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PETITIONER: R.K. GARG, ADVOCATE

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT22/04/1981

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, A.P. (J)

CITATION:  1981 SCALE  (1)767

ACT:      Contempt of  Courts Act  1971, Ss.2, 15 and 19-Advocate appearing in case-Throwing shoe at presiding Judge-Guilty of contempt of Court-Punished with imprisonment and fine.      Legal  Profession-Professional   ethics  and   cultured conduct-Results of violation of.

HEADNOTE:      The appellant  a practising  Advocate appeared  for the petitioner in  a petition  under the Rent Act. When the case was called  out for  hearing, the  Judge  noticed  that  the petitioner had  not paid  the process  fee, as  a result  of which the summons could not be issued to the respondent. The Judge, proceeded to dismiss the petition under Order IX Rule 2 of  the  Civil  Procedure  Code.  Taking  umbrage  at  the dismissal of  the petition  the appellant hurled his shoe at the Judge which hit him on the shoulder. The Judge intending to proceed  under Section  228 of  the Penal  Code issued  a warrant of  arrest  against  the  appellant.  The  appellant evaded the  warrant  and  successfully  managed  to  prevent proceedings being taken by the Judge for the contempt of his Court. The  Judge thereupon  made a  reference to  the  High Court under  Section 15(2)  of the  Contempt of  Courts Act, 1971.      Before the  High Court  the appellant  did not  dispute that he hurled a shoe at the Judge. He explained his conduct by saying  that  he  acted  under  an  irresistible  impulse generated by the provocative language used by the Judge. The High Court  being satisfied, that the appellant was making a false allegation  that the  Judge had  used abusive language against him  and that  he had given an untrue version of the very genesis  of the  incident, held the appellant guilty of contempt of  Court and  sentenced him to simple imprisonment for six months and a fine of Rs. 200/-.      In the  appeal to  this Court  it was  pleaded that the appellant evidently  lost his  balance and  whether  or  not there was  any justification  for it,  he  acted  under  the impulse of  grave passion for which he had been sufficiently punished by  the publicity  which the  incident had received and the  notoriety which  he had  invited for himself and as the appellant  was genuinely  repentant for  his conduct  he should be enlarged on a mere admonition.      Allowing the appeal in part,

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^      HELD: 1.  (i) The  sentence of  simple imprisonment for six months  is reduced to a period of one month and the fine for Rs. 200/- is enhanced to Rs. 1000/-. 537 The fine  if recovered  shall be  paid over to the Legal Aid Society functioning in the State. [540 G]      (ii) The appellant is guilty of conduct which is highly unbecoming of a practising lawyer. He hurled his shoe at the Judge in  order  to  overawe  him  and  to  bully  him  into accepting  his  submission  that  the  case  should  not  be dismissed under Order IX Rule 2 C.P.C. The appellant did his best or worst to see that the petition was not dismissed for non-payment of  process fee  and finding  that the Judge was not willing  to accept his argument, he took out his shoe in show of his physical prowess. [540 C]      (iii) The  appellant’s behaviour  is condemned.  It  is most reprehensible  remembering that, as a practising lawyer he is an officer of the Court. [540 D]      (iv) A  long sentence of imprisonment is not imposed on the appellant since he has tendered an unconditional apology to this  Court and  to the  trial Judge.  The  appellant  is deeply regretful  and genuinely  contrite. He  has  suffered enough in  mind and  reputation and  no greater  purpose  is going to  be served  by subjecting  him  to  a  long  bodily suffering. [540 E, F]      2. (i)  The argument  of the appellant’s counsel in the High Court  that: "better part of discretion is to ignore it instead  of  fanning  it.  It  is  a  tussle  between  legal profession and judiciary", is as much to be regretted as the conduct of the appellant before the trial Judge. [541A-B]      (ii) The  Bar and the Bench are an integral part of the mechanism  which   administers  justice  to  the  people.  A discourteous Judge  is like  an ill-tuned  instrument in the setting of a Court room. But Members of the Bar will do well to remember  that flagrant violations of professional ethics and cultured  conduct  will  only  result  in  the  ultimate destruction of  a system  without  which  no  democracy  can survive. [541 E, F]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Contempt Appeal No. 19 of 1981.      From the  judgment and  order dated  the 17th November, 1980 of the Himachal Pradesh High Court at Simla in Contempt Petition (Crl.) No. 7 of 1980.      V. M.  Tarkunde, S.  S. Ray,  K.K.Venugopal, Dr.  L. M. Singhvi, Kapil  Sibbal, C. M. Nayar and L. K. Pandey for the Appellant.      L.  N.  Sinha,  Attorney  General  for  the  Respondent (Registrar, High Court)      K. Parasaran,  Soli. General and Miss A. Subhashini for the Respondent (State of H. P.) 538      The Judgment of the Court was delivered by      CHANDRACHUD,C. J.  This is  an appeal under sec. 19(1)b of the Contempt of Courts Act 1971, ("the Act",) against the judgment  of  the  High  Court  of  Himachal  Pradesh  dated November 17, 1980 in Contempt Case (Criminal) No. 7 of 1980, whereby the  appellant was  sentenced to simple imprisonment for six months and a fine of Rs. 200.      The appellant  practises as  an Advocate at Solan which is a  district place  in the  State of  Himachal Pradesh. It

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appears that only one court generally sits at Solan which is that of  the Senior Sub-Judge-cum-Chief Judicial Magistrate. The learned  Judge,  who  presides  over  that  Court,  also exercises the  powers of  a Rent Controller and of the Court of Small  Causes. On  June 18,  1980, Shri Kuldip Chand Sud, who was  the Presiding  Officer of  the Court, was hearing a petition under  the Rent  Act in  which the  petitioner  was represented by  the appellant.  When the case was called out for hearing,  the learned  Judge noticed that the petitioner had not  paid the  process fee,  as a  result of  which  the summons could  not be  issued to  the respondent.  The Judge therefore proceeded  to dismiss  the petition under Order 9, Rule 2  of the  Civil Procedure  Code. Taking umbrage at the dismissal of  the petition, the appellant hurled his shoe at the Judge which hit him on the shoulder. The Judge asked his Orderly to  take the  appellant in custody but the appellant slipped away.  The Judge  evidently wanted  to proceed under section 228  of the Penal Code for which purpose he issued a warrant of  arrest  against  the  appellant.  The  appellant successfully evaded  the  warrant  and  managed  to  prevent proceedings being taken by the Judge for the contempt of his court. The  Judge then made a reference to the High Court of Himachal Pradesh  under section  15(2) of  the Act. The High Court issued  notice to  the appellant enclosing therewith a copy of the reference made by the Judge.      The appellant did not dispute in the High Court that he hurled a  shoe at  the Judge.  He explained  his conduct  by saying that he acted under an irresistible impulse generated by  the   provocative  language   used  by  the  Judge.  The appellant’s version is like this:           On the  previous date  of hearing,  the Judge  had      directed the  appellant to pay fresh process fee and to      supply the  address of  the respondent  to the Rent Act      petition. The  appellant informed the Judge that he was      unable to comply 539      with that  order since the respondent had been admitted      to a  hospital and  had since  left the  hospital.  The      house in  which the  respondent lived  was locked.  The      Judge then  declared that  he proposed  to take  action      under Order  9 Rule  2 of the Civil Procedure Code. The      appellant asked the Judge to record his statement as to      why he was unable to pay the process fee and supply the      address of  the respondent.  Instead of  recording  the      appellant’s statement, the Judge remarked: "You rascal,      I will  set you  right". The appellant protested at the      abusive language  used by  the  Judge,  but  the  Judge      retorted:  "I   repeat  what  I  said".  The  appellant      thereafter lost  control over  himself  and  under  the      "extreme heat  of moment  and passion, his hand fell on      his shoe" which he threw towards the dais. Many persons      were present  in the  court who witnessed the incident.      After hurling  the shoe at the dais, the appellant took      off  his   coat  and   tie  and  told  the  court:  "An      unfortunate incident  has happened. Do you want to take      any action  against me  ? I  surrender". Upon  this the      Judge remarked:  "You scoundrel  get out  of my court".      The appellant thereafter left the court room. The High  Court had  called for the comments of the Judge on the version  of the  appellant, from  which it was satisfied that the  appellant was  making a  false allegation that the Judge had  used abusive language against him. The High Court also held  that the appellant had given an untrue version of the very  genesis of  the incident  since the  Judge had not given any  direction for  furnishing the complete address of

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the respondent before him.      Many technical  contentions were  raised  in  the  High Court, one  of them  being that  section 10 of the Act was a bar to the High Court taking cognizance of the matter. It is unnecessary to  go into  that question or into various other matters raised  in the High Court on behalf of the appellant since, Shri  V. M. Tarkunde and Shri S. S. Ray who appear on behalf of the appellant, stated before us that the appellant did not desire to take a contentious attitude. It was stated on behalf of the appellant that he was prepared to tender an unconditional written  apology to  this Court and to produce evidence before  us of his having tendered a similar apology to the trial court. Such apologies have been duly tendered.      Learned counsel  appearing on  behalf of  the appellant appealed to  us in  all their persuation that in view of the fact that the appellant 540 was genuinely  repentant  for  his  conduct,  he  should  be enlarged on  a  mere  admonition.  Counsel  plead  that  the appellant evidently  lost his  balance and  whether  or  not there was  any justification  for it,  he  acted  under  the impulse of  grave passion for which he has been sufficiently punished by  the publicity  which the  incident has received and the notoriety which he has invited for himself.      We had made it clear to the learned counsel at the very time when  they  conveyed  to  us  the  willingness  of  the appellant  to   apologise  that   we  offer  no  promise  or inducement that  if the  appellant apologises we will take a lenient view  of the matter. In our opinion the appellant is guilty of conduct which is highly unbecoming of a practising lawyer. He  hurled his  shoe at the Judge in order evidently to  overawe   him  and  to  bully  him  into  accepting  his submission that the case should not be dismissed under Order 9 Rule  2, C.P.C. The appellant did his best or worst to see that the  petition was  not  dismissed  for  non-payment  of process fee  and finding  that the  Judge was not willing to accept his  argument, he  took out  his shoe  in show of his physical  prowess.   We  cannot   adequately   condemn   the appellant’s   behaviour    which   strikes    us   as   most reprehensible, remembering  that, as a practising lawyer, he is an  officer of  the  court.  Such  incidents  can  easily multiply considering  the devaluation  of  respect  for  all authority, whether in law, education or politics.      We do  not, however,  propose to impose a long sentence of imprisonment  on the  appellant, since he has tendered an unconditional apology  to this  Court and  to learned  trial Judge. The  appellant was  present in  our Court at the time when his  appeal was  argued and  though, on such occasions, histrionics cannot  entirely be  ruled out,  we did  form an impression, backed  by our  small little  experience of life and its  affairs, that the appellant is deeply regretful and genuinely contrite.  He has  suffered  enough  in  mind  and reputation and  no greater  purpose is going to be served by subjecting him  to a  long bodily suffering. Accordingly, we reduce the  sentence of six months to a period of one month, enhance the  fine from  Rs. 200  to Rs. 1000 and direct that the fine,  if recovered,  shall be  paid over to a Legal Aid Society, if  any,  functioning  in  the  State  of  Himachal Pradesh. The High Court will decide which society should get the money,  if there is more than one such society, of which there is precious little likelihood. Order accordingly.      We will  be failing  in our duty if before parting with the case  we did  not draw attention to what the appellant’s counsel Shri 541

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Bhagirath Das  said in  the High  Court during the course of his arguments. Shri Bhagirath Das told the learned Judges of the High Court:           "Better part of discretion is to ignore it instead      of fanning  it. It is a tussle between legal profession      and judiciary".  (emphasis supplied  since it must have      been placed). This part  of the argument of the appellant’s counsel in the High Court  is as much to be regretted as the conduct of the appellant before  the learned  trial  Judge.  Discretion  is undoubtedly the  better part  of valour but we did not know, until we  read the  argument  advanced  by  the  appellant’s counsel  in   the  High  Court,  that  the  better  part  of discretion is  to ignore  that  a  practising  advocate  had hurled a  shoe at  a Judge. We are also unable to understand how the  High Court  was "fanning"  the incident  by  taking cognizance of  it, which  it was  its clear  duty to  do. It makes sorry  reading that "a tussle between legal profession and judiciary"  should find  its culmination  in a member of that noble profession throwing a shoe at a Judge.      Those who are informed of the question and think deeply upon it entertain no doubt that the Bar and the Bench are an integral  part  of  the  same  mechanism  which  administers justice to  the people.  Many members of the Bench are drawn from the  Bar and  their past  association is  a  source  of inspiration and  pride to  them. It  ought to be a matter of equal pride  to the  Bar. It  is  unquestionably  true  that courtesy breeds courtesy and just as charity has to begin at home, courtesy  must begin  with the  Judge. A  discourteous Judge is  like an  ill-tuned instrument  in the setting of a courtroom. But  members of  the Bar will do well to remember that such  flagrant violations  of professional  ethics  and cultured  conduct   will  only   result  in   the   ultimate destruction of  a system  without  which  no  democracy  can survive.      All this,  of  course,  is  said  without  meaning  any disrespect to  Shri Bhagirath Das. Not he, but what he said, is the cause of this comment. N.V.K.                                Appeal partly allowed. 542