J. Reddy, C.J.
1. These two contempt cases are in respect of a notice issued on behalf of the respondent in Contempt Case No, 6/67 by the two respondents, who arelawyers, in Contempt Case No. 9/67, the contents of which according to the learned Advocate-General have caused and are calculated to cause embarrassment to a judicial officer in the discharge of his duties and also imputed against him an allegation that his conduct was not worthy of a Magistrate. The allegations in the petitions show that the Additional Judicial Second Class Magistrate, Eluru, was trying a criminal case being C. C. No. 2258 of 1965 in which the respondent in Contempt Case No. 6/67, (hereinafter called the 1st respondent), was along with others an accused person. On 14-7-65, the case was taken up for the examination of the accused under Section 242, Cr. P. C. The accused was present in Court, and when he was asked to get into the dock by his advocate, he hesitated to go into the dock but on the advice of the advocate, he went into it. When the Magistrate put a question as to the particulars of the offence under the Shops and Establishments Act with which he was charged, the 1st respondent is alleged to have impolitely replied in a loud voice 'avi doraka sastunte nannemi cheyyavavantav'.
On the Magistrate asking the respondent to be polite to the Court, he continued totalk irrelevantly evading answers to the Court. At one stage, he, even shouted from the dock to a person present in Court asking him to show a book to the Magistrate. The Magistrate, it was averred, was unable to understand whether the respondent was admitting or denying the offence and the Magistrate asked Sri P. Rajeswara Rao, advocate of the 1st respondent, whether he was admitting the offence The advocate represented mat the respondent denied the offence. As the 1st respondent continued to talk irrelevantly, the Magistrate asked him to stop. Thereafter the denial of the offence by the respondent was recorded and the case was adjourned for trial There were many persons who were present in Court and who have filed affidavits Some of those that have filed affidavits in support of these allegations are (1) Sri P. Ramamohan Rao, Advocate. Eluru; (2) Sri P. Ramajoges wara Rao, Advocate, Eluru. and (3) Sri M. Hussain Adeni, A.P. Eluru. After the case was adjourned, the 1st respondent caused a notice to be issued to the Magistrate by the two respondents, in Contempt Case No 9/67, (hereinafter called Respondents Nos. 2 and 3) on the very next day viz., 15-7-65 which was received by the Magistrate on 16-7-65. It may also be stated that on the 16th the 1st respondent moved a transfer petition before the District and Sessions fudge who called for the explanation of the Magistrate and after perusing the same dismissed the said petition with the remarks that if the Magistrate feels embarrassed to try the case, he may ask for the transfer of it The learned Magistrate having regard to the history of the proceedings felt embarrassed to go on with C.C. No 2258 of 1965 and asked for the transfer of the same to another Court
2. We may now give in extenso the notice purported to have been issued under Section 80. Civil P.C. contemplating to file a suit for damages against the Magistrate and it reads as follows:--
'Under instructions from our client Sri Vankadaru Lakshminarayana of Eluru we give you the following Notice :
OUR client Sri Vankadaru Lakshminarayana attended the Court of the Additional judicial 2nd Class Magistrate at 10-45 A.M., on 14-7-65 as he was an accused in C.C. No. 2258 of 1963 on the tile of that Court. You are the Presiding Magistrate of the said Court. You did not attend Court till 12 40 hrs that day. There were several other cases, in which the following persons viz., (1) Sri Nagisetti Mangavva, Merchant, Eluru; (2) Sri Majeti Seshagiri Rao Merchant, Eluru. (3) Sri Kandi Nageswara Rao and (4) Sri Chimakurthi Subharao were also accused You took up the said cases. Some of them confessed their guilt as a consequence of which yon fined them. Then you took out client's case Sri Pandrangi Rajeswara Rao appeared as an Advocate for our client and was about to file an application for dispensing with the attendance of our client on grounds of illness and permitting him to represent him in the said case. You put a question to our client and asked his advocate whether our client was also admitting the guilt of not. Sri Rajeswarai to replied that our client is not admitting the guilt, but contesting the case. When our client was saying what he has to say in answer to the question put by the Court, you suddenly grew wild, presumably as our client decided to contest the case, and uttered the words shut up addressing the same to our client in a very contemptuous and insulting manner with an unusually loud voice, intending and also knowing to be likely that the provocation caused by you to our client will result in breach of public peace. Our client felt insulted and humiliated by such remark and attempted to retort. His advocate, Sri Hajeswara Rao cautioned him by raising his hand not to be hasty But for his caution, our client would have certainly retorted and reprimanded you for your unwarranted behaviour, in which case breach of peace would certainly have been caused As a Magistrate, you are bound to record whatever our client says by was of statement It is entirely outside the scope of your right as a Magistrate to utter such insulting remarks in doing so, you are not purporting to act as a Magistrate and not in discharge of your duties An application presented by our client's advocate for dispensing with our client's personal attendance was summarily rejected. At that time, the following persons (1) Sri Nagisetti Mangaiah, (2) Sri Majeti Sehagirirao (3) Sri Kandi Nageswara Rao and (4) Sri Chimakurthi Subbarao who are very respectable people were present. Our client was humiliated by you in the presence of those people and his reputation is very much lowered by the said incident. Our client has been trading in tobacco on a very large scale and gained reputation not only at this place but throughout our State and also in the Madras State as a very honest businessman This is the first time for him to attend any criminal Court till now. He owns properties worth some lakhs of rupees and pays income-tax to the tune of Rs 50,000 to Rs. 75,000 per annum Please take notice that out client is taking appropriate civil action for damages for Rs. 25,000 against you and also taking criminal action against you for the offences committed by you.
3. In the counter the 1st respondent affirmed m substance the contents of the notice However he seems to have a grievance that after the incident, when the case was being adjourned and his counsel presented an application to dispense with his personal appearance in Court at the subsequent date of hearing on the ground of his ill health it was dismissed. According to him smarting under the insult and almost in tears he immediately approached hislawyers Sri K. Narayana Rao and Sri C. Seetharamaiah to issue a notice to the learned Magistrate claiming damages for the loss of reputation and stating that suitable civil and criminal action will be taken against him. He denied the allegations made in the petition and stated that the learned Magistrate was perhaps piqued by the fact that he pleaded 'not guilty' while all the other merchants charged separately with the same offence, pleaded guilty.
4. With regard to the affidavits filed by the lawyers in support of the allegations in the petition, the 1st respondent stated that the two lawyers who gave affidavits and usually practise in the learned Magistrate's Court and the A.P.P. attached to that Court who also gave affidavit are interested in supporting the Magistrate's version and that mere is at present a proceeding pending against Sri P. Ramajogeswararao under the Legal Practitioners Act before the Bar Council of our State. Subsequently he has averred that he was only interested in issuing the notice in vindicating his honour by taking suitable legal action for the gratuitous insult done to him by the learned Magistrate'. He has further stated that he has a personal grievance against the Magistrate and his criticism of him was only personal and confined to the particular incident that happened in Court in his case on 14-7-65 and that he did not indulge in his notice in any general criticism of the learned Magistrate and that ho is not interested in doing so. He finally stated that the said notice does not constitute contempt of Court. There is, as usual, a qualified apology that it the Court holds that he had committed contempt of Court in issuing the notice, he as a law-abiding citizen unhesitatingly apologises for it and begs to be excused.
5. Respondents Nos. 2 and 3 stated in their affidavits that before giving the said notice they ascertained from Sri Pandrangi Rajeswara Rao, the learned advocate who was appearing for the 1st respondent as to the incident that had happened in the Court. As the facts stated by Sri Rajeswararao corroborated the statement of the 1st respondent, they acted on the statement of Sri Rajeswararao in giving the notice, which is the subject-matter of this petition. The 2nd respondent stated the qualifications of Mr. Rajeswararao by saying that he is a respected and senior member of the Bar with a standing of 26 years, that he was a standing counsel for the District Board and later the Zilla Parishad, West Godavary District from 1956 to 1961, that besides his standing at the Bar Sri Rajeshwararao is an eminent jurist and a distinguished writer of books and that leading lawyers had commended his works. Both the respondents denied the facts as stated in the petitioner's affidavit as being correct. They admittedly issued a notice on 15-7-65 and they advised the 1st respondent to file a petition for transfer of his case from the Court of the AdditionalJudicial Second Class Magistrate, Eluru and apply for sanction of the State Government under Section 197, Cr. P. C.
As regards the allegation that the notice amounted to contempt of Court, the 2nd respondent stated in Para 7 of his affidavit as follows :--
'I submit that the allegations in paragraph 5 are not quite accurate. The action taken by me was neither intended nor calculated, nor does it amount to any interference with the administration of justice, The fact that a transfer petition was filed immediately, even before the notice was actually received by the learned Magistrate clearly shows that there was no intention in any way to influence the learned Magistrate in deciding the case. In fact we wanted to take the case out of the Court of the learned Magistrate so that the client can pursue his remedies for personal insult, which has nothing to do with the discharge of official duties'.
Lastly both of them stated that they bona fide believed that merely giving a notice to Sri Sadgurn Prasad would not be taken in law to amount to interference with the course of justice, particularly because the notice itself did not contain any aspersion against the Magistrate, nor was anything mentioned about the merits of the case, and that they had absolutely no intention or motive to influence the decision of the Magistrate nor was there any threat to get a favourable decision. The 2nd respondent has also denied that .the issuance of the notice would obstruct and hamper the administration of justice by embarrassing the learned Magistrate and making it delicate that he should continue to conduct the trial, as immediately steps were taken to get the ease transferred to avoid any embarassment etc., to the Magistrate.
6. In so far as the affidavit of the 3rd respondent is concerned, it is in similar terms as that of the 2nd respondent.
7. At the very outset Mr. Narasaraju who appeared for Respondents Nos. 2 and 3 did not seek to support the contention urged by the respondents in their counters but submitted unqualified apologies of the respondents and has stated that these advocates were men of long standing at the Bar, that they have nothing against the learned Magistrate and that this is is unfortunate incident where they have not appreciated the legal position and consequences flowing from the issuance of such a notice, and that they issued the notice in the bona fide belief that it was in the interests of their client.
8. On behalf of the 1st respondent also, an unqualified apology has been submitted but before we consider these, it is necessary to state clearly the consequences arising out of such notice or similar notices so that persons who have to deal with Courts and their advocates may not have any misunderstanding or doubt. One of the various forms of contempt is that which consists in makingstatements, scandalizing, abusing, belitting or deriding Court or a judicial officer and causing embarrassment to the judicial officer in the discharge of his duties. This can be done in many ways one of which is by witting letters to judicial officers or sending notices. It cannot be doubted that lawyers cannot claim privilege even when acting on behalf of their clients if the contents of their notices amount to making aspersions of the nature set out above. Their Lordships of the Supreme Court in M.Y. Shareef v. Judges of Nagpur High Court, : 1955CriLJ133 , held that counsel who sign applications or pleadings containing matter scan daliaing the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds therefor, with a view to prevent or delay the course of justice, are themselves guilty of contempt of Court, and it is no duty of a counsel to his client, to take any interest in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications. Mahajan, C.J., also observed at p. 2 of the report ;
'It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel is acting in the interests of his client, or in accordance with his instnictions is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scanda lizing the Court. They think that when there is conflict between their obligations to the Court and their duty to the client, the latter prevails'
The above observations make it clear that there can be no privilege attached to a lawyer who on the instructions of his client issues a notice to a judicial officer in respect of his work in Court which is calculated or amounts to either scandalizing him or embarrassing him in the discharge of his duties. An individual who occupies the post of a judicial officer cannot be treated apart from his judicial office. It must be realised that he is functioning as a Judge whose duty it is to do justice. As observed two centuries ago by Wilmot, J., in The King v. Almon, (1765) 97 ER 94:
'The arraignment of the justice of the Judges . . excites in the minds of the people a general dissatisfaction with all judicial administrations, and indisposes their minds to obey them; and whenever men's allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judge, as private individuals, but because they are the channels by which . .justice is convey ed to the people. To be impartial and to be universally thought so. are both absolutely necessary for giving justice... .free, open and uninterrupted current'.
9. In two Bench decisions of this Court viz., Advocate-General, A. P. v. Seshagiri Rao, ILR (1959) AP 1282, decided by Chandra Ready, C. J., and one of us and Advocate-General, A.P. v. Seshagiri Raw, : AIR1966AP167 decided by one of us and Venkatesam, J., these matters were considered and it was held that even a notice under Section 80, Civil P. C if it imputes improper motives to a judicial officer in a proceeding in a Court of law does not protect either the person who has instructed or the present giving it. It is unnecessary for us again cover the same ground.
10. The next question to which we address ourselves is whether the contents of the notice amount to a contempt or likely to embarrass the Court. It is difficult to envisage a clearer example of a statement which would cause embarrassment to the judicial office. In the notice cited above, what has been stated is that while the other accused in cases tried along with C.C. 3258/65 pleaded guilty and were fined, since the 1st respondent pleaded not guilty, the Magistrate became furious and acted in such an insulting manner as would have provoked the 1st respondent to commit breach of the peace. It is obvious from this statement that the Magistrate does not like any accused person to plead not guilty and would become furious if he did so. The truth or otherwise of this allegation cannot affect the matter under consideration but it is obvious that a motive of that nature would vitally impair the faith and confidence of the public in the administration of justice and would make a person called upon to exercise judicial functions unfit for his task. The well-known maxim that every person is innocent till he is found guilty is cut across by an attitude of that nature. That apart the notice specifically stated that as a Magistrate he was bound to record whatever the 1st respondent deposed by way of a statement. This is yet another allegation imputing that the Magistrate did not so record. Further it is also stated that in uttering insulting remarks, he was not purporting to act as a Magistrate and was not in the discharge of his duties. The grievance of the 1st respondent seems to be more in the Magistrate rejecting his application for dispensing with his personal appearance at the next date of hearing. The fact that the very next day after the issue of the notice a transfer petition was filed, is not at all relevant. We have no doubt whatever that the words used in the notice amount to contempt and were calculated to and would cause embarrassment to the Magistrate in the discharge of his judicial Functions. The contempt is obvious, and perhaps it is because of this realisation, Sri Narasaraju at the very outset advised his clients to file unconditional apologies.
11. But in considering these apologies, we must make a distinction between the 1st respondent and Respondents Nos. 2 and 3.
The 2nd and 3rd respondents have no particular malice or ill-will against the Magistrate. They no doubt tried to act on behalf of their client but in our view not with much perspicuity or forethought. A little contemplation and study would have immediately matte them realise that they were asked to do something which would involve them in contempt proceedings, but for that reason, we cannot be too severe or hard and, therefore, we accept the unconditional apologies .submitted by Respondents Nos. 2 and 3. But while doing so we must necessarily warn the learned gentlemen of the profession that in matters of this nature, they ought to exercise great care and caution because they would, if drawn by the clients into a controversy, be instrumental in bringing the administration of justice into disrepute which, T am sure, none of them really intend.
12. In so far as the 1st respondent isconcerned, we take a serious view of hisconduct in the Court. He seems to have apersonal grievance against the Magistrate asadmitted By himself. He imputes motives tothe advocates who were present in theCourt and who gave affidavits in support ofthe petition and he has gone to the extentof saying he would have committed a breachof the peace in Court. That the 1st respondent is a well-to-do man and has reputationas a merchant does not make any differenceif his conduct is inconsistent with thatstatus. As is obvious from the supportingaffidavits, he has been recalcitrant and rudeto the Court and was not prepared to stopat that but had gone to the extent of causing a notice issued which contained allegations against the Magistrate as well as withregard to the performance of his duties asa judicial officer. Even taking note of theapology submitted by him, we cannot completely exonerate him and drop the proceedings as the contempt committed by him is ofa very serious nature. Consequently, wehave to convict him of the offence. Havingregard to the gravity of the offence committed by him, the 1st respondent deservesto be sent to prison but taking into consideration the unconditional apology submitted by him, we impose upon him a fineof Rs. 500 which will have to be paid inthis Court on or before 20-6-67 and indefault of payment of fine, he will have toundergo simple imprisonment for fifteendays.