In Re: Vinay Chandra Mishra: Case of Criminal Contempt of the Court

 

Vande Matram! Here a case regarding professional misconduct of an advocate is discussed.

In Re: Vinay Chandra Mishra

Equivalent citations: AIR 1995 SC 2348, 1995 (1) ALT Cri 674, 1995 CriLJ 3994, (1995) 2 GLR 992, JT 1995 (2) SC 587, 1995 (2) SCALE 200, (1995) 2 SCC 584, 1995 2 SCR 638, 1995 (2) UJ 93 SC

Bench: K S Verma, P Sawant

Acts: Article 129, 215 of Constitution of India, Contempt of Courts Act, 1971, Advocates Act, 1961, Bar Council of India Rules, Code of Civil Procedure

Facts of the case:

1) Letter of Justice S. K. Keshote of the Allahabad High Court to Acting Chief Justice of that Court: As per this letter:

a) V.C. Misra had misbehaved with the learned judge when he was sitting with Justice Anshuman Singh.

b) The matter of M/s. Bansal Forgings Ltd. v. U.P.F. Corp. was filed by S. V. Misra. The said case was initiated because Bansal Forgings made default in payment of instalment of the loan taken from UPF Corp. Trial Court passed an order that the company shall pay the amount of instalment and it will furnish also security for the disputed amount.

c) To challenge the order of trial court, the said matter was filed before the high court. During argument learned judge asked the question to Shri Misra under which provision this order has been passed. On asking the question Misra started shouting and threatening the Judge alongwith abusive language.

d) Mr. V C Misra was senior advocate, President of Bar and chairman of Bar Council of India. Justice S K Keshote was the one who deciding the cases on the merits.

e) The Acting Chief justice Shri V.K. Khanna forwarded the said letter to the then Chief Justice of India and on the basis of that letter Chief Justice of India constituted this special bench to hear that matter. The said matter is violation of duties towards court by an advocate.

Pleadings of Contmner:

1) In this case Adv V C Misra is contmener and he filed his reply by affidavit and an application seeking discharge of show cause notice.

2) As per contemner, in the matter of Bansal forgings, The Civil Court granted the injunction against putting the assets to sale, but at the same time directed furnishing security for the amount due. Being aggrieved by the condition of furnishing security, Bansal forgings approached High Court against the portion of the order directing furnishing of security. As per contemner the order was passed under various rules of Order 39 of CPC. So the applicant judge was going to set aside the entire order, against a portion which was challenged by contemner, because in view the Judge, the Lower Court was not competent to pass such an order as Order 39 did not apply to the facts. It was not the practice in this Court to dismiss cases without hearing or to upset judgments or portions of judgments, which have not been appealed against. But still the applicant Judge in this matter directed the stenographer to write an order to set aside the judgment of lower court completely. But on the directions of Hon'ble Justice Anshuman Sing, the said matter to be listed before some other Bench.

3) As per contmener the applicant judge never wanted to be posted in Allahabad High Court. Contemner denied that he had not questioned the jurisdiction of the Court to ask any question in any matter. Also he denied that he abused the applicant judge. He is having practice of 35 years and is having responsible status as member of Bar. Senior Judge has to initiate the proceedings under Article 129 of Constitution on India. But the proceedings were initiated by applicant judge which is violation of statute. As per contemner the language used by applicant judge amounted to contempt by a Judge punishable under Section 16 of the Contempt of Courts Act, 1971 as well as under Article 215 of Constitution of India. Contemner further states that he had took a fearless stand, ascertain his right to audience and for the same he is being roughed by the applicant judge. Any punishment to an outspoken lawyer will be a threat to healthy democratic judicial system. He had not been provided the copy of letter of applicant Judge. In short contmener pleaded that he had not gone beyond the legitimate limits of fearless, honest and independent obligations of an advocate and it was Justice Keshote himself who had lost his temper and extended threats to him which was such as would be punishable under Section 16 of the Contempt of Courts Act, 1971.

4) Oswald’s Contempt of Court, III Edition, By Robertson: An advocate is at liberty to combat and contest strongly any adverse views of the Judge or Judges expressed on the case during its argument, to object to and protest against any course which the Judge may take and which the advocate thinks irregular or detrimental to the interests of his client. An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client's case.

5) Contemner filed another petition under Section 16 of the Contempt of Courts Act, 1971.

6) Contemner was given a time of 4 weeks to file the additional reply in which he objected for the jurisdiction by the Court to punish for an act of contempt committed in respect of another Court of record which is invested with identical and independent power for punishing for contempt of itself. In his view, the matter be placed before the Constitution Bench and that notice be issued to the Attorney General of India and all the Advocate General of the States. Also, the statement of Justice Anshuman Singh who was the senior Judge on the Bench before which the incident took place, would also be necessary.

7) In next hearing contemner filed an unconditional apology. As per this apology he had resigned from the post of the President of the High Court Bar Association and from the post of the Chairman of the Bar Council of India. Both are elective posts which show the respect of his colleagues towards him. Further through this apology he withdraw all his applications, petitions, counter affidavits, and prayers made to the court earlier to the presented regarding the matter. And the matter will be rest with this apology and the supporting statements for this.

Pleadings of Applicant Judge:

1) Applicant judge denied that he initiated the proceedings of the case. He questioned the contemner as he was member of bench and having right to question the counsel. In response contemner shouted on the judge and contemner said many more things as already mentioned by him in his letter. Contemner created a scene which made it difficult to continue the court proceedings and he requested his learned brother on the Bench to list that case before another Bench and to retire to the chamber.

2) For the allegation of setting aside the entire order of lower court the applicant judge submitted that he neither made any such statement nor conveyed to the contemner as suggested by him. It was a case where the contemner did not permit the court proceedings to be proceeded and both the Judges ultimately had to retire to the chambers. It was a case where the contemner lost his temper on the question being put to him. In a Divisional Bench, it is the senior member who dictates order/judgments. Applicant judge denied regarding all the dialogues which are written in counter affidavit as pronounced by him regarding his posting and other things.

Observations and opinion of Bench:

1) Prima facie it is case of criminal contempt of court committed by Mr. V C Misra (contemner) and a notice is issued against him to show cause why contempt proceedings be not initiated against him. Solicitor General of India was requested to assist the Court in the matter.

2) After going through affidavit and application of contmener, hearing him and his counsel in person, perusing his counter affidavit Court find that it was a fit case where criminal contempt proceedings be initiated against the contemner. Court directed to initiate the proceedings against contemner and gave him fair chance to submit any other material regarding the matter including affidavit of any other person. Court dismissed his application for discharge of notice.

3) Contemner desired to withdraw his second petition under Section 16 of Contempt of Courts Act, 1971. Court dismissed the same.

4) Regarding the apology of the contemner the Court stated that it may not be inclined to accept the apology as tendered.

5) State Bar Council in its statement raised objection that Article 129 vests this Court with the power to punish only for the contempt of itself and not of the High Courts. Secondly, the High Court is also another court of record vested with identical and independent power of punishing for contempt of itself. The contention ignores that the Supreme Court is the highest Court of record, and charged with the duties and responsibilities of correcting the lower courts and tribunals and of protecting them from those whose misconduct tends to prevent the due performance of their duties. As per Article 129 and 215, both the Supreme court as well as High Courts respectively are courts of record having powers to punish for contempt including the power to punish for contempt of itself.

6) Court rejected the request of contemner to refer the matter to larger bench. Because contemner was not able to point out any specific infirmity in the said decision that the matter being heard by this Bench – smaller bench of the Court.

7) Regarding the request to cross examine the learned judges of the bench of high court: The learned judge or the Bench could have itself taken action for the offence on the spot. Instead, the learned Judge probably thought that it would not be proper to be a prosecutor, a witness and the judge himself in the matter and decided to report the incident to the learned Acting Chief Justice of his Court. Dragging out the contempt proceedings means a lengthy interruption to the main proceedings which paralyses the court for a time and indirectly impedes the speed and efficiency with which justice is administered.

8) The statement of the learned Judge has already been furnished to the contemner and he has replied to the same. We have, therefore, to proceed by treating the statement of the learned Judge and the affidavits filed by the contemner and the reply given by the learned Judge to the said affidavits, as evidence in the case.

9) Definition of Criminal Contempt: "criminal contempt" means the publication [whether by words, spoken or written, or by signs, or by visible representations, or otherwise] of any matter or the doing of any other act whatsoever which - [i] scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or [ii] prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or [iii] interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

10) In this case, it is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and the intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the court and to threaten and obstruct the course of justice. There is every reason that the contemner had undoubtedly tried to browbeat, threaten, insult and show disrespect personally to the learned Judge.

11) It is obvious that the contemner was incensed by the fact that the learned Judge was asking the questions to him. This is clear from his contention that the learned Judge being a junior member of the Bench, was not supposed to ask him any question and if any questions were to be asked, he had to ask them through the senior member of the Bench because that was the convention of the Court. We are not aware of any such convention in any court at least in this country. Assuming that there is such a convention, it is for the learned Judges forming the Bench to observe it inter se. No lawyer or a third party can have any right or say in the matter and can make either an issue of it or refuse to answer the questions on that ground. The leaned Judge's version, therefore, appear to be correct when he states that the contemner lost his temper when he started asking him questions.

12) Cases are won and lost in the court daily. One or the other side is bound to lose. The remedy of the losing lawyer or the litigant is to prefer an appeal against the decision and not to indulge in a running battle of words with the court.

13) If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs.

Power to punish:

1) As per Section 35 and 36 of Advocates Act, 1961, the power to punish a lawyer is vested in Disciplinary Committee of bar councils.

2) The Supreme Court is denuded of its power to impose such punishment both under Articles 129 and 142 of the Constitution. In support of this contention, reliance was placed on the observations of the majority of this Court in Prem Chand Garg v. Excise Commission, U.P., Allahabad [1963] Supp. 1 S.C.R. 885 relating to the powers of this Court under Article 142 which are as follows: “In this connection, it may be pertinent to point out that the wide powers which are given to this Court for doing complete justice between the parties, can be used by this Court for instance, in adding parties to the proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in allowing an new point to be taken for the first time. It is plain that in exercising these and similar other powers, this Court would not be bound by the relevant provisions of procedure if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties.”

3) Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court is in seisin of a matter before it, it has power to issue any order or direction to do complete justice in the matter, as opined in  Harbans Singh v. State of U.P. Also in many judgments of Supreme Court it was observed that statutory provisions cannot override the constitutional provisions.

4) This Court while exercising its power under Article 142(1) would not even be entitled to reprimand the Advocate for his professional misconduct which includes exhibition of disrespect to the Court as per Rule 2 of Section 1 of Chapter II of Part VI of the Bar Council of India Rules made under the Advocates Act, which is also a contempt of court, since the reprimand of the advocate is a punishment which the disciplinary committees of the State Bar Council and of the Bar Council of India are authorised to administer under Section 35 of the Advocates Act. The disciplinary jurisdiction of the State Bar Council and the Bar Council of India to take action for professional misconduct is different from the jurisdiction of the courts to take action against the advocates for the contempt of court.

5) When the Constitution vests this Court with a special and specific power to take action for contempt not only of itself but of the lower courts and tribunals, for discharging its constitutional obligations as the highest custodian of justice in the land, that power is obviously coupled with a duty to protect all the limbs of the administration of justice from those whose actions create interference with or obstruction to the course of justice.

Punishment:

1) Court found the contemner guilty of the offence of the criminal contempt of the Court for having interfered with and obstructed the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language, and convict him of the said offence. As he is senior advocate and held various posts in bar, an exemplary punishment has to be meted out to him.

2) The contemner shall stand suspended from practising as an advocate for a period of three years from today with the consequence that all elective and nominated offices/posts at presents held by him in his capacity as an advocate, shall stand vacated by him forthwith.

3) The contemner is sentenced to undergo simple imprisonment for a period of six weeks. However, in the circumstances of the case, the sentence will remain suspended for a period of four years and may be activated in case the contemner is convicted for any other offence of contempt of court within the said period.

Conclusion:

A lawyer has to be a gentlemen first. His most valuable asset is the respect and goodwill he enjoys among his colleagues and in the Court. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs.

Though Advocates Act 1961 empowers only Disciplinary Committee to punish an advocate, jurisdiction of Supreme Court to punish can not be restricted by ordinary laws. As under Article 32 and 136 of Constitution the Supreme Court is conferred for proper administration of justice.

Criminal contempt of the Court may cause imprisonment alongwith suspension from practice.

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