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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