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PETITIONER: L.D. JAIKWAL

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT17/05/1984

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) SEN, A.P. (J)

CITATION:  1984 AIR 1374            1984 SCR  (3) 833  1984 SCC  (3) 405        1984 SCALE  (1)862  CITATOR INFO :  R          1991 SC1834  (2)

ACT:      Contempt of Courts Act 1971, Section 2(c) (1)      Advocate  making   written   application   couched   in scurrilous language-Imputation-Judge  ’a corrupt Judge’ ’and contaminating the seat of justice’-High Court convicting and sentencing advocate  for contempt of Court-appeal to Supreme Court-Written apology  tendered to Judge ’as directed by the Supreme Court’-Whether sufficient to set aside conviction by High Court.

HEADNOTE:      The appellant  was a  senior. advocate. He was required to appear before the Special Judge to make his submission on the question  of sentence  to be imposed upon his client who was convicted  for an offence under s.5(2) of the Prevention of Corruption  Act, 1947.  As he  appeared in  a  shirt-and- trouser outfit  and not in Court attire, the Judge asked him to appear in the prescribed formal attire for being heard in his professional  capacity. The  appellant took  umbrage and left the  Court. Some  other advocate appeared in the matter and the  accused having  being found guilty of the charge of corruption the Judge imposed a sentence of four years R.I.      The appellant  made a  written application to the Judge couched in  scurrilous language  making the  imputation that the Judge  was a  ’corrupt Judge’  and  added  that  he  was ’contaminating the seat of justice’; and forwarded copies of the  application,   without  occasion   or   need   to   the Administrative Judge, Chief Secretary and other authorities.      The High  Court initiated  contempt proceedings,  found the appellant  guilty of  having committed criminal contempt under s.  2(c)(1) of  the Contempt  of Courts  Act, 1971 and after affording  full  opportunity  of  hearing,  imposed  a sentence of  simple imprisonment  for one week and a fine of Rs. 500.      Dismissing the Appeal, ^      HELD: 1.  Considerations regarding  maintenance of  the independence of  the judiciary  and the morale of the Judges demand that the appellant should not escape with impunity on the mere tendering of an apology which in any case. does not

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wipe out  the  mischief.  If  such  a  apology  were  to  be accepted, as  a rule,  and not  as an  exception,  it  would virtually be tantamount to issuing a ’licence’ to scandalize courts and  commit contempt of court with impunity. The High Court was  justified in  imposing a substantive sentence and the said  sentence cannot  be said to be excessive or out of proportion.[838E; 837E, 838F] 834      No Judge  can take  a decision which does not displease one side or the other. By the very nature of his work he has to decide  matters against  one or  other of the parties. If the fact  that he renders a decision which is resented to by a litigant  or his lawyer were to expose him to such a risk, it will  sound the  death knell  of the institution. The day must be  dreaded when  a Judge cannot work with independence by reason  of the  fear that a disgruntled member of the Bar can publicly  humiliate him  and heap  disagree on  him with impunity, if  any of his orders, or the decision rendered by him displeases any of the Advocates appearing in the matter. A line  has therefore  to be  drawn some where, some day, by some one.  That is  why the Court is impelled to act (rather than merely  sermonise) much  as the Court dislikes imposing punishment  whilst  exercising  the  contempt  jurisdiction, which no  doubt has to be exercised very sparingly and ’with circumspection. [837H; 838A-B]      2. An  attitude of unmerited leniency cannot be adopted at the cost of principle and at the expense of the Judge who has been  scandalized. To  pursue a populist line of showing indulgence  is  not  very  difficult  in  fact  it  is  more difficult to  resist the  temptation to do so rather than to adhere to  the mail  studded  path  of  duty.  Institutional perspective demands  that considerations of populism are not allowed to obstruct the path of duty. [338C]      In the  instant case,  the appellant  sought to justify his conduct  before the  High Court  on the  ground  of  the treatment alleged  to have  been meted  out to  him  by  the Special Judge. No remorse was felt. No sorrow was expressed. No apology  was offered: He expressed his sorrow only before this Court,  saying that he had lost his mental balance, and was granted an opportunity to tender an apology. He appeared before the  Special Judge  and tendered  a  written  apology indicating that he was doing so: "as directed by the Hon’ble Supreme Court."  This circumstance  shows it  was a  ’paper’ apology, and  that the  expression of  sorrow came  from his pen, not  from his  heart. It is one thing to "say" sorry-it is another  to "feel"  sorry. This Court cannot subscribe to the  ’slap-say   sorry-and  forget’  school  of  thought  in administration of contempt jurisdiction. [886H; 837A-C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 611 of 1982.      From the  Judgment and  order dated  the 5th  November, 1982 of  the Allahabad  High Court in Criminal Contempt Case No. 144/81.      N.N. Sharma,  Mrs. Pankaj  Verma & Mrs. Vijay Gupta for the Appellant.      Dalveer Bhandari for the Respondent.      The Judgment of the Court was delivered by 835      THAKKAR, J.  We are sorry to say we cannot subscribe to the  ’slap-say  sorry  and  forget’  school  of  thought  in administration of  contempt  jurisprudence,  Saying  ’sorry’

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does not  make the  slapper poorer. Nor does the cheek which has taken  the slap  smart less  upon the  said hypocritical word being  uttered through the very lips which not long ago slandered  a   judicial  officer   without   the   slightest compunction.      An Advocate  whose client  had been  convicted  by  the learned Special  Judge, Dehradun,  was  required  to  appear before the  learned Judge  to make  his submissions  on  the question of ’sentence’ to be imposed on the accused upon his being found  guilty of  an offence under Section 5(2) of the Prevention of  Corruption  Act  by  the  Court  The  learned Advocate appeared in a shirt-and-trouser-outfit in disregard of the  rule requiring  him to  appear only  in Court attire when appearing  in his  professional capacity,  The  learned Judge asked  him to  appear in  the prescribed formal attire for being  heard in  his professional  capacity. The learned Advocate apparently  took umbrage  and left  the Court. Some other Advocate  appeared on  behalf of  accused who had been found guilty  of a  charge of  corruption. The learned Judge imposed a  sentence of  4 years’  R.I. which  may have  been considered to  be on  the high side. The matter in that case could have  been carried  to the  High Court  by way  of  an appeal, both,  on the question of conviction as also, on the question of sentence. But so far as the Court of the Special Judge was concerned, as the judgment had been pronounced and nothing more  remained to  be done by that Court, the matter should have  rested there.  The appellant, a senior Advocate of long  standing (not  an immature  inexperienced  junior), however made  a written  application to  the learned Special Judge couched  in scurrilous. language making the imputation that the  Judge was a "corrupt Judge" and adding that he was " contaminating the seat of justice". A threat was also held out that  a complaint was being lodged to higher authorities that he  was corrupt  and did  not deserve to be retained in service. The offending portion may better be quoted:           "I am  making  a  complaint  against  you  to  the      highest  authorities  in  the  country,  that  you  are      corrupt and  do not  deserve to be retained in service.      The earlier  people like you are bundled out the better      for us all.           As for  quantum of sentence, I will never bow down      before you. You may award the maximum sentence. Any 836      way, you  should feel  ashamed of yourself that you are      contaminating the seat of justice "      There  is   no  known  provision  for  making  such  an application after  a matter  is disposed  of by a Judge. Nor was any  legal purpose  to  be  served  by  making  such  an application.      Obviously application  was made to terrorize and harass the  Judge   for  imposing   a  sentence  which  perhaps  be considered to  be on  the high  side whether  or not  it was really so was for the higher Court to decide.      As pointed  out earlier, it was however not permissible to adopt  a course  of intimidation in order to frighten the Judge. His  malicious purpose  in making  the application is established by  another tell-tale circumstance by forwarding copy of  this application,  without any occasion or need for it, to several authorities and dignitaries.      1.   Administrative  Judge,  Allahabad  for  favour  of           requisitioning case  file S.T. No. 2 from Dehradun           and scanning through the fasts.      2.   Chief Secretary, Uttar Pradesh Government Lucknow.      3.   Director, Vigilance Commission, U.P., Lucknow.      4.   Prime Minister, Secretariat, Delhi.

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    5.    State  Counsel, Shri  Pooran Singh, Court of Shri           V.K. Agarwal, Dehradun.      6.    Shri  D. Vira,  I.C.S., Chairman,  Indian  Police           Commission, Delhi.      7.   President, Bar Association, Dehradun      8.   The Hon’ble Chief Justice of Bharat.      The  High   Court  of   Allahabad  initiated   contempt proceedings, found  the appellant guilty of having committed criminal contempt  under Section  2(c)(1) of the Contempt of Courts Act,  1971, after  affording him  full opportunity of hearing and  imposed a sentence of S.I for 1 week and a fine of Rs.  500/- (in  default to undergo a further term of S.I. for 1 week). Hence this appeal.      Before the  High Court  the appellant sought to justify his conduct  on the  ground of the treatment alleged to have been meted 837 out to  him by  the learned  Judge. No  remorse was felt. No sorrow was  expressed. No apology was offered. Only when the appellant approached  this Court  he  expressed  his  sorrow before this  Court  saying  that  he  had  lost  his  mental balance. Upon  finding that this Court was reluctant to hear him even  on the  question of  sentence, as  he had not even tendered  his   apology  to   the  learned   Judge  who  was scandalized, he  prayed for three weeks’ time to give him an opportunity to  do so.  His request was granted. He appeared before the  learned Judge  and tendered  a  written  apology wherein he  stated that  he was doing so "as directed by the Hon’ble Supreme  Court." This  circumstance in  a way  shows that it  was a  ’paper’ apology and the expression of sorrow came from  his pen, not from his heart. For, it is one thing to "say"  sorry-it is another to "feel" sorry. It is in this context that  we have  been  obliged  to  make  the  opening remarks at the commencement of this judgment.      We do  not think  that merely because the appellant has tendered his  apology we  should set  aside the sentence and allow him  to go  unpunished. Otherwise,  all that  a person wanting  to  intimidate  a  Judge  by  making  the  grossest imputations against  him has  to do,  is  to  go  ahead  and scandalize him,  and later  on tender a formal empty apology which costs him practically nothing.      If such  an apology were to be accepted, as a rule, and not as  an exception, it would in virtually be tantamount to issuing a ’licence’ to scandalize courts and commit contempt of court with impunity.      It will  be rather difficult to persuade members of the Bar, who  care for their self-respect, to join the judiciary if they  are expected  to pay  such a  price for  it. And no sitting Judge will feel free to decide any matter as per the dictates of  his conscience  on account of the fear of being scandalized and  persecuted by an Advocate who does not mind making reckless  allegations if  the Judge  goes against his wishes. If this situation were to be countenanced, advocates who can  cow down  the Judges,  make them  fall in line with their   wishes, by  threats of  character assassination  and persecution, will  be preferred  by  the  litigants  to  the advocates who are mindful of professional ethics and believe in maintaining the decorum of Courts.      No Judge  can take  a decision which does not displease one side or the other. By the very nature of his work he has to decide  matters against  one or  other of the parties. If the fact that he 838 renders a decision which is resented to by a litigant or his lawyer were  to expose  him to  such risk, it will sound the

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death knell  of the  institution line  has therefore  to  be drawn somewhere,  some day,  by some  one. That  is why  the Court is  impelled to  act (rather  than merely  sermonize), much  as  the  Court  dislikes  imposing  punishment  whilst exercising the  contempt jurisdiction, which no doubt has to be exercised  very sparingly  and with circumspection. We do not think  that  we  can  adopt  an  attitude  of  unmerited leniency at  the cost of principle and at the expense of the Judge who  has been  scandalized. We are fully aware that it is not very difficult to show magnanimity when some one else is the  victim rather  than when  oneself is  the victim. To pursue a  populist line  of showing  indulgence is  not very difficult in  fact  it  is  more  difficult  to  resist  the temptation to  do so  rather than  to adhere  to  the  nail- studded path of duty. Institutional perspective demands that considerations of  populism are  not allowed to obstruct the path of  duty. We,  therefore,  cannot  take  a  lenient  or indulgent view  of this matter. the day must be dreaded when a Judge  cannot work with independence by reason of the fear that a  disgruntled member of the Bar can publicly humiliate him and  heap disgrace  on him  with impunity, if any of his orders, or  the decision  rendered by him, displeases any of the Advocates appearing in the matter.      We  firmly   believe  that   considerations   regarding maintenance of  the independence  of the  judiciary and  the morale of  the Judges  demand  that  we  do  not  allow  the appellant to  escape with  impunity on the mere tendering of an apology which in any case does not wipe out the mischief. We are  of the  opinion that  the High  Court was  therefore justified  in  imposing  a  substantive  sentence.  And  the sentence imposed  cannot be  said to  be excessive or out of proportion.      Appeal is accordingly dismissed. N.V.K.    Appeal dismissed. 839