Monday, 3 September 2018

When Advocate should be punished for contempt of court?

 Further in all the above three Judgments was relied by Hon'ble
Supreme Court once again in, Daroga Singh and others Vs. B. K.
Pandey, reported in AIR 2004 Supreme Court 2579, and it has been
further observed that,
“What is made punishable under Section 228, IPC is the
offence of intentional insult to a Judge or interruption of
Court proceedings but not as a contempt of Court. The
definition of criminal contempt is wide enough to include
any act by a person which would either scandalise the
Court or which would tend to interfere with the
administration of justice. It would also include any act
which lowers the authority of the Court or prejudices or
interferes with the due course of any judicial
proceedings. It is not limited to the offering of
intentional insult to the Judge or interruption of the
judicial proceedings.
At the cost of repetition therefore it can be said that, when twice the
steno diary was snatched while dictating the Judgment and then
threats were given, abuses were given in the open Court, it
definitely amounts to interference with the administration of justice.

19. At the cost of repetition we do not agree with the respondent
No.1 that, he was by such acts was protecting the interest of his
client. We do not intend to discuss as to whether taking the accused
in custody by the petitioner amounted to illegal detention or not but
the fact is certain that when the presiding officer was dictating the
Judgment, the advocate representing the accused should not have
attempted to stop the presiding officer from pronouncing the
Judgment. The redressal would have been at a different authority, it
cannot justify the acts done by the respondent No.1 – contemnor.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL CONTEMPT PETITION NO. 01 OF 2006.

Ashok Govindrao Bilolikar, Vs Ramchandra Kisanrao Kagne,

CORAM : T. V. NALAWADE &
SMT.VIBHA KANKANWADI. JJ.
DATE : 31-08-2018.



1. Present petition has been filed by learned 2nd Ad-hoc Additional
Sessions Judge, Parbhani under Sec. 15 (2) of The Contempt of
Courts Act, 1971 for taking action against respondent and punishing
him.

2. Respondent/ Advocate is practising in Parbhani Court. He was
representing an accused who was facing trial under Section 376 (2)
(f) of Indian Penal Code in Sessions Case No. 52 of 2001. The case
was tried before the petitioner. Evidence of the prosecution was
recorded and thereafter statement of the accused under the
provision of Section 313 of Code of Criminal Procedure was to be
recorded. The matter was kept for final arguments on 07-10-2005.
Petitioner heard the arguments on that day. He started dictation of
the Judgment around 12.00 noon. After he had dictated the
Judgment up to the point of holding the accused guilty. Thereafter
the work of transcription of the Judgment was undertaken. He
completed the work of checking the Judgment till 05.00 to 05.15
p.m. Then the accused was called upon to make submissions on the
point of sentence. Respondent No. 1 thereafter, got up and started
shouting loudly. He snatched the note book of Stenographer Mr.
Ugle and flung in the Court. The said note book hit the head of
learned A.P.P. Mr. R. R. Sharma. Thereafter, Peon Mr. Gaikwad on
duty had picked up the same and handed it over to Stenographer Mr.
Ugle. Petitioner was requesting respondent No. 1 to keep clam, but
he was not in mood to listen. Respondent No. 1 then threatened as
to, “He would see, how judgment is given. Bullying of the Court will
not be tolerated. Fool Magistrate.” (Translation of, “dksVZ dlk fudky
nsrs rsp ikgrks dksVkZph nknkfxjh pkyw ns.kkj ukgh] csodwQ eWftLV~sV” ). When

petitioner tried to resume the dictation, respondent No. 1 once
against flung the note-book of the Stenographer after snatching it.
Respondent was threatening that, he has made complaint and
petitioner should not pronounce Judgment. Petitioner has stated
that, the conduct of the respondent amounted to scandalisation and
interference in the administration of justice. Petitioner was required
to get up and inform the incident to Sessions Judge. Petitioner has
convicted the accused and then issued show cause notice to the
respondent. Petitioner has also drafted the complaint on the same
day of Judgment and sent to Court. In the complaint he has alleged
that, accused (Present respondent No. 1) has committed offence
punishable under Sec. 228 and 353 of Indian Penal Code. Petitioner
has also stated that, conduct of the respondent with other Judicial
Officers is also same. He threatens the judicial officers. Petitioner
has prayed for taking action under Contempt of Courts Act against
respondent No. 1 by making this reference.
3. The present Contemnor – respondent No.1 filed reply along
with affidavit by raising following points ;
(i) He is practicing advocate since last 18 years,
(ii) The scope and nature of contempt of Courts Act is
different. The Hon'ble Supreme Court has laid down that the
procedure prescribed either under the Code of Criminal

Procedure or under the Evidence Act is not attracted to the
proceedings initiated under Section 15 of the Contempt of
Courts Act. The High Court can deal with such matters
summarily and adopt its own procedure. Therefore, this Court
cannot look into the statements of witnesses appended to the
petition.
(iii) The proceeding is barred in view of proviso to Section 10
of the Contempt of Courts Act as an offence under Section 228
of Indian Penal Code was initiated against him by the
petitioner. He has given the root cause or causes for the
dispute between him and the Judges in general. And
(iv) The facts of the case were given and then it is stated
that he had filed application Exhibit 69, 70 and 71 in order to
have compliance of Section 235 (2) and Section 234 of Code of
Criminal Procedure as they are mandatory. According to him
the petitioner had illegally detained the accused to whom he
was representing for about five years and three days. He had
also made complaint to the Principal District Judge as well as
this Court. He, therefore, prayed for the dismissal of the
petition.
(v) It is also stated that, as a interpretor of law and as he
has criticized the Indian Judges and the judiciary, sometimes

he files complaint against them before the President of India
and the Parliament, however he is being harassed. He has
also stated that, if necessary, he would file an application
before the Hon'ble Supreme Court under Article 32 of the
Constitution of India.
4. Rejoinder to the contempt petition has been filed by the
petitioner on 31-08-2007 wherein he has relied on the decision in
Court on its motion Versus Milkhi Ram and others, reported in
1992 Cri. L.J. 2130, and Daroga Singh and others Versus B. K.
Pandey, reported in AIR 2004 Supreme Court 2579, on the point
that initiation of two distinct proceedings, one under Contempt of
Courts Act and another for the offence punishable under Section 228
of the Indian Penal Code do not amount to double jeopardy.
5. After presentation of the petition this Court by its order dated
08th March 2006, issued notice to the respondent No.1 - Contemnor
to show cause as to why action under Section 15 (2) of the
Contempt of Courts Act 1971, be not taken against him for having
committed Contempt of Courts Act. In spite of service of notice,
respondent No.1 did not remain present, and therefore, by order
dated 14th June 2006, bailable warrant came to be issued. The
record shows that, on many days thereafter the warrant was not
served and again and again the bailable warrants were issued / time

was extended. Even after the service of bailable warrant when the
respondent No.1 did not appear, this Court by order dated 27-08-
2007, upon a request made by the respondent No.1, matter was
adjourned to 21-09-2007. When on 21-09-2007 respondent No.1
was absent, non-bailable warrant was issued. He was brought
before this Court on 13-02-2008 by executing the warrant, and
thereafter, he was released on bail. Thereafter, he has filed his
reply. It will not be out of place to mention here that, thereafter
failure on certain occasion he had remained absent, and therefore
bailable warrants were issued against him, ultimately he has
remained present.
6. In order to ascertain whether the conduct of the respondent
No.1 as stated in the petition attract the said definition of “criminal
contempt”, the facts are required to be considered, not only from the
petition itself, but also from the documents which have been
produced, reply and the documents produced by the respondent
No.1.
7. We have heard learned advocate Mrs. S. D. Tambat appointed
for the petitioner, respondent No.1 in person, and learned Addl.
Public Prosecutor Mr. M. M. Nerlikar for respondent No.2 - State.
8. At the outset, a fact is required to be noted that, respondent
No.1 was representing an accused who was facing trial before the
::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 19:54:18 :::
( 7 ) CP 12006
petitioner in Sessions Case No. 52 of 2001 for the offence punishable
under Section 376 (2) (f) of Indian Penal Code. As regards date of
incident is concerned, the presence of the respondent No.1 before
the petitioner on 07-10-2005 in that matter is not denied by the
respondent No.1. The learned appointed advocate for the petitioner
submitted that, when the petitioner was hearing the accused on the
point of sentence, at that time the respondent No.1 stood up and
started shouting loudly, he had snatched the shorthand notebook
form the Stenographer Mr. Ugle. Respondent No.1 was shouting
loudly that, he will not allow the petitioner, who is the presiding
officer of the Court, to dictate the order of awarding sentence to the
accused. Though the petitioner was asking him to calm down, he
has bent upon his behaviour and he flung that notebook / steno
diary in open Court, it was struck on the head of Mr. R. R. Sharma,
learned A.P.P. who was present in the Court hall. The diary was
picked up by the peon Mr. Gaikwad attached to the Court and even
after the petitioner had tired to resume the dictation on the point of
sentence, the respondent No.1 again started shouting and giving
threats stating that, he has already sent complaint by Fax to the
Hon'ble Supreme Court and High Court against the petitioner. He
abused the petitioner by uttering words, “ dksVZ dlk fudky nsrs rsp
ikgrks] dksVkZph nknkfxjh pkyw ns.kkj ukgh] csodwQ eWftLVs~V- “ All these facts
are amounting to scandalization and giving threat to the Court
::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 19:54:18 :::
( 8 ) CP 12006
restraining him from doing his judicial duty.
9. The respondent No.1 in person has submitted that, the petition
is not maintainable in view of the proviso to Section 10 of the
Contempt of Courts Act. He submitted that, petitioner has filed
complaint against him for the offence punishable under Section 228
and 353 of Indian Penal Code, and it was pending before learned
Judicial Magistrate First Class At Parbhani. However, he submitted
that, now the said case has been dismissed-in-default. But when a
subordinate Court had taken cognizance of the contempt, alleged to
have been committed by invoking the sections under Indian Penal
Code, then this Court cannot take cognizance of the contempt. He
also submitted that, he is fighting for the cause of his clients. He
tried to submit that, the procedure that was adopted by the learned
Judge was wrong and he had illegally taken the accused in his
custody around 12.00 noon. The accused was not heard on the
point of sentence till then, and therefore, in the recess a complaint
was made by him to the Sessions Judge, Parbhnai and a complaint
was forwarded to the higher authorities. Therefore, he had filed the
application Exhibit 69 in which he had clearly stated that the
detention of the accused is illegal.
10. While passing order on that application, the petitioner
admitted that the accused is in his custody and it was stated that, he
::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 19:54:18 :::
( 9 ) CP 12006
has been taken in custody on the basis of his misconduct. In order
to explain the said alleged misconduct of the accused, it was
submitted that, after recording of the statement of the accused
under Section 313 of Code of Criminal Procedure, the accused had
left and he had not signed on the statement. The learned Judge had
preponed the case only for the sake of taking signature of the
accused on the statement under Section 313 of Code of Criminal
procedure. This act cannot be stated to be the misconduct of the
accused, therefore, taking him in custody by the Judge was with a
prejudice mind. After application Exhibit 69 was rejected, he had
filed application Exhibit 70, so that the petitioner shall not pronounce
the sentence, the application was then rejected. Further an
application was given at Exhibit 71 for adjournment on 10-10-2005.
In fact, after rejection of application Exhibit 70, the accused was
taken in magisterial custody, and thereafter, the matter was
adjourned. After rejecting the application Exhibit 71, the sentence
was pronounced. After giving all these facts, the respondent No.1 -
Contemnor submitted that, the entire procedure was adopted by the
concerned Judge was wrong and in fact he was insisting that the
presiding officer should adopt proper procedure. If he goes
protecting the interest of his client then he cannot be said to have
misbehaved with the Court. He also submitted that, except this
incident, there was absolutely no dispute between him and the
::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 19:54:18 :::
( 10 ) CP 12006
petitioner. He has worked before him even after the alleged
incident.
11. Learned Addl. Public Prosecutor submitted that, there is no bar
to this Court in taking cognizance even though the petitioner has
filed complaint under Section 228 and 353 of Indian Penal Code. He
relied on the decisions in, Bathina Ramakrishna Reddy Vs. State of
Madras, A.I.R. 1952, Supreme Court 149. It was the proceeding
under Contempt of Courts Act, 1926. It was held that,
“Sub-section (3) of Section 2 excludes the jurisdiction of
High Court only in cases where the acts alleged to
constitute contempt of a subordinate Court are
punishable as contempt under specific provisions of
Indian Penal Code but not where these acts merely
amount to offences of other description for which
punishment has been provided for in the Indian Penal
Code.”
12. Further reliance has been placed on the decision in State of
Madhya Pradesh Vs. Revashankar, reported in AIR 1959 Supreme
Court 102, wherein it has been observed that,
“There are innumerable ways by which attempts could
be made to hinder or obstruct the due administration of
justice in courts and one type of such interference is
found in cases where there is an act which amounts to
“scandalising the court itself” : this scandalising might
manifest itself in various ways but in substance it is an
attack on individual Judges or the court as a whole with
::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 19:54:18 :::
( 11 ) CP 12006
or without reference to particular cases, causing
unwarranted and defamatory aspersions upon the
character and ability of the Judges. Such conduct is
punished as contempt for the reason that it tends to
create distrust in the popular mind and impair the
confidence of the people in the courts which are of prime
importance to the litigants in the protection of their
rights and liberties:”
13. Further reliance has been placed on the decision in, Arun
Paswan, S.I., Versus State of Bihar and others, reported in AIR
2004 Supreme Court 721. In this case also when the case was filed
for the offence punishable under Section 175, 178, 179, 180 and
228 of the Indian Penal Code, it was held that, the action under
Contempt of Courts Act is not barred in view of proviso to Section 10
of the said Act. He submitted that, the conduct of the respondent
No.1 was definitely contemptuous.
14. At this place itself it is noted that, respondent No.1 had made
submission that, the authorities which have been relied by the
learned Addl. Public Prosecutor are not applicable since the facts in
those cases are different.
15. We would like to consider the facts first. The petitioner has
given his set of facts and further he had forwarded the statements of
his staff including the statement of Stenographer Mr. Ugle, peon Mr.
Gaikwad and learned A.P.P. Mr. R. R. Sharma. We do not agree with
::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 19:54:18 :::
( 12 ) CP 12006
the respondent No.1 that, we cannot consider those statements.
When those persons were present when the incident took place then
definitely their statements are required to be taken into
consideration. All of them have stated that, when the petitioner was
about to hear the accused on the point of sentence, respondent No.1
got up and started shouting loudly. He had snatched the steno diary
and had flung it, which had hit the learned A.P.P. Mr. R. R. Sharma.
Not only this but after the diary was given back to the Stenographer
by the peon and petitioner tried to resume the dictation, once again
the respondent No.1 started giving threats. Even filing of
applications Exhibit 69 and 70, with a specific purpose that the
petitioner shall not deliver / pronounce the Judgment. This is
definitely an act of scandalising and obstruction in the administration
of justice.
16. Interference in the administration of justice by giving threats,
snatching the steno diary, addressing the judicial officer in loud
voice, are definitely serious acts, more so when such acts have been
done by an advocate who is the officer of the Court. In fact, an
advocate is supposed to maintain the decorum of the Court, he
should promote and see that all others who are present should also
maintain the decorum of the Court. Obstruction in judicial process
by an advocate cannot be tolerated. In fact by the said act on the
part of the respondent No.1, the petitioner could not discharge his
::: Uploaded on - 31/08/2018 ::: Downloaded on - 01/09/2018 19:54:18 :::
( 13 ) CP 12006
duty. This may amount to an offence under Section 353 of the
Indian Penal Code but that does not debar this Court from taking
cognizance under Contempt of Courts Act. Another aspect that is
required to be noted is that, in the entire reply the respondent No.1
has not denied the incident in specific words. Therefore, he cannot
take shield that he had snatched the steno diary and flung it in order
to protect the interest of his client. All the while the respondent
No.1 tried to project that due to procedural lapse on the part of the
petitioner, he was trying to protect his client. Even if for the sake of
arguments we accept that there was any defect in the procedure,
yet it could have been agitated in proper manner. For that purpose,
respondent No.1 cannot, as an advocate snatch the steno diary
when the dictation from the dais going on, shout loudly, give threat
by saying that, “he will see how the petitioner will give the
Judgment”. He cannot be an obstacle in the dispensation of justice.
In fact he had snatched the steno diary twice and flung it in the
open Court. The threatening language that was used is definitely
contemptuous. Reliance can be placed on the observation in, High
Court on its own motion Versus Pradeep Pandurang Suryawanshi,
reported in 2011 (1) Bom. C.R. (Cri.) 703, wherein it has been
observed that,
“24. The allegations as to interfering in the
administration of justice process by way of giving threats
to the Judicial Officer is definitely a serious matter, more

so, when such threats are coming form a responsible
senior Police officer i.e. Contemnor in the present case.
On this aspect, following observations from the Authority
(King Vs. Davies) 1, 1906 1 KB 32 (40) are reproduced
with advantage :
175. Attacks on Judge Cause Obstruction in Justice.
Attacks upon the Judges excite in the mind of the people
a general dissatisfaction with all the judicial
determination and whenever mans allegiance to the laws
is so fundamentally shaken it is the most fatal and
dangerous obstruction of justice and calls out for a more
rapid and immediate redress than any other obstruction
whatsoever; not for the sake of judges as private
individuals but because they are the channels by which
the King Justice is conveyed to the people;”
17. In the petition itself it was stated that, the petitioner has filed
complaint for the offence punishable under Section 228 and 353 of
Indian Penal Code namely Summary Criminal Case No. 1821 of
2005, the copy of the complaint was also produced along with the
petition, thereby the petitioner has not suppressed any fact. Even
after taking note of the fact that, such complaint was filed, this
Court had issued the notice to the respondent No.1. Now it is the
say of the respondent No.1 that, this Court cannot take cognizance
of the petition in view of proviso to Section 10 of the Contempt of
Courts Act, 1971. In all the above said three decisions the Hon'ble
Supreme Court has held that, Though complaint is filed invoking
sections from Indian Penal Code i.e. under Section 228 etc., the

cognizance of the petition under Section 15 of the Contempt of
Courts Act is not barred. Especially the ratio in three Judges Bench
of the Hon'ble Supreme Court in, State of Madhya Pradesh Vs.
Revashankar, reported in AIR 1959 Supreme Court 102, (Supra) is
required to be taken into consideration.
18. Further in all the above three Judgments was relied by Hon'ble
Supreme Court once again in, Daroga Singh and others Vs. B. K.
Pandey, reported in AIR 2004 Supreme Court 2579, and it has been
further observed that,
“What is made punishable under Section 228, IPC is the
offence of intentional insult to a Judge or interruption of
Court proceedings but not as a contempt of Court. The
definition of criminal contempt is wide enough to include
any act by a person which would either scandalise the
Court or which would tend to interfere with the
administration of justice. It would also include any act
which lowers the authority of the Court or prejudices or
interferes with the due course of any judicial
proceedings. It is not limited to the offering of
intentional insult to the Judge or interruption of the
judicial proceedings.
At the cost of repetition therefore it can be said that, when twice the
steno diary was snatched while dictating the Judgment and then
threats were given, abuses were given in the open Court, it
definitely amounts to interference with the administration of justice.

19. At the cost of repetition we do not agree with the respondent
No.1 that, he was by such acts was protecting the interest of his
client. We do not intend to discuss as to whether taking the accused
in custody by the petitioner amounted to illegal detention or not but
the fact is certain that when the presiding officer was dictating the
Judgment, the advocate representing the accused should not have
attempted to stop the presiding officer from pronouncing the
Judgment. The redressal would have been at a different authority, it
cannot justify the acts done by the respondent No.1 – contemnor.
20. It will not be out of place to mention here that, in AIR 2004
Supreme Court 2579 (Supra) it has been held that, when the High
Court had decided to proceed with the contempt proceedings in a
summary manner and due opportunity was afforded to the
contemnor / contemnors, and after verifying the material available
before it, convicted the contemnors, then no fault can be found in
the procedure adopted by the High Court. In this case also all the
procedure have been adopted and full opportunity has been given to
the respondent No.1 to put forth his say. No doubt Hon'ble Supreme
Court has laid down that the proceedings for contempt of Court
should be decided expeditiously but in this case the record shows
that many times bailable warrants were issued against the
respondent No.1 in order to secure his presence. After he was

produced under the execution of non-bailable warrant, he was
released on bail, yet thereafter also he remained absent and then
again bailable warrant was issued. Even thereafter full opportunity
has been given to the respondent No.1 to put forth his say.
21. Considering the reasons above stated, in our opinion, the acts
of the respondent No.1 - Contemnor amounted to scandalising the
Court and obstruction in the administration of Justice, therefore he is
required to be dealt with sternly.
22. After disclosing that the respondent No.1 – Contemnor is held
guilty, an opportunity has been given to him to submit on the point
of sentence. He submits that, he does not want to say anything.
We have also heard the appointed advocate for the petitioner and
learned Additional Public Prosecutor on the point of sentence. They
both have submitted that, Judicial Officer should not be lower down
by anybody, however taking into consideration the age of the
Contemnor appropriate sentence may be awarded.
23. When it comes to awarding punishment under Section 12 of
the Act, it is well settled that awarding fine is by way of rule and
awarding simple imprisonment is by way of exception. We have no
doubt in our minds that this is an exceptional case involving an
Advocate who is the officer of the Court and though he has been
practising in law for so many years. Definitely as an advocate it was

his duty to represent his client but when the client, that is the
accused, who was facing the trial was being punished by the Court
of law, then he should have accepted the sentence. If at all
anything was to be agitated, it should have been by set principles of
law.
24. Taking into consideration the present age of the respondent
No.1 - Contemnor, we sentence the Contemnor to suffer simple
imprisonment for one (01) week and pay fine of Rs.2,000/- (two
thousand), in default, to undergo simple imprisonment for two (02)
days more. The petition is disposed of accordingly. Respondent
No.1 is hereby taken in custody. Registry to provide copy of the
Judgment to respondent No.1 free of costs.
25. Fees of the appointed advocate Mrs. S. D. Tambat is quantified
at Rs.5,000/- (five thousand), which should be given from the High
Court Legal Services Sub-Committee, Aurangabad.
(SMT. VIBHA KANKANWADI) (T. V. NALAWADE)
JUDGE JUDGE

Print Page

No comments:

Post a comment