B.C. Varma, J.
Civil Judge Class II, Shahdol made a reference u/s 15 (2) of the Contempt of Courts Act, 1971 (hereinafter referred to as the ''Act'') against the two contemners viz. Shri C.K. Saraf and Shri S.P. Saraf, who are practising Advocates at Shahdol, as according to the Civil Judge, they committed contempt of Court.
The matter has arisen under these circumstances: A Civil Suit (Civil Suit No. 5-A of 1981) was pending in the Court of Civil Judge, Class II, Shahdoi which, at the relevant time, was being presided over by Shri Ravindra Shrivastava. Contemner No. 1 C.K. Saraf appeared for the plaintiff while the Contemner No. 2 S.P. Saraf appeared for the Defendant. When evidence in the suit was being recorded and plaintiff Reshamsingh was being examined, a question arose as to the admissibility of a copy of some document. On that the Court passed some order in the deposition sheet itself. There is a dispute as to the genuineness of that order. Shri C.K. Saraf contends that at that stage he made a prayer for filing an application under Order 13, Rule 2, CPC for permission to file the original document. According to him that prayer was granted, but later, the whole deposition sheet was altered showing an otherwise expression. It appears that thereupon Shri C.K. Saraf expressed an intention to move a petition for transfer of the case from the Court of Shri Shrivastava. The Civil Judge then stayed hearing of the suit to enable Shri Saraf to move the proposed transfer application.
An application for transfer of the case was then moved u/s 24, CPC before the District Judge, Shahdol praying for transfer of that case (Civil Suit No. 5-A of 1981) from the Court of Shri Shrivastava to some other Court. It is dated 8-7-1982. It is signed by the plaintiff Reshamsingh. The endorsement on the application shows that it was presented by Shri C.K. Saraf as counsel for Reshamsingh. When notice of this application was issued, contemner No. 2 S.P. Saraf appeared for the opposite party and applied for certain better particulars on certain allegations in the transfer petition. It is this application u/s 24, CPC and the application requiring better particulars of certain allegations, in that application, that have occasioned the Civil Judge to move this Court for action for contempt of Court against the two Advocates. The offending allegations in the application for transfer, are contained in paragraphs 8 and 9 thereof. They are as follows:
The prayer clause of that application shows that the demand was not only for the transfer of the case from the Court of Shri Shrivastava but also for inquiry into the working of Shri Shrivastava and for taking suitable action against him. The allegations contained in the application requiring better particulars moved by contemner No. 2 S.P. Saraf are as follows:
It was also alleged against Shri S.P. Saraf that the application u/s 24, CPC was drafted in the office of Shri C.K. Saraf, in consultation with him.
On receipt of the reference this Court issued notices to the two Advocates to show cause as to why action be not taken against them for committing contempt of the Court. On receipt of the notices, replies and affidavits have been filed. After some hearing, additional statement was filed by contemner No. 1 C.K. Saraf whose oral statement was also recorded in Court. We may state at the outset that we are not satisfied that the material on record warrants any action against contemner No. 2 S.P. Saraf. There is no basis for the Civil Judge to apprehend that contemner No. 2 S.P. Saraf subscribed any of the allegations made in the transfer application. He also cannot be blamed for asking better particulars of the allegations made in the application. He expressed before us that he bona fide required those particulars so as to effectively contest the transfer application. We discharge him and the rule nisi issued against him shall stand discharged.
Yet, another fact worth mentioning is that on 5-10-1982 Resham- singh, the plaintiff in the civil suit expressed in writing before the District Judge that he never instructed his counsel Shri C K. Saraf to make any such allegations against the Civil Judge or to move for transfer of the case. He stated that he was called in the office of contemner No. 1 C.K. Saraf and was made to sign on certain papers. Contemner No. 2 S.P. Saraf was also then present. Subsequently on 16-10-1982 he moved the District Judge for dismissal of his transfer application stating that be never instructed his counsel to move for transfer of the case. He, however, admitted signature on the transfer application and added that it was his counsel who instructed him to get the case transferred, Reshamsingh submitted before the District Judge:
The transfer application was consequently rejected. Reshamsingh then approached the trial Court for restoration of his suit to file and for further proceedings. That was done by application dated 3-11-1982 and in para 2 of that application Reshamsingh reiterated that contemner No. 1 C.K. Saraf himself got the transfer application moved on his behalf and got certain facts inserted therein, which facts according to Reshamsingh, were not correct. It was also stated that when he came to know of that, he moved the District Judge for withdrawal of the transfer application. He stated in application dated 3-11-1982 (in para 2) thus:
Arguments were heard. Shri S.C. Datt learned counsel for Shri C.K. Saraf submitted that his client committed no contempt of Court and at any rate he never intended to do so. It was urged that he merely presented the transfer application before the Court but was not a party to that application. It was also submitted that the application was more in the nature of complaint against the Civil Judge and should be treated as one u/s 5 of the Act. It was mentioned that the Civil Judge concerned did alter the deposition sheet and is facing a departmental enquiry after being put under suspension. Ultimately, he submitted that his client has offered regrets for his conduce in case he is found to have committed contempt of Court by written submission dated 22-11-1984. The following expression was made:
That apart from all this, the present respondent again offers his regrets for the unpleasant contents in paragraph 9 and other paragraphs for which he should have been careful to instruct his client to exclude this from the transfer petition. As already submitted, he offers his regrets and assures that in future he will be careful.
The learned counsel, however, made it clear that his client should not be understood as justifying the various allegations made in the transfer petition. On the other hand, Shri Tamaskar, the Deputy Advocate General urged for a serious view of the matter and expressed that in order to maintain confidence in Judiciary and in larger interest of the public, the contemner Sferi C.K. Saraf, Advocate who by virtue of his association with the Judiciary is entrusted with the task of upholding the honour of the Judiciary, should not be allowed to go free after once scandalizing the Judge in the manner he did by making certain contemptuous matter in the transfer application.
6A. Section 2 of the Act defines contempt of Court to mean ''Civil'' or ''Criminal'' contempt and ''criminal contempt'' means:
(C) ''Criminal Contempt'' means the publication (whether by words, spoken or written or by signs or by visible representatiors or otherwise) of any matter or the doing of any other act, whatsoever which --
(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any Court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
Thus, an act which apparently scandalises or tends to scandalise the Court would be ''Criminal contempt''. This scandalisation may manifest itself in many ways. As held by the supreme Court in
In
''''The public have an interest, an abiding and real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights anc liberties perishing The law should not be seen to sit by limply while those who defy it go free, and those who seek its protection lose hope.
In
Contempt jurisdiction is a special and to some extent an unusua type of jurisdiction wherein the prosecutor and the judge are combined in one. To some extent it trenches upon the fundamental right of free speech and expression and stifles criticism of a public officer concerned with administration of public justice in discharge of his public duty The contempt jurisdiction has to be sparingly exercised with utmost restraint and considerable circumspection.
7A. In the instant case, the allegations made in paragraphs 8 and 9 of the application for transfer of the case, apparently scandalises the particular judge. Unwarranted and defamatory expression upon the character and ability of the Judge have been made. They clearly tend to create dis trust against the particular Judge in popular mind and do tend to impair the confidence of the people against the Judge concerned. In Shahdol there are very few courts and a few lawyers. The litigant public is no very literate, but is rather poorly educated. The aspersions cast against the Judge would certainly affect the administration of justice and tend to shake confidence of the people in judiciary. We are of opinion that these allegations certainly do amount to criminal contempt, as they tend to scandalise the Judge.
There is no force in the contention that Shri C.K. Saraf, contemner No. 1, did not subscribe to the aforesaid allegations made in the transfer application. The contention was that he merely presented that application and did nothing more. However, the background in which the application was moved, gives a contra indication. Shri C.K. Saraf was not happy with the conduct of the Civil Judge and his contention had been which he also maintained before us, that the Civil Judge was guilty of no only recording incorrect order-sheet but also in subsequently making alteration therein. It was in this background that the application was moved His client does not seem to be a literate or well informed litigant. He actually moved an application before the District Judge that the transfer application was drafted in the office of Shri C.K. Saraf and by no other person than Shri Saraf himself and that he signed that application without really knowing its contents. Apart from this, the nature of the allegations is also such that it could be ascribed to the counsel rather than to the client. Those allegations make it manifest that they could be more within the knowledge of Shri C.K. Saraf, Advocate than the illiterate and ill- informed litigant who might have had a litigation or two in courts during his life. We also further see that Shri C. K. Saraf not only presented that application for his client but also continued to prosecute that application without any hesitation. Shri C. K. Saraf could not, therefore, escape his liability in making those allegations.
Shri C.K. Saraf, contemner No. 1, then sought protection u/s 6 of the Act by submitting that his intention was only to make a complaint to the authorities concerned against the conduct of the Civil Judge. Learned counsel for Shri Saraf informed and the reply filed by him in this Court also shows that a departmental enquiry is pending against the Civil Judge. Section 6 of the Act is as follows:
Complaint against presiding officers of subordinate Courts when not contempt.--A person shall not be guilty of contempt of Court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate Court to--
(a) any other subordinate Court, or
(b) the High Court,
to which it is subordinate.
Explanation.--In this section, "subordinate Court" means "any Court subordinate to a High Court.
It is true that no Judge is immune from criticism as one cannot claim absolutely infallible. However, the criticism must be reasonable and must be made in good faith and free from improper imputations. If the complaint made against the Judge is genuine and made in proper manner and not made mala fide to exert pressure upon the Court in exercise of its judicial function, it would not be in furtherance of justice to stifle it by action for contempt. In Ramdayal Markarha''s case (supra) it was observed that where senior lawyer practising in rural area instead of taking recourse to procedure u/s 6 alleged that the judge has a wayward bend of mind and was pre disposed to convict and accordingly took deliberate turn in discussion of the evidence, the criticism must be deemed to substantially interfere with the due course of justice, specially in the background that matter concerned with a mofussil place where there are one or two courts and a few lawyers and the litigant public is mostly illiterate or poorly educated. There the judgment of the Court was criticised by distributing pamphlets containing scandle matter and unwarranted criticism, obviously interfering with the due course of justice. The Supreme Court did not grant benefit of section 13 of the Act to Shri Markarha, a practising Advocate and a senior lawyer of that Court. It may incidentally be mentioned that the present matter also arises from the same region and Shri C. K Saraf is also an advocate of quite a long standing. We may usefully refer to yet another decision of the Supreme Court reported in
Thus, what we see is that no person is permitted to make allegations scandalising the Judge of the Court even in an application for transfer of a case from that Court. The nature of the allegations in such case assumes importance. To our mind, the allegations in paragraphs 8 and 9 of the transfer application in the instant case, and to which allegations Shri C.K. Saraf was an active subscriber, leave no manner of doubt that they were made mala fide to disrepute the judge and to scandalise him. It is true that a prayer was also made for an inquiry into the working of the Judge but that by itself would not absolve Shri C.K. Saraf from making such serious allegations against the Judge. The imputation cannot be said to be made bona fide. This contention is, therefore, rejected.
It was faintly urged that the Civil Judge did not issue any notice under Rule 5 (a) of the Rules to show cause why proceedings for contempt of Court be not initiated. However, if a notice was issued by this Court u/s 10 of the Act and Shri C.K. Saraf has shown cause and was given full opportunity to contest the proceedings, the submission is rendered only academic.
For what we have stated above, we are of opinion that Shri K. Saraf, contemner No. 1 did commit contempt of Court as defined in section 2 (c) of the Act.
We now come to the question of sentence to be imposed upon Shri C.K. Saraf. Shri S.C. Datt, learned counsel appearing for Shri Saraf submitted before us that the attempt of his client was not to justify his action. The learned counsel submitted that Shri C.K. Saraf expressed regrets for his conduct. Shri C.K. Saraf also filed an additional written statement dated 22-11-1984, paragraph 2 which has been quoted above. Shri C.K. Saraf only stated that he ''regrets'' his action. He maintained this expression throughout the proceedings and in his oral statement, as also in written submission, only submitted. "He offers his regrets and assures that in future he will be careful." "Regret" would only mean ''to feel sorry'' for an action, while ''apology'' would mean ''regretful acknowledgement of the offence necessarily implying an humble prayer to be excused for the wrong done''. The stand taken by Shri C.K. Saraf in his replies before this Court could not impress us that he really wanted to be excused for the wrong done. The allegations that were made are of quite a serious nature and have far reaching effect on the mind of the litigant public. Such an attitude of no less the person than an advocate who is found guilty of contempt of Court, can hardly be justified from any standpoint. We may also mention that Shri C.K. Saraf did not even express his intention before us, although the hearing of the case was adjourned more than once, to tender apology to the Judge concerned. We feel that under the circumstances the ''regret'' expressed before this Court is only a paper regret and borrowing the words of the Supreme Court in L.D. Jaikwal v. State of U.P. A I R 1934 S C 1374 we may say that the expression of ''sorry'' came from his pen and not from his heart and we ignore it. For, it is one thing to ''say'' sorry--it is another to ''feel'' sorry. We may also quote the following expression appearing in the opening paragraph of the judgment:
Saying ''sorry'' does not make the slapper poorer. Nor does
the cheek which has taken the slap smart less upon the said hypocritical word being uttered through the very lips which not long ago slandered a judicial officer without the slightest compunction.
In Markarha''s case (supra) where an advocate was found guilty of scandalising the Court by publishing unwarranted and mala fide criticism of a judgment of the Court, a fine of Rs. 10 was imposed. In awarding such a nominal sentence the Court observed:
While, therefore, not exonerating the contemner we think a token punishment would serve the ends of justice because if the contemner while pursuing his object zealously is required to be kept to the path of rectitude, a token fine consciously remind the contemner that he is not gentleman at large.
In the instant case we find that Shri C.K. Saraf had some grudge against the Judge for wrongly recording his prayer and for making certain alterations in the order-sheet. However, instead of prosecuting his due remedy to vindicate his grievance, Shri C.K. Saraf made wanton allegations against the Judge and went astray leaving the path of rectitude. We, therefore, feel that a token fine of Rupee 1 would be just in the circumstances of this case.
Our conclusion is that Shri C.K. Saraf, Advocate, Shahdol, contemner No. 1 is guilty of contempt of Court and we convict him accordingly. He is sentenced to pay a fine of Rupee 1 (one) or in default to suffer simple imprisonment for a week. There shall be no order as to costs.
