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Reserved

Contempt Application (Criminal) No. 5 of 2008

In Re

1.Shailendra Sharma

2.Nahar Singh Yadav Advocates civil courts Ghaziabad.

Hon. Imtiyaz Murtaza J.

Hon. S.S.Tiwari, J.

(Delivered by Hon. Imtiyaz Murtaza J.)

Present contempt proceeding emanates from the Reference made by

Sri Himanshu Bhatnagar, the then Chief Judicial Magistrate, Ghaziabad with

accompanying letter of the District Judge dated 11.5.2007 studded with the

request for initiation of contempt proceeding against the contemnors namely,

Shailendra Sharma and Nahar Singh Yadav, Advocates, Civil Courts

Ghaziabad.

The abridged version as encapsulated in the Reference made to this

court is that the application for surrender bearing no. 176 of 2007 State v.

Shiv Kumar, P.S. Modi Nagar had been moved before the Addl. Chief Judicial

Magistrate, VIII Ghaziabad which subsequently came up before the Chief

Judicial Magistrate on 16.5.2007. The aforesaid application was fixed for

17.5.2009 on which date the contemnors put in appearance and demanded

early hearing attended with prayer to summon the case diary. However, the

officer in his discretion posted the matter for 21.5.2007 for disposal of the

application attended with the order to summon the case diary. However,

adjourning the application to 21.5.2007 was not relished by the contemnors.

It would further transpire that as soon as the officer retired to his chamber

after finishing the court work, the contemnors followed him and entered the

chamber indulging in name calling and using vituperative language. To be

precise, one of the contemnor namely, Shailendra Sharma caught hold of the

hands of the officer while contemnor Nahar Singh Yadav tried to bolt the

door of the chambers. Sensing trouble, the Presiding officer rushed back to

Dais and sat in the court. In the meanwhile, Senior Administrative officer of

the Judgeship was sent for, who came there and took the two lawyers to the

chambers of the District Judge. After about 10 to 15 minutes, the two

Neutral Citation No. - 2010:AHC:19801-DB

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lawyers again came to the chamber of the officer and indulged in abrasive

behavior using disrespectful, impolite and discourteous and un-parliamentary

language against the officer. It is precisely stated that on their return again,

the precise words used by the contemnor Nahar Singh Yadav against the

officer were to the effect: “Tu Mujhe Yahan Nazar Andaz Kar Ke Kam Nahi Kar

Payega. Adhivakta Ke Alva Mere Aur Bhi Bahut Se Dhande Hain. Mera Yahan

Pata Bhi Nahi Payega. Use Jail Vail Say Koi Dar Nahi Hai Aur Voh To Pahle

Kitne Hi Mukdamon Mein Band Ho Chuka Hai.” The precise words uttered by

contemnor Shailendra Sharma are to the effect: “Use Kisi Awmanana Ki

Karvahi Se Koi Dar Nahin Lagta Uske Upar 4 Awmanana Ki Karvahi Chl Chuki

Hai Jo Aapse Ban pade Kar Lo.” It is further stated that the contemnor Nahar

Singh also threatened the officer to kill him.

On 21.5.2007, it would transpire, the matter was put up before the

Administrative Judge Ghaziabad who appended the following remarks:

“Approved for action in contempt. Place before Hon. C.J.”

Hon. Chief Justice vide order dated 20.2.2008 appended approval to

the Reference with the direction to list the Reference before the Appropriate

Bench. It is in this conspectus that the matter has come up before the

Bench.

Sri Satish Trivedi assisted by Sri V.K.Jaiswal, Manu Yadav and Nitin

Gupta appeared for the contemnors and pleaded for merciful view in the

matter. On being called upon to argue the case on merit of the case, he

referred to apology stating that the contemnor has already tendered the

apology and prayed for discharge taking a benign view further urging that

that the contemnors were fairly senior having been enrolled as Advocate in

the year 1975 in so far as Nahar Singh Yadav is concerned attended with

further submission that he can not be said to be addicted to using

contemptuous language and making scurrilous attacks nor is there any

previous instance of his showing disrespect to the court in so far as

contemnor Shailendra Sharma is concerned and whatever has happened in

Court was in the spontaneity. Ultimately, he stated that the contemnors

should be given a chance to expiate their deviant behaviour if it be so.

We are anguished that we have to deal with a case involving lawyers

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under the Contempt of Court Act. We however indicate to ourselves the piece

of advice that the Court while dealing with contempt matter should not be

over or hypersensitive and should not exercise this jurisdiction on any

exaggerated notion of the dignity of the Judges and must act taking a

dispassionate view of the entire matter. It is the settled principles that the

rule of contempt is not to be lightly invoked and is not to be used as a cloak

to cow down somebody into submission on the basis of fancied claim. It is

intended to offer protection to the court itself or to a party in judicial

proceeding whose interest may be affected or the authority of the court is

lowered and the confidence of the people in the administration of justice is

weakened. At the same time, it should be borne in mind that the Court is the

protector of public justice and it has a stake in the dignity and protection of

those who man the court.

In the counter affidavit filed by the contemnor Shailendra Sharma

sworn on 23rd August 2008, the contemnor in Para 3 has begun with the

statement that he has had the highest respect for the court and never acted

in a manner which even remotely identified him with a contempt of court

fringed with submission that without going into the merits of the allegations,

he tenders his unconditional apology for his unintentional act which the Court

views as contempt of the Court. In Para 4, the contemnor craved leave to

bring on record the actual facts and events which according to him are

demonstrative of his complete innocence and unmasks the falsehood of the

allegation so labelled against him. In Para 5, he has set out the sequence of

events attended with averment that Himanshu Bhatnagar has levelled false

allegations against him and Nahar Singh Yadav. In Para 7, he has denied the

allegations imputed to him attended with averments that on 4.4.2007

surrender application was moved by Pradeep Tyagi Advocate on behalf of

Shiv Kumar before Addl. Chief Judicial Magistrate VIII Ghaziabad and the

report was called for from the concerned police station the same day. In

Para 8, it is averred that the report was submitted by the police on 5.4.2007

that Shiv Kumar was wanted in case crime no. 214 of 2007. In Para 9, it is

averred that the offences in which aforesaid Shiv Kumar was wanted, was

bailable offence but no orders were passed by the learned Magistrate on that

date. In Para 10, it is averred that on 6.4.2007, the learned A.C.J.M called

for fresh report from the police station and fixed 9.4.2007. The police

submitted its report on 9.4.2007 in which aforesaid Shiv Kumar was also

shown to be wanted in section 420 IPC. The application was rejected on

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9.4.2007. In Para 11, it is averred that aforesaid Shiv Kumar filed application

for surrender on 16.5.2007 before the Addl. Chief Judicial Magistrate VIII

Ghaziabad. The application was transferred before the Chief Judicial

Magistrate Ghaziabad fixing 17.5.2007. The Chief Judaical Magistrate posted

the matter for 21.5.2007. In Para 12, it is stated that Shiv Kumar

surrendered before the C.J.M on 22.5.2007 followed by application for bail

before the learned Special Judicial Magistrate (C.B.I.). The bail application

was however rejected vide order dated 22.5.2007 passed by learned Special

Judicial Magistrate (CBI). In Para 14, he denied the allegations that he

exerted pressure on the C.J.M on 17.5.2007 for fixing early date as there

was no occasion for him on account of the fact that 19.5.2007 was closed

due to local strike and 20.5.2007 was Sunday. He also denied that there was

any incident on 17.5.2007 as he immediately returned to his chamber. The

averments made in Para 15 appear to be argumentative in that it is

suggested that if any incident as alleged had happened on 17.5.2007, the

presiding officer should have noted the same on the application dated

16.5.2007 itself which could only be forwarded to the District Judge for

recommendation for initiation of contempt proceeding. In Para 16, it is

stated that no such order or complaint was noted on the surrender

application dated 16.5.2007 further suggesting that in fact no such incident

had taken place. It is also stated that he sought queries in the form of

question and answer but he was refused the certified copy of surrender

application and orders passed thereon. In Para 17, it is stated that on

7.7.2008, the contemnor filed an application seeking documents regarding

surrender application and orders passed thereon. The contemnor it is further

averred made queries from the office regarding surrender of Shiv Kumar on

22.5.2007 and orders passed on the bail application but the office reported

back that bail application dated 22.5.2007 and surrender application dated

16.5.2007 were not available on record. In Para 18, it is averred that on

22.7.2008, again question answer was applied in respect of surrender

application no. 176 of 2007 dated 16.5.2007 and order passed by learned

Magistrate dated 17.5.2007 but the office reported back that the application

in question was not available on record. In Para 19, it is averred that the

certified copies as demanded by him were refused by the office with a

purpose to a design. It is suggested that no noting was scribed on the

application No. 176 of 2007 on 17.5.2007 as regards the incident and

therefore, it was inferable that no such incident took place. In Para 20, it is

averred that the contemnor has been falsely nominated in the contempt

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petition. The contemnor made the imputation that his nomination in the

contempt proceeding was a sequel to the fact that the contemnor as a senior

Advocate of the Ghaziabad had headed a delegation which met Hon. Chief

Justice on 13.5.2008 for taking action against Himanshu Bhatnagar attended

with prayer to transfer him from Ghaziabad. In Para 21, it is averred that as

a consequence of meeting of delegation which comprised him and Nahar

Singh Yadav and other Advocates, the Chief Justice passed orders for making

enquiry by Special Vigilance officer High Court Allahabad. In Para 22, the

averments relate to his ailment and treatment. In Para 23, he reiterated that

he had every respect for the court and the judicial officers and he had not

indulged in any act as alleged in the complaint. He also stated that he has

been practising for the last 28 years and has also served as elected secretary

of the Bar Association. In Para 24 he averred that the complaint was made

by the officer against him and Nahar Singh Yadav with the avowed object of

saving his skin and also to crank up pressure upon the contemnors. In Para

25, he has referred to letter of the District Judge dated 11.5.2007 enclosing

therewith the complaint of Himanshu Singh C.J.M dated 17.5.2007 attended

with submission that if the incident had occurred on 17.5.2007 how could

Distt Judge forward the complaint by means of letter dated 11.5.2007. In

Para 26, it is averred that the complaint has been made against him and

Nahar Singh Yadav with a view to putting pressure upon him and Nahar

Singh Yadav to withdraw/not press the complaint made to Hon. Chief Justice.

In Para 27, it is averred that the contemnor has not indulged in any act as

alleged but if the Hon. Court comes to the conclusion that the answering

respondent had committed contempt of court, the deponent renders his

unconditional apology. He also prayed for dismissing the contempt petition

and discharging the notices issued against the answering respondent.

Now we advert to the contents of the counter affidavit sworn and filed

by Nahar Singh Yadav contemnor. In Para 2, it is averred that the deponent

was elected as president Bar Association Ghaziabad in the year 2007. In Para

3, it is averred that Himanshu Bhatnagar who was posted as Chief Judicial

Magistrate made a frivolous complaint dated 17.5.2007 levelling various

allegations against him and Shailendra Sharma Advocate and thereafter, he

reiterated those facts which are already mentioned leading to initiation of

contempt against him and shailendra Sharma. In Para 4, he has denied the

allegations contained in the complaint attended with the averments that he

was not engaged as counsel in the case of Sheo Kumar and that he had

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received certain complaints both from advocates and litigant public against

Himanshu Bhatnagar, C.J.M and being President of Ghaziabad Bar

Association he advised the officer to improve his working. It is also averred

that he also made complaint in writing to the District Judge for taking action

against the officer and other officials who were indulging in corrupt practices.

In Para 5 it is averred that pursuant to his complaint, the District Judge

issued a general order directing all the officials working in the Judgeship to

work properly. In Para 6, it is averred that he also made a complaint dated

30.1.2007 against the referring officer. In Para 7, it is averred that he made

several other complaints against the officer addressed to Hon. Chief Justice.

In Para 8 it is averred that the office bearers of the Bar Association met the

Chief Justice apprising him of the corrupt practices being indulged in by the

officer attended with prayer for taking action against him and in the

meantime, for transferring him from Ghaziabad. In Para 9, it is averred that

pursuant to the meeting, Hon. Chief Justice passed order for vigilance

enquiry against the officer. It is further averred that in the preliminary

enquiry, allegations were found to be loaded with substance and

consequently, the officer was transferred from Ghaziabad to Mathura. In Para

10, the contemnor referred to the incident of G.P.F scam in which F.I.R was

lodged against Ashutosh Asthana Central Nazir. In Para 11, it is averred that

in his statement Ashutosh Asthana levelled allegations against Himanshu

Bhatnagar stating that he acted on direction of the officer in arranging for

fooding, lodging etc. In Para 12, it is averred that the deponent never

indulged in any activity of extending threats to any of the judicial officers. In

Para 13, it is averred that the deponent also filed PIL in this Court for the

relief of taking action against Himanshu Bhatnagar and the said PIL is

pending in the Court. In Para 14, it is averred that the frivolous allegations

have been made against him and Shailendra Sharma by the officer in order

to save his skin and that no such incident ever took place as alleged in the

complaint. In Para 15, he referred to letter of District Judge dated 11.5.2007

whereby he forwarded the complaint of Himanshu Bhatnagar dated

17.5.2007. In Para 16, it is averred that Sri R.S.Chaubey the then District

Judge Ghaziabad was in connivance with Sri Himanshu Bhatnagar and

therefore, he forwarded the complaint to the Hon. High Court for initiation of

contempt proceeding. In Para 18, he prayed for dismissing the contempt

petition attended with prayer for taking legal action against Himanshu

Bhatnagar.

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The referring officer namely Hiamanshu Bhatnagar also filed rejoinder

affidavit in reply to counter affidavits discussed above. In Para 2 he averred

that Sri Ashok Kumar Yadav, A.C.J.M VIII who was earlier seized of the

surrender application, wrote a letter dated 16.5.2007 stating that due to

certain reasons he did not want to dispose of the above noted application for

surrender. In Para 3 of the affidavit it is averred that on 17.5.2007, request

was made across the bar that case diary be summoned at the time of

disposal of surrender application and in consequence, 21.5.2007 was fixed.

After finishing work, when he retired to chamber, the contemnors entered his

chamber and expressed displeasure and annoyance for fixing surrender

application for 21.5.2007. He tried to explain the circumstances but the

contemnors misbehaved with him and reiterated the facts which were

mentioned in the complaint. In Para 4 of the affidavit, it is averred that

Nahar Singh Yadav although was not the counsel of applicant Shiv Kumar, he

came to the court accompanying Shailendra Sharma with the avowed object

of exerting pressure and influencing judicial work. In Para 4 (A), it is averred

that Nahar Singh Yadav contemnor was involved in the incident which had

taken place on 5.8.1991 in which he flung chair at Sri A.K.Srivastava, the

then District Judge Ghaziabad who was later-on elevated as Judge High

Court Allahabad. The incident it is further reported was reported to the High

Court by means of letter dated 5.8.1991. The letter is annexed to the

affidavit as Annexure R.A.3. It is further averred that at that time, protesting

the incident of attack on District Judge, the judicial officers posted at

Ghaziabad abstained from judicial work. It is further averred that as a sequel

to the incident, Nahar Singh Yadav was arrested and detained under N.S.A

besides being suspended from membership of the bar.. The copy of the

resolution of the Bar has been annexed as Annexure R.A.5. In Para 4 (B), the

officer has related another incident pertaining to court of Addl. Civil Judge

(S.D.)/Addl. Chief Judicial Magistrate Court no.2 Ghaziabad in which Nahar

Singh Yadav was involved. The facts of the incidents are contained in

Annexure R.A. 6 according to which on 6.7.2007, while the court was

transacting judicial business in the court, Nahar Singh Yadav came and

interrupting proceeding of the court, spoke to the presiding officer that he

was the president of the Bar Association and he has to talk to him in

connection with bail matters. When the Presiding officer declined to meet

him in judicial matters, he became agitated and created noisy scene in the

court and thereafter departed threatening to see the presiding officer. In Para

9, he has denied that any vigilance enquiry was ordered or instituted against

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him by the High Court. He also denied that any departmental enquiry was

instituted or was pending against him. He has also referred to public interest

litigation in the shape of Writ petition no. 30574 of 2008 filed by Nahar Singh

Yadav in which Registrar General, Vigilance officer and the deponent

(Himanshu Bhatnagar) were impleaded. It is further averred that the

aforesaid writ petition was dismissed by the High Court by means of order

dated 18.8.2008 as withdrawn. The aforesaid petition, it would appear, was

opposed tooth and nail by the counsel appearing for the High Court that it

was instituted as a counter measure to the criminal contempt initiated

against the contemnor Nahar Singh Yadav. The order of the Court is annexed

as Annexure R.A. 7.

The contemnor Nahar Singh Yadav again filed a supplementary

affidavit sworn on 6

th

Jan. 2010. In Para 2 of the affidavit, it is averred that

he was elected as President Bar Association Ghaziabad in the year 2007 and

as a President he was duty bound to look after the interest and welfare of

litigants and members of the Bar Association and if any of the judicial officers

indulged in corrupt practices, it was incumbent upon him to inform the Distt

Judge as well as other higher officials of the Judicial of the State as well as

country. In Para 3, it is averred that he came to know about the corrupt

practices indulged in by Hiamsu Bhatnagar and he made several complaints

against him to the Distt Judge and also to the Hon. Chief Justice for taking

action against him and also prayed for setting enquiry against him. In Para 4

it is averred that in order to crank up pressure on him, the officer made the

complaint to the Distt Judge for initiation of contempt proceeding against

him and Shailendra Kumar Sharma. In Para 5, it is averred that th aforesaid

Himanshu Bhatnagar not only made complaint for initiation of contempt

proceeding but also referred the matter to Chairman Bar Council U.P.

Allahabad for rescinding the license of the deponent. In Para 6, it is averred

that pursuant to the complaint, disciplinary proceeding no. 82 of 2008 was

commenced and upon notices being served, the deponent filed objection. In

Para 7, it is averred that the bar Council in ultimate analysis dismissed the

complaint by a detailed order dated 21.6.2009. In Para 8 it is averred that in

the disciplinary proceeding, the members of the committee were of the view

that the complaint had no basis but was sequel to personal grudge of the

officer. In Para 9, it is averred that he was not the counsel in the case in

which complaint was made against him and that the complaint was made by

the officer in order to exert pressure for withdrawing complaints made

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against his corrupt practices. In Para 10, he prayed for dropping the

contempt proceeding.

We have gone through the various papers including the counter

affidavits sworn and filed by contemnors, the rejoinder affidavit filed by

Himanshu Bhatnagar, the then Chief Judicial Magistrate Ghaziabad and also

the supplementary affidavit filed by Nahar Singh Yadav sworn in Jan 2010.It

would clearly transpire from a scrutiny of the various papers and affidavits

that it is not denied as would be clear from the affidavit filed by contemnor

Shailendra Sharma that application for surrender on behalf of applicant Shiv

Kumar came up before Sri Himanshu Bhatnagar on 17.5.2007 and it is also

not denied that request was made to summon the case diary but the court

while summoning the case diary had fixed 21.5.2007 which according to the

allegations contained in the referring order, was not relished by the

contemnors. It is also not denied as would be clear from the affidavit of

Nahar Singh Yadav, contemnor that he had gone to the court on 17.5.2007

although he has stated that various complaints were pouring in against

Himanshu Bhatnagar C.J.M of his indulging in corrupt practices and as

president of the Bar Association, he had gone to the court of C.J.M in the

case in which contemnor Shailendra Sharma was the counsel. It is also not

denied that he went to the court and asked the officer to improve his

working and he thereafter also made a complaint to the Distt Judge and still

thereafter a delegation was taken to Allahabad High Court where the

delegation met the Chief Justice and apprised him of the corrupt practices

being indulged in by the officer. It is also not denied that the contemnor filed

Public Interest Litigation. However, he claimed that the aforesaid PIL was still

pending although from the rejoinder affidavit, it leaves no manner of doubt

that the said P.I.L had already been dismissed as withdrawn vide Anneuxre

R.A. 7 to the rejoinder affidavit filed by Himanshu Bhatnagar. Nahar Singh

Yadav and Shailendra Sharma, contemnors in their respective affidavits

emphasised the fact that pursuant to meeting of delegation with the Hon.

Chief Justice, vigilance enquiry was set up by the Hon. Chief Justice while in

the rejoinder affidavit filed by Himanshu Bhatnagar, it is clearly stated that

neither any vigilance enquiry nor any department enquiry was ever ordered

or was pending against him. The oft repeated averments in the affidavit filed

by contemnor Nahar Singh Yadav and Shailendra Sharma are that since they

had made various complaints and pursuant to which vigilance enquiry into

the corrupt practices being indulged in by the officer had been ordered, the

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officer made the complaint pursuant to which contempt proceedings

commenced against him, in order to exert pressure on them to withdraw the

complaints. As stated supra, no such enquiry was either instituted or pending

nor anything was brought on record to prop up the averments that any such

enquiry was ordered by the High Court to look into the corrupt practices of

the officer, it does not appear believable that the officer made the complaint

to counter-act the effect of the complaints made against him by the

contemnors. The contemnors have denied the incident in no delphic terms in

the manner as narrated in the complaint made by the officer but as stated

supra, it is not denied that the contemnors on the day on which incident is

alleged to have taken place, had gone to the court but denied to have

uttered the words attributed to them. As referred to above, contemnor Nahar

Singh Yadav conceded that he had gone to the court and asked the officer to

improve his working. The contemnor Nahar Singh Yadav, has also conceded

to the fact that as a President of the Bar Association, it was his bounden duty

to watch the interest of the litigant and the members of the bar.

Quintessentially speaking, he admitted to have acted as a vigilante in the

interest of the litigant public and the members of the Bar. He has also

confessed to have made various complaints to the District Judge and also to

the High Court against the officer. It admits of no doubt that as a President

of the Bar, it was his bounden duty to have discussed the working of various

courts and to bring to the notice of the District Judge about the working style

and reputation of various judicial officers of the Judgeship but it appears to

us from the facts on record that the contemnor Nahar Singh Yadav has

exceeded the bounds of his duties as a president in interfering with the

working of courts inasmuch as by entering the court which was in the midst

of hearing of case and by asking the presiding officer to improve his working.

Before we proceed further, we would like to draw attention to the

various circulars including C.L. No. 83/ve-58 dated 28

th

Oct 1980 and C.L.

No. 85/Ve-58 Admn. (G) dated 26

th

Dec 1981. The relevant portion of the

said circular is excerpted below.

“Monthly meeting of all the Presiding Officers of Civil and

Criminal Courts.- Once in two or three months the

President and the Secretary of the District Bar Association

should also be invited to the monthly meeting of the

Presiding officers for discussing matters touching the Bench

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and the Bar.”

By referring the circular aforesaid, we intend to say that if any members of

the Bar has any grievance, he could have the matter discussed in the

monthly meeting through the Secretary and President of the Bar. Even if it be

admitted that the contemnor Nahar Singh Yadav was concerned with the

rampant corrupt practices being indulged in by the various officers including

the referring officer and it is on record that he brought the matter to the

notice of the District Judge and also met the Chief Justice with a delegation,

it was not open for him to have gone to the court and to have interrupted the

judicial work and further to have asked the judicial officer in the open court

to improve his working. This conduct of the contemnor , it leaves no manner

of doubt, was an act which amounted to interference with the due course of

administration of justice and also an act undermining the dignity of court

amounting to criminal contempt under section 2 (C ) of the Contempt of

Court Act, 1971.

The next aspect to be considered is whether the contemnors uttered

the words as alleged in the complaint. In this connection, the words uttered

by the contemnors are being reproduced below. The contemnor Shailendra

Sharma is alleged to have caught hold of the hands of Sri Himanshu

Bhatnagar C.J.M while contemnor Nahar Singh Yadav is alleged to have tried

to bolt the door of the chamber. The contemnor Nahar Singh Yadav is

attributed to have uttered following words before the officer, as would

appear, could rush back to Dais of the court.

“Tu Mujhe Yahan Nazar Andaz Kar Ke Kam Nahi Kar Payega.

Adhivakta Ke Alva Mere Aur Bhi Bahut Se Dhande Hain. Mera

Yahan Pata Bhi Nahi Payega. Use Jail Vail Say Koi Dar Nahi Hai

Aur Voh To Pahle Kitne Hi Mukdamon Mein Band Ho Chuka Hai.”

The contemnor Shailendra Sharma is attributed to have uttered the following

words.

“Use Kisi Awmanana Ki Karvahi Se Koi Dar Nahin Lagta Uske

Upar 4 Awmanana Ki Karvahi Chl Chuki Hai Jo Aapse Ban pade

Kar Lo.”

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Although both the contemnors have denied to have uttered the words as

ascribed to them and instead took shelter behind the plea that since they

had made complaints citing instances of corrupt practices of the officer, he

was annoyed and prejudiced and hit them at the first instance inventing a

theme which was nothing but a fabric with all false thread. In connection

with this submission, we will have to flash back to recount the sequence of

events. The dispute emanated on fixing surrender application on a later date

and it brooks no dispute that the contemnor Shailendra Sharma wanted early

date demanding at the same-time summoning of case diary. Partly acceding

to the request the officer ordered summoning of the case diary but fixed

21.5.2007. This order it would appear was not relished. It is on record that

after the officer had retired to Chambers, the contemnors followed him in the

chamber and tried to bolt the door and one of the contemnor namely

Shailendra Sharma caught hold of the hands of the officer preventing him

from leaving the chamber but sensing trouble for himself, he immediately

rushed to Dais. In the meantime, Senior Administrative officer upon being

called, came to the rescue of the officer who took away the contemnors from

the court to the chambers of the District Judge. It is also on record that

again the contemnors came back to the chambers and displaying abrasive

behaviour, used un-parliamentary language against the officer which are

excerpted above. While forwarding the complaint of the officer to this Court,

the District Judge has not disputed the sequence of events as narrated in the

complaint. Even if it be assumed that the officer was prejudiced against the

contemnors, the contemnors have not levelled any allegation against the

District Judge being prejudiced to them. At this stage, it may also be recalled

that it is settled position by a catena of decisions that the version of the

presiding officer in such cases is entitled to pre-eminence. In the facts and

circumstances, we have no reason to discredit the version of the officer as

contained in the complaint which was duly forwarded by the District Judge to

this Court and rather, we have no hesitation to hold that the theme set up by

the contemnors is not believable. In the conspectus of the above facts and

also considering the facts on record and regard being had to the over all

circumstances of the case, we are of the considered view that there is

nothing on record to prop up the contentions that the contemnors did not

utter those words while trying to encircle him in the chambers or the incident

did not occur in the manner as enumerated by the officer in his complaint.

It is stated at various places in his affidavit by the contemnor that he

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as a President of the Bar Association had a duty to the litigant public and

also to the members of the Bar to act against the deviant behaviour of the

judicial officers who were indulging in corrupt practices. The contemnors are

lawyers governed by Advocate Act and trained in law. A lawyer has certain

duties towards the court bearing in mind the dignity and prestige of the

court. The sequence of events given by the contemnor itself raises a natural

inference that at the time of incident, the contemnor must have interrupted

the proceedings of the court and uttered words as complained of in the

Reference. The contempt becomes graver when the contemnor is an

Advocate- well trained in law and acquainted with the niceties and intricacies

of legal proceeding and the aura and majesty of law court. Excepting the

counter affidavits, there is nothing on record having complexion of an

apology tendered by the contemnors. The apology tendered is a conditional

one and does not indicate their real contriteness. It is at this belated stage

that they expressed oral apology through their counsel though they were

present. From the counter affidavit, it leaves no manner of doubt that the

contemnors made all out efforts to put the blame on the officers and did not

seem to be repentant for their acts which scandalized the court and

undermined the dignity in the public estimation. The contemnor Nahar Singh

Yadav, was the elected President of the Bar Association at the relevant time.

Being President of the Bar does not confer upon him any unbridled power to

act as a vigilante. We have referred to circular supra in which it is clearly

postulated that the District Judge shall invite President and Secretary of the

Bar to discuss the working of various courts in the Judgeship. In case the

contemnors had any proof against any of the judicial officers indulging in

corrupt practices, instead of acting as a vigilante as they have done in the

instant case, they should have approached the District Judge. It is clearly

stated that they also made complaint to the District Judge. In case they had

made any complaint to the District Judge, they should have waited for the

result. Any deviant behaviour of a judicial officer has to be dealt with on

administrative side. Whenever any complaint is received against any of the

judicial officers, the District Judge looks into the allegations and if he finds

any substance therein, he sends his report to the High Court on

administrative side. Again if there is any substance in the report of the

District Judge the matter is referred to Administrative Committee for

disciplinary enquiry or for vigilance enquiry as the case may be. It cannot be

denied that stern action is taken if any of the judicial officers is found to be

guilty of deviant behaviour or aberration on the basis of the complaint. The

14

District Judge is the head of district judiciary and he acts as a watch-dog qua

the judicial officers posted there. It is his duty to take steps to eliminate

corruption in the Judgeship. In case the District Judge is found wanting in his

duties, he is also dealt with sternly. Be that as it may, the contemnor Nahar

Singh Yadav and Shailendra Sharma have clearly stated in their respective

affidavits that besides the complaint made to the District Judge against the

officer, they also met the Hon. Chief Justice alongwith delegation and

pursuant to their complaint, vigilance enquiry was instituted. The officer in

his rejoinder affidavit has denied the allegations stating that at no stage, any

vigilance or disciplinary enquiry was instituted against him nor any such

enquiry was pending anywhere against him. In this view of the matter, there

appears to be no ring of truth in the contentions/averments of the

contemnors. The contemnors, we are of the considered view, exceeded the

bounds and acted in a manner which was clearly an interference with the

working of the court besides impairing the dignity and majesty of the court.

Before we proceed further, we would like to quip here that if the

judiciary has to perform its function in a fair and free manner, the dignity

and authority of the court has to be respected by all concerned failing which

the very constitutional scheme and public faith in the judiciary would run the

risk of being eroded. Since the contemnor is an Advocate, the matter

requires to be considered with a little more seriousness. An Advocate, we

feel called to say, is not exempt from ordinary disability which the law

imposes and his position is not inviolable and his privileges cannot extend to

interfere with the administration of justice. On the other hand he is expected

to help in sub-serving the course of justice and not impede it in any manner.

A legal practitioner has no doubt his duties towards his client but at the

same time he has equally important duty and obligation upon him to

cooperate with the court in the orderly and pure administration of justice.

Any departure would be construed to be violative and neglecting his duties

and obligations. A lawyer is a person educated and trained in law. The use of

language has to be balanced and in fitness of things within the framework of

the law of the land. He cannot and should not be reckless in the use of

language. There are barriers which must be known to a lawyer and it should

not be crossed. He should not overstep the limits of decency and ethics in

the matter of his behavior towards the court.

In Delhi Judicial Service Association v. State of Gujrat, (1991) 4

15

SCC 406, the Apex Court held as under.

“ The definition of criminal contempt is wide enough to

include any act by a person which would tend to

interfere with the administration of justice or which

would lower the authority of court. The public have a

vital stake in effective and orderly administration of

justice . The Court has the duty of protecting the

interest of the community in the due administration of

justice and so, it is entrusted with the power to commit

for contempt of court, not to protect the dignity of the

Court against insult or injury, but to protect and

vindicate the right of the public so that the

administration of justice is not perverted, prejudiced,

obstructed or interfered with.”

In N.B.Sanghvi v. High Court of Punjab and Haryana (1991) 3 SCC 600

the Apex Court observed as under:

“The tendency of maligning the reputation of Judicial

Officers by disgruntled elements who fail to secure the

desired order is ever on the increase and it is high time

it is nipped in the bud. And, when a member of the

profession resorts to such cheap gimmicks with a view

to browbeating the Judge into submission, it is all the

more painful. When there is a deliberate attempt to

scandalize which would shake the confidence of the

litigating public in the system, the damage caused is

not only to the reputation of the concerned judge but

also to the fair name of the judiciary. Veiled threats,

abrasive behaviour, use of disrespectful language and

at times blatant condemnatory attacks like the present

one are often designedly employed with a view to

taming a Judge into submission to secure a desired

order. Such cases raise larger issues touching the

independence of not only the concerned Judge but the

entire institution. The foundation of our 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

realize 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. Judicial independence

was not achieved overnight. Since we have inherited

this concept from the British, it would not be out of

place to mention the struggle strong-willed judges like

Sir Edward Coke, Chief Justice of the Common Pleas,

and many others had to put up with the Crown as well

as the Parliament at considerable personal risk. And

when a member of the profession like the appellant

who should know better so lightly trifles with the much

endeared concept of judicial independence to secure

16

small gains it only betrays a lack of respect for the

martyrs of judicial independence and for the institution

itself. Their sacrifice would go waste if we are not

jealous to protect the fair name of the judiciary from

unwarranted attacks on its independence.”

The foundation of judicial system which is founded 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, the much cherished judicial independence which is of

vital significance to any free society has to be protected not only from the

executive or the legislature but also from those who are an integral part of

the system. The tendency of browbeating the judicial officers into submission

is on the increase and when there is deliberate attempt to scandalize, it not

only shakes the confidence of the litigating public in the system but causes

damages to the reputation of the presiding judge and brings disgrace to the

fair name of the judiciary.

A Judge or Magistrate has a duty to discharge his judicial functions and

he passes order in the manner as he likes fit to the best of his capability in

the facts and circumstances of the case. The courts cannot be intimidated to

seek favourable orders or to make the court run on his dictate. In the

present case, the conduct of the contemnor amounts to intimidating the

court and lowering the authority and it clearly amounts to interference with

due course of judicial proceedings which were being conducted by the

Presiding officer. The power of the High Court of superintendence and control

over the subordinate judiciary under Article 235 of the Constitution includes

within its ambit the duty protect members of the subordinate courts. In the

above conspectus, the charge related to criminal contempt framed against

the contemnor is fully established.

In the above conspectus, we have no hesitation to say that the

charges of criminal contempt established against a practising lawyer cannot

be taken lightly who carries the trapping of an officer of the Court whose

duty is to assist the Court and uphold the majesty of law and dignity of the

person manning the court. No judicial system can tolerate such ignoble act

and conduct of a practising Advocate. The crucial question that remains is

what would be the appropriate punishment to the contemnor.

Now we come to deal with the apology whether it commends itself to

17

be accepted or not. Before we proceed further, we would also not flinch from

saying that the apology is not to be used as a weapon of defence forged

always to be used as a shield to protect the contemnor as a last resort. It is

intended to be evidence of real contriteness. The apology, in order to dilute

the gravity of the offence, it has repeatedly been ruled in catena of decisions,

should be voluntary, unconditional and indicative of remorse and real

contrition and it should be tendered at the earliest opportunity. We have to

administer caution to ourselves that we should not be inveigled into

accepting apology from those who are addicted to using contemptuous

language and making scurrilous attacks and have to their discredit, earlier

instance of misfeasance.

The decision of the Apex Court in Preetam Pal v. High Court M.P.

1993 (1) SCC 529 being relevant on the point under discussion is excerpted

as under:

“To punish an advocate for contempt of court, no

doubt must be regarded as an extreme measure, but

to preserve the proceedings of the courts from being

deflected or interfered with, and to keep the streams

of justice pure, serene and undefiled, it becomes the

duty of the court though painful to punish the

contemnor in order to preserve its dignity. No one

can claim immunity from the operation of the law of

contempt if his act or conduct in relation to court or

court proceedings interferes with is calculated to

obstruct the due course of justice.”

Reverting to the case in hand, we are of the firm opinion that the

apology tendered by the contemnors does not exude bona fide or manifest

genuineness ostensibly for the reasons that the apology has been tendered

at a stage when the contemnor sensed that their goose was cooked. Besides,

the apology is a conditional one. As stated supra, the contemnors set out

their own version referring to various acts of omission and commission by

the presiding officer and lastly stated that the officer has made reference

actuated by malice against them. It does indicate their tenacious attitude. It

is borne out from the record that the officer after being manhandled by the

contemnors, rushed to Dais and sent for Senior Administrative Officer. The

Senior Administrative Officer, it would appear from the letter of the District

Judge, apprised the District Judge who immediately sent the Senior

Administrative Officer to summon the delinquent Advocates. The advocates it

is further reported, were brought to the chamber of District Judge where it is

18

further reported, the District Judge pursuaded them not to indulge in any

indecent behaviour to the officer at the same time, assuring the Advocates

that he would look into the matter and asked them to return to their seats. It

is further reported that instead of going back to their seats, the contemnors

again reached the chamber of the Presiding officer and indulged in acts of

contempt uttering words as quoted above which were not only disrespectful

but manifested their aggressive behaviour. By their conduct, the contemnors

created obstacle in the functioning of the court and therefore, it leaves no

manner of doubt in our mind that the conduct of the contemnors interfered

with due course of administration of justice, undermining the dignity of

court. It is in this conspectus, we feel compelled to say that the apology

submitted by the contemnors does not seem to inspire a real contriteness on

their part but we have no hesitation to say that it has been used as a useful

tick to lean on by the contemnors to screen themselves from the rigours of

law. The Apex in the aforesaid judgment in M.S.Singhvi has rightly observed

that the incidence of contempt is ever on the increase. There is a felt need to

curb such incidence. To cap it all, the majesty and dignity of the court has to

be preserved. It should not be forgotten that frequent attacks on the dignity

of the courts would shake the very foundation of the judiciary. The courts

have to perform judicial functions in responsible yet disagreeable ambiance

and they require utmost protection. The attack made on presiding officers

disparaging in character and derogatory to their dignity would vitally shake

the confidence of the public in efficacy of the courts. The vitriolic attacks

made on the officer were much more than mere insult and in effect they

scandalized the court in such a way as to create distrust in the popular mind

and impair confidence of the people in court. The administration of justice

must remain independent, clean, fearless and impartial. If an Advocate uses

the vile of browbeating the Presiding officer by his toxic vitriolic attack, it is

indeed disquieting and should not be viewed with equanimity.

In L.D. Jaikwal v. State of U.P., [ 1984] 3 SCC 405, the Apex

Court described the apology as a 'paper apology and r

refused to accept it in the following words:

“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

19

empty apology which costs him practically

nothing. If such an apology were to be accepted,

as a rule, and not as an exception, we would in

fact be virtually issuing a 'license' 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, and 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.”

In the above perspective, it cannot be ruled out that the contemnors

set up the entire theory in order to save their skin. In this view of the matter,

the apology offered does not commend to us for acceptance and it is turned

down.

Before bidding adieu, we would like to refer to certain facts which

relate to past conduct of contemnor Nahar Singh Yadav. In the rejoinder

affidavit filed by Sri Himanshu Bhatnagar, it is clearly stated that the

contemnor was involved in the incident which had taken place on 5.8.1991 in

which he flung chair at Sri A.K.Srivastava, the then District Judge Ghaziabad

who was later on elevated as Judge, High Court Allahabad. The incident, it is

further averred, was referred to the High Court by means of Reference. It is

further averred that as a sequel to the incident, the contemnor Nahar Singh

Yadav was arrested and detained under National Security Act besides being

suspended from membership of the Bar. It is further averred that after the

incident which occurred with the C.J.M on 17.5.2007, the contemnor

repeated his intemperate performance in the court of Addl. Civil Judge (S.D.)

Ghaziabad on 6.7.2007 and again the reference was made to this Court. We

have also examined the supplementary counter affidavit sworn on 6

th

Jan

2010 i.e. much after the rejoinder affidavit of Sri Himanshu Bhatnagar and it

is clear that the contemnor Nahar Singh Yadav has not refuted the facts

mentioned in para 4 of the rejoinder affidavit.

20

Both the contemnors have laid much emphasis on the date mentioned

in the letter of District Judge forwarding the complaint. Although the

emphasis is of insubstantial nature, still we have scrutinized the letter in

order to ascertain the true position. It is stated that the D.O. Letter bears

date 11.5.2007 while the incident is stated to have taken place on

17.5.2007. From a close scrutiny of the letter of the District Judge, it clearly

transpires that the District Judge while signing the letter has also mentioned

the date as 17.5.2007 and it appears that on account of some inadvertence,

the date 11.5.2007 as mentioned at the top in the letter.

The next argument advanced relates to finding recorded by the

Disciplinary Committee of the U.P. Bar Council. Suffice it to say that the

findings recorded by the Disciplinary Committee are not binding.

As a result of foregoing discussion, the reference made to this Court is

allowed and the contemnors namely Shailendra Sharma and Nahar Singh

Yadav Advocates are held guilty of criminal contempt.

We accordingly convict them under section 2 (c ) of the Contempt of

Courts Act and sentence each of them to undergo simple imprisonment for

six months and to pay a fine of Rs. 20,000/-each with default stipulation for

one month simple imprisonment. However, the punishment so imposed shall

be kept in abeyance for a period of sixty days so as to enable the contemnor

to approach the Apex Court if so advised. It needs hardly be said that

immediately after expiry of sixty days in case no stay order is furnished by

the contemnors, they would be taken into custody forthwith to serve out the

sentence immediately.

The matter shall be listed before this Court in the third week of May

2010 for ensuring compliance.

MH

Feb 16,2010