15 October 1954
Supreme Court


Case number: Appeal (crl.) 72 of 1952






DATE OF JUDGMENT: 15/10/1954


CITATION:  1955 AIR   19            1955 SCR  (1) 757  CITATOR INFO :  F          1962 SC1089  (9)  RF         1991 SC1834  (12)

ACT:      Contempt  of  Court-Advocate  signing  application   or pleading which scandalizes the Court-Advocate’s  obligations to the Court and duty to the client-Plea of justification or in the alternative apology -When permissible.

HEADNOTE:      A  section  of the Bar seems to be labouring  under  an erroneous impression that when an advocate is acting in  the interests   of  his  client  or  in  accordance   with   his instructions  he is discharging his legitimate duty  towards him  even when he signs an application or a  pleading  which contains  matter scandalizing the Court and that when  there is  conflict  between his obligations to the Court  and  his duty to the client, the later prevails.       It  should be widely made known that an  advocate  who signs   an   application  or  pleading   containing   matter scandalizing  the Court which tends to prevent or delay  the course  of  justice is himself guilty of contempt  of  Court unless he reasonably satisfies himself about the prima facie existence  of adequate grounds there for and that it  is  no duty  of an advocate 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.       It  is well-settled that in a matter relating  to  the contempt of Court there cannot be both justification and  an apology.   The two things are incompatible.  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  contri- teness.        In  border line cases where a question  of  principle about  the  rights of an advocate and his duties has  to  be settled an alternative plea 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.      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. 97 758

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 72  of 1952.      Appeal  by  Special Leave from the Judgment  and  Order dated  the  30th  November,  1950,  of  the  High  Court  of Judicature at Nagpur (Dev and Rao JJ.) in Contempt of  Court Proceedings Miscellaneous Petition No. 16 of 1950.     Dr.  Bakshi Tek Chand, (Hardyal, Hardy, B. R. Mandlekar, B.  D. Kathalay, Ganpat Rai and K. L. Arora, with  him)  for the appellant.    C.     K.  Daphtary, Solicitor-General for India (T.   P. Naik and I. N. Shroff, with him) for respondent No. 1.    T.     L.  Shevde,  Advocate-General  for  the  State  of Madhya Pradesh, (T.  P. Naik and I. N. Shroff, with him) for respondent No. 2.     B.    Sen  and I. N. Shroff for respondent No. 3.  1954. October 15.  The Judgment of the Court was delivered by     MEHR  CHAND  MAHAJAN C.J.-This appeal by  special  leave arises  out of contempt proceedings taken against  two  very senior  members of the Nagpur Bar and one of their  clients. Shri  Shareef,  one  of  the appellants,  at  one  time  was Minister  for Law and Justice in the State.   Dr.  Kathalay, the  second appellant, is a Doctor of Laws and an author  of legal works.  The matter which resulted in the issue of  the show cause notices for contempt took a protracted course and has  to  a certain extent resulted in  embittered  feelings. What happened was this:     Shri Zikar who was charged along with the two appellants for contempt made an application under article 226(1) of the Constitution  for  enforcement  of  his  fundamental  right, alleging  that  he  was a citizen Of  Bharat  and  that  the Custodian  of  Evacuee Property and the police  were  taking wrongful  action against him and treating him as a  national of  Pakistan which he never was.  He prayed for  an  interim order  of prohibition against the State from  deporting  him after the expiry of the permit.  The High Court granted  the interim order of prohibition against the action  complained. At the hearing of the case on 11th August, 759 1950,  a preliminary objection was raised on behalf  of  the State  that  Zikar  had suppressed  material  facts  in  the petition  filed by him and that the petition  was  therefore liable to be dismissed without going into the merits.   Shri Shareef, who was counsel for Zikar, combated this contention and  further submitted that the preliminary objection  could not  be adequately dealt with without going into the  merits of  the case.  On behalf of the State another affidavit  was filed on 17th August, 1950, stating certain facts, and Zikar was also directed to file an affidavit in reply by the  21st August,  1950, and this be did by that date.   The  relevant proceedings of that date are recorded in these terms:-



   "  Shri Shareef for the petitioner.  Shri Naik  for  the respondent.    He   files  an  affidavit   and   copies   of applications  dated  25th February, 1949 and  19th  January, 1950. Shri Shareef files a statement and an affidavit.   His attention  was drawn to paragraph 4 of the affidavit and  he was  asked  whether  his client has  really  understood  the contents which are in English adding that he might change in the  Supreme Court and say that he had not understood  them. Shri Shareef then said that he has explained the contents to his clients.     Paragraph  6  of  the statement  and  the  affidavit  is uncalled  for  as  the appellant only  desired  to  file  an affidavit with reference to paragraph 10 of the affidavit of the non-applicant: Vide order sheet dated 17th August, 1950. A  remark  was made by one of us " Whether paragraph  6  was inserted for founding an argument before the Supreme-Court." Shri Shareef replied he has stated facts...............      Thereafter  Shri  Naik continued his arguments  on  the preliminary point till we rose for lunch.      When  we reassembled Shri Shareef informed us  that  he wants  time  to apply for transfer of this case  to  another Bench  because  of  the observations made  by  us  regarding paragraphs  4  and 6 of his affidavit.   Case  is  therefore adjourned  to  25th August, 1950 to enable Shri  Shareef  to make an application in the meanwhile."       On  the  23rd  August, 1950, an  application  for  the transfer of the case from the Bench hearing it to 760 another  Bench of the High Court was made on  the  following grounds:       1  "The  observations and references  to  the  Supreme Court  by Rao and Deo JJ. created a bona fide belief in  the applicant’s  mind that they were prejudiced against him  and had made up their minds and indicated that he shall have  to go in appeal to the Supreme Court.       2.  The  observations  and references to  the  Supreme Court  were absolutely unnecessary and left no doubt in  the applicant’s  mind that he would not receive justice  at  the hands of the Hon’ble Judges.     Prayer:    In the interest of dispensation of  impartial justice,  the case be transferred to another Civil  Division Bench for disposal."     This  application was not only signed by Zikar but  also by  the two appellants as counsel for the applicant and  was rejected in due course and with that matter we are no longer concerned.   The preliminary objection raised by  the  State was upheld and the petition under article 226 was dismissed. The  learned  Judges then ordered notices to  issue  to  the applicant and his two counsel to show cause why they  should not  all  be  committed for contempt  for  scandalizing  the Court,  with a view to perverting the due course of  justice by making statements in the transfer application  impeaching the impartiality of the Judges.      Dr.  Kathalay filed his written statement in  reply  to the show cause notice, on the 4th October, 1950.  He averred that  he  could not honestly admit that he  scandalized  the Court  and committed contempt either in fact or in  law  and contended  that  in his whole career at the  Bar  for  forty years  he  observed the highest traditions of  this  learned profession,  upholding always the dignity of the Courts  and that  he  had no animus against the Judges of  the  Division Bench.   He asserted that by signing the application he  did not scandalize or intend to scandalize the Court and that he bona  fide  thought that an application could  be  made  for transferring  a  case in the High Court from  one  Bench  to



another and that the question did not concern him alone but 761 the  Bench  and  Bar  generally  and  a  question  of  great principle  emerged,  viz., whether a counsel was  guilty  of contempt  in signing such an application, or whether it  was his professional duty to do so if his client was under  that bona fide impression.  In the last paragraph of the reply it was stated-     "  Whatever  the circumstances, I do see how  much  this application  for transfer dated the 23rd August,  1950,  has hurt  the  feelings of the Hon’ble Judges and  I  very  much regret that all this should have happened."    Shri Shareef also put in a similar written statement.  He asserted that when the transfer application was made he  did not know or believe the law to be that it could not be made, and  rightly or wrongly he was always under  the  impression that an application could be made for transferring a case in the High Court from one Bench to another.  He also expressed similar  regret  for  what had  happened.   Further  written statement  was filed by Shri Shareef on 16th October,  1950. In paragraph 7 of that statement he said as follows:-’     "I was grieved to know that the accusation against me in these proceedings should be of malice and mala fides for  my taking  up Zikar’s brief in connection with his  application for  transfer,  dated the 23rd August, 1950.  If I  am  thus defending the proceedings, I am doing so for vindicating  my professional honour and personal self-respect, and it  would be  a  misfortune if this was all going to be  construed  as aggravating  the  contempt, as hinted by the  Hon’ble  Court during my counsel’s arguments, though remotely.  But even as I am making my defence, it is, I admit, quite likely that  I committed  an error of judgment in acting as I did,  causing pain to the Hon’ble Judges, which I deeply regret, as I have already  done before and so has my counsel on my  behalf  in the  course of his arguments." (The Judges in  the  Judgment under  appeal have taken exception to the last  sentence  of this paragraph.)     Dr. Kathalay also put in a similar reply.     The High Court in a very lengthy judgment in which  very large number of authorities were considered and 762 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."      In the result the learned Judges passed the following order : -     "  We accordingly sentence Shri M. Y. Shareef to pay  -a fine of Rs. 500 or in default to undergo simple imprisonment for  two  weeks and we Sentence Dr. D.W. Kathalay to  pay  a fine   of  -Rs.  1000  or  in  default  to  undergo   simple imprisonment  for  one  month.   We  are  not  sure  if  the sentences we have awarded are adequate to the gravity of the offence,  but on this occasion we refrain from  being  stern and  bringing  the  full  power  of  the  court  into   play considering   the   misconceptions  about   the   advocate8’ responsibility  that  seem to have so far prevailed  at  any rate in a section of the Bar." 763 Leave  to appeal to this Court was refused but  was  granted here.     On the 12th May, 1954, when the appeal was heard by this Court, we recorded the following order:-      "The appellants have tendered an unqualified apology to this  court and to the High Court, and they are prepared  to purge  the contempt for which they have been convicted.   In our  opinion, the apology is a sincere expression  of  their regret  for what happened in court at the time the  transfer application  was made and for the allegations made  therein. We  therefore adjourn this appeal for two months and  direct that  the apology tendered here be tendered to the  Division Bench  before  which  the  contempt is  said  to  have  been committed.   We  are sending it to the High Court  with  the full  confidence that the learned Judges will  consider  the apology in the spirit in which it has been tendered and they will pass appropriate orders and send an intimation to  this court as to what orders they pass."     When the case went back to the High Court, it again took an unfortunate turn.  The learned Judges posed the  question that they had to consider in this form    "   The question is whether remission of  the  punishment awarded is called for in view of the statement now filed  by the contemners," and it was answered thus:     " We are constrained to observe that the spirit in which the  apology  was tendered here is not much  different  from that  originally shown.  The idea of the contemners is  that because they have filed the apology as directed, they have a right to expect the acceptance of it by the court.  How else can the absence of any prayer or what the contemners  desire be  explained  ?  We record that there was  hardly  anything apologetic      the      way      the      apology       was tendered.....................     We neither gave the extreme penalty which we might  well have  given,  nor  did we give the  maximum  of  the  lesser penalty.   But  for  the manner  of  justification  and  the contumacy,  there might not have been a sentence of fine  at all." 764 Having  approached  the  matter  thus,  the  learned  Judges referred  to  a  large  number of  cases  for  the  admitted proposition of law that a " sincere apology does not entitle a contemner as of right to a remission of the sentence."  It was further thought that acceptance of apology would lead to an  invidious  distinction  being made in the  case  of  two advocates  and  Zikar.  In the result the  apology  was  not accepted  and  the  report  concluded  with  the   following



observations :-     " If in the circumstances of this case the apology  were to  be accepted, we would be encouraging the notion that  it is  the contemners’s right to get his apology accepted  when he chooses and in whatever manner he tenders even in a  case where  he has aggravated the original offence.  We  will  be unsettling   established  principles,  and  setting  a   bad precedent.   Above  all, we would be dealing a blow  to  the authority  of the court, the consequence of which cannot  be viewed with equanimity."     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                             765 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  98 766 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 767 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 768 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 769 counsel for acting wrongly under an erroneous impression  of their rights and privileges.



   For the reasons given above we allow this appeal to  the extent  that  the  sentence  of  fine  passed  on  both  the appellants is set aside, -and the unqualified apology  given by  them to this Court and the High Court is  accepted.   We also desire to issue a strong admonition and warning to  the two counsel for their conduct.  There will be no order as to costs in these proceedings throughout.                                     Appeal allowed.