Bar Council Of Maharashtra And Goa vs The State Of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CONTEMPT PETITION NO.17 OF 2003

Bar Council of Maharashtra and Goa,
a Statutory Body Constituted under the Provisions of the Advocates Act, 1961 having its office 2nd Floor, High Court Extension, Fort, Mumbai 400 032 .. Petitioner.

Vs.

1.The State of Maharashtra (through the Public Prosecutor,High Court, Mumbai) ..

2.Shri Arun Khanvilkar,Police Inspector (Crime) attached to Bhoiwada Police Station, Bhoiwada,Parel, Mumbai 400 012. ..

3.Shri Satish Bhagwan Jadhav, PSI,attached to Bhoiwada Police Station, Bhoiwada, Parel, Mumbai 400 012. .. Respondents.

Mr.C.M.Kothari for the petitioner.
Mr.Nitin Pradhan i/b Ms.S.D.Khot for respondent nos.2 and 3.
Mr.J.P.Yagnik a/w Mr.P.S.Hingorani APP for the State.

CORAM : NARESH H PATIL, K U CHANDIWAL, JJ.

DATED : 11TH AUGUST, 2011.

ORAL JUDGMENT (PER NARESH H PATIL, J.)

1. Bar Council of Maharashtra and Goa, a Statutory body constituted under the provisions of Advocates Act, 1961 filed present
contempt petition on 10th July, 2003 against respondent nos.2 and 3.

The petitioner contends that respondent no.2 was a Police Inspector (Mumbai) attached to Bhoiwada police station. At the relevant time respondent no.2 had caused simple hurt to Shri Harish Bhatia and had wrongfully confined in Bhoiwada police station on 20th January,2003. Respondent No.3 was Sub-Inspector of Police attached to the said police station. Shri Harish Bhatia was a practicing advocate, a Professor of Law as well as author of Law books. He was practising on civil side and according to the petitioner he was not a regular visitor to the police station.

2. The petitioner further contends that on or about 20th January,2003 at about 2 pm advocate Shri Harish Bhatia on request of his client cum friend, namely, Shri Rajkumar L.Pahuja had visited Bhoiwada police station for rendering legal assistance to the client who was summoned to police station at the instance of respondent no.2. That respondent no.2 and 3 without any provocation from the side of Advocate Shri Harish Bhatia got furious with him for the reason that Shri Harish Bhatia wanted to know whether a non-cognizable or cognizable case was filed against his client so that he could advice his client accordingly. It is the case of petitioner that 5-10 policemen pushed advocate Shri Harish Bhatia with fist blows on his chest and face and slapped him on his face and head.

Respondent no.2 took away mobile phone and bag of the advocate and his client, which were later on returned to them. The Respondent no.2 did not allow the advocate to make any phone call from the said police station and threatened him that he would be booked under false case. This incident was witnessed by Shri Devendra Madhukar Yadav and Chandrakant Ubhe of the Dadar Bar association. They heard entire conversation between respondent nos.2 and 3 and advocate Shri Harish Bhatia before the incident of assault. They assured advocate Shri Harish Bhatia that they would be taking legal action against respondent no.2. The Respondent no.2 thereafter released advocate Shri Bhatia from wrongful confinement at about 4.30 pm. He was allowed to leave police station with permission of Senior Inspector of Police and the Assistant Commissioner of Police.

It is further contended that Shri Harish Bhatia straight way went to 29th Court, Bhoiwada which is opposite to police station hardly at distance of two minutes walk. He learnt that Advocate Shri Ashok Malushte, President of the Bar Association had filed a private complaint bearing No.11/S/03 against respondent no.2 under section 323, 504, 342 of IPC. The bar association had also filed a complaint bearing No.25/N/03 before the learned Magistrate for issuance of search warrant under section 97 of the Code of Criminal Procedure.

The search warrant was issued and police accepted the same at about 5 pm or so.

3. It is contended that the police submitted reply to the learned

Magistrate at about 5.45 pm. The learned Magistrate recorded the

statement on oath of advocate Shri Harish Bhatia and after perusing

the entire record passed an order on 20th January, 2003 by issuing

process against accused – respondent no.2 for the offence punishable

under section 323, 342 and 504 of IPC making it returnable on 24th

January, 2003. The offence also came to be registered against Shri

Harish Bhatia in Bhoiwada police station bearing C.R. No.31/03 under

section 353 of IPC which was on information given by the police

officer. The advocate Shri Bhatia got himself medically examined at

K.E.M. Hospital at around 9.40 pm and thereafter went to his

residence. The complaint bearing No.11/S/03 is pending hearing and

final disposal alongwith criminal case filed by the police authorities

bearing No.83/P/03.

4. The Bar Council passed resolution No.72 of 2003 in the meeting

held on 19th February, 2003 which reads as under :

“RESOLVED that the Bar Council condemns the

atrocity committed on lawyer Mr.Bhatia by the
Mr.P.I.Khanvilkar, Police Inspector and other officers of
Bhoiwada police station. This Association takes a
serious note of the said matter and expresses its
opinion that it is the dignity of the legal fraternity
which is undermined. It also amounts to intereference
in the legal profession.

It is, therefore, RESOLVED that initially
representations may be made to the Hon’ble Chief
Justice of the Bombay High Court, Hon’ble Chief
Minister, Hon’ble Home Minister, Secretary, Home
Department and the Commissioner of Police, Bombay
for taking immediate and appropriate action, including
suspension and departmental enquiry of
Mr.P.I.Khanvilkar, Police Inspector and other concerned
officers of Bhoiwada police station.

IT IS FURTHER RESOLVED that if the representations
are not suitably responded and appropriate action is
not taken, the Bar Council will file a public interest
Writ Petition.

IT IS FURTHER RESOLVED that Hon’ble Mr.M.P.Vashi,
Senior Member of the Bar Council is authorised to file
a Writ Petition and other appropriate proceedings on
behalf of the Bar Council at the relevant time.
In view of the various incidents reported of assaults or
man handling and the inhuman treatment given to the
lawyers, IT IS RESOLVED to form a Special Privilege
Committee consisting of Hon’ble M/s.Rajiv Patil, Vice-
Chairman, S.B.Sabnis, Member (BCI), M.P.Vashi,
V.A.Gangal and P.K.Dhakepalkar, Members to take
appropriate and suitable action in this matter.”

It was resolved that Bar Council would file public interest writ

petition in respect of atrocity committed on lawyer Shri Harish Bhatia

by police Inspector Mr.Khanvilkar. Shri M.P.Vashi, Senior Member

was authorised to file writ petition and other appropriate proceedings

on behalf of the Bar Council at the relevant time. Consequent thereto

the present petition was filed by the Petitioner.

5. The petitioner submits that an advocate is officer of the court

who is part and parcel of administration of justice. Any disrespect or

disregard of an advocate (by threatening or abusing him etc.) while

discharging his professional duty amounts to contempt of court.

Learned Advocate General by his communication dated 3rd May,

2003 granted his consent to the petitioner to file contempt petition

under section 15 of the Contempt of Courts Act, 1971.

6. The petitioner, therefore, prayed that respondent nos.2 and 3

and other concerned police personnel be punished as contemplated

by provisions of Contempt of Court Act, 1971 as defined under

section 2(c)(iii) thereof, alongwith other prayers.

7. The respondent no.2 Mr.Arun Kanvilkar filed an affidavit in

reply. The respondent-contemnor stated in the reply that entire

affidavit contains one side narration favouring advocate Shri Bhatia

and castigating himself and respondent no.3 – PSI Jadhav as police

officers. Respondent No.2 stated that on the other hand behaviour of

Mr.Bhatia was rude and unbecoming of a lawyer at a public

place/Government office. Shri Bhatia used abusive langugage against

respondent no.3. He threatened the officer and fellow officer that he

would beat him with the shoes like a dog on the streets. This incident

had taken place in full view of various persons gathered at police

station. It is contended that some of the lawyers who were regularly

practising in Bhoiwada Court had previously expected undue favour

from respondent no.2 as a police officer and his subordinates and

since they did not accede to their persuasion they were having

grudge particularly against respondent no.2. Shri Harish Bhatia was

never confined to police station in order to humiliate him or to cause

any interference or obstruction in administration of justice.

Respondent No.2 had asked client of Shri Harish Bhatia to come in

the evening after return of PSI Kharade for making enquiry into

complaint against him so that Shri Harish Bhatia and Shri Pahuja

need not linger without any reason in the police station. It is

contended that subsequent conduct of Shri Bhatia obstructing PSI

Jadhav respondent no.3, who was busy recording the complaint was

not only annoying but gravely insulting too. Shri Bhatia flared up and

started abusing in front of other people. The Respondent No.2

offered for amicable settlement of dispute and to maintain dignity of

office and profession to which Shri Bhatia belongs.

8. The Respondent no.2 filed further affidavit on 28.7.2011 and

tendered his sincere apologies to the court in the event of having

committed contempt of this court. It was stated therein that criminal

case No.76/PW/2006 arising out of C.R.No.31 of 2003 filed by

respondent no.3 against Shri Harish Bhatia for offence punishable

under section 353 of IPC and Criminal Case No.5/SS/2006 filed by

Shri Harish Bhatia against respondent no.2 for offence punishable

under section 323 and 341 of IPC are pending. The Respondent no.2

further stated that in criminal case filed by the State against Shri

Harish Bhatia, eight witnesses were examined and statement under

section 313 of the Code of Criminal Procedure of Shri Harish Bhatia

was recorded on 28.7.2010. Shri Harish Bhatia preferred an

application calling for Handwriting Expert’s opinion with respect to

the signature of P.W.8 – the investigating officer. The said

application was rejected by the learned Chief Metropolitan

Magistrate on 26.20.2009 which order was challenged in criminal

revision application No.1616 of 2009 in Sessions Court which was

rejected by an order dated 2.5.2011. Writ Petition No.1397 of 2011

was filed against the order of rejection in the High Court under order

passed by the trial Court. The trial was stayed. Respondent No.2

submits that in criminal case filed by Shri Bhatia, the trial is yet not

commenced. Respondent No.2 prayed that in the light of order

passed on 17.12.2003 by the High Court it is appropriate to postpone

hearing of this petition till final judgment is pronounced in criminal case.

9. Shri Harish Bhatia had filed criminal writ petition No.

1115/2003 for various prayers including prayer for FIR to be quashed

by the police (C.R.No.31 of 2003). The petition is dated 29th July,

2003. By an order dated 17th December, 2003 rule was granted in

criminal writ petition and liberty was granted to parties to get the

matter listed for final hearing after both the proceedings in the trial

Court were decided by the concerned learned Judge. Contempt

Petition No.17 of 2003 which was already admitted was to be heard

alongwith criminal writ petition.

10. By an order dated 11th April, 2005 the Division Bench of this

court observed that contempt petition be posted for hearing after

intimation is given by the petitioner about the conclusion of criminal
9 conp17.03

proceedings in case No.83/P/03 and the private complaint bearing

No.11/S/2003 by the court of Metropolitan Magistrate. By an order

dated 14.7.2004 the Division Bench granted liberty to withdraw

criminal writ petition no.1115 of 2003. Rule was accordingly

discharged. By an order dated 23rd June, 20011 the Division Bench

directed that criminal contempt petition no.17 of 2003 be listed for

hearing on 30th June, 2011.

11. Learned counsel Shri Kothari, appearing for the Bar Council of

Maharashtra and Goa submitted that an advocate is an officer of

court and part and parcel of administration of justice. In case

advocate is stopped from discharging his professional duties by way

of threatening, abusing or assault by any person including police

officer, the said Act would amount to “committing contempt of court”

and such person would be liable to be punished under the Contempt

of Courts Act, 1971. In the light of provisions of section 2(c)(iii) of

the Contempt of Courts Act, 1971 interference into administration of

justice in any other manner would include man-handling, abusing,

pushing, assaulting, insulting an advocate. In the submission of

learned counsel even if an advocate is engaged in act of providing

legal assistance, advice to his client in police station in presence of a

police officer he would be discharging his duty as an officer of the

court and misbehaviour with officer of the court by any person

including police officer would amount to committing criminal

contempt of court. It was submitted that there is no bar on lawyer to

visit police station and advice client who is called by police for

purpose of interrogation, investigation and who is in need of legal

assistance. Learned counsel submitted that even while a lawyer

functioning in his or her chamber is acting as officer of the court.

12. Learned counsel further submitted that Shri Harish Bhatia was

required by his client to give him legal assistance as he was in police

station. There was nothing wrong on part of Shri Bhatia who visited

police station and was giving assistance and advice to his client. The

police unnecessarily termed presence of Shri Bhatia as interference

in interrogation and badly treated Shri Harish Bhatia, abused him

and assaulted which is highly objectionable on the part of police

officer. The police officer who is engaged in maintenance of law and

order ought not to have forgotten that he was not only dealing with

an advocate but the officer of the court according to learned counsel.

It was submitted by the counsel that to give counter blast to the

complaint filed by Shri Harish Bhatia police concocted story and

filed criminal case against Shri Harish Bhatia. The Bar association

has taken issues seriously. After considering entire record the Bar

Council of Maharashtra which is Apex body of the advocates in the

State of Maharashtra had by a resolution decided to initiate

proceedings against police. Learned counsel submits that pendency

of cases before the trial Court is no bar to hear this contempt

petition which is pending since last so many years.

13. Learned counsel Shri Nitin Pradhan appearing on behalf of

respondent no.2 and 3 submitted that Bar Council has expressed its

opinion that conduct of respondent nos.2 and 3 had undermined

dignity of legal fraternity and amounts to interference in legal

profession. Bar Council, therefore, resolved to file public interest

writ petition and authorised Mr.M.P.Vashi, Senior Member of Bar to

file writ petition and other appropriate proceedings on behalf of bar

association at the relevant time. It was further resolved to form a

Special Privilege Committee to take appropriate and suitable action

in the matter, in view of various incidence reported of assault, man-

handling and inhuman treatment given to the lawyers. Learned

Counsel Shri Pradhan submits that resolution was not in favour to

file a contempt petition. The privilege committee was constituted to

enquire into such incident by way of delegation of powers of General

Body of the Bar Council. It was submitted that learned counsel

Mr.M.P.Vashi, Senior Member of Bar Council did not file petition

neither initiated any proceedings pursuant to resolution passed by

the Bar Council on 19.2.2003, therefore, present petition was filed

without any authority and is not maintainable. Learned counsel

further submitted that learned Advocate General is ex-officio member

of the Bar Council under provisions of section 3(2) of the Advocates

Act. Learned Advocate General preferrably did not file contempt petition.

14. Learned counsel Shri Nitin Pradhan for respondent nos.2 and 3

further submitted that there is no immunity in law granted to an

advocate for his/her conduct while functioning as a lawyer not

connected with court proceedings. Professional discharge of duties

by a lawyer in an individual capacity outside court, cannot be

equated with functioning as Officer of the Court while participating in

court proceedings. Learned counsel submitted that issue in respect

of alleged misbehaviour of respondent nos.2 and 3 and man-handling

of advocate Shri Harish Bhatia is sub-judice before the trial Court

and any observation in respect of merits of incident and evidence

would hamper fair trial. In fact cross cases are pending in the trial

Court and in the said cases part of evidence is already recorded.

Both the cases are clubbed and considering the facts of the case

serious disputed questions of facts arise in matter which cannot be

gone into proceedings of this nature. Learned counsel referred to the

provisions of section 29, 30 and 32 of the Advocates Act.

15. The provisions of section 29, 30 and 32 of the Advocate’s Act read as under:

“29. Advocates to be the only recognised class of
persons entitled to practise law. — Subject to the
provisions of this Act and any rules made thereunder,
there shall, as from the appointed day, be only one class
of persons entitled to practise the profession of law,
namely, advocates.

“30. Right of advocates to practise. — Subject to
provisions of this Act, every advocate whose name is
enterted in the (State roll) shall be entitled as of right to
practise throughout the territories to which this Act extends, —

(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorised
to take evidence; and

(iii) before any other authority or person before
whom such advocate is by or under any law for the
time being in force entitled to practise.

32. Power of Court to permit appearances in particular
cases. — Notwithstanding anything contained in this
Chapter, any Court, authority, or person any permit any
person, not enrolled as an advocate under this Act, to
appear before it or him in any particular cases.”

Section 135 of the Code of Civil Procedure — Exemption from arrest

under civil process:

(1) No Judge, Magistrate or other judicial officer shall
be liable to arrest under civil process while going to,
presiding in, or returning from, his Court.

(2) Where any matter is pending before a tribunal
having jurisdiction therein, or believing in good faith
that it has such jurisdiction, the parties thereto, their
pleaders, mukhtars, revenue-agents, and recognised
agents, and their witnesses acting in obedience to a
summons, shall be exempt from arrest under civil
process other than issued by such tribunal for contempt
of Court while going to or attending such tribunal for
the purpose of such matter, and while returning from such tribunal.

(3) Nothing in sub-section (2) shall enable a
judgment-debtor to claim exemption from arrest under
an order for immediate execution or where such
judgment-debtor attends to show cause why he should
not be committed to prison in execution of a decree.

16. The provisions of section 2 (c) (iii) of the Contempt of Courts

Act read as follows:

“2 (c) “criminal contempt” means the publication
(whether by words spoken or written, or by signs, or by
visible representations, or otherwise) of any matter or
the doing of any other act whatsoever which —
(iii) interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration
of justice in any other manner.”

17. Learned counsel for the petitioner Shri Kothari has placed

reliance upon the following judgments: Mrs.Damyanti G.

Chandiramani Vs. S.Vaney (A.C.J. 1964 Page 381). In the facts of

the present case the Division Bench of the Bombay High Court

referred to the case of Rajendra Singh V. Uma Prasad which reads thus:

“The view taken by the Nagpur High Court has been
endorsed by the Allahabad, Madras and Lahore High
Courts. In Rajendra Singh Vs. Uma Prasad during the
pendency of the suit a notice was sent on behalf of the
plaintiff through his advocate to the defendant,
threatening him that unless he withdrew the plea and
paid a certain sum as damages he would be criminally
prosecuted for defamation of the plaintiff’s deceased
father. Proceedings or contempt were taken out on this
notice. It was held :

“Interference with the administration of justice is one of
the well recognized heads of contempt of Court. In the
present case the notice was undoubtedly intended to put
extraneous pressure on the defendant in order to compel
him, under threat of drastic action being taken against
him, to withdraw the plea which had been taken by him
specifically in the written statement. It amounted to a
direct interference with the administration of justice in
preventing or attempting to prevent the defendant from
pressing the plea, which might prove to be a very
substantial and legitimate defence; and in that way an
indirect attempt was made to exclude that plea from the
consideration of the court.” (1934) I.L.R. 57 All. 573.

In the case of Delhi Judicial Services Association, Tis Hazari

Court, Delhi Vs. State of Gujarat and Others (1991) 4 Supreme

Court Cases 406 alongwith companion matters. It was held thus :

“43. The Chief Judicial Magistrate is head of the
Magistracy in the district who administers justice to
ensure, protect and safeguard the rights of citizens. The
subordinate courts at the district level cater to the need
of the masses in administering justice at the base level.
By an large the majority of the people get their disputes
adjudicated in subordinate courts, it is, in the general
interest of the community that the authority of
subordinate courts is protected. If the CJM is led into
trap by unscrupulous police officers and if he is
assaulted, handcuffed and roped, the public is bound to
lose faith in courts, which would be destructive of basic
structure of an ordered society. If this is permitted Rule
of Law shall be supplanted by Police Raj. Viewed in this
prespective the incident is not a case of physical assault
on an individual judicial officer instead it is an
onslaught on the institution of the judiciary itself. The
incident is a clear interference with the administration of
justice, lowering its judicial authority. Its effect was not
confined to one District or State, it had a tendency to
effect the entire judiciary in the country. The incident
highlightes a dangerous trend that if the police is
annoyed with the orders of a presiding officer of a court,
he would be arrested on flimsy manufactured charges,
to humiliate him publicly as has been done in the instant
case. The conduct of police officers in assaulting and
humiliating the CJM brought the authority and
administration of justice into disrespect, affecting the
public confidence in the institution of justice. “The
summary power of punishment for contempt has been
conferred on the courts to keep a blaze of glory around
them, to deter people from attempting to render them
contemptible in the eyes of the public. These powers
are necessary to keep the course justice free, as it is of
great importance to society.” (Oswald on Contempt of
Court). The power to punish contempt is vested in the
Judges not for their personal protection only, but for
the protection of public justice, whose interest requires
that decency and decorum is preserved in Courts of
Justice. Those who have to discharge duty in a Court of
Justice are protected by the law, and shielded in the
discharge of their duties either in court or outside the
court by attacking the presiding officers of the court,
would amount to criminal contempt and the courts must
take serious cognizance of such conduct.”

In the case of Daroga Singh and Others V. B.K.Pandey (2004) 5

Supreme Court Cases 26 it was held thus :

“45. Long back Sardar Patel had said, after achieving
independence: “the police have inherited a legacy of
suspicion and dislike. For this reason, there is
insufficient respect for the police today. But, now that
the country is free both the public and the police must
change their attitude.” Shri S.V.M.Tripathi, former
Director General of Police has, in his evaluation “Indian
Police After Fifty Years of Independence”, said: “A
sensitive police officer can ensure justice and fair play as
no other public servant can. The least he should do is to
prevent injustices on the poort in the society and other
areas of administration, specially, a police station.
Upholding human rights, and protection of life and
property of citizens should be a matter of habit with the
police rather than that of display. The sooner we accept
this premise as imperative and honestly work towards
achieving it, the better it would be for the society and the
nation. The police leadership will have to push the limits
of feasibility for this purpose.”

18. Learned counsel for the respondent nos.2 and 3 Shri Nitin
Pradhan has placed reliance upon the following judgments : Nandini
Satpathy Vs. P.L.Dani and Anr. (1978) 2 Supreme Court Cases

424. The Apex Court observed as follows:

“63. Lawyer’s presence is a constitutional claim in
some circumstances in our country also, and, in the
context of Article 20(3), is an assurance of awareness
and observance of the right to silence. The Miranda
decision has insisted that if an accused person asks for
lawyer’s assistance, at the stage of interrogaton, it shall
be granted before commencing or continuing with the
questioning. We think that Article 20(3) and Article 22(1)
may, in a way, be telescoped by making it prudent for the
police to permit the advocate of the accused, if there be
one, to be present at the time he is examined.
Overreaching Article 20(3) and Section 161(2) will be
obviated by this requirement. We do not lay down that
the police must secure the services of a lawyer. That will
lead to “police-station-lawyer” system, an abuse which
breeds other vices. But all that we mean is that if an
accused person expresses the wish to have his lawyer
by his side when his examination goes on, this facility
shall not be denied, without being exposed to the serious
reproof that involuntary self-crimination secured in
secrecy and by coercing the will, was the project.

64. Not that a lawyer’s presence is a panacea for all
problems of involuntary self-crimination, for he cannot
supply answers or whisper hints or otherwise interfere
with the course of questioning except to intercept where
intimidatory tactics are tried, caution his client where
incrimination is attempted and insist on questions and
answers being noted where objections are not otherwise
fully appreciated. He cannot harangue the police but
may help his client and complain on his behalf, although
his very presence will ordinarily remove the implicit
menace of a police station.

65. We realize that the presence of lawyer is asking for
the moon in many cases until a public defender system
becomes ubiquitous. The police need not wait more than
for a reasonable while for an advocate’s arrival. But they
must invariably warn – and record that fact — about the
right to silence against self-incrimination; and where
the accused is literate take his written acknowledgment.

67. The symbiotic need to preserve the immunity
without stifling legitimate investigation persuades us to
indicate that after an examination of the accused, where
lawyer of his choice is not available, the police official
must take him to a magistrate, doctor or other willing
and responsible non-partisan official or non-official and
allow a secluded audience where he may unburden
himself beyond the view of the police and tell whether he
has suffered duress, which should be followed by judicial
or some other custody for him where the police cannot
reach him. That collector may briefly record the relevant
conversation and communicate it — not to the police –
but to the nearest magistrate. Pilot projects on this
pattern may yield experience to guide the practical
processes of implementing Article 20(3). We do not
mandate but strongly suggest.”

In case of Ex-Capt.Harish Uppal V. Union of India (2003) 2

Supreme Court Cases 45 it was held thus :

“34. One last thing which must be mentioned is that
the right of appearance in courts is still within the
control and jurisdiction of courts. Section 30 of the
Advocate Act has not been brought into force and rightly
so. Control of conduct in court can only be within the
domain of courts. Thus Article 145 of the Constitution of
India gives to the Supreme Court and section 34 of the
Advocates Act gives to the High Court power to frame
rules including rules regarding condition on which a
person (including an advocate) can practise in the
Supreme Court and/or in the High Court and courts
subordinate thereto. Many courts have framed rules in
this behalf. Such a rule would be valid and binding on all.
Let the Bar take note that unless self-restraint is
exercised, courts may now have to consider framing
specific rules debarring advocates, guilty of contempt
and/or unprofessional or unbecoming conduct, from
appearing before the courts. Such a rule if framed would
not have anything to do with the disciplinary jurisdiction
of the Bar Councils. It would be concerning the dignity
and orderly functioning of the courts. The right of the
advocate to practise envelopes 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, he can work in
any office or firm as a legal officer, he can appear for
clients before an arbitrator or arbitrators etc. Such a
rule would have nothing to do with all the acts done by
an advocate during his practise. He may even file
vakalat on behalf of a client even though his appearance
inside the court is not permitted. Conduct in court is a
matter concerning the court and hence the Bar Council
cannot claim that what should happen inside the court
also be regulated by them in exercise of their disciplinary
powers. The right of practise, no doubt, is the genus of
which 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 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 practise 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.”

In case of J.R.Parashar, Advocate and Ors. V. Prasant Bhushan

and Ors. Judgment Today 2001 (7) SC 189 it was held thus:

“12. A civil society is founded on a respect for the law. If
every citizen chose to break the law, we would have no
society at all, at least not a civil one. It is this respect for
the law and of the law enforcing agencies that,
somewhat paradoxically, ensures the freedoms
recognised in the Constitution. The respect is at best a
fragile foundation. While it is to be built and sustained
by the conduct of the persons administering the law, it
has to be shored up by sanctions for actual breaches of
the law and for actions destroying that respect. The law
of contempt is framed for the second purpose.

31. Holding a dharna by itself may not amount to
contempt. But if by holding a dharna access to the courts
is hindered and the officers of court and members of the
public are not allowed free ingress and egress, or the
proceedings in court are otherwise disrupted, disturbed
or hampered, the dharna may amount to contempt
because the administration of justice would be
obstructed. There is no allegation in the petition that the
participants in the dharna had picketed the gates of this
Court and prevented lawyers or litigants from entering
and leaving the court premises. Nor is it the petitioners’
case that the “dharna” disturbed or prevented the courts
from functioning.”

In the facts of case Full Bench of Lahore High Court in Homi

Rustomji Pardiwala V. Sub-Inspector Baig and Others A.I.R.

(31) 1944 Lahore 196 it was held thus:

“According to Mr.Pardivala he must have been arrested
to prevent him carryiing out his instructions and to
prevent him from obtaining an order from this Court
permitting an interview with Jai Parkash Narain. It is in
evidence that Jai Parkash Narain had once escaped from
detention from the Hazaribagh Jail and it is suggested
that the police at Lahore were determined at all costs to
prevent any order being made allowing Mr.Pardivala or
any one else to interview Jai Parkash Narain whom the
police considered so dangerous. To avoid any possible
order allowing an interview, Mr.Pardivala alleges that
the police arrested him. It is to be observed that on 12th
November 1943, the Punjab Government cancelled the
order detaining Jai Parkash Narain under Rule 26,
Defence of India Rules, and issued and order of
detention under Bengal Regulation, 3 of 1818. Under
this Regulation this Court had no jurisdiction to inquire
into the validity of the detention and it is said that when
all fear in connexion with a possible interview with Jai
Parkash Narain was over, Mr.Pardivala was released
and allowed to proceed to Bombay.

Had Mr.Pardivala been arrested for the reasons
suggested by him, I would have no hesitation whatsoever
in holding that the respondents had deliberately
interfered with the due course of justice and had
committed contempt of Court. The respondents on the
other hand alleged that there were good security
reasons for the arrest of Mr.Pardivala. (After
considering the evidence his Lordship held that the
arrest of Mr.Pardivala was not made for the reasons
suggested by him and proceeded.) On the evidence I am
not satisfied that Mr.Pardivala was arrested to prevent
him carrying out his instructions and appearing in this
Court on behalf of Jain Parkash Narain. Further I am not
satisfied that one of the reasons of the arrest was to
frighten members of the local Bar and thus make it
impossible for Mrs.Purnima Bannerji to obtain any legal
assistance in prosecuting her application. That being so,
I am bound to hold that there was no intention on the
part of these three police officers directly to interfere
with the due course of justice.

Mr.Munshi, however, contended that the act of the
police would amount to contempt of Court even if they
had no deliberate intention of preventing Mr.Pardivala
appearing in the Court provided their acts were
calculated to interfere with the due course of justice.
Mr.Munshi at once conceded that a justifiable arrest of a
counsel appearing in a case, though bound to interfere
with the hearing of that case, would not amount to
contempt of court. No one could possibly suggest that a
policeman who arrested a counsel thought to be guilty of
murder, whilst he was on his way to Court to appear in a
case, would be guilty of contempt. Mr.Munshi’s
argument, however, was that even if there wre some
grounds for arrest, yet such arrest would amount to
contempt if the dominant motive or one of the effective
motives for arreste was to interefere with the course of
justice. It was urged that even assuming that the police
though that there were some grounds for the arrest of
Mr.Pardivala, yet if he was arrested mainly to keep him
out of this Court, then his arrest would amount to
contempt. This contention may be well founded but I am
not satisfied on the facts that the real or dominant
motive for the arrest of Mr.Pardivala was to prevent him
carrying on his duties. Further on the evidence I am not
satisfied that such was in the contemplation of the
police when they arrested him. Upon the evidence it has
not been established that this arrest was effected with
an intention directly or indirectly to interfere with the
course of justice and was made with that end in view.
Mr.Munshi further argued that there was no real
ground for the arrest of Mr.Paridvala under R.129,
Defence of India Rules, as no reasonable grounds for
suspicion existed in the case. It was contended that
before such an arrest could be justified, it must be
shown that there were grounds which appeared
reasonable not only to the officer carrying out the arrest
but to the Court. Reliance was placed by Mr.Munshi on
certain observations of Gwyer C.J. in A.I.R. 1943 F.C. 11 at
pp.6 and 7. However, in this case the Court is not
concerned with whether the arrest could or could not be
justified under R.129. Defence of India Rules as in my
view an arrest honestly made, though unjustifiable in
law, cannot amount to contempt of Court. Assume a
member of the Bar is arrested on his way to Court by a
police officer under an honest, though entirely mistaken,
belief that particular counsel had committed a serious
crime. Could that arrest be said to amount to contempt
of Court ? The arrest would be wholly unjustifiable in the
eye of law and might well interfere with the conduct of
the case then pending. Nevertheless the arrest could not
in my view amount to contempt. In my judgment, to
constitute contempt in this class of caes, there must be
something more than arrest without legal justification.
There must be something in the nature of mala fides,
that is, an intention directly or indirectly to interfere
with the due course of justice. The arrest must have
been intended to interfere with the due course of justice
or was calculated to interfere with the due course of
justice. An honest, though mistaken, arrest, though it
might interfere with the due course of justice, could not
possibly amount to contempt. That being so, even
assuming this arrest could not be justified under R.129,
Defence of India Rules, it could not amount to contempt
of Court once it is held, as I do hold, that the police had
no intention directly or indirectly of interfering with the
proceedings on the petition under S.491, Criminal P.C. It
is to be observed that during the conduct of this case
Mr.Munshi made it clear that he did not press the case
against Mr.Wace. He did not order the arrest and all he
did was to approve of it when the reasons for such arrest
were given to him by Mr.Robinson. It will be
unnecessary, therefore, to consider the case further as
against Mr.Wace.”

19. In the light of the fact that the trial in both cross cases is

pending in the trial Court it would not be proper to enter into

disputed questions of fact while dealing with issue of Contempt of Courts Act.

20. Section 41(d) as brought in the Code of Criminal Procedure by

amendment reads as under :

“41D. Right of arrested person to meet an advocate of
his choice during interrogation.– When any person is
arrested and interrogated by the police, he shall be
entitled to meet an advocate of his choice during
interrogation, though not throughout interrogation.”

As per Black’s Law Dictionary (Eigth Edition)

“Officer of the Court: A person who is charged with
upholding the law and administering the judicial system.
Typically, officer of the Court refers to a judge, clerk,
bailiff, sheriff, or the like, but the term also applies to a
lawyer, who is obliged to obey court rules and who owes
a duty of candor to the court.– Also termed court officer.

As per Advanced Law Lexicon (Third Edition)

“Officer of the Court: A person who is charged with
upholding the law and administering the judicial system.
Typically, officer of the Court refers to a judge, clerk,
bailiff, sheriff, or the like, but the term also applies to a
lawyer, who is obliged to obey court rules and who owes
a duty of candor to the court.– Also termed court officer.

21. We have heard the submissions of learned counsel at length and

perused record placed before us. We have perused the judgments

cited by learned counsel.

22. Considering the facts of case and incident in question which

took place in Bhoiwada police station it cannot be said that Shri

Harish Bhatia at the relevant time was discharging his professional

duties in the court of law. Shri Bhatia was not prevented to enter

court premises or any attempt was made to deter him from

participating in the court proceedings. The incident in question does

not relate to conduct of the police officer while in premises of the

court. It does not emerge from the facts, circumstances and record

produced before us that dominant motive of the respondent-

contemnor/police officers was to interfere with course of justice. We

do not find that there was intention on the part of respondent-

contemnor directly or indirectly to interfere with course of justice.

23. This is not a case where an advocate is prevented deliberately

by police while he is on way to attend the court proceedings or is

obstructed deliberately in respect of on-going court case while an

advocate was leaving the court premises. The incident in question

has taken place in the police station while the client of advocate Shri

Harish Bhatia was called for interrogation by police. In such

situation the alleged incident which took place in police station could

not be equated with the proceedings before a court.

24. Considering the provisions of law and case law developed on

the issue we are of the considered view that accusations made by

Shri Harish Bhatia in respect of insult and assault made by

respondent nos.2 and 3 and other officers present while he had

visited police station to provide legal assistance to his client

Mr.Pahuja would not amount to committing criminal contempt of court. We, therefore, discharge the notice issued to the respondents and dismiss the contempt petition.

25. It is matter of record that both the criminal cases are pending adjudication in the trial Court and in one of the case evidence was recorded partly. We clarify that any observation made by this court in this judgment shall not affect merits of the proceedings pending in the trial Court.

(K U CHANDIWAL,J.) (NARESH H PATIL,J.)

Leave a Comment

Your email address will not be published. Required fields are marked *