Mahipal Singh Rana, Advocate V/s.State of Uttar Pradesh July 05, 2016.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 63 OF 2006


Mahipal Singh Rana, Advocate                     ….Appellant



                                VERSUS

State of Uttar Pradesh                      ....Respondent


                               J U D G M E N T

ANIL R. DAVE, J.
1.    The present appeal is preferred under Section 19 of  the  Contempt  of
Courts Act,  1971  (hereinafter  referred  to  as  “the  Act”)  against  the
judgment  and  order  dated  02.12.2005  delivered  by  the  High  Court  of
Judicature at Allahabad in  Criminal  Contempt  Petition  No.  16  of  2004,
whereby the High Court found the appellant guilty of Criminal  Contempt  for
intimidating and threatening a Civil Judge (Senior Division),  Etah  in  his
Court on 16.4.2003 and 13.5.2003 and sentenced him  to  simple  imprisonment
of two months with a fine of Rs. 2,000/- and in default of  payment  of  the
fine, the appellant to undergo further imprisonment of  2  weeks.  The  High
Court further directed the Bar Council of  Uttar  Pradesh  to  consider  the
facts contained in the complaint of the Civil Judge (Senior Division)  Etah,
and  earlier  contempt  referred  to  in  the  judgement  and  to   initiate
appropriate proceedings against the appellant for professional misconduct.

Reference to larger Bench and the Issue
2.    On 27th January, 2006, this appeal was  admitted  by  this  Court  and
that part of the impugned judgment, which imposed the sentence,  was  stayed
and the appellant was directed not to  enter  the  Court  premises  at  Etah
(U.P.). Keeping in view  the  importance  of  the  question  involved  while
admitting the appeal on 27th  January,  2006,  notice  was  directed  to  be
issued to the Supreme Court Bar Association as well as to  the  Bar  Council
of India.  The matter was referred to the larger Bench.   Learned  Solicitor
General of India was requested to assist the Court in the matter.
3.    On 6th March, 2013 restriction on entry  of  the  appellant  into  the
court premises  as  per  order  dated  27th  January,  2006  was  withdrawn.
Thereby, the appellant was permitted to enter the court premises.  The  said
restriction was, however, restored later.  On 20th August, 2015, notice  was
issued to the Attorney General on the larger question whether on  conviction
under the Contempt of Courts  Act  or  any  other  offence  involving  moral
turpitude an advocate could be permitted to practise.
4.    Thus following questions arise for consideration:
Whether a case has been made out for interference with the order  passed  by
the  High  Court  convicting  the  appellant  for  criminal   contempt   and
sentencing him to  simple  imprisonment  for  two  months  with  a  fine  of
Rs.2,000/- and further imprisonment for two weeks in default  and  debarring
him from appearing in courts in judgeship at Etah; and

Whether on conviction for criminal contempt, the appellant  can  be  allowed
to practise.


The facts and the finding of the High Court

5.    The facts of  the  present  appeal  discloses  that  the  Civil  Judge
(Senior Division), Etah made a reference under Section 15 (2) of the Act  to
the High Court through the learned District Judge, Etah (U.P.)  on  7.6.2003
recording two separate incidents dated 16.4.2003 and  13.5.2003,  which  had
taken place in his Court in which the appellant had appeared before him  and
conducted himself in a manner which constituted  “Criminal  Contempt”  under
Section 2 (c) of the Act.
6.    The  said  letter  was  received  by  the  High  Court  along  with  a
forwarding letter of the District Judge dated 7.6.2003 and the letters  were
placed before the  Administrative  Judge  on  7.7.2003,  who  forwarded  the
matter to the Registrar General vide order dated 18.6.2004 for  placing  the
same before the Hon’ble Chief Justice of the High Court  and  on  11.7.2004,
the Hon’ble Chief Justice of the High  Court  referred  the  matter  to  the
Court concerned dealing with contempt cases and notice was  also  issued  to
the appellant.

7.    Facts denoting behaviour of the appellant, as recorded  by  the  Civil
Judge (Senior Division), Etah, can be seen from the contents of  his  letter
addressed to the learned District Judge, Etah.  The letter reads as under:-

“Sir,

It is humbly submitted that on 16.4.2003, while I was hearing the 6-Ga-2  in
Original Suit No.114/2003 titled as “Yaduveer Singh Chauhan  vs.  The  Uttar
Pradesh Power Corporation”, Shri Mahipal Singh Rana,  Advocate  appeared  in
the Court, and, while using intemperate language, spoke in a loud voice:

“How did you pass an order against my client in the case titled as  “Kanchan
Singh vs. Ratan Singh”? How did you dare  pass  such  an  order  against  my
client?

I tried to console him, but  he  started  shouting  in  a  state  of  highly
agitated mind:

“Kanchan Singh is my relative and how  was  this  order  passed  against  my
relative? No Judicial Officer has, ever, dared pass  an  order  against  me.
Then, how did you dare do so? When any Judicial officer passes an  order  on
my file against my client, I  set  him  right.  I  shall  make  a  complaint
against you to Hon’ble High Court”, and he threatened me: “I  will  not  let
you remain in Etah in  future,  I  can  do  anything  against  you.  I  have
relations with highly notorious persons and I can get  you  harmed  by  such
notorious persons to the extent I want to do, and I  myself  am  capable  of
doing any deed (misdeed) as I wish, and I am not afraid of any one.  In  the
Court compound, even my shoes are worshipped and I  was  prosecuted  in  two
murder cases. And I have made murderous assaults on people and about  15  to
20 cases are going on against me. If you, in future, dare pass an  order  on
the file against my client in which I am a counsel, it will not be good  for
you”.

Due to the above mentioned behaviour of Shri Mahipal Singh  Rana,  Advocate,
the judicial work was hindered and  aforesaid  act  of  Shri  Mahipal  Singh
falls within the ambit of committing the contempt of Court.

In this very succession, on 13.5.2003, while I was  hearing  6-Ga-2  in  the
O.S. No. No. 48/2003 titled as “Roshanlal v Nauvat Ram”, Shri Mahipal  Singh
Rana Advocate appeared in the Court and spoke in a loud voice: “Why did  you
not get the OS No. 298/2001 title as ‘Jag Mohan vs. Smt. Suman’  called  out
so far, whereas the aforesaid case is very important, in as  much  as  I  am
the plaintiff therein”.  I  said  to  Shri  Mahipal  Singh  Rana,  Advocate:
“Hearing of a case is going on. Thereafter, your case  will  be  called  out
for hearing”, thereupon he got enraged and spoke: “That- case will be  heard
first which I desire to be heard first. Nothing is done as per your  desire.
Even an advocate does not dare create a hindrance in my case.  I  shall  get
the case decided which I want and that case will never be decided,  which  I
do not want. You cannot decide any case against my wishes”.  Meanwhile  when
the counsel for Smt. Suman in O.S. No. 298/2001 titled  as  “Jag  Mohan  vs.
Smt. Suman” handed some papers over to Shri  Mahipal  Singh  Rana,  Advocate
for receiving the same, he threw those papers away and misbehaved  with  the
counsel for Smt. Suman. Due to this act of  Shri  Mahipal  Singh  Rana,  the
judicial work was hindered and his act falls within the ambit of  committing
the contempt of Court.

Your good self is therefore requested that in order to initiate  proceedings
relating to committing the contempt of  Court  against  Shri  Mahipal  Singh
Rana, Advocate, my report may kindly be sent to the Hon’ble  High  Court  by
way of REFERENCE”.

With regards,”



8.    On the same day, the learned Civil Judge (Senior Division) also  wrote
another letter to the Registrar-General of the High Court, giving some  more
facts regarding contemptuous behaviour of the appellant with  a  request  to
place the facts before the Hon’ble Chief Justice of the High Court  so  that
appropriate action under the Act may be taken against the appellant. As  the
aforestated  letters  refer  to  the  facts  regarding  behaviour   of   the
appellant, we do not think it necessary to reiterate the same here.

9.    Ultimately, in pursuance of the information given to the  High  Court,
proceedings under the Act had been initiated against the appellant.

10.   Before the High Court, it was contended on  behalf  of  the  appellant
that it was not open to the Court to proceed  against  the  appellant  under
the provisions of the Act because if the behaviour of the appellant was  not
proper or he had committed any professional misconduct,  the  proper  course
was to take action  against  the  appellant  under  the  provisions  of  the
Advocates Act, 1961.  It was also contended  that  summary  procedure  under
the Act could not have been  followed  by  the  Court  for  the  purpose  of
punishing  the  appellant.   Moreover,  it  was  also  submitted  that   the
appellant was not at all present before  the  learned  Civil  Judge  (Senior
Division), Etah on 16.4.2003 and 13.5.2003.

11.   Ultimately, after hearing the parties concerned, the  High  Court  did
not accept the defence of the appellant and after considering the  facts  of
the case, it delivered the impugned judgment  whereby  punishment  has  been
imposed upon the appellant. The High Court observed:

“22.   Extraordinary   situations   demand   extraordinary   remedies.   The
subordinate courts in Uttar Pradesh are  witnessing  disturbing  period.  In
most of the subordinate courts,  the  Advocates  or  their  groups  and  Bar
Associations have been virtually taken over the  administration  of  justice
to ransom. These Advocates  even  threaten  and  intimidate  the  Judges  to
obtain  favourable  orders.  The  Judicial  Officers  often   belonging   to
different districts are not able to resist the pressure  and  fall  prey  to
these Advocates. This disturbs the equilibrium between  Bar  and  the  Bench
giving undue advantage and  premium  to  the  Bar.  In  these  extraordinary
situations the High Court can not  abdicate  its  constitutional  duties  to
protect the judicial officers.

xxxxx

24. ……………The criminal history of the contemnor, the acceptance of  facts  in
which  his  actions  were  found  contumacious  and  he  was  discharged  on
submitting apologies on two previous occasions, and the allegations  against
him in which he  was  found  to  continue  with  intimidating  the  judicial
officers compelled us to issue interim orders restraining his entry  of  the
contemnor in the judgeship at Etah. The Bar Council  of  Uttar  Pradesh,  is
fully aware of his activities but has chosen not to take any action  in  the
matter. In fact the Bar Council hardly takes cognizance of such  matters  at
all. The Court did not interfere  with  the  statutory  powers  of  the  Bar
Council of  Uttar  Pradesh  to  take  appropriate  proceedings  against  the
contemnor with regard to his right of practice, and did not take away  right
of practice vested in him  by  virtue  of  his  registration  with  the  Bar
Council. He was not debarred  from  practice  but  was  only  restrained  to
appear in the judgeship at Etah in the cases he was engaged as an  Advocate.
The  repeated  contumacious  conduct,  without  any  respect  to  the  Court
committed by him repeatedly by intimidating and brow  beating  the  judicial
officers,  called  for  maintaining  discipline,  protecting  the   judicial
officers and for maintaining peace in the premises of judgeship at Etah.

25. Should the High Court allow such  advocate  to  continue  to  terrorise,
brow beat and bully the judicial officers? It is submitted  that  he  has  a
large practice. We are not concerned here  whether  the  contemnor  or  such
advocates are acquiring large practice by  intimidating  judicial  officers.
These are questions to be raised before the Bar Council. We,  however,  must
perform our constitutional duty to protect our judicial  officers.  This  is
one  such  case  illustrated  in  para  78,  of  the   Supreme   Court   Bar
Association's case (supra), in which the occasion had arisen to prevent  the
contemnor to appear before courts at Etah. The withdrawal of such  privilege
did not amount to suspending or revoking  his  licence  to  practice  as  an
advocate in other courts or tribunal, drafting the  petitions  and  advising
his clients. It only prevented him from intimidating the  judicial  officers
and from vitiating the atmosphere conducive for  administration  of  justice
in the judgeship at Etah.



31. The Supreme Court held that Section 20 of the Contempt  of  Courts  Act,
has to be construed in a manner which  would  avoid  anomaly  and  hardships
both as regards the litigant as also by placing a pointless  fetter  on  the
part of the court to punish for its contempt. In Pallav Seth  the  custodian
received information of the appellant having committed  contempt  of  taking
over benami concerns, transferring funds to  these  concerns  and  operating
their accounts, from a letter dated 5.5.1998, received from the  Income  Tax
Authorities.  Soon  thereafter  on  18.6.1998  a  petition  was  filed   for
initiating action in contempt and  notices  were  issued  by  the  Court  on
9.4.1999. The Supreme Court found that  on  becoming  aware  of  the  forged
applications the contempt proceedings were filed on  18.6.1998  well  within
the period of limitation prescribed by Section 20 of  the  Act.  The  action
taken by the special  court  by  its  order  dated  9.4.1999  directing  the
applications to be treated as show cause notice, was  thus  valid  and  that
the contempt action was not barred by Section 20 of the Act.


32. In the present case the alleged contempt was committed in the  court  of
Shri Onkar Singh Yadav, Civil Judge (Senior Division) Etah on 16.4.2003  and
13.5.2003. The officer initiated the proceedings by making reference to  the
High Court through the District  Judge  vide  his  letters  dated  7.6.2003,
separately in respect of the incidents. These letters were received  by  the
Court with the forwarding letter of the District Judge  dated  1.6.2003  and
were placed before  Administrative  Judge  on  7.7.2003,  who  returned  the
matter to the Registrar General with his order dated 18.6.2004 to be  placed
before Hon'ble the Chief Justice and that  by  his  order  dated  11.7.2004,
Hon'ble the Chief Justice referred  the  matter  to  court  having  contempt
determination. Show cause notices were issued by the court to the  contemnor
on 28.10.2004. In view of the law as explained in Pallav  Seth  (supra)  the
contempt proceedings would be taken to  be  initiated  on  7.6.2003  by  the
Civil Judge (Senior Division) Etah, which was well within the period of  one
year from the date of the incidents  prescribed  under  Section  20  of  the
Act.

xxxxxx

36. We do not find that the contemnor Shri Mahipal Singh Rana  is  suffering
from any mental imbalance. He is fully conscious of  his  actions  and  take
responsibility of the same. He suffers from  an  inflated  ago,  and  has  a
tremendous superiority complex and claims himself to be a champion  for  the
cause of justice, and would not spare  any  effort,  and  would  go  to  the
extent of intimidating the judges if he feels the injustice  has  been  done
to his client. We found ourselves unable to convince him  that  the  law  is
above every one, and that  even  if  he  is  an  able  lawyer  belonging  to
superior caste, he could still  abide  by  the  dignity  of  court  and  the
decency required from an advocate appearing in any court of law.


37. The due administration of law is of vastly greater importance  than  the
success or failure of any individual, and for that reason public  policy  as
well as good morals require that every Advocate  should  keep  attention  to
his conduct. An Advocate is an officer  of  the  Court  apart  of  machinery
employed for administration of justice, for meeting  out  to  the  litigants
the exact measure of their legal rights. He is  guilty  of  a  crime  if  he
knowingly sinks his official duty, in what may seem to be  his  own  or  his
clients temporary advantage.

38. We find that the  denial  of  incidents  and  allegations  of  malafides
against Shri Onkar Singh Yadav, the then Civil Judge (Senior Division)  Etah
have been made only to save himself from the contumacious conduct.




39. Shri Mahipal Singh Rana, the contemnor has refused to  tender  apologies
for his conduct. His affidavit in support of stay vacation/modification  and
supplementary affidavit do not show any remorse. He  has  justified  himself
again and again, in a loud and thundering voice.


40. We find that Shri Mahipal Rana  the  contemnor  is  guilty  of  criminal
contempt in intimidation and threatening Shri Onkar  Singh  Yadav  the  then
Civil Judge (Senior Division) Etah in his court on 16.4.2003  and  13.5.2003
and of using loud and indecent language both in court and in  his  pleadings
in suit No. 515/2002. He was  discharged  from  proceeding  of  contempt  in
Criminal Contempt Petition No. 21/1998 and Criminal Contempt No. 60 of  1998
on  his  tendering  unconditionally  apology  on  3.8.1999  and   11.11.2002
respectively. He however did not mend himself and  has  rather  become  more
aggressive and disrespectful to the court. He has virtually become  nuisance
and obstruction to the administration of justice at the Judgeship  at  Etah.
We are satisfied that the repeated acts of criminal  contempt  committed  by
him are of such nature that  these  substantially  interfere  with  the  due
course of justice. We thus punish him under Section 12 of  the  Contempt  of
Courts Act 1971, with two months imprisonment and also impose  fine  of  Rs.
2000/- on him. In case non-payment of fine he will undergo further a  period
of imprisonment of two weeks. However, the punishment so  imposed  shall  be
kept in abeyance for a period of sixty days to  enable  the  contemner  Shri
Rana to approach the Hon'ble Supreme Court, if so advised.


41. We also direct the Bar Council  of  Uttar  Pradesh  to  take  the  facts
constituted in the complaints of Shri Onkar  Singh  Yadav,  the  then  Civil
Judge (Senior Division) Etah, the two earlier  contempts  referred  in  this
judgment, and to draw proceedings against him for professional misconduct.


42. Under the Rules of this Court, the contemnor shall not be  permitted  to
appear in courts in the Judgeship at Etah, until he purges the contempt.


43. The Registrar General shall draw the order and  communicate  it  to  the
Bar Council of Uttar Pradesh and Bar Council of India  within  a  week.  The
contemnor shall be taken into custody to serve the sentence  immediately  of
the sixty days if no restrain order is passed by the appellate court.”



Rival Contentions:

12.   The learned counsel appearing for  the  appellant  before  this  Court
specifically denied the instances dated 16.4.2003 and 13.5.2003 and  further
submitted that the appellant had not even gone to the Court of  the  learned
Civil Judge  (Senior  Division),  Etah  on  the  aforestated  two  days  and
therefore, the entire case made out against  the  appellant  was  false  and
frivolous. The learned counsel, therefore, submitted  that  the  High  Court
had committed an error by  not  going  into  the  fact  as  to  whether  the
appellant had, in fact, attended  the  Court  of  the  learned  Civil  Judge
(Senior Division), Etah on 16.4.2003 and  13.5.2003.   The  learned  counsel
further submitted that the High Court ought  to  have  considered  the  fact
that the appellant had filed several complaints against  the  learned  Judge
who was the complainant and therefore, with an  oblique  motive  the  entire
contempt  proceedings  were  initiated  against  the  appellant.   The  said
complaints ought to have been considered by the High Court.  It was  further
submitted  that  contempt  proceedings  were  barred  by  limitation.    The
incidents in question are dated 16th April, 2003 and 13th  May,  2003  while
notice was ordered to be issued on 28th April, 2004.

13.   The  learned  counsel,  thus,  submitted  that  the  action  initiated
against the appellant was not just and  proper  and  the  impugned  judgment
awarding punishment to the appellant  under  the  Act  is  bad  in  law  and
therefore, deserved to be set aside. In the  alternative,  it  is  submitted
that the appellant was 84 years  of  age  and  keeping  that  in  mind,  the
sentence for imprisonment may be set aside and  instead,  the  fine  may  be
increased.

14.   On the other hand, the learned counsel  appearing  for  the  State  of
Uttar Pradesh submitted that the  impugned  judgment  was  just,  legal  and
proper and the  same  was  delivered  after  due  deliberation  and  careful
consideration of the relevant facts.   He  submitted  that  looking  at  the
facts of the case, the High Court rightly came to the  conclusion  that  the
appellant was not only present in the  Court  on  those  two  days  i.e.  on
16.4.2003  and  13.5.2003,  but  the  appellant  had  also  misbehaved   and
misconducted in  such  a  manner  that  his  conduct  was  contemptuous  and
therefore, the proceedings under the Act had to be  initiated  against  him.
The learned counsel also drew attention of the Court to the  nature  of  the
allegations made by the appellant against the learned Judge  and  about  the
contemptuous behaviour of the appellant.  The learned  counsel  also  relied
upon the report submitted to the learned District Judge and  submitted  that
the impugned judgment is just, legal and proper.   He  also  submitted  that
the misbehaviour and contemptuous act of the appellant was unpardonable  and
therefore,  the  High  Court  had  rightly  imposed  punishment   upon   the
appellant.



15.   In response to the notice issued by this Court on  20th  August,  2015
in respect of the question framed, the learned  counsel  appearing  for  the
Bar Council of India submitted that Section 24A of the Advocates  Act,  1961
provides for a bar against admission of a person as an  advocate  if  he  is
convicted  of  an  offence  involving  moral  turpitude,  apart  from  other
situations in which such bar operates. The  proviso  however,  provides  for
the bar being lifted after two years of  release.   However,  the  provision
did not expressly provide for removal of an advocate from the  roll  of  the
advocates if conviction takes place after  enrollment  of  a  person  as  an
advocate.  Only other relevant provision under which action could  be  taken
is Section 35 for proved misconduct.  It is further stated that  though  the
High  Court  directed  the  Bar  Council  of  Uttar  Pradesh   to   initiate
proceedings for professional  misconduct  on  2.12.2005,  the  consequential
action taken by the Bar Council of  the  State  of  Uttar  Pradesh  was  not
known.  It is further stated  that  the  term  moral  turpitude  has  to  be
understood having regard to the nature of the noble profession of law  which
requires a person to possess  higher  level  of  integrity.   Even  a  minor
offence could be termed as an  offence  involving  moral  turpitude  in  the
context of an advocate who is expected to be aware  of  the  legal  position
and the conduct expected from him as a citizen is  higher  than  others.  It
was further submitted that only the State Bar  Council  or  Bar  Council  of
India posses the power to punish an advocate for  “professional  misconduct”
as per the  provisions  of  Section  35  of  the  Advocates  Act,  1961  and
reiterated the law laid down by this Court in Supreme Court Bar  Association
versus Union of India[1]. In addition, the counsel submitted that a  general
direction to all the Courts be given to communicate about conviction  of  an
advocate for an offence involving moral turpitude  to  the  concerned  State
Bar Council or the Bar Council of  India  immediately  upon  delivering  the
judgment of conviction so that proceedings against  such  advocates  can  be
initiated under the Advocates Act, 1961.

16. The Learned Additional Solicitor General of India  appearing  on  behalf
of Union of India, submitted that normally in case of all  professions,  the
apex body of the professionals takes action against the erring  professional
and  in  case  of  legal  profession,  the  Bar  Council  of   India   takes
disciplinary action and punishes the concerned advocate if he is  guilty  of
any misconduct etc. Reference was made to Architects Act,  1972,   Chartered
Accountants Act, 1949,  Company Secretaries Act,  1980,   Pharmacy  Practice
Regulations, 2015,  Indian Medical Council (Professional Conduct  Etiquettes
and Ethics) Regulations, 2002, National Council for Teacher  Education  Act,
1993, Cost and Works Accountants Act, 1959,  Actuaries  Act,  2006,  Gujarat
Professional Civil Engineers  Act,  2006,  Representation  of  Peoples  Act,
1951, containing provisions for disqualifying a person from continuing in  a
regulated  profession  upon  conviction  for  an  offence  involving   moral
turpitude.  Reference was also made to Section  24A  of  the  Advocates  Act
which provides for a bar on enrolment as an advocate of  a  person  who  has
committed any offence involving moral turpitude.  It was  further  submitted
that if a person is  disqualified  from  enrolment,  it  could  not  be  the
intention of the legislature to permit  a  person  already  enrolled  as  an
advocate to continue him in practice  if  he  is  convicted  of  an  offence
involving moral turpitude.  Bar against enrolment should also be  deemed  to
be bar against continuation.  It was further submitted that Article  145  of
the Constitution empowers the Supreme Court to  make  rules  for  regulating
practice and procedure including the persons practicing before  this  Court.
Section 34 of the Advocates Act empowers the  High  Courts  to  frame  rules
laying down the conditions on  which  an  advocate  shall  be  permitted  to
practice in courts.  Thus, there is no absolute  right  of  an  advocate  to
appear in court. Appearance before Court is subject to  such  conditions  as
are laid down by this Court  or  the  High  Court.   An  Advocate  could  be
debarred  from  appearing  before  the  Court  even  if   the   disciplinary
jurisdiction for misconduct was vested with the Bar Council as laid down  in
Supreme Court Bar Association (supra) and as further clarified in Pravin  C.
Shah versus K.A. Mohd. Ali[2],  Ex-Captain  Harish  Uppal  versus  Union  of
India[3], Bar Council of  India versus High  Court  of  Kerala[4]  and  R.K.
Anand  versus  Registrar,  Delhi  High  Court[5].  Thus,  according  to  the
counsel, apart from the Bar Council taking appropriate  action  against  the
appellant, this Court could debar him from appearance before any court.

17.   Shri Dushyant Dave,  learned  senior  counsel  and  President  of  the
Supreme Court Bar Association supported the interpretation canvassed by  the
learned Additional Solicitor  General.   He  submitted  that  image  of  the
profession ought to be kept clean by taking strict  action  against  persons
failing to maintain ethical standards.

18.   We have heard the learned counsel appearing for the parties  and  have
perused the judgments cited by them.

Consideration of the questions

We may now consider the questions posed for consideration:



Re: (i)

19.   Upon going through the impugned judgment, we are of the view  that  no
error has been committed by the High Court while coming  to  the  conclusion
that the appellant had committed contempt of Court under the  provisions  of
the Act.

20.   We do not agree with the submissions of the learned  counsel  for  the
appellant that the appellant did not appear on those  two  days  before  the
Court.  Upon perusal of the facts found by the High  Court  and  looking  at
the contents of the letters written by the concerned judicial  officers,  we
have no doubt about the fact that the appellant did appear before the  Court
and used the language which was contemptuous in nature.

21.   So far as the allegations made by the appellant  with  regard  to  the
complaints made by him against the  complainant  judge,  after  having  held
that the appellant had appeared before the Court and had  made  contemptuous
statements, we are  of  the  opinion  that  those  averments  regarding  the
complaints are irrelevant.  The averments regarding  the  complaints  cannot
be a defence for the appellant.   Even if we assume  those  averments  about
the complaints to be correct, then  also,  the  appellant  cannot  use  such
contemptuous language in the Court against the presiding Judge.

22.   There is no merit in the contention of the appellant  that  there  was
delay on the part of the complainant Judge in sending the reference  and  he
could have tried the appellant under Section 228 of the  Indian  Penal  Code
and the procedure prescribed under Code of Criminal Procedure.   It  is  for
the learned judge to decide as to whether action should be taken  under  the
Act or under any other law.

23.   The High Court has rightly  convicted  the  appellant  under  the  Act
after having  come  to  a  conclusion  that  denial  of  the  incidents  and
allegations of malafides against the complainant Judge had been made by  the
appellant to save himself from the  consequences  of  contempt  proceedings.
The appellant had refused to tender apology for his conduct.  His  affidavit
in support of stay vacation/modification  and  supplementary  affidavit  did
not show any remorse and he had justified himself  again  and  again,  which
also shows that he had no regards for the majesty of law.

24.   It is a well settled proposition  of  law  that  in  deciding  whether
contempt is serious enough to merit imprisonment, the Court will  take  into
account the likelihood of interference with the  administration  of  justice
and the culpability of the  offender.  The  intention  with  which  the  act
complained of is done is a material factor in determining  what  punishment,
in a given case, would be appropriate. In the case at hand, the  High  Court
has rightly held that the appellant was guilty of criminal contempt. We  are
however, inclined to set aside the sentence  for  imprisonment  in  view  of
advance age of the appellant and also in the light of our further  direction
as a result of findings of question No. (ii)

Re: (ii)

Court’s jurisdiction vis a vis statutory powers of the Bar Councils

25.   This Court, while examining its powers under  Article  129  read  with
Article 142  of  the  Constitution  with  regard  to  awarding  sentence  of
imprisonment together with  suspension of his practice as  an  Advocate,  in
Supreme Court Bar Association (supra),  the  Constitution  Bench  held  that
while in exercise of contempt jurisdiction,  this  Court  cannot  take  over
jurisdiction of disciplinary  committee of the Bar Council[6] and it is  for
the Bar Council to punish the advocate by debarring  him  from  practice  or
suspending his licence as may be warranted on the basis of his  having  been
found guilty of contempt, if the Bar Council  fails  to  take  action,  this
Court could invoke its appellate power under Section  38  of  the  Advocates
Act[7].  In a given case, this court or  the  High  Court  can  prevent  the
contemnor advocate from appearing before it or other courts till  he  purges
himself of the contempt which is different from suspending or  revoking  the
licence or debarring him to practise[8].

26.   Reference may be made to  the  following  observations  in  SCBA  case
(supra):

“79. An advocate who is found guilty of  contempt  of  court  may  also,  as
already noticed, be guilty of professional misconduct in a  given  case  but
it is for the Bar Council of the State or Bar Council  of  India  to  punish
that advocate by either  debarring  him  from  practice  or  suspending  his
licence, as may be warranted, in the facts and circumstances of  each  case.
The learned Solicitor General informed us that there have been  cases  where
the Bar Council of India taking note of the contumacious  and  objectionable
conduct of an advocate, had initiated disciplinary proceedings  against  him
and even punished him for “professional misconduct”, on  the  basis  of  his
having been found  guilty  of  committing  contempt  of  court.  We  do  not
entertain any doubt that the Bar Council of the  State  or  Bar  Council  of
India, as the case may be, when apprised  of  the  established  contumacious
conduct of an advocate by the High Court or by this  Court,  would  rise  to
the occasion, and take appropriate action against such  an  advocate.  Under
Article 144 of the Constitution “all authorities,  civil  and  judicial,  in
the territory of India shall act in aid  of  the  Supreme  Court”.  The  Bar
Council which performs a public duty and is charged with the  obligation  to
protect the dignity of the profession and  maintain  professional  standards
and etiquette is also obliged to act “in  aid  of  the  Supreme  Court”.  It
must, whenever facts warrant, rise to the occasion and discharge its  duties
uninfluenced by the position of the  contemner  advocate.  It  must  act  in
accordance with the prescribed procedure, whenever its  attention  is  drawn
by this Court to the contumacious and  unbecoming  conduct  of  an  advocate
which has the tendency to interfere with due administration of  justice.  It
is possible for the High Courts also  to  draw  the  attention  of  the  Bar
Council of the State to a case of professional  misconduct  of  a  contemner
advocate  to  enable  the  State  Bar  Council  to  proceed  in  the  manner
prescribed by  the  Act  and  the  Rules  framed  thereunder.  There  is  no
justification to assume  that  the  Bar  Councils  would  not  rise  to  the
occasion, as they are equally responsible  to  uphold  the  dignity  of  the
courts  and  the  majesty  of  law  and  prevent  any  interference  in  the
administration of justice. Learned counsel for the  parties  present  before
us do not dispute and rightly so that whenever a  court  of  record  records
its findings about the conduct of an advocate while finding  him  guilty  of
committing contempt of  court  and  desires  or  refers  the  matter  to  be
considered by the  Bar  Council  concerned,  appropriate  action  should  be
initiated by the Bar Council concerned in accordance with law  with  a  view
to maintain the dignity of the courts and to uphold the majesty of  law  and
professional standards and etiquette. Nothing is more destructive of  public
confidence in the administration of justice  than  incivility,  rudeness  or
disrespectful conduct on  the  part  of  a  counsel  towards  the  court  or
disregard by the court of the  privileges  of  the  Bar.  In  case  the  Bar
Council, even after receiving “reference” from  the  Court,  fails  to  take
action against the advocate concerned, this Court  might  consider  invoking
its powers under Section 38 of the Act by sending  for  the  record  of  the
proceedings from the Bar Council and passing appropriate orders. Of  course,
the appellate powers under Section 38 would be available to this Court  only
and not to the High Courts. We, however, hope that such  a  situation  would
not arise.

80. In a given case it may be possible, for this Court or  the  High  Court,
to 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 licence or debarring him to practise 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-on-
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  licence  to  practice  as  an  advocate  in  other  courts  or
tribunals.

81. We are conscious of the fact that the conduct of the contemner  in  V.C.
Mishra case [(1995) 2 SCC 584] was highly contumacious and  even  atrocious.
It was unpardonable. The  contemner  therein  had  abused  his  professional
privileges while practising as an advocate. He was  holding  a  very  senior
position in the Bar Council of India and was  expected  to  act  in  a  more
reasonable way. He did not. These factors  appear  to  have  influenced  the
Bench in that case to  itself  punish  him  by  suspending  his  licence  to
practice also while  imposing  a  suspended  sentence  of  imprisonment  for
committing contempt of court but while doing so  this  Court  vested  itself
with a  jurisdiction  where  none  exists.  The  position  would  have  been
different had a reference been made to the Bar Council and the  Bar  Council
did not take any action against the advocate concerned. In  that  event,  as
already observed, this Court  in  exercise  of  its  appellate  jurisdiction
under Section 38 of the Act read with Article 142  of  the  Constitution  of
India, might have exercised suo motu powers and  sent  for  the  proceedings
from the Bar  Council  and  passed  appropriate  orders  for  punishing  the
contemner advocate for professional misconduct after putting him  on  notice
as required by the proviso to Section 38 which reads thus:

“Provided that no order of the Disciplinary Committee of the Bar Council  of
India shall be varied by the Supreme Court so  as  to  prejudicially  affect
the person aggrieved without giving him a reasonable  opportunity  of  being
heard.”

But it could not have done so in the first instance.”

27.   In Pravin C. Shah (supra) this  Court  held  that  an  advocate  found
guilty of contempt cannot be allowed to act or plead in any  court  till  he
purges himself of contempt.  This direction  was  issued  having  regard  to
Rule 11 of the Rules framed by the High Court of  Kerala  under  Section  34
(1) of the Advocates Act and also referring to observations in  para  80  of
the judgment of this Court in Supreme Court  Bar  Association  (supra).   It
was explained that debarring a person from appearing  in  Court  was  within
the purview of  the  jurisdiction  of  the  Court  and  was  different  from
suspending or terminating the  licence  which  could  be  done  by  the  Bar
Council and on  failure  of  the  Bar  Council,  in  exercise  of  appellate
jurisdiction of this Court.  The observations are:
16. Rule 11 of the Rules is not a provision intended  for  the  Disciplinary
Committee of the Bar Council of the State or the Bar Council  of  India.  It
is a matter entirely concerning the dignity and the orderly  functioning  of
the courts. The right of the advocate to practise envelops a lot of acts  to
be performed by him in discharge of  his  professional  duties.  Apart  from
appearing in the courts he can be consulted by his clients, he can give  his
legal opinion whenever sought for,  he  can  draft  instruments,  pleadings,
affidavits or any other documents, he  can  participate  in  any  conference
involving legal discussions etc. Rule 11 has nothing  to  do  with  all  the
acts done by an advocate during his practice except his  performance  inside
the court. Conduct in court is a matter concerning the court and  hence  the
Bar Council cannot claim that what should  happen  inside  the  court  could
also be regulated by  the  Bar  Council  in  exercise  of  its  disciplinary
powers. The right to practise, no doubt, is the genus of which the right  to
appear and conduct cases in the court may be a  specie.  But  the  right  to
appear and conduct cases in the court is a matter on which  the  court  must
have the major supervisory power. Hence the court cannot be divested of  the
control or supervision of the court merely because it may involve the  right
of an advocate.

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 behaviour 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 proceedings inside the court  including  the  conduct  of
advocates during such proceedings. That power should not  be  confused  with
the right to practise law. While the Bar Council can exercise  control  over
the latter, the High Court should be in control of the former.

18. In the above context it is useful to quote  the  following  observations
made by a Division Bench of the Allahabad High Court in Prayag Das v.  Civil
Judge, Bulandshahr {AIR 1974 All 133] : (AIR p. 136, para 9)

“The High Court has a power to  regulate  the  appearance  of  advocates  in
courts. The right to practise and the right to  appear  in  courts  are  not
synonymous. An advocate may carry on chamber practice or  even  practise  in
courts in various other ways, e.g., drafting and  filing  of  pleadings  and
vakalatnama for  performing  those  acts.  For  that  purpose  his  physical
appearance in courts may not  at  all  be  necessary.  For  the  purpose  of
regulating  his  appearance  in  courts  the  High  Court  should   be   the
appropriate authority to make rules and on a proper construction of  Section
34(1) of the Advocates Act it must be inferred that the High Court  has  the
power  to  make  rules  for  regulating  the  appearance  of  advocates  and
proceedings inside  the  courts.  Obviously  the  High  Court  is  the  only
appropriate authority to be entrusted with this responsibility.”

xxxxx

24. Purging is a process by which an undesirable element is expelled  either
from one’s own self or from a society. It is a cleaning process. Purge is  a
word which acquired implications first in theological connotations.  In  the
case of a sin, purging of  such  sin  is  made  through  the  expression  of
sincere remorse coupled with doing the penance required. In the  case  of  a
guilt, purging means to get himself cleared of the  guilt.  The  concept  of
purgatory was evolved from the word “purge”, which is a state  of  suffering
after this life in which those  souls,  who  depart  this  life  with  their
deadly sins, are purified and  rendered  fit  to  enter  into  heaven  where
nothing defiled enters (vide Words and Phrases, Permanent Edn.,  Vol.  35-A,
p. 307). In Black’s Law Dictionary the word “purge” is given  the  following
meaning: “To cleanse; to clear. To clear or exonerate from  some  charge  or
imputation of guilt, or from a contempt.”  It  is  preposterous  to  suggest
that if the convicted person undergoes punishment or if he tenders the  fine
amount imposed on him the purge would be completed.

xxxxx

27. We cannot therefore approve the view that merely undergoing the  penalty
imposed on a contemnor is sufficient to  complete  the  process  of  purging
himself of the contempt, particularly in  a  case  where  the  contemnor  is
convicted of criminal contempt. The danger in  giving  accord  to  the  said
view of the learned Single Judge in the aforecited decision  is  that  if  a
contemnor is sentenced to a fine he can immediately pay it and  continue  to
commit contempt in the same court, and then again pay the fine  and  persist
with his contemptuous conduct. There must be something more to  be  done  to
get oneself purged of the contempt when it is a case of criminal contempt.

28. The Disciplinary Committee of the Bar Council of India  highlighted  the
absence of any mode of purging oneself of the guilt in any of the  Rules  as
a reason for not following  the  interdict  contained  in  Rule  11.  Merely
because the Rules did not prescribe the  mode  of  purging  oneself  of  the
guilt it does not mean that one cannot purge the guilt  at  all.  The  first
thing to be done in that direction when a contemnor is  found  guilty  of  a
criminal contempt is to implant or infuse  in  his  own  mind  real  remorse
about his conduct which the court found to  have  amounted  to  contempt  of
court. Next step is to seek pardon from the court concerned for what he  did
on the ground that  he  really  and  genuinely  repented  and  that  he  has
resolved not to commit any such act in future. It  is  not  enough  that  he
tenders an apology. The apology tendered should  impress  the  court  to  be
genuine and sincere. If the court, on being impressed  of  his  genuineness,
accepts the apology then it could be said  that  the  contemnor  has  purged
himself of the guilt.”

28.    In  Bar  Council  of   India  versus   High   Court   of   Kerala[9],
constitutionality of Rule 11 of the  Rules  framed  by  the  High  Court  of
Kerala for barring a lawyer from appearing in any court till he got  himself
purged of contempt by an appropriate order of the court was  examined.  This
Court held that the rule did not violate Articles 14 and 19 (1) (g)  of  the
Constitution nor  amounted  to  usurpation  of  power  of  adjudication  and
punishment conferred on the Bar Councils and  the  result  intended  by  the
application of the rule was automatic.  It was further held  that  the  rule
was not in conflict with the law laid down in  the  SCBA  judgment  (supra).
Referring to the Constitution Bench judgment in  Harish  Uppal  (supra),  it
was held that regulation of right of appearance in  courts  was  within  the
jurisdiction of the courts.  It  was  observed,  following  Pravin  C.  Shah
(supra), that the court must have major supervisory power on  the  right  to
appear and conduct in the court.  The observations are:
“46. Before a contemner is punished for contempt,  the  court  is  bound  to
give an opportunity of hearing to him. Even such an opportunity  of  hearing
is necessary in a proceeding under Section  345  of  the  Code  of  Criminal
Procedure.  But  if  a  law  which  is  otherwise  valid  provides  for  the
consequences of such a finding, the same by itself would  not  be  violative
of Article 14 of the Constitution of India inasmuch as only because  another
opportunity of hearing to a person, where a penalty is  provided  for  as  a
logical consequence thereof, has been provided for.  Even  under  the  penal
laws some offences carry minimum sentence. The  gravity  of  such  offences,
thus, is recognised by the legislature. The courts do not have any  role  to
play in such a matter.”

29.   Reference was also made to the following observations in Harish  Uppal
(supra):
“34………The right to practise, no doubt, is the genus of which  the  right  to
appear and conduct cases in the court may be a  specie.  But  the  right  to
appear and conduct cases in the court is a matter on which  the  court  must
and does have major supervisory and controlling power. Hence  courts  cannot
be and are not divested of  control  or  supervision  of  conduct  in  court
merely because it  may  involve  the  right  of  an  advocate.  A  rule  can
stipulate that a person who has committed contempt of court or  has  behaved
unprofessionally and in an unbecoming manner will  not  have  the  right  to
continue to appear and plead and conduct cases in courts. The  Bar  Councils
cannot overrule such a regulation concerning the orderly  conduct  of  court
proceedings. On the contrary, it will be their duty to see that such a  rule
is strictly abided by. Courts of law are structured in such a design  as  to
evoke respect  and  reverence  to  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  is  guilty
of contempt of court or of unbecoming or  unprofessional  conduct,  standing
in the court would erode the dignity of  the  court  and  even  corrode  its
majesty besides impairing the confidence of the public in  the  efficacy  of
the institution of the courts. The power to frame such rules should  not  be
confused with the right to practise law. While the Bar Council can  exercise
control over the latter, the courts are  in  control  of  the  former.  This
distinction is clearly brought out by the difference in language in  Section
49 of the Advocates Act on the one hand and Article 145 of the  Constitution
of India and Section 34(1) of the Advocates Act on  the  other.  Section  49
merely empowers the Bar  Council  to  frame  rules  laying  down  conditions
subject to which an advocate shall have a right to practise i.e. do all  the
other acts set out above. However, Article 145 of the Constitution of  India
empowers the Supreme Court to make rules for regulating  this  practice  and
procedure of the court including inter alia rules as to  persons  practising
before this Court. Similarly Section 34 of the Advocates Act  empowers  High
Courts to frame rules, inter  alia  to  lay  down  conditions  on  which  an
advocate shall be permitted to  practise  in  courts.  Article  145  of  the
Constitution of India and Section 34 of the Advocates Act clearly show  that
there is no absolute right to an advocate to appear in a court. An  advocate
appears in a court subject to such  conditions  as  are  laid  down  by  the
court. It must be remembered that Section  30  has  not  been  brought  into
force and this also shows that there is no absolute right  to  appear  in  a
court. Even if  Section  30  were  to  be  brought  into  force  control  of
proceedings in court will always remain with the court. Thus even  then  the
right to appear in court will be subject to complying with  conditions  laid
down by  courts  just  as  practice  outside  courts  would  be  subject  to
conditions laid down by the Bar Council of India. There is thus no  conflict
or clash between other provisions of the Advocates Act on the one  hand  and
Section 34 or Article 145 of the Constitution of India on the other.”

30.   In R.K. Anand (supra) it was held that  even  if  there  was  no  rule
framed under Section 34 of the Advocates Act disallowing an advocate who  is
convicted of criminal contempt is not only a  measure  to  maintain  dignity
and orderly function of courts, it may become necessary for  the  protection
of the court and for  preservation  of  the  purity  of  court  proceedings.
Thus, the court not only has a right  but  also  an  obligation  to  protect
itself and save the purity  of  its  proceedings  from  being  polluted,  by
barring the advocate concerned from  appearing  before  the  courts  for  an
appropriate period of time[10]. This court noticed  the  observations  about
the decline of ethical and professional standards of the Bar,  and  need  to
arrest such trend in the interests of administration  of  justice.   It  was
observed that in absence of unqualified trust and confidence  of  people  in
the bar,  the  judicial  system  could  not  work  satisfactorily.   Further
observations are that the performance of the  Bar  Councils  in  maintaining
professional  standards  and  enforcing  discipline  did   not   match   its
achievements in other areas.  This Court expressed hope  and  expected  that
the Bar Council will take appropriate action for  the  restoration  of  high
professional standards among the lawyers, working of their position  in  the
judicial system and the society.  It was further observed:
 “331. The other important issue thrown up by this case and that  causes  us
both grave concern and dismay is the decline  of  ethical  and  professional
standards among lawyers. The conduct of the two  appellants  (one  convicted
of committing criminal contempt of court  and  the  other  found  guilty  of
misconduct as Special Public Prosecutor),  both  of  them  lawyers  of  long
standing, and designated Senior Advocates, should not be seen in  isolation.
The bitter truth is that the facts of the  case  are  manifestation  of  the
general erosion of the professional values among lawyers at all  levels.  We
find today lawyers indulging in practices that  would  have  appalled  their
predecessors in the profession barely two  or  three  decades  ago.  Leaving
aside the many kinds of unethical practices indulged  in  by  a  section  of
lawyers we find that even some highly successful lawyers  seem  to  live  by
their own rules of conduct.

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333. We express our concern on the  falling  professional  norms  among  the
lawyers with considerable pain because we  strongly  feel  that  unless  the
trend is immediately arrested and reversed, it will  have  very  deleterious
consequences for the administration of justice in the country.  No  judicial
system in  a  democratic  society  can  work  satisfactorily  unless  it  is
supported by a Bar that enjoys the unqualified trust and confidence  of  the
people, that shares the aspirations, hopes and the ideals of the people  and
whose members are monetarily accessible and affordable to the people.

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335. Here we must also observe that the Bar Council of  India  and  the  Bar
Councils of the different States cannot escape their responsibility in  this
regard. Indeed the Bar Council(s) have very positively taken up a number  of
important issues concerning the administration of justice  in  the  country.
It has consistently fought to safeguard the interests of lawyers and it  has
done a lot of good work for their welfare. But on the issue  of  maintaining
high professional standards  and  enforcing  discipline  among  lawyers  its
performance hardly matches its achievements  in  other  areas.  It  has  not
shown much concern even to see that lawyers  should  observe  the  statutory
norms prescribed by the Council itself. We hope and trust that  the  Council
will at least now sit up and pay proper attention to the restoration of  the
high professional standards among lawyers worthy of their  position  in  the
judicial system and in the society.”

31.   In Re: Sanjiv Dutta & Ors.[11], it was observed that  the  members  of
legal profession are required to maintain exemplary conduct in  and  outside
of the Court.  The respect for the legal system was due to  role  played  by
the stalwarts of the legal profession and if there was any deviation in  the
said role, not only the profession but also the  administration  of  justice
as a whole would suffer. In this regard, relevant observations are :
“20. The legal profession is a solemn and serious occupation. It is a  noble
calling and all those who belong to it are its honourable members.  Although
the  entry  to  the  profession  can  be  had  by   acquiring   merely   the
qualification of technical competence, the honour as a professional  has  to
be maintained by the its members by their  exemplary  conduct  both  in  and
outside the court. The legal profession is different from other  professions
in that what the  lawyers  do,  affects  not  only  an  individual  but  the
administration of justice which is the foundation of the civilised  society.
Both as a leading member of the intelligential  of  the  society  and  as  a
responsible citizen, the lawyer has  to  conduct  himself  as  a  model  for
others both in his professional and in his  private  and  public  life.  The
society has a right to expect of him such ideal behavior.  It  must  not  be
forgotten that the legal profession has always been held in high esteem  and
its members have played an enviable role in public life. The regard for  the
legal and judicial systems in this country is in no  small  measure  due  to
the tiredness role played by the stalwarts in the profession  to  strengthen
them. They took their profession seriously and practised  it  with  dignity,
deference and devotion. If  the  profession  is  to  survive,  the  judicial
system has to be vitalised. No service will  be  too  small  in  making  the
system efficient, effective and credible. The  casualness  and  indifference
with  which  some  members  practise  the  profession  are   certainly   not
calculated to achieve that purpose or to enhance the prestige either of  the
profession  or  of  the  institution  they  are  serving.  If  people   lose
confidence in the profession on account of the deviant ways of some  of  its
members, it is not only the  profession  which  will  suffer  but  also  the
administration of justice as a whole. The present trend  unless  checked  is
likely to lead to a stage when the system will be found wrecked from  within
before it is wrecked from outside. It is for the members of  the  profession
to introspect and take the corrective steps  in  time  and  also  spare  the
courts the unpleasant duty. We say no more.”


32.   In Bar Council of  Maharashtra  versus  M.V.  Dabholkar[12]  following
observations  have  been  made  about  the  vital  role  of  the  lawyer  in
administration of justice.
 “15. Now to the legal issue bearing on canons of professional conduct.  The
rule of law cannot be built on the ruins of democracy, for  where  law  ends
tyranny begins. If such be the keynote thought for the very survival of  our
Republic,  the  integral  bond  between  the  lawyer  and  the   public   is
unbreakable. And the vital role of the lawyer depends upon (his probity  and
professional life style. Be it remembered that the central function  of  the
legal profession is  to  promote  the  administration  of  justice.  If  the
practice of law is thus  a  public  utility  of  great  implications  and  a
monopoly is statutorily granted by the nation, it obligates  the  lawyer  to
observe scrupulously those norms which make him worthy of the confidence  of
the community in him as a vehicle of justice-social justice. The Bar  cannot
behave with doubtful scruples or strive to thrive on litigation.  Canons  of
conduct cannot be crystallised into rigid rules but felt by  the  collective
conscience of the practitioners as right:

It must be a conscience alive  to  the  proprieties  and  the  improprieties
incident to the discharge of a sacred public trust. It must be a  conscience
governed by the rejection of self-interest and selfish ambition. It must  be
a conscience propelled by a consuming desire to play a leading role  in  the
fair and impartial  administration  of  justice.  to  the  end  that  public
confidence may be kept undiminished at all  times  in  the  belief  that  we
shall always seek truth and justice in the preservation of the rule of  law.
It must be a conscience, not shaped by rigid  rules  of  doubtful  validity,
but answerable only to a moral code which would drive  irresponsible  judges
from the profession. Without such a conscience, there should  be  no  judge.
and, we may add, no lawyer.

Such is the high standard set  for  professional  conduct  as  expounded  by
courts in this country and elsewhere.”

33.   In Jaswant Singh versus Virender Singh[13], it was observed :
“36. …………. An advocate has  no  wider  protection  than  a  layman  when  he
commits an act which amounts to contempt of court. It  is  most  unbefitting
for an advocate to make imputations against the Judge only because  he  does
not get the expected  result,  which  according  to  him  is  the  fair  and
reasonable result available to him. Judges cannot  be  intimidated  to  seek
favorable orders. Only because a lawyer appears as a  party  in  person,  he
does not  get  a  license  thereby  to  commit  contempt  of  the  Court  by
intimidating the Judges or scandalising the courts. He cannot use  language,
either in the pleadings or during arguments, which is either intemperate  or
unparliamentary. These safeguards are not for the protection  of  any  Judge
individually but are essential for maintaining the dignity  and  decorum  of
the Courts and for upholding the majesty of law. Judges and courts  are  not
unduly sensitive or  touchy  to  fair  and  reasonable  criticism  of  their
judgments. Fair comments, even if, out-spoken, but made without  any  malice
or attempting to impair the administration  of  justice  and  made  in  good
faith in proper language do not  attract  any  punishment  for  contempt  of
court.  However,  when  from  the  criticism  a  deliberate,  motivated  and
calculated attempt is discernible to bring down the image  of  judiciary  in
the estimation of the public or to impair the administration of  justice  or
tend to bring the administration of justice into disrepute the  courts  must
bistre themselves to uphold their  dignity  and  the  majesty  of  law.  The
appellant, has, undoubtedly committed contempt of the Court by  the  use  of
the objectionable  and  intemperate  language.  No  system  of  justice  can
tolerate such unbridled licence on the part of a person, be he a lawyer,  to
permit himself the liberty of scandalising a Court by  casting  unwarranted,
uncalled  for  and  unjustified  aspersions  on  the   integrity,   ability,
impartiality or fairness of  a  Judge  in  the  discharge  of  his  judicial
functions as  it  amounts  to  an  interference  with  the  dues  course  of
administration of justice.”

34.   In Subrata Roy Sahara v. Union of India[14], it was observed :
“188. The number of similar litigants, as  the  parties  in  this  group  of
cases, is on the increase. They derive their  strength  from  abuse  of  the
legal process. Counsel are available, if the  litigant  is  willing  to  pay
their fee. Their percentage is slightly higher at the lower  levels  of  the
judicial hierarchy, and almost non-existent at  the  level  of  the  Supreme
Court. One wonders what is it that a Judge should be made of, to  deal  with
such litigants who have nothing to lose. What is the level  of  merit,  grit
and composure required to stand up to the pressures  of  today’s  litigants?
What is it that is needed to bear the affront, scorn and ridicule hurled  at
officers presiding over courts? Surely one would need superhumans to  handle
the emerging pressures on the  judicial  system.  The  resultant  duress  is
gruelling. One would hope for support for  officers  presiding  over  courts
from the legal fraternity, as also, from the superior judiciary  up  to  the
highest level.  Then  and  only  then,  will  it  be  possible  to  maintain
equilibrium essential to deal with complicated disputations which arise  for
determination all the time irrespective of the level and the stature of  the
court concerned. And also, to deal with such litigants.”


35.   In Amit Chanchal Jha versus Registar, High  Court  of  Delhi[15]  this
Court again upheld the order of debarring the  advocate  from  appearing  in
court on account of his conviction for criminal contempt.
36.   We may also refer to certain articles on the subject. In “Raising  the
Bar for the Legal Profession” published in the Hindu  newspaper  dated  15th
September, 2012, Dr. N.R.Madhava Menon wrote:
“……..Being a private monopoly, the profession is organised  like  a  pyramid
in which the top 20 per cent command 80 per cent of paying work, the  middle
30 per cent managing to survive by catering  to  the  needs  of  the  middle
class and government  litigation,  while  the  bottom  50  per  cent  barely
survive with legal aid cases  and  cases  managed  through  undesirable  and
exploitative methods! Given the poor  quality  of  legal  education  in  the
majority of the so-called law colleges (over a thousand of them  working  in
small towns and panchayats without infrastructure  and  competent  faculty),
what happened with uncontrolled  expansion  was  the  overcrowding  of  ill-
equipped lawyers in the bottom 50 per cent of the profession fighting for  a
piece of the cake. In the process, being too numerous, the  middle  and  the
bottom segments got elected to  professional  bodies  which  controlled  the
management  of  the  entire  profession.  The  so-called  leaders   of   the
profession who have abundant work, unlimited money,  respect  and  influence
did not bother to look  into  what  was  happening  to  the  profession  and
allowed it to go its way — of inefficiency,  strikes,  boycotts  and  public
ridicule. This is the tragedy of the Indian Bar today which had otherwise  a
noble tradition of being in  the  forefront  of  the  freedom  struggle  and
maintaining the rule of law and civil liberties even in difficult times.

37.   In “Browbeating, prerogative  of  lawyers”,  published  in  the  Hindu
newspaper dated 7th June, 2016, Shri  S.  Prabhakaran,  Co-Chairman  of  Bar
Council of India and Senior Advocate, in response  to  another  Article  “Do
not browbeat lawyers”,  published in the said newspaper on  June  03,  2016,
writes :
“……The next argument advanced against  the  rules  is  that  the  threat  of
action for browbeating the judges is intended to silence  the  lawyers.  But
the authors have forgotten very  conveniently  that  (i)  when  rallies  and
processions were taken out inside court halls obstructing  the  proceedings,
(ii) when courts were boycotted for all and sundry reasons in  violation  of
the law laid down by the Supreme Court in Ex-Capt. Harish Uppal, (iii)  when
two instances of murder of very notorious lawyers inside  the  Egmore  court
complex took place on the eve of elections to  the  Bar  Associations,  (iv)
when a lady litigant who came to the Family Court in Chennai was  physically
assaulted by a group of lawyers who also coerced the police  to  register  a
complaint against the victim, (v) when a group of lawyers  barged  into  the
chamber of a magistrate in Puducherry and wrongfully confined  him  till  he
released a lawyer on his own bond in a criminal complaint of sexual  assault
filed by a lady, (vi) when a group of lawyers gheraoed a magistrate for  not
granting bail and one of them spat on his face, leading to  strong  protests
by the Association of Judicial Officers, and (vii)  when  very  recently,  a
lady litigant was physically assaulted by a group of lawyers for sitting  in
the chair intended for lawyers inside the court hall, lawyers  such  as  the
authors of the article under response maintained a stoic silence.

Even lawyers who claim to be human rights  activists  choose  to  be  silent
when the human rights of millions of litigants are affected  by  boycott  of
courts. It shows that some lawyers, like the authors of  the  article  under
response, have always maintained silence and do not mind being  silenced  by
a few unruly members of the Bar who go on the rampage at times. But they  do
not want to be silenced by any rule prescribing a decent code of conduct  in
court halls. The raison  d'être  appears  to  be  that  browbeating  is  the
prerogative of the lawyers and it shall be allowed with impunity.”

Undesirability of convicted person to perform important public functions:

38.   It may also be appropriate  to  refer  to  the  legal  position  about
undesirability of a convicted person  being  allowed  to  perform  important
public functions.  In Union  of  India  versus  Tulsiram  Patel[16]  it  was
observed that it was not advisable to  retain  a  person  in  civil  service
after conviction.[17].  In Rama Narang versus  Ramesh  Narang[18]  reference
was made to Section 267 of the Companies  Act  barring  a  convicted  person
from holding the post of a Managing  Director  in  a  company.   This  Court
observed that having  regard  to  the  said  wholesome  provision,  stay  of
conviction ought to be granted only in rare cases.  In  Lily  Thomas  versus
UOI[19], this Court held that an elected representative could  not  continue
to hold the office after conviction[20].  In  Manoj  Narula  versus  UOI[21]
similar  observation  was  made.   In  Election  Commission  versus  Venkata
Rao[22] the disqualification against  eligibility  for  contesting  election
was held to operate for continuing on the elected post.
Interpretation of Section 24-A: Need to amend the provision

39.   Section 24A of the Advocates Act is as follows:
“24A. Disqualification for enrolment.—
(1) No person shall be admitted as an advocate on a State roll—
(a) if he is convicted of an offence involving moral turpitude;
(b) if  he  is  convicted  of  an  offence  under  the  provisions  of   the
Untouchability (Offences) Act, 1955 (22 of 1955); 2[(c) if he  is  dismissed
or removed  from  employment  or  office  under  the  State  on  any  charge
involving moral  turpitude.  Explanation.—In  this  clause,  the  expression
“State” shall have the meaning assigned  to  it  under  Article  12  of  the
Constitution:]  Provided  that  the  disqualification   for   enrolment   as
aforesaid shall cease to have  effect  after  a  period  of  two  years  has
elapsed since his 3[release or dismissal or, as the case may be, removal.

(2) Nothing contained in sub-section (1) shall apply to a person who  having
been found guilty is dealt with under the provisions  of  the  Probation  of
Offenders Act, 1958 (20 of 1958).”

40.   Dealing with the above provision, the Division Bench  of  the  Gujarat
High Court in C. versus Bar Council[23] observed:
“2. … …. …. We, however, wish to avail  of  this  opportunity  to  place  on
record our feeling of distress and dismay at the fact that a public  servant
who is found guilty of an offence of taking an illegal gratification in  the
discharge of his official duties by a competent Court can be enrolled  as  a
member of the Bar even after a lapse of two  years  from  the  date  of  his
release from imprisonment. It is for the authorities who are concerned  with
this question to reflect on the question as to whether such a  provision  is
in keeping with the high stature which the profession  (which  we  so  often
describe as the noble profession) enjoys and from which even the members  of
highest judiciary are drawn. It is not a crime of  passion  committed  in  a
moment of loss of equilibrium. Corruption is an offence which  is  committed
after deliberation and it becomes a way of life for him.

3. A corrupt apple cannot become a good apple with passage of  time.  It  is
for the legal profession to consider whether it would like such a  provision
to continue to remain on the Statute Book and  would  like  to  continue  to
adroit  persons  who  have  been  convicted  for  offences  involving  moral
turpitude and persons who have been found guilty of  acceptance  of  illegal
gratification, rape, dacoits, forgery,  misappropriation  of  public  funds,
relating to counter felt currency and  coins  and  other  offences  of  like
nature to be enrolled as members  merely  because  two  years  have  elapsed
after the date of their release from imprisonment. Does passage of  2  years
cleanse such a person of the corrupt character trait, purify  his  mind  and
transform him into a person fit for being  enrolled  as  a  member  of  this
noble profession? Enrolled so that widows can go to him, matters  pertaining
to properties of minors and matters on  behalf  of  workers  pitted  against
rich and influential persons can be entrusted to him without  qualms.  Court
records can be placed at his  disposal,  his  word  at  the  Bar  should  be
accepted? Should a character certificate in the form  of  a  Black  Gown  be
given to him so that a promise of probity and trustworthiness  is  held  out
to the  unwary  litigants  seeking  justice?  A  copy  of  this  order  may,
therefore, be  sent  to  the  appropriate  authorities  concerned  with  the
administration of the Bar Council  of  India  and  the  State  Bar  Council,
Ministry of Law of the Government of India and Law Commission in order  that
the matter maybe examined  fully  and  closely  with  the  end  in  view  to
preserve the image of the profession and protect  the  seekers  for  justice
from dangers inherent in admitting such persons on  the  rolls  of  the  Bar
Council.”

41.   Inspite of the above observations  no  action  appears  to  have  been
taken at any level. The result is that a person convicted  of  even  a  most
heinous offence is eligible to be enrolled as an advocate  after  expiry  of
two years from expiry of his sentence.  This aspect needs  urgent  attention
of all concerned.
42.   Apart from the above, we do not find any reason to hold that  the  bar
applicable at the entry level is wiped out after  the  enrollment.    Having
regard to the object of the provision, the said bar certainly operates  post
enrollment also. However, till a suitable amendment  is  made,  the  bar  is
operative only for two years in terms of the statutory provision.

43.   In these circumstances, Section 24A which debars  a  convicted  person
from being enrolled applies to an advocate on the rolls of the  Bar  Council
for a period of two years, if convicted for contempt.

44.   In addition to the said disqualification, in  view  judgment  of  this
Court in R.K. Anand (supra), unless a person purges himself of  contempt  or
is permitted by the Court, conviction results in debarring an advocate  from
appearing in court even in absence  of  suspension  or  termination  of  the
licence to practice.  We therefore, uphold the directions of the High  Court
in para 42 of the impugned  order  quoted  above  to  the  effect  that  the
appellant shall not be permitted to appear in courts of District Etah  until
he purges himself of contempt.

Inaction of the Bar Councils – Nature of directions required

45.   We may now come to the direction to be issued to the  Bar  Council  of
Uttar Pradesh or to the Bar Council of India.  In the present case,  inspite
of direction of the High Court as long back  as  more  than  ten  years,  no
action is shown to have been taken by the Bar Council.   Notice  was  issued
by this Court to the Bar Council of India on 27th January,  2006  and  after
all the facts having been brought to  the  notice  of  the  Bar  Council  of
India, the said Bar Council has also failed to take any action.  In view  of
such failure of the statutory obligation of the Bar Council of the State  of
Uttar Pradesh as well as the  Bar  Council  of  India,  this  Court  has  to
exercise appellate jurisdiction under the Advocates Act in  view  of  proved
misconduct calling for disciplinary action.  As already  observed,  in  SCBA
case (supra), this Court observed that where the Bar Council fails  to  take
action inspite of reference made to it, this Court  can  exercise  suo  motu
powers  for  punishing  the  contemnor  for  professional  misconduct.   The
appellant has already been given sufficient opportunity in this regard.

46.   We may add that what is  permissible  for  this  Court  by  virtue  of
statutory appellate power under Section 38 of  the  Advocates  Act  is  also
permissible to a High  Court  under  Article  226  of  the  Constitution  in
appropriate cases on failure of the Bar Council to  take  action  after  its
attention is invited to the misconduct.

47.   Thus, apart from upholding the conviction and sentence awarded by  the
High Court to the appellant, except  for  the  imprisonment,  the  appellant
will suffer automatic consequence of his conviction  under  Section  24A  of
the Advocates Act which is applicable at the post enrollment stage  also  as
already observed.

48.   Further, in exercise of appellate jurisdiction  under  Section  38  of
the Advocates Act, we direct that the licence of the  appellant  will  stand
suspended for a further period of five years.  He will also remain  debarred
from appearing in any court in District Etah even after  five  years  unless
he purges himself of contempt in the manner laid down by this Court  in  Bar
Council of India (supra) and R.K. Anand (supra) and as directed by the  High
Court.  Question (ii) stands decided accordingly.

49.   We thus, conclude:
Conviction of the appellant is justified and is upheld;
Sentence of imprisonment awarded to the appellant is set aside  in  view  of
his advanced age but sentence of  fine  and  default  sentence  are  upheld.
Further direction that the appellant shall not be  permitted  to  appear  in
courts in District Etah until he purges himself of contempt is also upheld;
Under Section 24A of the Advocates Act,  the  enrollment  of  the  appellant
will stand suspended for two years from the date of this order;
As a  disciplinary  measure  for  proved  misconduct,  the  licence  of  the
appellant will remain suspended for further five years.
An Epilogue
50.   While this appeal will stand  disposed  of  in  the  manner  indicated
above, we do feel it necessary to say something further in  continuation  of
repeated observations earlier made by this Court referred to  above.   Legal
profession being the most important component of  justice  delivery  system,
it must continue to perform its significant role  and  regulatory  mechanism
and should not be seen to be wanting in taking  prompt  action  against  any
malpractice.  We have noticed the inaction  of  the  Bar  Council  of  Uttar
Pradesh as well as the Bar Council of India  inspite  of  direction  in  the
impugned order of the High Court and inspite of notice to  the  Bar  Council
of India by this Court.  We have also noticed the failure of  all  concerned
to advert to the observations made by the Gujarat High Court 33  years  ago.
Thus there appears to be  urgent  need  to  review  the  provisions  of  the
Advocates Act dealing with regulatory mechanism  for  the  legal  profession
and other incidental issues, in consultation with all concerned.

51.    In a recent judgment of this  Court  in  Modern  Dental  College  and
Research Centre versus State of M.P.  in Civil Appeal No.4060 of 2009  dated
2nd May, 2016, while  directing  review  of  regulatory  mechanism  for  the
medical profession, this court observed that there is need to review of  the
regulatory mechanism  of  the  other  professions  as  well.   The  relevant
observations are:

“There is perhaps urgent need to review the regulatory mechanism  for  other
service oriented professions also.  We  do  hope  this  issue  will  receive
attention of concerned authorities, including the  Law  Commission,  in  due
course.”

52.   In view of above, we request the Law Commission of India  to  go  into
all  relevant  aspects  relating  to  regulation  of  legal  profession   in
consultation with all concerned at an early date.  We  hope  the  Government
of India will consider taking further appropriate  steps  in  the  light  of
report of the Law Commission within  six  months  thereafter.   The  Central
Government may file an appropriate  affidavit  in  this  regard  within  one
month after expiry of one year.



53.   To consider any further direction in the light  of  developments  that
may take place, put up the matter for further consideration one month  after
expiry of the period of one year.




                                                              ………………………………J.
                                                              (ANIL R. DAVE)



                                                              ………………………………J.
                                                             (KURIAN JOSEPH)



                                                              ………………………………J.
                                                         (ADARSH KUMAR GOEL)
New Delhi
July 05, 2016.
-----------------------
[1]    (1998) 4 SCC 409
[2]    (2001) 8 SCC 650
[3]    (2003) 2 SCC 45
[4]    (2004) 6 SCC 311
[5]    (2009) 8 SCC 106
[6]    Paras 43, 57, 78
[7]    Para 79
[8]    Para 80
[9]    (2004) 6 SCC 311
[10]   Paras 238, 239, 242
[11]   (1995) 3 SCC 619
[12]   (1976) 2 SCC 291
[13]   1995 Supp.(1) SCC 384
[14]   (2014) 8 SCC 470
[15]   (2015) 13 SCC 288
[16]   (1985) 3 SCC 398
[17]   Para 153
[18]   (1995) 2 SCC 513
[19]   (2013) 7 SCC 653
[20]   Para 28.
[21]   (2014) 9 SCC 1
[22]   AIR 1953 SC 210
[23]   (1982) 2 GLR 706