REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 555 OF 2010

Bal Kishan Giri                                          …Appellant

Versus

State of U.P.                                                              …Respondent  

J U D G M E N T

Dr. B.S. Chauhan,J.

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

passed  by the  High Court  of  Judicature  at  Allahabad in  Contempt

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

convicted for committing criminal contempt under the provisions of

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

and sentenced to undergo simple imprisonment for one month and to

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

imprisonment for two weeks, has been assailed.

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

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

23.5.2008 by Anil  Kumar,  appellant  in  connected  Criminal  Appeal

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

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

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

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

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

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

case was therefore registered.  

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

authorities  that  the  place  of  occurrence  fell  within  the  territorial

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

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

Crime No.190/2008.  

C. During investigation, many accused persons including one Haji

Izlal were arrested. They moved bail applications before the Meerut

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

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

14.8.2009  during  the  pendency  of  the  said  applications  that  the

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

Allahabad High Court alleging that the accused therein were gangsters

and had accumulated assets worth crores of rupees by their criminal

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

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

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

officer in Meerut Court. The appellant expressed his apprehension that

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

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

of U.P.

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

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

notice  dated  14.8.2009  to  the  appellant  as  to  why  the  criminal

contempt  proceedings  be  not  initiated  against  him  under  the

provisions of the Act.  

E. The  appellant  submitted  an  unconditional  apology  dated

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

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

great mental tension as his nephew had been murdered.   

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F. The  High  Court  after  completing  the  trial  convicted  the

appellant  vide  impugned  judgment  and  order  dated  5.2.2010  and

awarded the sentence as referred to hereinabove.  

Hence, this appeal.  

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

appellant  has  submitted  that  the  show  cause  notice  was  not  in

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

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

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

appellant is a practicing advocate and had written the said complaint

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

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

appellant  has  tendered  an  absolute  and  unconditional  apology,

punishment was not warranted and fine imposed therein is contrary to

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

allowed.  

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

State  has  opposed  the  appeal  contending  that  very  wild  and

scandalous  allegations  had  been  made  by  the  appellant  not  only

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against  one  judge  but  against  various  judicial  officers  and  merely

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

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

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

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

The appeal lacks merit and is liable to be dismissed.  

5. We  have  considered  the  rival  submissions  made  by  learned

counsel for the parties and perused the record.  

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

as under:  

“4. That Akhalakh family have good connection with all judges posted at Meerut. Hon. Mr. Justice S.C. Nigam was  posted  in  Meerut  in  the  year  1981  to  1984  and 2002-03 on the posts of Addl. Civil Judge/A.C.J.M. and Addl.  District  &  Sessions  Judge  respectively.  Hon. Justice  Mr.  S.K.  Jain  was  also  posted  at  Meerut  as Additional District & Sessions Judge in 2002-03.

5. That all  the Hon. Justices V.K. Verma, S.K. Jain and  S.C.  Nigam  have  been  promoted  as  High  Court Judges  from the cadre of  District  Judges.  Hon.  Justice Mr.  S.K.  Jain  and  Hon.  Justice  S.C.  Nigam  remained posted in Civil Court Meerut as Additional District Judge together  in  the  year  2002-03 and have  been promoted from Meerut  Judgeship  to  the  cadre  of  District  Judge. They are very good friends. Hon. Mr. Justice V.K. Verma also has very good intimacy with them. They have made a  caucus  with  V.P.  Srivastava,  Senior  Advocate  of

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Allahabad High Court for granting major bails to known accused  in  criminal  cases  illegally  and  with  ulterior motives.  

Hon. Justice V.K. Verma has granted bails to two accused namely Rizwan and Wassim in aforesaid famous triple murder case of Meerut in bail application No.924 of 2009 and 1238 of 2009 on 17.7.2009 illegally and with ulterior motives.”      

7. The appellant/complainant further expressed his apprehension

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

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

Shri V.P. Srivastava, Senior Advocate.   

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

been as under:  

(1)  Akhlaq  had  good  relations  with  Mr.  Justice  S.C. Nigam from the date since he was posted at Meerut on three  terms,  (2)  that  justice  V.K.  Verma  had  good intimacy with the family of the accused and the accused have made a clique alongwith one V.P. Srivastava, Senior Advocate of Allahabad High Court for procuring major bails illegally and with ulterior motives. Mr. Justice V.K. Verma has admitted bail to two accused namely Rizwan and Wasim illegally and with ulterior motives. The three Judges (V.K. Verma, S.K. Jain and S.C. Nigam) may pass any  order  at  the  behest  of  V.P.  Srivastava,  Senior Advocate.              

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

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

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

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

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

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

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

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

insignificant  as  the appellant  had not  only admitted transcribing the

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

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

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

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

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

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

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

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

resulting in any miscarriage of justice.  

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

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

similar case observed :  

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“The foundation of judicial system which is based on the independence and impartiality of those who man it will  be  shaken if  disparaging  and derogatory  remarks are  made  against  the  presiding  judicial  officers  with impunity. It  is  high time that  we realise  that the much cherished judicial independence has to be protected not only from the executive or the legislature  but also from those  who  are  an  integral  part  of  the  system.  An independent judiciary is of vital importance to any free society”.

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

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

“The  strains  and  mortification  of  litigation  cannot  be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges.  It  is  not  that  judges need be protected;  judges may  well  take  care  of  themselves.  It  is  the  right  and interest of the public in the due administration of justice that has to be protected.”

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

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

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

12.  The  appellant  has  tendered  an  absolute  and  unconditional

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

means a regretful acknowledge or excuse for failure.  An explanation

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

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

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

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

calculated strategy to avoid punishment

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

thereto  enables  the  court  to  remit  the  punishment  awarded  for

committing  the  contempt  of  court  on  apology  being  made  to  the

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

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

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

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

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

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

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

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

appropriate punishment for an act which tantamounts to contempt of

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

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

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

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

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

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

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

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

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

school of thought in administration of contempt jurisprudence.

Saying 'sorry' does not make the slapper poorer.  

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

AIR 2006 SC 2007)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

insulting  language  does  not  absolve  the  contemnor  on  any  count

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

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

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

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

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

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

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

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

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

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

2275).   

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

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

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

“silence is no longer an option.”

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

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

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

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

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

(2013) 14 SCC 127)

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

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

every court of justice.

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

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

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

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

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

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

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

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

fairness  and  impartiality  which  is  unimpeachable.   Such  an  act

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

justice  is  highly  reprehensible  and  deeply  regretted.   Absence  of

motivation is no excuse.

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

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

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

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

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

against the court.   

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

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

contemnor with simple imprisonment for a term which may extend to

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

Section  12(2)  further  provides  that  “notwithstanding  anything

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

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

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

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

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

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

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

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

forthwith.  

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

The  appellant  must  surrender  to  serve  out   the  sentence  forthwith,

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

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

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

Meerut, for information and compliance.  

....…….……………………..J.           (Dr. B.S. CHAUHAN)

                                        ....……………………………J.                                             (A.K. SIKRI)

New Delhi,                                         May 28, 2014

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 686 OF 2010

Anil Kumar                                                    …Appellant

Versus

State of U.P.                                                              …Respondent

J U D G M E N T

Dr. B.S. Chauhan,J.

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

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

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

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

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

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

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

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

....…….……………………..J.           (Dr. B.S. CHAUHAN)

                                      .....……………………………J.                                             (A.K. SIKRI)                                 

New Delhi,                                         May 28, 2014