REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 555 OF 2010

Bal Kishan Giri …Appellant

Versus

State of U.P. …Respondent

J U D G M E N T

Dr. B.S. Chauhan,J.

1.In this appeal, impugned judgment and order dated 5.2.2010

passed by the High Court of Judicature at Allahabad in Contempt

Application (Crl.) No. 15 of 2009, by which the appellant stood

convicted for committing criminal contempt under the provisions of

Contempt of Courts Act, 1971 (hereinafter referred to as the ‘Act’)

and sentenced to undergo simple imprisonment for one month and to

pay a fine of Rs.20,000/- and in default to undergo simple

imprisonment for two weeks, has been assailed.

2.Facts and circumstances giving rise to this appeal are that:

A.An FIR was lodged in P.S. Baleni, District Baghpat on

23.5.2008 by Anil Kumar, appellant in connected Criminal Appeal

No. 686 of 2010 alleging that his younger brother Sunil Kumar

alongwith Puneet Kumar Giri, who were residing in Sitaram Hostel of

the Meerut College, were not traceable and went missing the previous

evening. Another inmate of the same hostel Sudhir Kumar was also

reported untraceable. The very next day, three dead bodies of the said

missing persons were found on the banks of river Hindon. A criminal

case was therefore registered.

B.During investigation, it came to the notice of the police

authorities that the place of occurrence fell within the territorial

jurisdiction of P.S. Kotwali, Meerut, and thus investigation on being

transferred to P.S. Kotwali, Meerut, the case was registered as Case

Crime No.190/2008.

C.During investigation, many accused persons including one Haji

Izlal were arrested. They moved bail applications before the Meerut

Distt. Court which stood rejected. Aggrieved, all the accused persons

filed bail applications before the High Court of Allahabad. It was on

14.8.2009 during the pendency of the said applications that the

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appellant submitted an application to the Hon’ble Chief Justice of

Allahabad High Court alleging that the accused therein were gangsters

and had accumulated assets worth crores of rupees by their criminal

activities. The accused persons were closely related to a local M.L.A.

and Ex. M.P. and they had links with the Judges of the High Court

including Mr. Justice S.K. Jain who had earlier served as a judicial

officer in Meerut Court. The appellant expressed his apprehension that

Mr. Justice S.K. Jain would favour the accused persons to get bail. A

copy of the said complaint was also sent to the Chairman, Bar Council

of U.P.

D.The High Court examined the complaint and placed the matter

on the judicial side on 12.11.2009. The court issued a show cause

notice dated 14.8.2009 to the appellant as to why the criminal

contempt proceedings be not initiated against him under the

provisions of the Act.

E.The appellant submitted an unconditional apology dated

21.11.2009 submitting that the application was sent by him as he had

been misguided by the advocates of District Meerut and he was in

great mental tension as his nephew had been murdered.

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F.The High Court after completing the trial convicted the

appellant vide impugned judgment and order dated 5.2.2010 and

awarded the sentence as referred to hereinabove.

Hence, this appeal.

3.Mr. J.M. Sharma, learned senior counsel appearing for the

appellant has submitted that the show cause notice was not in

consonance with the provisions of Chapter XXXV-E, Rule 6 of the

Allahabad High Court Rules, 1952 (hereinafter referred to as the

Rules). Thus, all subsequent proceedings stood vitiated. More so, the

appellant is a practicing advocate and had written the said complaint

under a mental tension as his nephew had been murdered, and on

being misguided by the advocates of the Meerut Court. Once the

appellant has tendered an absolute and unconditional apology,

punishment was not warranted and fine imposed therein is contrary to

the statutory provisions of the Act. Thus, the appeal deserves to be

allowed.

4.Per contra, Mr. Irshad Ahmad, learned counsel appearing for the

State has opposed the appeal contending that very wild and

scandalous allegations had been made by the appellant not only

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against one judge but against various judicial officers and merely

tendering an apology is not enough. As the appellant had accepted that

he had written the letter and also owned its contents, and filed the

reply to the show cause notice issued to him, even if, the statutory

rules have not been complied with, the order would not stand vitiated.

The appeal lacks merit and is liable to be dismissed.

5.We have considered the rival submissions made by learned

counsel for the parties and perused the record.

6.The relevant part of the complaint filed by the appellant reads

as under:

“4.That Akhalakh family have good connection with

all judges posted at Meerut. Hon. Mr. Justice S.C. Nigam

was posted in Meerut in the year 1981 to 1984 and

2002-03 on the posts of Addl. Civil Judge/A.C.J.M. and

Addl. District & Sessions Judge respectively. Hon.

Justice Mr. S.K. Jain was also posted at Meerut as

Additional District & Sessions Judge in 2002-03.

5.That all the Hon. Justices V.K. Verma, S.K. Jain

and S.C. Nigam have been promoted as High Court

Judges from the cadre of District Judges. Hon. Justice

Mr. S.K. Jain and Hon. Justice S.C. Nigam remained

posted in Civil Court Meerut as Additional District Judge

together in the year 2002-03 and have been promoted

from Meerut Judgeship to the cadre of District Judge.

They are very good friends. Hon. Mr. Justice V.K. Verma

also has very good intimacy with them. They have made

a caucus with V.P. Srivastava, Senior Advocate of

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Allahabad High Court for granting major bails to known

accused in criminal cases illegally and with ulterior

motives.

Hon. Justice V.K. Verma has granted bails to two

accused namely Rizwan and Wassim in aforesaid famous

triple murder case of Meerut in bail application No.924

of 2009 and 1238 of 2009 on 17.7.2009 illegally and with

ulterior motives.”

7.The appellant/complainant further expressed his apprehension

of having no confidence and faith in any of the three Judges of the

Allahabad High Court as they could pass any order at the behest of

Shri V.P. Srivastava, Senior Advocate.

In sum and substance, the offending part of the allegation had

been as under:

(1) Akhlaq had good relations with Mr. Justice S.C.

Nigam from the date since he was posted at Meerut on

three terms, (2) that justice V.K. Verma had good

intimacy with the family of the accused and the accused

have made a clique alongwith one V.P. Srivastava, Senior

Advocate of Allahabad High Court for procuring major

bails illegally and with ulterior motives. Mr. Justice V.K.

Verma has admitted bail to two accused namely Rizwan

and Wasim illegally and with ulterior motives. The three

Judges (V.K. Verma, S.K. Jain and S.C. Nigam) may pass

any order at the behest of V.P. Srivastava, Senior

Advocate.

8. The allegations made by the appellant against the 3 judges of

the High Court are too serious, scandalous and, admittedly, sufficient to

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undermine the majesty of law and dignity of court and that is too

without any basis. The appellant is a practicing advocate. Plea taken

by him that he had been misguided by other advocates is an

afterthought. He must have been fully aware of the consequences of

what he has written. The averment to the effect that provisions of

Chapter XXXV-E of the Rules had not been strictly observed remains

insignificant as the appellant had not only admitted transcribing the

complaint but also its contents. The appellant had submitted the reply

to the show cause notice issued by the High Court of Allahabad on the

judicial side. In such a fact-situation, even if, for the sake of argument

it is accepted that the aforesaid Rules have not been complied with

strictly, we are not willing to accept the case of the appellant for the

reason that Mr. J.M. Sharma, learned senior counsel for the appellant

could not show as to what was that material which was not considered

by the High Court that had been put up as a defence by the appellant

resulting in any miscarriage of justice.

9. This Court in M.B. Sanghi, Advocate v. High Court of

Punjab and Haryana & Ors., AIR 1991 SC 1834, while examining a

similar case observed :

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“The foundation of judicial system which is based

on the independence and impartiality of those who man it

will be shaken if disparaging and derogatory remarks

are made against the presiding judicial officers with

impunity. It is high time that we realise that the much

cherished judicial independence has to be protected not

only from the executive or the legislature but also from

those who are an integral part of the system. An

independent judiciary is of vital importance to any free

society”.

10. In Asharam M. Jain v. A.T. Gupta & Ors. AIR 1983 SC

1151, while dealing with the issue, this Court observed as under:

“The strains and mortification of litigation cannot be

allowed to lead litigants to tarnish, terrorise and destroy

the system of administration of justice by vilification of

judges. It is not that judges need be protected; judges

may well take care of themselves. It is the right and

interest of the public in the due administration of justice

that has to be protected.”

11. In Jennison v. Baker [1972] 1 All E.R. 997, 1006, it was

observed, “[T]he law should not be seen to sit by limply, while those

who defy it go free, and those who seek its protection lose hope”

12. The appellant has tendered an absolute and unconditional

apology which has not been accepted by the High Court. The apology

means a regretful acknowledge or excuse for failure. An explanation

offered to a person affected by one’s action that no offence was

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intended, coupled with the expression of regret for any that may have

been given. Apology should be unquestionable in sincerity. It should

be tempered with a sense of genuine remorse and repentance, and not a

calculated strategy to avoid punishment

13.Clause 1 of Section 12 of the Act and Explanation attached

thereto enables the court to remit the punishment awarded for

committing the contempt of court on apology being made to the

satisfaction of the court. However, an apology should not be rejected

merely on the ground that it is qualified or tempered at a belated stage

if the accused makes it bona fide. A conduct which abuses and makes

a mockery of the judicial process of the court is to be dealt with iron

hands and no person can tinker with it to prevent, prejudice, obstructed

or interfere with the administration of justice. There can be cases where

the wisdom of rendering an apology dawns only at a later stage.

Undoubtedly, an apology cannot be a defence, a justification, or an

appropriate punishment for an act which tantamounts to contempt of

court. An apology can be accepted in case where the conduct for which

the apology is given is such that it can be “ignored without

compromising the dignity of the court”, or it is intended to be the

evidence of real contrition. It should be sincere. Apology cannot be

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accepted in case it is hollow; there is no remorse; no regret; no

repentance, or if it is only a device to escape the rigour of the law. Such

an apology can merely be termed as “paper apology”.

14.In L.D. Jaikwal v. State of U.P., AIR 1984 SC 1374, this court

noted that it cannot subscribe to the 'slap-say sorry- and forget'

school of thought in administration of contempt jurisprudence.

Saying 'sorry' does not make the slapper poorer.

(See also: T.N. Godavarman Thirumulpad v. Ashok Khot & Anr.,

AIR 2006 SC 2007)

So an apology should not be “paper apology” and expression of

sorrow should come from the heart and not from the pen; for it is one

thing to 'say' sorry, it is another to 'feel' sorry.

15.An apology for criminal contempt of court must be offered at

the earliest since a belated apology hardly shows the “contrition which

is the essence of the purging of contempt”. Of course, an apology must

be offered and that too clearly and at the earliest opportunity. However,

even if the apology is not belated but the court finds it to be without

real contrition and remorse, and finds that it was merely tendered as a

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weapon of defence, the Court may refuse to accept it. If the apology is

offered at the time when the contemnor finds that the court is going to

impose punishment, it ceases to be an apology and becomes an act of a

cringing coward. (Vide: Debabrata Bandopadhyay & Ors. v. The

State of West Bengal & Anr., AIR 1969 SC 189; Mulkh Raj v. The

State of Punjab, AIR 1972 SC 1197; The Secretary, Hailakandi Bar

Association v. State of Assam & Anr., AIR 1996 SC 1925; C.

Elumalai & Ors. v. A.G.L. Irudayaraj & Anr., AIR 2009 SC 2214;

and Ranveer Yadav v. State of Bihar, (2010) 11 SCC 493).

16.This Court has clearly laid down that an apology tendered is not

to be accepted as a matter of course and the Court is not bound to

accept the same. The court is competent to reject the apology and

impose the punishment recording reasons for the same. The use of

insulting language does not absolve the contemnor on any count

whatsoever. If the words are calculated and clearly intended to cause

any insult, an apology, if tendered and lack penitence, regret or

contrition, does not deserve to be accepted. (Vide: Shri Baradakanta

Mishra v. Registrar of Orissa High Court & Anr., AIR 1974 SC

710; The Bar Council of Maharashtra v. M.V. Dabholkar etc., AIR

1976 SC 242; Asharam M. Jain v. A.T. Gupta & Ors., AIR 1983 SC

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1151; Mohd. Zahir Khan v. Vijai Singh & Ors., AIR 1992 SC 642;

In Re: Sanjiv Datta, (1995) 3 SCC 619; Patel Rajnikant Dhulabhai

& Ors. v. Patel Chandrakant Dhulabhai & Ors., AIR 2008 SC 3016;

and Vishram Singh Raghubanshi v. State of U.P., AIR 2011 SC

2275).

17.That the power to punish for contempt is a rare species of

judicial power which is by the very nature calls for exercise with great

care and caution. Such power ought to be exercised only where

“silence is no longer an option.”

(See: In re: S. Mulgaokar AIR 1978 SC 727; H.G. Rangangoud v.

M/s State Trading Corporation of India Ltd. & Ors., AIR 2012 SC

490; Maninderjit Singh Bittav. Union of India & Ors., (2012) 1 SCC

273; T.C. Gupta & Anr. v. Hari Om Prakash & Ors., (2013) 10 SCC

658; and Arun Kumar Yadav v. State of U.P. through District Judge,

(2013) 14 SCC 127)

Power of courts to punish for contempt is to secure public respect

and confidence in judicial process. Thus, it is a necessary incident to

every court of justice.

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18.Being a member of the Bar, it was his duty not to demean and

disgrace the majesty of justice dispensed by a court of law. It is a case

where insinuation of bias and predetermined mind has been leveled by a

practicing lawyer against three judges of the High Court. Such casting

of bald, oblique, unsubstantiated aspersions against the judges of High

Court not only causes agony and anguish to the judges concerned but

also shakes the confidence of the public in the judiciary in its function

of dispensation of justice. The judicial process is based on probity,

fairness and impartiality which is unimpeachable. Such an act

especially by members of Bar who are another cog in the wheel of

justice is highly reprehensible and deeply regretted. Absence of

motivation is no excuse.

19.In view of the above, we are of the considered opinion that the

High Court has not committed any error in not accepting the appellant’s

apology since the same is not bona fide. There might have been an inner

impulse of outburst as the appellant alleges that his nephew had been

murdered, but that is no excuse for a practicing lawyer to raise fingers

against the court.

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20.Section 12(1) of the Act provides that if the court is satisfied

that contempt of court has been committed, it may punish the

contemnor with simple imprisonment for a term which may extend to

six months, or with fine which may extend to Rs.2,000/-, or with both.

Section 12(2) further provides that “notwithstanding anything

contained in any other law for the time being in force, no court shall

impose a sentence in excess of that specified in sub-section (1) for any

contempt either in respect of itself or of a court subordinate to it.”

Thus, the power to punish for contempt of the court is

subject to limitations prescribed in sub-section (2) of the Act.

21.Hence, in view of the above, the fine of Rs.20,000/- imposed on

the appellant by the High Court by way of impugned judgment and

order, is reduced to Rs.2,000/- and is directed to deposit the said fine

forthwith.

22.We find no force in the appeal which is accordingly dismissed.

The appellant must surrender to serve out the sentence forthwith,

failing which, the learned Chief Judicial Magistrate, Meerut, would

secure his custody and send him to jail to serve out the sentence. A

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copy of the order be sent to the learned Chief Judicial Magistrate,

Meerut, for information and compliance.

....…….……………………..J.

(Dr. B.S. CHAUHAN)

....……………………………J.

(A.K. SIKRI)

New Delhi,

May 28, 2014

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 686 OF 2010

Anil Kumar …Appellant

Versus

State of U.P. …Respondent

J U D G M E N T

Dr. B.S. Chauhan,J.

In view of the judgment passed today in connected Criminal Appeal No.

555 of 2010, this appeal is dismissed. However, the fine of Rs.20,000/- imposed

on the appellant by the High Court by way of impugned judgment and order, is

reduced to Rs.2,000/- and is directed to deposit the said fine forthwith.

The appellant must surrender to serve out the sentence forthwith, failing

which, the learned Chief Judicial Magistrate, Meerut, would secure his custody

and send him to jail to serve out the sentence. A copy of the order be sent to the

learned Chief Judicial Magistrate, Meerut, for information and compliance.

....…….……………………..J.

(Dr. B.S. CHAUHAN)

.....……………………………J.

(A.K. SIKRI)

New Delhi,

May 28, 2014