholkar[(1976) 2 SCC 291] following observations have been made about the vital role of the lawyer in administration of justice. 15. Now to the legal issue bearing on canons of professional conduct. The rule of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon (his probity and professional life style. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice-social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation. Canons of conduct cannot be crystallised into rigid rules but felt by the collective conscience of the practitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice into disrepute the courts must bistre themselves to uphold their dignity and the majesty of law. The appellant, has, undoubtedly committed contempt of the Court by the use of the objectionable and intemperate language. No system of justice can tolerate such unbridled licence on the part of a person, be he a lawyer, to permit himself the liberty of scandalising a Court by casting unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the dues course of administration of justice. 34. In Subrata Roy Sahara v. Union of India[(2014) 8 SCC 470], it was observed : 188. The number of similar litigants, as the parties in this group of cases, is on the increase. They derive their strength from abuse of the legal process. Counsel are available, if the litigant is willing to pay their fee. Their percentage is slightly higher at the lower levels of the judicial hierarchy, and almost non-existent at the level of the Supreme Court. One wonders what is it that a Judge should be made of, to deal with such litigants who have nothing to lose. What ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noble tradition of being in the forefront of the freedom struggle and maintaining the rule of law and civil liberties even in difficult times. 37. In Browbeating, prerogative of lawyers , published in the Hindu newspaper dated 7th June, 2016, Shri S. Prabhakaran, Co-Chairman of Bar Council of India and Senior Advocate, in response to another Article Do not browbeat lawyers , published in the said newspaper on June 03, 2016, writes : The next argument advanced against the rules is that the threat of action for browbeating the judges is intended to silence the lawyers. But the authors have forgotten very conveniently that (i) when rallies and processions were taken out inside court halls obstructing the proceedings, (ii) when courts were boycotted for all and sundry reasons in violation of the law laid down by the Supreme Court in Ex-Capt. Harish Uppal, (iii) when two instances of murder of very notorious lawyers inside the Egmore court complex took place on the eve of elections to the Bar Associations, (iv) when a lady litigant who came to the Family Court in Chennai was physically assaulted by a group of lawyers who also coerced the police to register a complaint aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 24-A: Need to amend the provision 39. Section 24A of the Advocates Act is as follows: 24A. Disqualification for enrolment.- (1) No person shall be admitted as an advocate on a State roll- (a) if he is convicted of an offence involving moral turpitude; (b) if he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955 (22 of 1955); 2[(c) if he is dismissed or removed from employment or office under the State on any charge involving moral turpitude. Explanation.- In this clause, the expression State shall have the meaning assigned to it under Article 12 of the Constitution:] Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his 3[release or dismissal or, as the case may be, removal. (2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of 1958). 40. Dealing with the above provision, the Division Bench of the Gujarat High Court in C. versus Bar Council [(1982) 2 GLR 706] observed: 2. . . We, however, wish to ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely with the end in view to preserve the image of the profession and protect the seekers for justice from dangers inherent in admitting such persons on the rolls of the Bar Council. 41. Inspite of the above observations no action appears to have been taken at any level. The result is that a person convicted of even a most heinous offence is eligible to be enrolled as an advocate after expiry of two years from expiry of his sentence. This aspect needs urgent attention of all concerned. 42. Apart from the above, we do not find any reason to hold that the bar applicable at the entry level is wiped out after the enrollment. Having regard to the object of the provision, the said bar certainly operates post enrollment also. However, till a suitable amendment is made, the bar is operative only for two years in terms of the statutory provision. 43. In these circumstances, Section 24A which debars a convicted person from being enrolled applies to an advocate on the rolls of the Bar Council for a period of two years, if convicted for contempt. 44. In addition to the said disqualification, in view judgment of this Court in R.K. Anand (supra), unless a person purges himself of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He will also remain debarred from appearing in any court in District Etah even after five years unless he purges himself of contempt in the manner laid down by this Court in Bar Council of India (supra) and R.K. Anand (supra) and as directed by the High Court. Question (ii) stands decided accordingly. 49. We thus, conclude: Conviction of the appellant is justified and is upheld; Sentence of imprisonment awarded to the appellant is set aside in view of his advanced age but sentence of fine and default sentence are upheld. Further direction that the appellant shall not be permitted to appear in courts in District Etah until he purges himself of contempt is also upheld; Under Section 24A of the Advocates Act, the enrollment of the appellant will stand suspended for two years from the date of this order; As a disciplinary measure for proved misconduct, the licence of the appellant will remain suspended for further five years. An Epilogue 50. While this appeal will stand disposed of in the manner indicated above, we do feel it necessary to say something further in continuation of repeated observations earlier made by this Court referred to above. Legal profession being the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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