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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1223 OF 2015

RAKESH TIWARI, ADVOCATE … APPELLANT

VERSUS

ALOK PANDEY, C.J.M. … RESPONDENT

J U D G M E N T

ARUN MISHRA, J.

1. The appellant, advocate, has been convicted for his undesirable conduct

by the High Court vide impugned judgment and order under the Contempt of

Courts Act and has been sentenced to simple imprisonment of six months and a

fine  of  Rs.2000/-  and  in  case  of  non-payment  of  fine,  to  undergo  simple

imprisonment for a further period of 15 days. He has also been directed not to

enter  the  premises  of  the  District  Judgeship,  Allahabad  for  a  period  of  six

months w.e.f. 15.7.2015 and the contemnor shall remain under constant watch of

the District  Judge,  Allahabad, for a period of  two years;  and in case of  any

objectionable conduct, causing interference in peaceful and smooth functioning

of the court, the District Judge has been asked to report the matter to the High

Court.

2. The contemnor has been charged with criminal contempt to the following

effect:

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“Sri Rakesh Tripathi, Advocate, on 21st December, 2012 during lunch hour without taking permission from C.J.M., Allahabad  entered  into  his  chamber  along  with  2-3 colleagues and at the said point of time he started hurling filthy abuses to the CJM and the matter did not end there, as  he  also  raised  his  hand  to  beat  the  Chief  Judicial Magistrate and also threatened him of dire consequences. The contemnor also asked the C.J.M.  as to why he has not passed an order for lodging F.I.R. when he had asked for  the  same.  This  act  on  the  part  of  the  contemnor constitutes  criminal  contempt  within  the  meaning  of Section 2(c) of Contempt of Courts Act, 1971, as this act has not only lowered the authority of the Court but also scandalised the Court and the same has also the tendency of interference with the due course of administration of justice.”   

3. The reply was filed by the contemnor to the effect that he had filed an

application on behalf of Akhilesh Kumar Shukla on 19.10.2012 under section

156(3)  Cr.P.C.  which was heard by C.J.M.  of  Allahabad on 30.10.2012 and

8.11.2012 was the date fixed for passing the order. The contemnor alleged that

before pronouncement of the order on 8.11.2012 he saw one of the accused,

Sharad Tandon, General Manager, District Industries Centre, Allahabad, sitting

in the chamber of the CJM. He apprehended that his client will not get justice,

hence,  he  moved  an  application  on  8.11.2012  before  the  Chief  Judicial

Magistrate  not  to  pass  any  order  since  the  contemnor  was  willing  to  file  a

transfer application before the District Judge, Allahabad. The CJM assured not

to pass any order but actually passed an order on the same day by converting

application filed under section 156(3) Cr.PC into a complaint case registered as

Case  No.13500  of  2012.  The  CJM took  away  the  application  from record.

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Thereafter, the contemnor moved an application before the District & Sessions

Judge, Allahabad on 9.11.2012 making a complaint against the CJM, Allahabad.

4. Another  application  was  filed  by  the  contemnor  on  30.11.2012  under

section 156(3) Cr. P.C. by counsel appearing on behalf of Alok Kumar Shukla.

He stated to the CJM that he had moved an application before the Sessions

Judge, Allahabad, hence, CJM should not pass any order. The same should be

placed before the Sessions Judge, Allahabad for assigning the same to some

other court. In January, 2013 the contemnor came to know that the CJM had

passed an order on 18.12.2012 treating the application registered as Complaint

Case  No.1919/2013.  Initially,  it  was registered as  Miscellaneous Application

No.1747/XII/2012. Non-bailable warrant has been issued in the same. He did

not  enter  into  the  chamber  of  the  CJM on  21.12.2012,  neither  abused  nor

threatened him to beat. The advocates were on strike on the said date. There was

no question of entering the chamber of CJM or to use filthy language.  

5. The High Court has found the contemnor along with 2-3 junior advocates

entered the chamber of the CJM and misbehaved as well as attempted to assault

him. No application was filed by him on 8.11.2012 before the CJM not to pass

any order. It was a concocted story. The Magistrate did not reject the application

outright  and required the complainant to adduce evidence which course was

available to him. The contemnor did not pursue the matter and got the earlier

case dismissed as not pressed and filed second application. On this the CJM has

again  registered  the  complaint  case.  The  matter  is  pending  in  which  non-

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bailable  warrant  has  been  issued  against  the  accused.  The  allegation  of

sympathy towards accused by the Magistrate has been found to be unfounded,

baseless and figment of imagination of contemnor. The defense taken has not

been substantiated by the contemnor.

6. The High Court has observed that considering the increasing tendency of

the advocates in making scurrilous allegations against the Presiding Officers of

subordinate courts has to be curbed. The acts of abusing and misbehaving are on

increase.  The  action  of  the  advocate  amounts  to  lowering  the  dignity  and

majesty  of  the  court.  A deliberate  attempt  to  scandalise  a  judicial  officer  of

subordinate court is bound to shake the confidence of the litigant public in the

system and has to be tackled strictly. Damage is not only to the reputation of the

Judge but also to the fair name of the judiciary. Judges cannot be tamed by such

tactics into submission to secure a desired order. The foundation of the system is

based on independence and impartiality of the Judges as well as responsibility

to impart justice. In case their confidence, impartiality and reputation are shaken

the same is bound to adversely affect the independence of the judiciary.

7. In our opinion, an advocate is duty bound to act as per the higher status

conferred  upon  him  as  an  officer  of  the  court.  He  plays  a  vital  role  in

preservation of society and justice delivery system. Advocate has no business to

threaten a Judge or hurl abuses for judicial order which he has passed. In case of

complaint  of  the Judge,  it  was open to  the advocate  to  approach concerned

higher authorities but there is no licence to any member of the Bar to indulge in

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such undignified conduct to lower down the dignity of the Court. Such attempts

deserve to be nipped at the earliest  as there is no room to such attack by a

member of noble profession.

8. The role of a lawyer is indispensable in the justice delivery system. He

has to follow the professional ethics and also to maintain high standards. He has

to assist the court and also defend the interest of his client. He has to give due

regard to his opponent and also to his counsel. What may be proper to others in

the society, may be improper for him to do as he belongs to an intellectual class

of the society and as a member of the noble profession, the expectations from

him are accordingly higher. Advocates are held in high esteem in the society.

The dignity of court is in fact dignity of the system of which an advocate being

officer  of  the court.  The act  of  the advocate  in the present  case is  not  only

improper but requires gross condemnation.  

9. It has been observed by this Court in the matter of  Mr. ‘G‚‘, A Senior

Advocate of the Supreme Court in AIR 1954 SC 557 that an advocate has to

conduct  himself  in  a  manner  befitting  the  high  and  honourable  profession.

Following observations have been made in para 41 :

“41. ....... “with ordinary legal rights, but with the special and rigid rules

of  professional  conduct  expected  of  and  applied  to  a  specially priviledged  class  of  persons  who,  because  of  their  priviledged status, are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-professional character.  ... He [a legal practitioner} is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has so long been admitted; and if he departs from the

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high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action.”

10. Similarly in Lalit Mohan Das v. Advocate General, Orissa AIR 1957

SC  250, this Court observed :

“A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can faitly and reasonably be submitted  on  behalf  of  his  client.   He  may  even  submit  that  a particular  order  is  not  correct  and may ask for  a  review of  that order.  At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing.  He must uphold the dignity and decorum of the Court and must not do anything  to  bring  the  Court  itself  into  disrepute.   The  appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court.  In suggesting that the Munsif followed no principle in his orders,  the  appellant  was  adding  insult  to  injury,  because preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision.  Scandalising the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; it brought into disrepute the whole administration of justice. From that  point  of  view,  the  conduct  of  the  appellant  was  highly reprehensible.”

11. The main question urged is as to the sentence to be imposed in the case.

In Supreme Court Bar Association v. Union of India & Anr. (1998) 4 SCC 409,

this Court has laid down that though it is not permissible for a court to suspend

the licence to practice but at the same time it is open to this Court or the High

Court to debar an advocate from appearing in the court. This Court has laid

down that though suspension of a lawyer is not permissible to be ordered but

when he is convicted under the contempt of court, it is possible for this Court or

the High Court to prevent the advocate to appear in the court. The Court has

observed:

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“80. In a given case it may be possible, for this Court or the High Court, the prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his license or debarring him to practice as  an  advocate.  In  a  case  of  contemptuous,  contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practice as an Advocate-an- Record because that privilege is conferred by this Court and the power  to  grant  the  privilege  includes  the  power  to  revoke  or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his license to practice as an advocate in other courts or Tribunals.”

(emphasis supplied)

12. In Pravin C. Shah v. K.A. Mohd. Ali & Anr. (2001) 8 SCC 650, this Court

observed that an advocate found guilty of contempt cannot have an unreserved

right to appear in court, the court may refuse to hear him:

“17.  When  the  rules  stipulate  that  a  person  who  committed contempt of court cannot have the unreserved right to continue to appear and plead and conduct  cases in the courts without any qualm  or  remorse,  the  Bar  Council  cannot  overrule  such  a regulation concerning the orderly conduct of court proceedings. Courts of law are structured in such a design as to evoke respect and reverence for the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court.  Proceedings inside the courts are always expected to be held  in  a  dignified  and  orderly  manner.  The  very  sight  of  an advocate,  who  was  found  guilty  of  contempt  of  court  on  the previous hour, standing in the court and arguing a case or cross- examining  a  witness  on  the  same  day,  unaffected  by  the contemptuous behavior he hurled at the court, would erode the dignity of the court and even corrode the majesty of it besides impairing  the  confidence  of  the  public  in  the  efficacy  of  the institution of the courts. This necessitates vesting of power with the High Court to formulate rules for regulating the proceeding inside the court including the conduct of advocates during such proceedings. That power should not be confused with the right to practice law. While the Bar Council can exercise control over the latter the High Court should be in control of the former.

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20.  Lord  Denning  had  observed  as  follows  in  Hadkinson  vs. Hadkinson 1952 (2) All ER 567: (All ER p.575B-C)

"…I am of the opinion that the fact that a  party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it  more difficult  for  the court  to  ascertain the truth or to enforce the orders which it may make, then  the court  may  in  its  discretion  refuse  to  hear  him  until  the impediment  is  removed  or  good  reason  is  shown  why  it should not be removed."

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35. It is still open to the respondent Advocate to purge himself of the  contempt  in  the  manner  indicated  above. But  until  that process is completed respondent Advocate cannot act or plead in any court situated within the domain of the Kerala High Court, including the subordinate courts thereunder. The Registrar of the High  Court  of  Kerala  shall  intimate  all  the  courts  about  this interdict as against the respondent-advocates.”

(emphasis supplied)

13. In Bar Council of India v. High Court of Kerala (2004) 6 SCC 311, this

Court has observed thus:

“29. Punishment for commission of contempt and punishment for misconduct, professional or other misconduct, stand on different footings. A person does not have a fundamental right to practice in  any  court.  Such  a  right  is  conferred  upon  him  under  the provisions of the Advocates Act which necessarily would mean that  the  conditions  laid  down  therein  would  be  applicable  in relation  thereto.  Section  30  of  the  Act  uses  the  expressions "subject to", which would include Section 34 of the Act.“

(emphasis supplied)

14. In  R K Anand v.  Registrar,  Delhi High Court (2009) 8 SCC 106, this

Court has observed that advocate can be disallowed from appearing in court on

being found guilty of contempt of court:

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“238. In  Supreme Court Bar Assn. the direction prohibiting an advocate  from  appearing  in  court  for  a  specified  period  was viewed as a total and complete denial of his right to practice law and the bar was considered as a punishment inflicted on him. In Ex.  Capt.  Harish  Uppal it  was  seen  not  as  punishment  for professional misconduct but as a measure necessary to regulate the court's proceedings and to maintain the dignity and orderly functioning of the courts. We may respectfully add that in a given case  a  direction  disallowing  an  advocate  who is  convicted  of criminal  contempt from appearing in court  may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self-protection of the court and for preservation of the purity of court proceedings.  Let us,  for example,  take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the court's record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice  to  browbeat  and  abuse  judges  and  on  that  basis  has earned  the  reputation  to  get  a  case  transferred  from  an “inconvenient” court; or where an advocate is found to be in the habit  of  sending  unfounded  and  unsubstantiated  allegation petitions  against  judicial  officers  and  judges  to  the  superior courts. Unfortunately, these examples are not from imagination. These  things  are  happening  more  frequently  than  we  care  to acknowledge.  

239. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactor's conduct and actions may pose a real and imminent threat to the purity of court proceedings,  cardinal  to  any  court's  functioning,  apart  from constituting  a  substantive  offense  and  contempt  of  court  and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted  in  any  way  and  to  that  end  bar  the  malefactor  from appearing before the courts for an appropriate period of time.

240. It is already explained in  Ex. Captain Harish Uppal that a direction  of  this  kind  by  the  Court  cannot  be  equated  with punishment for professional misconduct. Further, the prohibition against  appearance  in  courts  does  not  affect  the  right  of  the lawyer concerned to carry on his legal practice in other ways as indicated in the decision. We respectfully submit that the decision

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in  Ex-Capt. Harish Uppal v. Union of India places the issue in correct perspective and must be followed to answer the question at issue before us.”

(emphasis supplied) 15. In the instant case the advocate has acted contrary to the obligations.

He has set a bad example before others while destroying the dignity of the

court and the Judge. The action has the effect of weakening of confidence of

the people in courts. The judiciary is one of the main pillars of democracy

and is essential to peaceful and orderly development of society. The Judge

has  to  deliver  justice  in  a  fearless  and  impartial  manner.  He  cannot  be

intimidated  in  any manner  or  insulted  by hurling abuses.  Judges  are  not

fearful  saints.  They  have  to  be  fearless  preachers  so  as  to  preserve  the

independence of the judiciary which is absolutely necessary for survival of

democracy.  

16. The act stated amounts to criminal contempt of court. The High Court

has noted that the concerned advocate did not apologise and has maligned

and scandalised the subordinate court. He has made bare denial and has not

shown any remorse for  his misconduct.  Considering the gravamen of the

allegations the High Court has imposed the imprisonment of SI for 6 months

with fine of Rs.2000 and in default to pay fine or to undergo SI for 15 days.

He has been restrained from enering the judgeship of Alahabad for a period

of 6 months that was to commence from 15.7.2015 and he had been kept

under watch for a period of 2 years. Considering the nature of misconduct,

while  upholding  the  conviction  for  criminal  contempt,  we  modify  the

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sentence in the following manner :

1. The sentence of imprisonemnt of 6 months shall remain suspended for

further period of 3 years subject to his maintaining good and proper

conduct with a condition that he shall  not enter the premises of the

District  Judgeship,  Allahabad for  a  further  period of  three  years  in

addition  to  what  he  has  undergone  already.   The  period  shall

commence from 1.7.2019 to 30.6.2022.  In case of non violation of

aforesaid condition the sentence after three years shall be remitted.  

2. However, sentence of imprisonment may be activated by this Court in

case  it  is  found that  there  is  breach of  any condition  made by the

concerned advocate during the period of three years.  3. He shall deposit fine of Rs.2000 as imposed by the High Court. In case

of failure to deposit  fine he shall  not  enter the premises of District

Judgeship for a period of three months.

17. The appeal is, accordingly, disposed of.  No costs.

............................J.   (ARUN MISHRA)

.............................J.                 (NAVIN SINHA)

NEW DELHI; MAY 10, 2019