: 1 : Suomotu.4.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION SUO MOTU CONTEMPT PETITON NO.4 OF 2008 High Court on its own Motion ...Petitioner Versus Mr.N.B.Deshmukh, residing at 314/7, Joy House, Jawahar Nagar, Road No.17, Goregaon (West), Mumbai - 400 062. Having his Office at P.No.152, Roopam Building, Opposite Jain Sweet House, Jawahar Nagar, Goregaon (W), Mumbai - 400 062. ...Respondent/Contemner ...... Mr.N.B.Deshmukh- Respondent/contemner in-person. Mr.A.G.Damle for Bar Council. Mr.K.V.Saste, A.P.P. for State. ...... CORAM:-A.M.KHANWILKAR AND P.D.KODE, JJ. JUDGMENT RESERVED ON : OCTOBER 5, 2010. JUDGMENT PRONOUNCED ON : DECEMBER 21, 2010. JUDGMENT (PER A.M.KHANWILKAR, J.) :
1. This Suo Motu contempt action is initiated on the basis of the order of the learned Single Judge of this Court, in relation to an incident when ::: Downloaded on - 09/06/2013 16:42:55 ::: : 2 : Suomotu.4.08 the Respondent/Contemner allegedly committed contempt on the face of the Court. The order on the basis of which this Suo Motu action is commenced is dated October 10, 2008, which reads thus:
This Court is seized of judicial work which has been assigned in accordance with the roster of work issued under the directions of the Hon'ble the Chief Justice. At 3 p.m. today, an Advocate by the name of N.B.Deshmukh, appeared in Court and sought to interrupt the course of the proceedings by insisting that this Court should take up his matter forthwith. He informed the Court that he had attempted to mention the matter before other Learned Judges (the Hon'ble the Chief Justice, Hon'ble Shri Justice J.N.Patel, Hon'ble Shri Justice F.I.Rebello and Hon'ble Shri Justice D.K.Deshmukh) and that he has thereafter appeared before this Court. The matter did not appear to pertain to the work which has been assigned to this Court under the roster of work. The Advocate persisted in insisting that this Court is duty bound to take up his matter though he was informed that the case was not on Board and did not pertain to the assignment of this Court. The Advocate used language in the Court which was most improper; he was obstructive and rowdy. Repeated opportunities were given to the Advocate to desist from taking recourse to such unruly and obstructive behaviour, but he persisted in dislocating the even course of the proceedings. The behaviour of the Advocate in the Court has been rowdy; he has used language about the Court and about the Judges of this Court which is improper and his entire behaviour is manifestly against the decorum of the Court. Prima facie, I am of the view that the behaviour of the Advocate in the Court amounts to a contempt of Court. The Court is, therefore, constrained to direct that a notice be issued to Shri N.B.Deshmukh, Advocate, calling upon him to show cause as to why steps should not be taken against him under the Contempt of Courts Act, 1971 for disturbing the Court's proceedings by acting in an obstructive, rowdy and inappropriate manner and using language which is inappropriate to the discourse before the Court. The notice shall be returnable after four weeks and may be placed by the Registry before the appropriate Bench in accordance with the roster of work." (emphasis supplied)
2. Pursuant to the abovesaid order, the Office issued notice to the ::: Downloaded on - 09/06/2013 16:42:55 ::: : 3 : Suomotu.4.08 Contemner dated 10th October 2008, which was duly served on him. The same reads thus:
"Whereas Civil Application No.205 of 2003 in writ petition No.; 2054 of 1997 was placed before the Court and the Court (Coram: Dr.D.Y.Chandrachud, J.) has on 10/10/2008 passed the order that why steps should not be taken against you under the contempt of Courts Act, 1971. As per the above Court's order this Hon'ble High Court has taken this matter on its own motion under the Contempt of Court's Act, 1971.
AND UPON HEARING Mr.N.B.Deshmukh for the Petitioner in the Court and the Court (Coram : Dr.D.Y.Chandrachud, J.) has on 10/10/2008 passed the following order:-
(Note:- the copy of the order attached herewith....) take notice that the High Court has determined to hear the said on or after the 14th day from the date of service of notice on you. You are therefore directed to appear, in person or by an Advocate, in this Court on the said day, or thereafter from day to day, until the disposal of the said Suo-Motu Con.Pt.. to show cause why the action should not be taken against you as per the Contempt of Court Act, 1971.
or such other order made, as to the High Court may deem fit. Should you fail to appear in person or by an Advocate the Court will hear the said Sou-Motu Contempt Petition ex-parte.
Witness Shri Swatanter Kumar, Chief Justice at Bombay, aforesaid, this 10th day of October, Two Thousand Eight.
By the Court, Sd/-
Registrar and Sealer (Judl).
The day of of 200 B.D.Cri.No.15530/08 of 200." (emphasis supplied).
3. Upon service of the said show-cause notice, the Respondent-noticee has filed two affidavits before this Court. The first affidavit is titled as `Affidavit in Defence' dated 28th January 2009, which reads thus:::: Downloaded on - 09/06/2013 16:42:55 :::
: 4 : Suomotu.4.08 "AFFIDAVIT IN DEFENCE
TO THE ALLEGED CHARGRE OF OFFENCE ALLEGED TO HAVE BEEN COMMITTED BY THE ALLEGED CONTEMNOR PRIMA FACIE.
I SHRI NARENDRA BABARAO DESHMUKH the Advocate for the petitioner in the writ petition no.2054 of 1997 the alleged contemnor prima facie in the receipt of the NOTICE u/s 14 of the CONTEMPT OF COURT ACT, 1971 dated 17/12/08 on 20/12/2008 at 5.45 P.M. at my residential address along with the order of Hon,ble Justice SHRI D.Y.CHANDRACHUD DATED 10/10/2008, do hereby state on solemn affirmation as under:
COPY OF THE NOTICE AND ORDER DT.10/10/2008 IS ANNEXED HEREWITH
1) At the outset I plead not guilty of the alleged charge of guilty of the alleged offence of committed the Contempt of the Honourable High Court prima facie as observed and recorded by Hon,ble Justice in the said order dated 10/10/2008 and as such in the inevitable defence of the said alleged charge proceed herewith by narrating the real & true Occurred in the court room presided over by the said Hon,ble Justice D.Y. Chandrachud in the afternoon session on 10/10/2008 and in the High Court;
2) The petitioner through the Advocate for the petitioner in W.P. long pending since 1997 and very long waiting for justice according to law I.E. more than 14 years filed in the High Court THE SEVERE OBJECTION TO THE DATES DISPLAYED ON THE COMPUTER KIOSK AS ACCORDING TO THE SITTING LIST 27/8/2009, C.A./8276/96 date (fixed) 17/3/2010". The true copy of the said SEVERE OBJECTION were furnished urgently on 29/8/2008 itself to Hon,ble Chief justice & to Hon,ble SHRI JUSTICE D.K. DESHMUKH and to the Registrar (judicial-I) and to all the Respondents in the W.P. on 29/8/2008 itself. HERETO ANNEXED IS TRUE COPY OF THE "SEVERE OBJECTION DATED 29/8/2008 bearing the acknowledgements issued by all concerned which is marked as "ANNEXURE-1".
3) Since no steps took by the High Court relating the said severe objection dated 29/8/2008 of the petitioner, the Advocate for the plaintiff petitioner on 10/10/2008 imperatively and diligently attempted to ::: Downloaded on - 09/06/2013 16:42:55 ::: : 5 : Suomotu.4.08 SERVE THE REMINDER OF THE SEVRE OBJECTION DT.29/8/2008 IN THE OPEN COURT PRESIDED OVER BY THE HON,BLE CHIEF JUSTICE, EVEN COURT PRESIDED OVER BY HON,BLE JUSTICE SHRI D.K. DESHMUKH, HON,BLE JUSTICE F.I. REBELLO but could not do so as the Hon,ble C.J. and other named justices were not sitting in their respective courts at the afternoon session on 10/10/2008 ,In the urgency and exigency of the W.P. the Advocate for the petitioner went into the court presided over by Hon,ble Justice Dr.D.Y. CHANDRACHUD who resumed the court at about 3 P.M. and soon on resumption started dictated an order related to some other case and after about 20 minutes later the Advocate for the petitioner with the prior leave of the court mentioned to receive by take on the record for and on behalf of the Hon,ble Chief Justice the REMINDER COPY OF THE SEVERE OBJECTION DATED 29/8/2008 ON 10/10/2008 and whereas since the W.P. was on the date not on the court's daily Board and the W.P.NO.2054/1997 was not assigned as per roster of work the Hon,ble Justice then even directed the staff of the court not to accept the REMINDER OF THE SEVERE OBJECTION DT.29/8/2008, as such the Advocate for the petitioner in the urgency of the matter and in the exigency of the W.P. had to dropped the said REMINDER SEVERE OBJECTION INTO THE COURT; HERETO ANNEXED AND MARKED AS ANNEXURE "2" IS TRUE COPY OF THE NOTES IMMEDIATELY FILED IN THE OFFICE OF THE REGISTRAR (JUDICIAL-I) ON 10/10/2008 itself FOR RECORD SAKE AND EVEN IN THE OFFICE OF THE HONOURABLE CHIEF JUSTICE.
4) Under the circumstances as stated in the earlier para 3 (three) it is just, fair and reasonable to hold in the proper and upright perspective and interest of the proper administration of justice according to law as well as the aim, object and purpose of the constitutional high court recognised, governed and regulated by the supreme Articles 226 and 227 of the CONSTITUTION OF INDIA WHICH IS CONSIDEREDE TO BE AND SUPPOSED TO BE UPRIGHTLY THE MOST EFFECTIVE, SPEEDY EFFICIENT AND COSTLESS WRIT REMEDIES AS SUCH THE ADVOCATE FOR THE PETITIONER HAS COMMITTED NO offence WITHIN THE MEANING OF THE SECTION 2(C) OF THE CONTEMPT OF THE COURT ACT, 1971 AND WHEREAS IT IS UPRIGHTLY REQUIRED TOBE CONSTRUED THAT THE ADVOCATE FOR THE PLAINTIFF BY POINTING OUT THE SEVERE OBJECTION DATED 29/8/2008 assisted in proper administration justice according to the ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA AND SUBSERVED THE ENDS OF JUSTICE IN THE STRICT AND TRUE SENSE AND SPIRIT OF LAW AND JUSTICE ACCORDING TO LAW.::: Downloaded on - 09/06/2013 16:42:55 :::
: 6 : Suomotu.4.08 5) Pertinently and uprightly "MENTIONING BEFORE THE
COURT" the upright privilege conferred on the Advocates for the petitioner by the sound, sensible fair rule of practice is rightly in the right sense and uprightly exercised with due diligence and carefully, Bonafidely not malafidely without any intention to scandalise or tend to scandalise or lower or tend to lower the authority of the High Court but in order to A) Rightly demand the very long 15 yeas in all awaited Writ remedies effectively & efficaciously & effectually; B) and demand the disposal of writ petition as a matter of constitutional right governed and as recognised by the Articles 226 & 227 of the CONSTITUTION OF INDIA AND THE CONSTITUTIONAL COURT.
6) IN THE COURSE OF MENTIONED BEFORE HON,BLE JUSTICE D.Y. CHANDRACHUD the ADVOCATE FOR THE PETITIONER DID MENTIONED AS UNDER; A) B) Are we dogs, are we pakisthanis ? Don,t treat us animals C) H.C. has no right to destroy the life of the petitioner, D) are we running water in our nerves and others blood,? E) are we going to get justice in this life or note ? F) Reminders to the Chief Justice is an ass work the on the part of Advocate for the petitioner; G) Salman khan case get quick (disposal) Justice. (why so much long delay in our W.P. for 15 years in all) H) Responsibility of the Justice of High Court is as a whole.
These are the true, real purely natural feelings and the expressions caused to be generated in the mind of the Advocate for the petitioner as a purely natural human being and solely generated naturally by THE VERY LONG DELAY OF 15 YEARS IN ALL CERTAINLY EVEN UNSUSTAINABLE BY RULE OF LAW JUSTICE ACCORDING TO LAW, WRIT PETITION GOVERNED by ARTICLES OF THE CONSTITUTION LIKE ARTICLES 14, 19, 21, 141, 144, etc. OF THE CONSTITUTION OF INDIA THE LAWFUL LEASE DETERMINED IN FAVOUR OF, IN THER NAME OF AND FOR THE BENEFITS AND LEGAL ENTITLEMENTS OF THE PETITIONER"S CO-OPERATIVE HOUSING SOCIETY WHOLLY EXCLUSIVELY IN REM VOLUNTARILY IRREVOCABLY PEACEFULLY WITH THE LEASE PURPOSE OF RESIDENTIAL USE OF PLOT OF LAND LEASED TO THE PETITIONER CO-OPERATIVE HSG. CSY (PROPOSED) AND BEFORE THE MANDATORY STATUTORY DUTIES AND OBLIGATIONS AND LIABILITIES AS SADDLED AND CAST ON THE SATURILY GOVT. LESSOR BY THE MANDATORY STATUTORY PROVISIONS OF THE SECTIONS 38, 39, 149, 156, 328, 2(11) OF ::: Downloaded on - 09/06/2013 16:42:55 ::: : 7 : Suomotu.4.08 THE MAHARASHTRA LAND REVENUE CODE, 1966 AND DISPOSAL OF GOVT. LANDS RULES r/w the rules 35, 50, 42(3) etc. These mentioned para 6(A) to (G), (H) herein within has direct requisited relevance with the points and position involved in the writ petition no.2054/1997 and are intended bonafidely and not malafidely and without any intentions to COMMIT THE OFFENCES AS STATED WITHIN THE PROVISIONS OF THE SECTION 2(C)(i)(ii)(iii) OF THE CONTEMPT OF THE COURT ACT, 1971 AND ARE INTENDED FOR CONTEMPLATION OF THE WRIT COURT WITH REFERENCE TO THE CONTENTS OF THE WRIT PETITION AS WELL AS AFFIDAVTS AND PRAECIPE FILED IN THE WRIT PETITIONS FROM TIME TO TIME AND MEANT FOR ISSUING THE WRIT OF MANDAMUS AND THESE MENTIONED IN THE PARA 6(A) TO (G)(H) ARE REQUIRED TO BE STRICTLY CONSTRUED WITH REFERENCE TO THE STAUTORY LEASE DATED 3/8/1994 OF WHICH THE PETITIONER IN THE W.P. IS GOVT. LESSEE WHOLLY EXCLUSIVELY INH REM IRREVOCABLE LEASE PURPOSE "RESIDENTIAL USE OF PLOT OF LAND" having everything to do with the LIFE LIBERTY AND PROTECTION AS EVEN GOVERNED BY THE ARTICLE 14 & 21 OF THE CONSTITUTION OF INDIA, SCHEME OF THE MAHARASHTRA LAND REVENUE CODE 1966 as is applicable in the writ petition and certainly not to be considered in isolation independently out of the reference to the writ petition and out of the context of the writ petition pending long very long in the high court. AND the Written Arguments dt. 7/8/2001, already filed in the Writ Petition Final Hearing Matter.
IN SUPPORT OF THE SAY THE ADVOCATE FOR THE PETITIONER DO RELY ON AND ADDUCED THE FOLLOWINGS AS THE ANNEXTURES ANNEXTURE "3" AFFIDAVIT OF ADVOCATE FOR THE PETITIONER DATED 2/8/2007; PRAECIPE FROM 2004 TO 3007.
ANNEXTURE "4" AFFIDAVIT OF SERVICE DATED 4/12/2007.
AFFIDAVIT ANNEXTIURE "5" AFFIDAVIT OF SERVICE DATED 10/3/2008 ANNEXTURE "6" AFFIDAVIT OF SERVICE DATED 18/3/2008 PRAECIPE ANNEXURE "7" DATED 10/6/2008 ANNEXTURE "8" 1986 CRI.L.J.365 (ALLAHABAD HIGH COURT) ::: Downloaded on - 09/06/2013 16:42:55 ::: : 8 : Suomotu.4.08 ANNEXTURE "9" AIR 1967 supreme court 1949 (para 14 & 26) ANNEXTURE "10" 1960 Cri.L.J.976 (para 5) ANNEXTURE "11" 2006 ALL MR (Cri) 3288 (PARA 9 & 10) ANNEXTURE "12" COPY OF F.I.R. DATED 2006 & 2007 in the private complaint filed in the honourable session court which is registered as MISC. APPLICATION DATED/NO.417/07. (Subject to exclusive jurisdiction of Sessions Court) ANNEXTURE "13" COPY OF THE ORDER OF HON,BLE PRINCIPAL SESSIONS JUDGE DT. 7/7/2007. for reference AND WITHOUT PREJUDICE TO THE EXCLUSIVE JURISDICTION OF THE HONOURABLE SESSIONS COURT.
ANNEXTURE "14" TRUE COPY OF THE PRIVATE COMPLAINT U/S.
200 OF THE CR.P.C. WHICH IS REGISTERED AS MISC.APPLICATION NO.417/07 SUBJECT TO EXCLUSIVE JURISDICTION OF THE HON,BLE SESSIONS COURT.
7) INCIDENTALLY AND PERTINANTLY it is required to be noted here that pursuant to the said SEVERE OBJECTION DATED 29/8/2008 THE AS MENTIONED ON 10/10/2008 IN THE COURT OF HON,BLE JUSTICE SHRI DR.D.Y. CHANDRACHUD & EVEN IN THE OFFICE OF THE HON,BLE CHIEF JUSTICE AND THE JUDICIAL REGISTRAR-I the Honourable High Court placed the writ-petition no. 2054/1997 for FINAL HEARING HERETO ANNEXED ANNEXTURE "15" IS COPY OF THE ORDER Dated 12/11/2008.
8) In the matter of rowdy behavior It is being stated that in the month of OCTOBER 2008 I.E. Dt.10/10/2008 time about 3 P.M. the Advocate's voice is bound to be on high tone due to very hot climatical conditions & the speaker was also set on highest tone setting and under the given circumstances as specially narrated in the para 6(six) herein above is reasonably bound to be aggrieved sensibly. Our acts and activities must be in confirmity with the era we live. The 15 years period is caused irreparable injury to life related activities developments achievements peace progress prosperity all in all. UNDER ANY CIRCUMSTANCES "CONTRACT" WHICH IS CONSIDERED TO BE USED AS LETHAL WEAPON OF ATTACK ON LIFE, life related activities developments, achievements peace progress prosperity alround. SUSTAINED POSSESSION WITH HARM HURT BLOW BOLT ::: Downloaded on - 09/06/2013 16:42:55 ::: : 9 : Suomotu.4.08 INJURY IS DISCOURAGED BY INDIAN COURT AND INTRODUCED THE CONCEPT OF QUIET PEACEFUL ENJOYMENTS OF POSSESSION & PROSPERITY BENEFICIALLY IS WELL SETTLED AND RECOGNISED BY ALL INDIAN COURTS. Under the circumstances it is clear beyond reasonable doubt that the Advocate for the petitioner is not deserved, justified and liable to be held as guilty of the offence of the contempt of the high court as alleged as the duties are discharged towards constitutional, court and Constitution of India itself and therefore the Advocate for the petitioner is requiredly by the nature and demand of the circumstances and facts of the case warranted to be held as not guilty of the offence alleged as covered by the section 2(c) of the contempt of the court Act, 1971. Therefore the Advocate for the petitioner prays for the following relief.
PRAYERS AND RELIEF A) IT BE HELD WARRENTEDLY AND REQUIREDLY THAT the Advocate for the petitioner is not held guilty of the offence as covered by section 2(c) of the contempt of the court Act, 1971.
B) The alleged contempt proceedings & processes of the court be dealt with and disposed off finally summarily at once.
PLACE - MUMBAI DATE :- 28/JANUARY/2009. THE ADVOCATE FOR THE PETITIONER THE ALLEGED CONTEMNOR VERIFICATION I SHRI NARENDRA BABARAO DESHMUKH the Advocate for the petitioner in the writ petition the alleged contemnor do hereby state on solemn affirmation that what is stated in the paras 1 to 9 herein above within is true to my knowledge and I believe the same to be true.
SOLEMNLY AFFIRMED ON THIS 28TH DAY OF JANUARY, 2009 AT MUMBAI." (emphasis supplied by the Petitioner in the original affidavit) ::: Downloaded on - 09/06/2013 16:42:55 ::: : 10 : Suomotu.4.08
4. The second affidavit is filed as Supplementary Affidavit in Defence dated 1st April 2008, which reads thus :
"SUPPLEMENTARY AFFIDAVIT IN DEFENCE I SHRI NARENDRA BABARAO DESHMUKH the Advocate for the petitioner in the writ petition no.2054 of 1997 the alleged contemnor prima facie do hereby state on solemn affirmation as under ;
1) It is proved beyond all reasonable doubt in the Affidavit evidences of defence dated 28/1/2009 that there was no Interference in the administration of justice on 10/10/2008.
2) Further as per the provided within the section 8 (eight) of the Contempt of court Act, 1971 it is being stated that;
A) Demanding the long awaited & pursued Disposal of the writ petition no.2054 of 1997 on the basis of the provisions of the Articles 226 & 227 of the constitution of India by rendered duly remedy injury without caused Any prejudice injury or detriments to the constitutional writ petitioner and render effective supervisions & controls by the writ court & even protect preserved and maintained and enforced the statutory rights, statutory duties obligations & liabilities of the constitutional writ petitioner THE GOVT. LESSEE ON SINCE 3/8/1994, certainly can not be held by any stretch of imagination under the prevailing circumstance of long drawn IN ALL ABOUT 16 (SIXTEEN) YEARS AS CONTEMPT OF COURT. as alleged apparently.
B) The privileged prerogative power of the Hon,ble High Court under Articles 226 & 227 of the constitution of India are not merely & purely of `DISCRETION' but the such DISCRETION IS COUPLED WITH SOLEMN SUPREME CONSITUTIONAL DUTY OBLIGATION AND LIABILITIES towards the constitutional writ petitioner to disposed of the writ petition Without delay with the recognized & introduced the test of fairness & reasonableness & the right of speedy & time bound justice within the provisions of the Articles 226 of the Constitution of India amounting to `DUE AND FAIR ADMINISTRATION OF JUSTICE ACCORDING TO LAW BY THE COURT OF LAW & JUSTICE. Even the discretion vested in the court ought must be exercised discreetly, just, fairly reasonably judiciously & ::: Downloaded on - 09/06/2013 16:42:55 ::: : 11 : Suomotu.4.08 judicially & not otherwise to the injury prejudice or detriments to the statutory rights, duty, obligation & liabilities of the petitioner and Govt. Lessee on since 3/9/1994. duly cast & saddled on the petitioner Govt. Lessee by the section 38,39,149, 156, 327.328, 2(11)(12)(13) To pay the land revenue & lease Rent incidentally & ancillarily as per the MAHARASHTRA LAND REVENUE CODE 1966 subject to struck off the condition no.7 to 11 and 15 Of the instrument of the lease being unfair & unreasonable invalid, unlawful & impermissible by the doctrine of the dual ownership recognized by all India courts Since long & the position settled in this behalf by the Hon,ble supreme court vide the S.C. Judgment brought on the record of this Hon'ble court in the writ petition & to secure quite enjoyment of the possession peacefully without let or hinder.
In the relevant context, the writ powers & duties under articles 226 & 227 required to be Exercised in the light of & in the context of the articles 14, 19, 21 r/w the PREAMBLE OF THE CONSTITUTION OF INDIA r/w the Article 51-A(a). The protection of life & personable liberty, right to shelter, right to live with dignity, better standard of living, live the quality of life, Economic & social empowerment and equality, Right to marry etc. Freedom of speech & expressions, Art. 19(1)(a), Right to raise against injustice & resort to constitutional writ remedies in derogation of the fundamental rights guaranteed by the constitution & right to practice profession 19(1)(g); by the citizen Advocate.
D) The statutory right of the Advocate to practice conferred by the section 29 & 30 of the Advocates Act, 1961 to uphold and duly assist in the due & proper administration of justice according to law by the court of law & justice AND to effect the fairness & reasonableness in justice administration system, avoid the avoidable unnecessary delay in the justice administration system, Avoid all likely to, detriments injuries in derogation of law & constitution;
E) The prevailant justice administration system Would fail & collapsed if the mutual trust between the Advocate for the petitioner & the petitioner is not preserved and maintained; The relationship between the Petitioner & the Advocate for the petitioner is of trust. The public confidence in the justice administration system would certainly eroded & shaken with the very long delay in the disposal of the writ petition. The people are very discerning & living in educated society and very costly metropolitan city besieged by the inflation alround & the very long delay in Justice delivery system has certainly effect of deterrence. daunts, & create adverse impact on the confidence of the people in the justice administration system.. The Delay very long has certainly does ::: Downloaded on - 09/06/2013 16:42:55 ::: : 12 : Suomotu.4.08 not bring grace to the majesty of law and dignity of the court., Rule of law & ends of justice & interest of Justice.
F) The Contempt proceedings should not be initiated lightly but sparingly and with caution. The object & the intention of the Advocate not to cause interference in the justice administration system but the facilitate process & proceedings towards the due and proper administration of justice according to law and not to fetter & frustrate the same contrary to the interest of law, justice according to law, dignity of the court of law and justice; HAD THE HON,BLE HIGH COURT DISPOSED OF THE WRIT PETITION ACCORDING TO LAW & JUSTICE (very long pending) in that case the advocate for the petitioner could not have appeared before the justices of the Hon,ble High Court with the praecipe for disposal of the writ petition very long pending on 10/10/2oo8. The Duty of the Advocate for the petitioner can not be & ought must not be misconceived & misconstrued by use of word "Interference" But deserved & required to be rightly construed In the right perspective as "of assistance in the due and proper Administration of justice according to law by the court of law & justice as such.
G) The act of the court ought must not prejudice the petitioner unnecessarily and even otherwise. The writ petition is presently placed on the Board governed by Hon,ble justice SHRI R.V. MORE COURT NO.16-B. At. sr. No.247. The role of the Advocate for the petitioner ought must be construed in the light of the long pending writ petition which has invoked the articles 226 & 227 of the constitution of India in the light of the articles 14, 19, 21 of the constitution of India and certainly not in isolation of the event dated 10/10/2010 but the series of the events by the number of praecipies submitted from time to time during the past several years urging for the disposal of the writ petition very long pending 14/16 years & not 1 or 2 sustainable years. & unsustainable years by law, lease & the petitioner, the govt.lessee on since 3/8/1994.
H) In accordance with the provision of the section 46 of the Indian contract Act, 1872 the engagement ought must be performed within a reasonable time and the such reasonable time ought must be construed in the light of the expressed statutory mandatory duty obligation and liabilities cast by the expressed provisions of the section 38, 39 of the M.L.R.C. 1966 and in the light of the lease purpose of the residential use of the plot of land leased r/w the art. 188.8.131.52.227 of the constituti9on of India. AND BY THE RULE OF BENEFICIAL CONSTRUCTION AS WELL AS THE CONSTRUCTIONS WHICH FACILITATES THE OBJECT AND PURPOSES OF THE m.L.R.C. 1966 & AS PER THE SCHEME OF THE MLRC 1966 subject to ::: Downloaded on - 09/06/2013 16:42:55 ::: : 13 : Suomotu.4.08 declaration of the invalid term the condition no.7 to 11 & 15 of the lease statutory instrument. and in the larger public interest and in order to protect the public trust and confidence maintained in the Justice administration system according to law.
PLACE; Gr.Mumbai DATE:- 1/4/2010 ADVOCATE FOR THE PETITIONER THE ALLEGED CONTEMNOR VERIFICATION I SHRI NARENDRA BABARAO DESHMUKH The advocate for the petitioner in the writ petition no.2054 of 1997 the alleged contemnor do hereby state on solemn Affirmation that the stated herein above in the paras nos.1 & 2 are true to my knowledge & I believe the same to be True.
Solemnly Affirmed on this 1st day of April, year 2010."
5. Since the Respondent/Contemner has placed reliance on the praecipe dated 29th August 2008 which was moved before the learned Single Judge of this Court on 10th October 2008, we would reproduce the same along with the notings made thereon. The same reads thus:
"REMINDER 10/10/08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.205 OF 2003 IN WRIT PETITION NO.2054 OF 1997 ::: Downloaded on - 09/06/2013 16:42:55 ::: : 14 : Suomotu.4.08 Kum.Bhagyashree B.Deshmukh chief promoter of Bhagyashree Co-op.
Hsg.Scy. (proposed) ...PETITIONER V/S State of Maharashtra and ors. ...RESPONDENT NOS. 1 TO 6 1) Honourable chief justice 2) Hon'ble justice D.K.Deshmukh
3) His honour the JUDICIAL REGISTRAR OF THE COURT
4) His Honour the Dy.Registrar of the court, W.P.BR.
Regarding :- SEVERE OBJECTION TO THE DATES BEING DISPLAYED ON COMPUTER KIOSK - i.e. ig according to sitting list 27/8/2009 C.A. /8276/98 dt. 17/3/2010.
_________________________________________ TOOK INTO CONSIDERATIONS all the Petitioners' Affidavits on record; the dated 27/8/2009 & 17/3/2010 are severely objected & call on this constitutionally governed & accountable vigilant supervisory high court to disposed off the writ petition on the merit and according to the law at once.
With disposal of the writ petition at once the C.A.s are liable to be disposed off as the C.A.s are already admitted along with the admission & admitted of the writ petition. AS IT IS DUTY OF THE CONSTITUTIONALLY GOVERNED HIGH COURT TO REMEDY INJUSTICE AT ONCE & ADVANCE JUSTICE ACCORDING TO THE LAW AT ONCE. It is not only extra ordinary powers rights of the H.C. BUT EXTRA ORDINARY CONSTITUTIONAL DUTY & obligations oF THE H.C. To do justice according to the law.
DATE :- 29/8/2008 THE PETITIONER Sd/- 29/8/2008 Copy to all respondents Sd/- 29/8/08 ADVOCATE FOR THE PETITIONER N.B. :- More than 14 yrs wasted for Justice. ::: Downloaded on - 09/06/2013 16:42:55 ::: : 15 : Suomotu.4.08 (P.T.O.) 10/10/2008
Mentioned before Hon'ble Justice Chandrachud on 10/10/2008 at about 3.30 p.m. Hon'ble Justice refuse to receive the this Reminder therefore dropped this into the Court.
The Hon'ble C.J. & Justice D.K.Deshmukh & Justice Rebellow F.I.
were not sitting in the Court in the afternoon Session.
N.B.Deshmukh Advocate for the Petitioner."
6. The matter appeared on 1st September 2010, before the Division Bench, of which one of us (Justice A.M.Khanwilkar) was a member. The Contemner appeared in-person in robes of Advocate. The Respondent/Contemner was informed that since he was appearing pursuant to show-cause notice issued to him for having committed criminal contempt, he may appear as any other ordinary litigant and not in robes.
However, he declined to abide by the said suggestion. Instead, argued that since he was a practicing Advocate of this Court, he was well within his rights to appear in robes. He contended that as a matter of fact if he were to appear without robes, he may face disciplinary proceedings for having failed to abide by the Dress Code prescribed by the Bar Council. Although the Court was more than convinced that the plea taken by the Contemner is ::: Downloaded on - 09/06/2013 16:42:55 ::: : 16 : Suomotu.4.08 unsustainable and is in the teeth of the well established legal position and convention, yet it was thought appropriate to issue notice to the State Bar Council of Maharashtra and Goa to appear in the proceedings for answering this limited issue raised by the Contemner. Pursuant to the said notice, the Bar Council entered appearance and took categorical stand that since the Respondent/Contemner was facing show-cause notice for having committed criminal contempt, even if he wants to appear in-person before the Court, he will have to do so as any other ordinary litigant. In any case, he cannot appear in robes. Mr.Damle appearing for the Bar Council has invited our attention to the relevant provisions in the Code of Civil Procedure, Civil Manual, Advocates Act and Bar Council Rules in support of his submission. In addition, he has relied on the decision of the Division Bench of Karnataka High Court in the case of T.Venkanna vs. The Hon'ble High Court of Mysore through its Registry reported in 1973 Karn.127.
7. On the other hand, the Respondent/Contemner, relying on the provisions of the said enactments, in substance, argued that he has been served with the show-cause notice in terms of order dated 10th October 2008 because of his act of commission and omission as Advocate for the ::: Downloaded on - 09/06/2013 16:42:55 ::: : 17 : Suomotu.4.08 Petitioner. Therefore, he would continue to appear in the present proceedings in that capacity i.e. as Advocate for the Petitioner in Writ Petition No.2054 of 1997.
8. At the outset, we may notice that the said Writ Petition was filed by Kumari Bhagyashree B.Deshmukh who incidentally is the relative of the Respondent/Contemner. Whether it was appropriate for the Respondent/Contemner to appear as Advocate for his close relative is a matter which will be in the domain of the Bar Council. Indeed, Counsel appearing for the Bar Council has appeared in the present proceedings.
However, it is only for the limited purpose of assisting the Court on the question whether the Advocate practicing before this Court who is facing show-cause notice for having committed criminal contempt, can appear in robes before the Court. Therefore, whether the Bar Council should initiate any action against the Respondent/Contemner for representing the cause of his close relative as Advocate in the Writ Petition, is left open. We express no opinion on the said aspect.
9. Reverting to the question whether the Respondent/Contemner can be allowed to appear in robes before the Court, the Respondent, in the first ::: Downloaded on - 09/06/2013 16:42:55 ::: : 18 : Suomotu.4.08 place, has relied on Section 23 of the Contempt of Courts Act, 1971 (hereinafter referred to as the `Act'). The said provision authorizes the Supreme Court or, as the case may be, any High Court, to make rules, not inconsistent with the provisions of the said Act, providing for any matter relating to its procedure. He has then invited our attention to Rules 10, 11 and 12 of the Contempt of Courts (CAT) Rules, 1992 (hereinafter referred to as `the Rules). The same read thus :
"10. Appearance of Respondent.- Unless ordered otherwise by the Tribunal, whenever a notice is issued under these rules, the respondent shall appear in person in the case of 'criminal contempt' and in person or through an advocate in the case of 'civil Contempt', at the time and place specified in the notice and continue to attend on subsequent dates to which the petition is posted.
11. Reply by the Respondent.- The Respondent may file his reply duly supported by an affidavit on or before the first date of hearing or within such extended time as may be granted by the Tribunal.
12. Right to be defended by an Advocate. - Every person against whom proceedings are initiated under the Act, may as of right be defended by an Advocate of his choice.
10. Relying on the abovesaid provisions, it was contended that, unless the Court were to so order, the Respondent/Contemner, being a practicing Advocate of this Court, was not only entitled to appear in-person before the Court but also appear in robes. This argument deserves to be stated to be ::: Downloaded on - 09/06/2013 16:42:55 ::: : 19 : Suomotu.4.08 rejected. The argument is founded on a complete misunderstanding of the dual role of the Respondent/Contemner. Inasmuch as, the show-cause notice issued to him by this Court, pursuant to order dated 10th October 2008, is on account of his personal acts of commission and omission constituting contempt on the face of the Court, while presenting arguments before the Court during mentioning of the Writ Petition, in which he was appearing as Advocate for the Petitioner. Whereas, it is not a case as if his client (Writ Petitioner) is being proceeded for having committed contempt of Court. Suffice it to note that there is marked difference between the Advocate appearing to represent the cause of the litigant before the Court and the Advocate himself facing contempt action for his own acts of commission and omission. In the latter case, he would appear before the Court in his individual capacity and not as an Advocate or for that matter as Advocate for the litigant.
11. The Respondent/Contemner would then rely on the provisions in Chapter XXXIV of the Bombay High Court Appellate Side Rules, 1960 (hereinafter referred to as `the Appellate Side Rules'). The said Chapter deals with rules to regulate proceedings of contempt under Article 215 of ::: Downloaded on - 09/06/2013 16:42:55 ::: : 20 : Suomotu.4.08 the Constitution of India and the Contempt of Courts Act, 1971. Reliance is placed on Rule 9 thereof. Rule 9 reads thus:
9. (1) Notice to the person charged shall be in form 1. The person charged shall, unless otherwise ordered, appear in person before the Court as directed on the date fixed for hearing of the proceeding, and shall continue to remain present during hearing till the proceeding is finally disposed off by Order of the Court.
(2) When action is initiated on a Petition or a Reference, a copy of the Petition or the Reference along with the annexure and Affidavits shall be served upon the person charged.
12. Relying on ig this provision, it was argued by the
Respondent/Contemner that the order issuing notice dated 10th October 2008 describes the status of the Respondent/Contemner as Advocate for the Petitioner. As a result, he was entitled to appear in robes in his capacity of Advocate for the Writ Petitioner. This submission is completely ill-advised.
As already mentioned hitherto, the show-cause notice issued to the Respondent/Contemner, vide order dated 10th October 2008, is for his acts of commission and omission while presenting the praecipe before the learned Single Judge. In other words, the basis on which Suo Motu action for having committed contempt on the face of the Court, initiated against the Respondent/Contemner, is not in relation to any acts ascribable to the Petitioner in Writ Petition, but is specific to the conduct and behaviour of ::: Downloaded on - 09/06/2013 16:42:55 ::: : 21 : Suomotu.4.08 the Respondent/Contemner in Court on the given day. In that, it not only resulted in interruption of the proceedings of the Court taking up some other matter at the relevant time, but also because of the most improper language used by him while addressing the Court and also for his rowdy behaviour in Court at the relevant time.
13. The emphasis was then placed on Rule 1 in Chapter XXXII which is in Part III of the Appellate Side Rules. Part III of the Appellate Side Rules deal with legal practitioners. Rule 1 thereof, amongst others, prescribes the Dress Code of the Advocates. The same reads thus:
1. These rules shall come into effect from 1st January 1941.
1. The Rules for the admission of Advocates (O.S.) will be found in Chapter I of the Rules and Forms of the High Court on the Original Side, published by the Prothonotary and Senior Mater (O.S.) 2 [Advocates appearing in the Supreme Court, High Court, Sub-ordinate Court, Tribunal or Authorities shall wear the following as part of their dress which shall be sober and dignified :?
2. Substituted vide Notification Dt. 10-2-2000, published in Mah. Govt. Gazette Dt. 2-3-2000, Pt. 4-C, pg. 89.
Advocates other than lady Advocates I. (a) a black buttoned up coat, chapkan, achkan black sherwani and which bands with Advocate's Gowns.::: Downloaded on - 09/06/2013 16:42:55 :::
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(b) a black open breast coat, white shirt, white collar stiff or soft and white bands with Advocate's Gowns.
In either case, long trousers (white, black striped or grey or any other sober colour) or Dhoti.
Lady Advocates II. (a) Black and full or half sleeve jacket or blouse, white collar stiff or soft, with white bands and Advocate's Gowns.
OR white blouse, with or without collar, with white bands and with a black open breast coat.
(b) Sarees or long skirts (white or black or any mellow or subdue colour without any print or design) of Flare (white, black or black striped or grey) or Punjabi dress (Churidar-Kurta or Salwar-Kurta with or without duppatta)white or black;
Provided that the wearing of Advocate's gown shall be optional except when appearing in the Supreme Court or in a High Court ;
Provided further that in Courts other than the Supreme Court, High Court, District Court, Sessions Court or City Civil Court a black tie may be worn instead of bands."]
14. We fail to understand as to how this provision will come to the aid of the Respondent/Contemner. As is observed earlier, the Dress Code is for the persons who have been granted Sanad to practice "as an Advocate appearing for the litigant". However, when the Advocate himself is either espousing his own cause in the proceedings before the Court or facing contempt action as in this case, as per the long standing convention; which in our view has taken the colour of rule of law, he cannot appear as an ::: Downloaded on - 09/06/2013 16:42:55 ::: : 23 : Suomotu.4.08 Advocate before the Court, but may appear as any other ordinary litigant in-
person. In that case, he cannot claim any privileges available to Advocates appearing for the litigants before the Court. Thus, he cannot be permitted to appear in robes before the Court. We are in respectful agreement with the view taken by the Division Bench of the High Court of Mysore in the case of T.Venkanna (supra). Notably, in that case, the Advocate wanted to argue "from the Bar" his own cause by way of Writ Petition. The Court declined that request and permitted him to argue his own cause as any other ordinary litigant after disrobing himself of the Advocate's robes. In the erudite opinion of Justice G.K. Govinda Bhatt, speaking for the Court, reference is made to the reported cases and to the well established convention that when an Advocate appears before the Court as a litigant in-
person, he must not address the Court from the Advocate's table or in robes, but from the same place and in the same way as any other ordinary member of the public. That is the universal practice followed in England and Ireland and it should be followed here. Reliance is placed on the decision of the Apex Court in Vidya Verma v. Shiv Narain reported in AIR 1956 SC 108. In that case, the Advocate who had appeared before the Supreme Court wanted to argue the case as next friend of the Petitioner. He ::: Downloaded on - 09/06/2013 16:42:55 ::: : 24 : Suomotu.4.08 was told that he should appear without his Advocate's robes. It is thus well established that the consistent convention and practice even in India has been that where an Advocate is himself a litigant and appears as litigant in-
person, he must not address the Court from the Advocates' table or in the robes, but from the same place and in the same way as any other ordinary member of the public. That principle will apply on all fours especially when the Advocate is facing contempt action for his own acts of commission and omission.
15. Reliance was then placed on Rules 12 and 13 in Schedule VII of the Appellate Side Rules, which are Rules framed by the High Court under Section 34(1) of the Advocates Act, 1961. Rules 12 and 13 read thus:
"12. No advocate who has been disbarred or suspended or whose name has been struck off the Roll of Advocates shall be permitted to act as a recognised agent of any party within the meaning of order III of the Code of Civil Procedure, 1908.
13. No Advocate who has been found guilty of Contempt of Court shall appear, act or plead in any Court unless he has purged himself of Contempt. The Court may in its discretion permit an Advocate who has been found guilty of Contempt of Court to appear, act or plead without purging himself of Contempt of Court."::: Downloaded on - 09/06/2013 16:42:55 :::
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16. The purport of Rule 12 is to declare that a person registered as an Advocate shall be permitted to act as a recognised agent of "any party"
within the meaning of Order III of Code of Civil Procedure, 1908 so long as he is not disbarred or suspended or his name has not been struck off the Roll of Advocates. This provision will be of no avail to the Respondent/Contemner in the present case where he is appearing before the Court not for any party but to defend himself for his own acts of commission and omission before the Court. For the same reason, even the sweep of Rule 13 will be of no avail to the Respondent/Contemner. As a matter of fact, Rule 13 gives discretion to the Court to disallow the Advocate from appearing before the Court until he has purged himself of contempt. If this Court were to record finding of guilt against the Respondent/Contemner for having committed contempt of Court, it would be open to the Court to disallow the Respondent/Contemner to appear, act or plead as an Advocate in any other proceedings before the Court without purging himself of the contempt of Court.
17. As aforesaid, the whole argument of the Respondent/Contemner is founded on erroneous premiss that he has been issued show-cause notice, ::: Downloaded on - 09/06/2013 16:42:55 ::: : 26 : Suomotu.4.08 vide order dated 10th October 2008 of this Court, to appear in his capacity as Advocate for the Writ Petitioner. The entire edifice of his argument is founded on that erroneous premiss. The reference made to the Respondent/Contemner as Advocate or for that matter Advocate for the Petitioner in the order dated 10th October 2008 or in the show cause notice is only to describe him as to in what capacity he had appeared before the Court on that day. However, the action of contempt of Court is pointedly with regard to the personal conduct, behaviour and utterances made by the Respondent/Contemner himself.
18. The Respondent/Contemner then invited our attention to Section 106 of the Indian Evidence Act, 1872 to justify that what he did on the given day in Court was to unravel the facts which were within the knowledge of the Writ Petitioner, through him. That, however, in our opinion, does not mean that the Writ Petitioner herself misconducted or misbehaved in Court warranting action against her. The misconduct and misbehaviour is attributed to the Respondent/Contemner, who appeared in Court on that date. The fact that his attempt was to ventilate the grievance of the Writ Petitioner, does not mean that misconduct and misbehaviour of the ::: Downloaded on - 09/06/2013 16:42:55 ::: : 27 : Suomotu.4.08 Respondent/Contemner is ascribable to the Writ Petitioner. Further, the outburst of the Respondent/Contemner on the given day in Court, cannot be justified on the plea that what he did, was to convey the feelings of the Writ Petitioner to the Court. As a practicing Advocate of good standing, he should have known the hallmark of his profession and the imperativeness of observing etiquettes and mannerism to maintain the majesty and decorum of the Court, which he is required to meticulously observe. As aforesaid, it is for the stated misconduct and misbehaviour, the Respondent is facing contempt action himself. If so, he cannot exercise the privileges available to the Advocates appearing for the litigants. Even reliance placed on Sections 51 and 56 of the Indian Evidence Act by the Respondent/Contemner does not take the matter any further. We have no hesitation in rejecting the submission of the Respondent/Contemner that he is entitled to appear and address the Court with his Advocate's robes. He, however, can be allowed to appear before the Court in person like any other ordinary litigant.
19. The Counsel appearing for Bar Council is, therefore, right in contending that the Respondent/Contemner cannot be allowed to appear in ::: Downloaded on - 09/06/2013 16:42:55 ::: : 28 : Suomotu.4.08 Advocates' robes in the present proceedings. It is rightly argued that on conjoint reading of Part III of the Appellate Side Rules along with the provisions in Schedule VII, in particular, Rule 2, the same would apply only to Advocate who has been appointed by the litigant by executing a Vakalatnama in the prescribed form and signed by such litigant or by his recognised agent or by some other person duly authorised by or under a Power of Attorney to make such appointment. The fact that the person is registered as Advocate but is appearing in-person to espouse his own cause before the Court or to face contempt action for his own misdeeds and misdemeanor, he is not entitled to claim the privileges of the Advocates. As a matter of fact, a practicing Advocate is not expected to appear as Advocate in his own cause.
20. To buttress the above submission, our attention was invited to the Rules framed by the High Court under Section 34(1) of the Advocates Act as incorporated in Civil Manual. Rules 651 and 652 thereof are analogous to Rules 1 and 2 of Schedule VII in the Appellate Side Rules. Rule 636 of the Civil Manual provides for Dress Code of the Advocates, is analogous to Rule 1 of Chapter XXXII, Part III of the Appellate Side Rules.::: Downloaded on - 09/06/2013 16:42:55 :::
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(a) of the said Act, to mean an Advocate entered in any roll under the provisions of the said Act. A person enrolled as Advocate can practice as Advocate and is expected to wear the prescribed robes while appearing before the Court for and on behalf of the litigant. No more and no less.
22. The Bar Council of India is empowered to make Rules concerning matters provided in Section 49. Clause (gg) of Section 49(1) refers to the form of dresses or robes to be worn by advocates, having regard to the climatic conditions, appearing before any Court or tribunal. In exercise of the said powers, the Bar Council has framed Rules. Chapter IV deals with Dress Code of the Advocates, which is analogous to Rule 1 of Chapter XXXII in Part III of the Appellate Side Rules.
23. A priori, we have no hesitation to hold that when the Advocate appears to espouse his own cause or facing proceedings such as the present one for having committed contempt of Court personally, even if he wants to ::: Downloaded on - 09/06/2013 16:42:55 ::: : 30 : Suomotu.4.08 appear in-person before the Court, cannot claim the privileges bestowed on the Advocates and is free to appear like any other ordinary litigant.
24. The Respondent/Contemner went to the extent of contending that such view would infringe fundamental right guaranteed to him under Part III of the Constitution of India. This argument deserves to be stated to be rejected. It clearly overlooks that the fundamental right to profession is not an absolute right. The right to appear in Advocate's robes before the Court is a statutory right. That right is available only to a person who appears in his capacity as Advocate for any other party or litigant and not in his own cause and more so, while defending contempt action initiated against him personally.
25. As a matter of fact, we could have decided the above issue as preliminary issue and then proceeded with the hearing of the matter by directing the Respondent/Contemner to appear before us after removing his Advocate's robes. However, we continued with the hearing even on merits, so that, all issues can be disposed of by one common order.::: Downloaded on - 09/06/2013 16:42:55 :::
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26. That takes us to the real issue which is required to be addressed by us in the context of the show-cause notice served on the Respondent/Contemner. The learned Single Judge in his order has noted as follows :
(1) Respondent appeared in Court and sought to interrupt the course of the proceedings by insisting that his matter should be taken up forthwith by the Court.
(2) The Respondent insisted that his matter should be taken up forthwith even though the matter did not pertain to the work which was assigned to the learned Judge under the roster of work.
(3) The Respondent used language in Court which was most improper.
(4) He was obstructive and rowdy. (5) Repeated opportunities were given to Respondent to desist
from taking recourse to such unruly and obstructive behaviour, but he proceeded in dislocating the even course of the proceedings.::: Downloaded on - 09/06/2013 16:42:55 :::
: 32 : Suomotu.4.08 (6) His entire behaviour was manifestly against the decorum of the Court.
27. Notably, from the two replies filed by the Respondent/Contemner, it is amply clear that the fact that he caused interruption of Court proceedings or that he used improper language and his behaviour was rowdy, is not in dispute at all. In that, he has not only admitted that he interrupted Court proceedings, but also of having used language which has been described by the learned Judge as "most improper". As a matter of fact, he has reproduced the utterances made by him in Paragraph 6 of his first reply affidavit.
28. None of the above factual position is even remotely or indirectly denied by the Respondent. However, in the two replies filed before this Court, instead of expressing remorse and reticence, the Respondent/Contemner has justified his conduct before the Court on 10th October 2008, on the ground that he had no other option but to do so to highlight the injustice caused to the Writ Petitioner who happened to be his client. The outburst was because of the indignation of injustice suffered by the Writ Petitioner for almost 15 years. Indeed, an attempt is made to ::: Downloaded on - 09/06/2013 16:42:55 ::: : 33 : Suomotu.4.08 suggest that he did all that with the leave of the Court. We are unable to countenance such submission. The facts recorded by the learned Single Judge are self eloquent. Those facts having been admitted by the Respondent/Contemner, the only question is: whether the same would constitute criminal contempt? The explanation offered by the Respondent/Contemner that the outburst was because of the indignation due to the injustice suffered by the Writ Petitioner for unreasonably long time of 15 years, cannot extricate the Respondent/Contemner who, at the relevant time, was appearing before the Court as an Advocate and as a professional and not litigant himself. As a matter of fact, such behaviour, even of the litigant, cannot be justified. It is plainly a case of criminal contempt. The term `criminal contempt' has been defined in Section 2(c) of the Contempt of Courts Act which reads thus:
"2. Definitions.- In this Act, unless context otherwise requires, -
(c) "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) scandalizes or tends to scandalize, 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 proceeding; or ::: Downloaded on - 09/06/2013 16:42:56 ::: : 34 : Suomotu.4.08
(iii) Interferes, or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
29. It was argued that even if all the facts mentioned in the order of the learned Single Judge dated 10th October 2008 including the utterances reproduced in the first reply affidavit in Paragraph 6 were to be taken as it is, it was not intended to scandalize or tend to scandalize or lower or tend to lower the authority of any Court nor it would result in the acts referred to in Clause (ii) or Clause (iii) of the definition of the Criminal Contempt. We would straightaway reject this argument. The fact that the Respondent/Contemner was responsible for obstructing the Court proceedings has been recorded in the order of the learned Single Judge.
That, by itself, would attract Clause (iii) and can be made the basis to proceed against the Respondent. The Respondent/Contemner interrupted the Court proceedings inspite of the fact that it was not the mentioning time. Besides, some other case was already in progress. Thirdly, the Writ Petition in which he intended to move the praecipe, was not the assignment of that Court as per the Roster. Fourthly, there was no reason for the Respondent/Contemner either to use language which was improper or to breach the decorum of the Court by his unruly and obstructive behaviour.::: Downloaded on - 09/06/2013 16:42:56 :::
: 35 : Suomotu.4.08 For all these reasons we have no hesitation in taking the view that the definition of criminal contempt is clearly attracted in the fact situation of the present case. That finding is good enough to proceed against the Respondent. Besides, we have also noticed that although the learned Single Judge has eschewed from reproducing the foul language used by the Respondent/Contemner in the Court, the Contemner has had the temerity to reiterate the same in Paragraph 6 of his first reply filed to the show-cause notice. The said utterances if read as a whole and in the context of his unruly behaviour, clearly tend to lower the authority, majesty and dignity of the Court. Even that is good enough to proceed against the Respondent/Contemner. In our opinion, the utterances were insinuation against the Court that the Court favoured special litigants and such select few litigants do not have to suffer long delay of 15 years for redressal of their grievances or to seek justice unlike the gullible Writ Petitioner.
Further, the Respondent/Contemner was of the opinion that sending reminders to the Chief Justice was of no consequence. That statement suggests that his representations had remained unattended. He has gone to the extent of suggesting that the High Court has destroyed the life of the Writ Petitioner and has treated the Writ Petitioner as animal. These kind of ::: Downloaded on - 09/06/2013 16:42:56 ::: : 36 : Suomotu.4.08 utterances, by no standards, can be countenanced. Rather, the same not only tend to lower the decorum of the Court but also tend to scandalize the Court. We have, therefore, no hesitation in holding that even Clause (i) of the definition of criminal contempt would be clearly attracted in the fact situation of the present case.
30. What is significant to note is that the Respondent/Contemner has not only attempted to justify his conduct and behaviour before the Court by his two replies filed in response to the show-cause notice, but in none of the replies or during the course of arguments, he has expressed remorse or reticence. During the hearing, he was told to consider whether he would like to tender unconditional apology. In response to the said offer, the Respondent/Contemner was resolute that there was no question of tendering apology, much less, unconditional apology.
31. Be that as it may, the fact that the Writ Petitioner may have some misgivings about the long delay in disposal of the pending Writ Petition, that cannot justify the use of intemperate language by the Advocate appearing for his client. More so, that does not give any license to the ::: Downloaded on - 09/06/2013 16:42:56 ::: : 37 : Suomotu.4.08 Advocate to disrupt and obstruct the Court proceedings, that too, adopting unruly and rowdy attitude. The Advocate particularly of such long standing is expected to observe the cardinal convention that mentioning of urgent cases can be done during the mentioning hours and in any case, with the permission of the Court. Further, even if he was to be more than convinced about the injustice caused to his client, that would not give him license to be unruly in Court or obstruct the Court proceedings. From the two replies filed by the Respondent/Contemner, we are more than convinced that the conduct of the Respondent/Contemner before the Court on the given day would not only attract action for having committed criminal contempt of Court, but may also attract action for his conduct unbecoming of an Advocate. However, in the present Judgment, we will confine ourselves to the issue as to whether the Respondent/Contemner is guilty of having committed criminal contempt of Court. The question whether the conduct of the Respondent/Contemner referred to in the order dated 10th October 2008 and the praecipes moved by the Respondent/Contemner and the two replies filed before this Court and also appearing as Advocate in the cause of his close relative, would give cause for initiating action against him for professional misconduct, is a matter which will have to be considered by ::: Downloaded on - 09/06/2013 16:42:56 ::: : 38 : Suomotu.4.08 the Bar Council. It is obvious that since the Respondent/Contemner was espousing the cause of his close relative, who was one of the Writ Petitioner, he virtually put on the shoes of his client and failed to distance himself from the misgivings of his relative. For that very reason, the known norms envisage that the Advocate should eschew from espousing the cause of his close relative "as an Advocate".
32. The argument of the Respondent/Contemner that his outburst in Court on the given day was innocent and without any intention to affect the majesty of this Court, deserves to be stated to be rejected for the reasons already mentioned by us hitherto. This plea, to say the least, is an afterthought. In the fact situation of the present case, if such plea was to be entertained, it would result in granting premium for the conscious conduct/behaviour and utterances, which clearly constitute criminal contempt of Court.
33. It was argued that the facts stated in the praecipes, were fair and accurate report and would therefore, not constitute contempt of Court. This argument clearly overlooks that the Respondent/Contemner has been issued ::: Downloaded on - 09/06/2013 16:42:56 ::: : 39 : Suomotu.4.08 show-cause notice not in relation to the contents of the aforesaid praecipes moved by him, but in relation to his conduct/behaviour and utterances in Court on 10th October, 2008 - as has been found by the learned Single Judge. By no standards, the acts of commission and omission of the Respondent/Contemner on the given day in Court can be said to be falling within the exception of fair and accurate criticism of the judicial proceedings. Whereas, the conduct of the Respondent/ Contemner was a deliberate attempt to not only obstruct some other Court proceedings which were in progress at the relevant time, but also to lower the majesty of the Court by his act of commission and omission.
34. The Respondent/ Contemner relying on the provisions of Section 13 of the Act would contend that even if his behaviour or utterances before the Court on the given day were objectionable and unacceptable, however, the same were not such as would substantially interfere or tend to substantially interfere in the due course of justice. Besides, the utterances were the outburst on account of the injustice meted out to the Writ Petitioner due to delay of almost 15 years in deciding the Writ Petition. It was open to the Respondent, therefore, to make truthful disclosure of the state of mind of the Writ Petitioner and by doing so, he had only discharged his duty as an ::: Downloaded on - 09/06/2013 16:42:56 ::: : 40 : Suomotu.4.08 Advocate to present the cause of the Writ Petitioner. In our view, however, even if there was delay in disposal of the Writ Petition and assuming that it was inexplicable, that did not not give license to the Respondent/ Contemner to disrupt the Court proceedings which were in progress in connection with some other case and more so, to behave in unruly and rowdy fashion, which also resulted in breaching the decorum of the Court and also affecting the majesty of the Court. In our opinion, in the fact situation of the present case, the exception provided in Section 13 of the Act is unavailable.
35. The Respondent/Contemner also invited our attention to Section 8 of the Act to contend that it was open to him to take other defences, which would be valid defence. However, the only defence taken by the Respondent/ Contemner is that he had exercised privilege of Advocate to point out injustice caused to his client, who had filed Writ Petition for redressal of her grievance and that the injustice was being perpetrated by long delay in deciding the said Writ Petition by the Court. We are not impressed by this submission. The grievance regarding long delay could have been agitated by the Respondent/ Contemner for and on behalf of his ::: Downloaded on - 09/06/2013 16:42:56 ::: : 41 : Suomotu.4.08 client, in a manner, which was prudent and acceptable and consistent with the convention and decorum of the Court. Whereas, it is obvious that the Respondent/Contemner identified himself with the cause of his client.
Even if any ordinary litigant were to behave in this manner in Court and disrupt the Court proceedings and conduct himself in unruly and rowdy way in Court, for which reason the Respondent/Contemner is facing contempt action, even such litigant would face similar action. In that, even the ordinary litigant is expected to conduct himself in Court in conformity with the convention and decorum of the Court. It appears to us, that the Respondent/Contemner fully identified himself with the cause of the Writ Petitioner, which was bound to happen, as the Writ Petitioner was his close relative. To obviate such situation, it is expected that the Advocate should not act and appear in cases of his close relation as Advocate.
36. Notably, in the present case, although the Respondent/ Contemner is a practicing Advocate, we found that his attitude is that of a stubborn and incorrigible person, which is not only evident from the contents of the praecipes moved by him, but also from his conduct/ behaviour and utterances before the Court on the given date and aggravating it by reiterating and justifying his stand by way of two replies ::: Downloaded on - 09/06/2013 16:42:56 ::: : 42 : Suomotu.4.08 filed to the show-cause notice. Not only that, when the hearing commenced on merits, we gave opportunity to the Respondent/Contemner to consider whether he would like to tender unconditional apology.
However, he resolutely declined that offer. That opportunity was once again given even before we proceeded to hear him on the point of sentence.
Later on, at the conclusion of the hearing, we once again called upon him to consider whether he would like to change his mind, else, the Court may have to do the unpleasant task of answering the controversy brought before us, which incidentally was against a practicing Advocate. Inspite of repeated opportunities offered to the Respondent/Contemner to purge the contempt, he not only showed disinclination to avail of the same but also stuck to his stand on the assertion that his conduct did not constitute criminal contempt of Court.
37. The Respondent/Contemner placed reliance on the dictum in Paragraph No.26 of the Judgment of the Apex Court in the case of Thakur Jugal Kishore Sinha vs. The Sitamarhi Central Co-operative Bank Ltd.
& Anr. reported in AIR 1967 SC 1494. The same reads thus:
"(26) Generally speaking "any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere ::: Downloaded on - 09/06/2013 16:42:56 ::: : 43 : Suomotu.4.08 with or prejudice party litigants or their witnesses during their litigation"
amounts to contempt of court : see Oswald on Contempts page 6. In order that courts should be able to dispense justice without fear or favour, affection or ill-will, it is essential that litigants who resort to courts should so conduct themselves as not to bring the authority and the administration of law into disrespect or disregard. Neither should they exceed the limits of fair criticism or use language casting aspersions on the probity of the courts or questioning the bona fides of their judgments. This applies equally to all Judges and all litigants irrespective of the status of the Judge, i.e., whether he occupies one of the highest judicial offices in the land or is the presiding officer of a court of very limited jurisdiction. It is in the interests of justice and administration of law that litigants should show the same respect to a court, no matter whether it is highest in the land or whether it is one of inferior jurisdiction only. The Contempt of Courts Act, 1952 does not define 'contempt' or ` courts' and in the interest of justice any conduct of the kind mentioned above towards any person who can be called a 'court' should be amenable to the jurisdiction under the Contempt of Courts Act, 1952. It must be borne in mind that we do not propose to lay down that all Registrars of all Co-operative Societies 'in the different States are "courts" for the purpose of the Contempt of Courts Act, 1952. Our decision is expressly limited to the Registrar and the Assistant Registrar like the one before us governed by "the Bihar and Orissa Co-operative Societies Act."
38. The Respondent/Contemner ought to be reminded that the exposition of the Apex Court clearly draws distinction between fair criticism or use of language casting aspersions on the probity of the Courts or their Judgments.
For the reasons already recorded, we have no hesitation in concluding that in the fact situation of the present case, the acts of commission and omission of the Respondent/Contemner before the Court on 10th October 2008 constituted criminal contempt of Court.::: Downloaded on - 09/06/2013 16:42:56 :::
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39. Reliance was then placed on the decision of the Patna High Court in the case of Rameshwar Mandal vs. The State reported in 1960 Cri.L.J.
976 to contend that the mere fact that a Judicial officer feels insulted is of no consequence. Further, the intention of the alleged offender must be looked into. This decision deals with the purport and interpretation of Section 228 of the I.P.C. Even if the principle underlying the said decision were to be applied to construe whether the action of criminal contempt against the Respondent/Contemner ought to be invoked, as is evident from the events that unfolded in Court on 10th October 2008 which have been duly noted by the learned Single Judge impelling him to issue show-cause notice against the Respondent, those acts were not simplicitor of giving rise to cause of learned Single Judge feeling insulted but one of a thoughtful action of the Respondent/Contemner, on a specious plea that it sprung from the indignation due to the long injustice suffered by the writ Petitioner who was his close relative. In such a case, the finding of guilt against the Respondent/Contemner is inevitable.
40. Our attention was also invited to the decision of the Division Bench ::: Downloaded on - 09/06/2013 16:42:56 ::: : 45 : Suomotu.4.08 of our High Court in the case of High Court on its own motion vs. Shri.Gopinath Mundhe & Ors. reported in 2006 All.MR (Cri.) 3288, in particular, Paragraph 9 thereof, which extracts the legal position stated by Lord Denning in Re Bramblevale reported in (1969) 3 All ER 1062, Mrityunjoy Das vs. Sayed Hasibur Rahaman reported in AIR 2001 SC 1293 and S.Abdul Karim vs. M.K.Prakash reported in AIR 1976 SC
859. There is no difficulty in accepting the proposition canvassed before us that the Court before recording finding of guilt should insist for strict proof in support of the charge of criminal contempt. Insofar as the fact situation of the present case is concerned, the Respondent/Contemner having admitted the events recorded in the order of the learned Single Judge which, in our opinion, constituted criminal contempt of Court, the question of insisting for strict proof does not arise. None of the facts so stated have been disputed by the Respondent/Contemner. On the other hand, he has reproduced further details in his two reply affidavits filed before us. The events as unfolded, attract the necessary ingredients of constituting criminal contempt to which we have already alluded to. In the circumstances, even these Judgments are of no avail to the Respondent.::: Downloaded on - 09/06/2013 16:42:56 :::
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41. Our attention was then invited to another decision of the Apex Court in the case of Prem Surana vs. Additional Munsif and Judicial Magistrate & Anr. Reported in AIR 2002 SC 2956, in particular, Paragraphs 13 to 15 thereof. We are conscious of the fact that the action of contempt is a very powerful weapon which rests in the hands of the law Courts. Further, the law Courts must exercise the same with due care and caution and with larger interest.
42. The contemptuous conduct and obstruction to the Court proceedings are crucial and are amply noticed from the events as unfolded in Court as recorded in order dated 10th October 2008 and admitted in the two replies filed by the Respondent. The conduct and demeanour of the Respondent/Contemner before the Court was, to say the least, distressing and in fact, resulted in obstruction of Court proceedings. More so, when at the relevant time, the Court was in the midst of hearing some other proceedings. Such behaviour of even an ordinary litigant cannot be countenanced. Nay, even the Statute recognises the same as constituting criminal contempt. In any case, when such conduct is attributed to a ::: Downloaded on - 09/06/2013 16:42:56 ::: : 47 : Suomotu.4.08 practicing Advocate, it is still worst. The Advocates are supposed to be the main benefactors of this Institution. They are said to be the wheel of the chariot of justice. Such behaviour of the Advocate would not only result in undermining or lowering the authority of the Court but also tend to interfere with the due course of the judicial proceeding and obstructing the administration of justice. It would also be a conduct unbecoming of a professional.
43. Reliance is then placed on Dr.Prodip Kumar Biswas vs. Subrata Das & Ors. reported in 2004 SCC (Cri.) 1341, in particular, Paragraph 9 thereof which observes that contempt of Court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. It is further observed that the jurisdiction of contempt may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts.
The Apex Court went on to observe that the purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. We fail to understand as to how this exposition will be of any avail to the ::: Downloaded on - 09/06/2013 16:42:56 ::: : 48 : Suomotu.4.08 Respondent/Contemner in the fact situation of the present case.
44. Reliance was then placed on the another decision of the Apex Court in the case of J.R.Parashar, Advocate & Ors. vs. Prasant Bhushan, Advocate & Ors. reported in (2001) 6 SCC 735, in particular, Paragraphs 13, 15 and 22 thereof. In Paragraph 13, the Court referred to the scope of Article 19(1)(a) of the Constitution. It has then reproduced the definition of `criminal contempt' as occurring in the Act of 1971. In Paragraph 22, the Court has restated the legal position that contempt proceedings are quasi-
criminal and summary in nature. The Court also observed that the acts for which proceedings are intended to be launched must be intimated to the person against whom action is proposed to be taken with sufficient particularity so that the person charged with having committed the offence can effectively defend himself. It is then observed that the other consequence which flows from the quasi-criminal nature of the proceeding is that if there is reasonable doubt on the existence of a state of facts, that doubt must be resolved in favour of the person or persons proceeded against. In the present case, the order dated 10th October 2008 not only refers to the events which unfolded on that eventful day. Significantly, the ::: Downloaded on - 09/06/2013 16:42:56 ::: : 49 : Suomotu.4.08 Respondent/Contemner besides admitting the same, has gone further to elaborate the details thereof in his reply affidavits. Further, the order which was dictated in open Court in the presence of the Respondent/Contemner was in any case enclosed along with the show-cause notice. The particularity of the facts which unfolded were so telling that the action of contempt against the Respondent/Contemner became inevitable. Suffice it to observe that the decision pressed into service is of no avail to the Respondent.
45. Reliance was then placed on Paragraph 27 of the decision in the case of S.V.R. Mudaliar (dead) by LRs. & Ors. vs. Mrs.Rajabu F.Buhari (Dead) by LRs. reported in AIR 1995 SC 1607. The exposition in this decision is that an act of the Court shall prejudice no man. The fact that there was delay in disposal of the Writ Petition filed by the relative of the Respondent/Contemner would not and cannot justify his outburst in Court on 10th October 2008. We have already observed that the Respondent/Contemner could have invited the attention of the concerned Court to ventilate the grievance of his client by adopting fair, civilised and proper means.::: Downloaded on - 09/06/2013 16:42:56 :::
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46. Reliance was then placed on the decision in ABL International Ltd.
reported in (2004) 3 SCC 553. Our attention was invited to observations in Paragraphs 19 to 23 and 26 to 28 of this Judgment. We have no hesitation in observing that the discussion in the reported decision has no application to the case on hand and in particular, the limited controversy that needs to be addressed by us in the context of the show-cause notice issued to the Respondent/Contemner for having committed criminal contempt of Court.
47. The last reported decision relied by the Respondent/Contemner is again of the Supreme Court in the case of Javed & Ors. vs. State of Haryana & Ors. reported in (2003) 8 SCC 369. Only head-notes of this decision were produced before us without analysing as to how this decision would come to his aid, who is facing contempt action.
48. After having analysed the relevant material on record and the settled legal position, we have no hesitation in concluding that the ::: Downloaded on - 09/06/2013 16:42:56 ::: : 51 : Suomotu.4.08 Respondent/Contemner has committed criminal contempt on the face of the Court by his acts of commission and omission on 10th October 2008 before the learned Single Judge which necessitated issuance of show-cause notice qua him. Thus, we record finding of guilt against the Respondent/Contemner for having committed criminal contempt on the face of the Court.
49. The only other question that needs to be addressed is about the quantum of sentence. The punishment for contempt of Court is specified in Section 12 of the Act of 1971, which may extend to six months or with fine which may extend to Rs.2,000/- (Rupees Two Thousand) or with both. The proviso to sub-section thereof contemplates that the accused may be discharged or the punishment awarded be remitted on apology being made to the satisfaction of the Court. In the present case, the Respondent/Contemner has not only shown disinclination to tender apology, much less, unconditional apology, but has justified his conduct on the ground that that was the only way available to him to ventilate the grievance of his client who was suffering injustice due to long delay in disposal of Writ Petition. We have already taken the view that the acts of ::: Downloaded on - 09/06/2013 16:42:56 ::: : 52 : Suomotu.4.08 commission and omission of the Respondent/Contemner before the Court on 10th October 2008 were neither innocent nor fair, but entailed in lowering the dignity and authority of the Court and also in interfering and obstructing the administration of justice and the due course of judicial proceeding. The acts complained of do not fall in any of the excepted category. It is a case of conscious attempt of committing contempt on the face of the Court. Even then, sufficient opportunity was given to the Respondent/Contemner to tender unconditional apology. Such option was offered in the first place by the learned Single Judge and once again by us before commencement of the hearing on merits as also during the course of hearing and also after concluding the hearing. The submission of the Respondent/Contemner was that he has not committed any contempt of Court and would leave it to the discretion of the Court to impose appropriate sentence.
50. We have no hesitation in taking the view that the acts of commission and omission of the Respondent/Contemner which he has not only admitted but also justified and elaborated upon the same in his affidavits, deserve strict view of the matter, especially, when he is not only a practicing ::: Downloaded on - 09/06/2013 16:42:56 ::: : 53 : Suomotu.4.08 Advocate of this Court but also of some standing, coupled with the fact that he appeared as Advocate to espouse the cause of his close relative. Further, he has not expressed any remorse or reticence for such behaviour. Rather, we noticed from his tenor of submissions that he was unconcerned with the outcome of his behaviour and was willing to face the consequences therefor. Accordingly, in our opinion, this is a fit case where the Respondent/Contemner should be punished with simple imprisonment of maximum term provided by Section 12 of the Act. In our considered opinion, he deserves punishment for at least a term of four months for having committed criminal contempt on the face of the Court. Besides sentencing him for four months, we further order that the Respondent/Contemner shall not be entitled to appear before this Court or any other Court subordinate to this Court until he purges of the contempt committed by him.
51. We make it clear that whether the acts of commission and omission of the Respondent/Contemner referred to above, also constitute professional misconduct, is a matter, which may have to be considered by the Bar Council. This decision is not an expression on the said question in any manner.::: Downloaded on - 09/06/2013 16:42:56 :::
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52. Accordingly, we proceed to pass the following order :
(1) We hold that the Respondent/Contemner is guilty of having committed criminal contempt on the face of the Court on 10th October 2008 on account of his acts of commission and omission before the learned Single Judge of this Court.
(2) We impose punishment of simple imprisonment for a period of four months to be suffered by the Respondent/Contemner and also pay fine of Rs.2,000/- (Rupees Two Thousand).
(3) The Respondent/Contemner shall not be allowed to appear before this Court or any Court subordinate to this Court until he purges of the contempt committed by him.
(4) The show-cause notice is made absolute in the above terms.
Ordered accordingly.::: Downloaded on - 09/06/2013 16:42:56 :::
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53. Copy of this Judgment be forwarded to the Bar Council of Maharashtra for information and necessary action.
(P.D.KODE, J.) (A.M.KHANWILKAR, J.) ::: Downloaded on - 09/06/2013 16:42:56 :::