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Advocate-general Vs. Baradakanta Misra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1974CriLJ70
AppellantAdvocate-general
RespondentBaradakanta Misra
Cases ReferredSarat Chandra Biswal v. Surendra Mohanty
Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the.....k.b. panda, j.1. on 13-2-1973, the learned advocate-general of orissa made an application to this court under section 15(1)(a) of the contempt of courts act (act 70 of 1971) against the opposite party on the allegation that the contemner had committed criminal contempt of this court by making allegations in an application presented by him at the time when judgment was delivered in original criminal misc. case no. 8 of 1972 on 5-2-1973 by a special bench of five judges of this court.2. a brief account of events leading to the filing of the impugned application (hereinafter referred to as the 'petition') by the contemner may now he given.the contemner was recruited as a munsif in the year 1947. after a chequered career in the service, by 1968, he had been promoted on officiating basis as a.....
Judgment:

K.B. Panda, J.

1. On 13-2-1973, the learned Advocate-General of Orissa made an application to this Court under Section 15(1)(a) of the Contempt of Courts Act (Act 70 of 1971) against the opposite party on the allegation that the contemner had committed criminal contempt of this Court by making allegations in an application presented by him at the time when judgment was delivered in Original Criminal Misc. Case No. 8 of 1972 on 5-2-1973 by a Special Bench of five Judges of this Court.

2. A brief account of events leading to the filing of the impugned application (hereinafter referred to as the 'petition') by the contemner may now he given.

The contemner was recruited as a Munsif in the year 1947. After a chequered career in the service, by 1968, he had been promoted on officiating basis as a District Judge. His work having been found unsatisfactory he was reverted to the post of Additional District Magistrate (Judicial) by Government and on a representation to the Chief Minister, that order was cancelled. At this stage, in contemplation of a disciplinary proceeding, the Court placed the contemner under suspension in exercise of powers vested in it under Article 235 of the Constitution. The contemner preferred an appeal against the order of suspension and also made representation to the Governor. Contempt proceedings were initiated against him as the contents of the petition of appeal and the representation were found to contain writings amounting to contempt of this Court. After notice of contempt was issued the contemner showed cause and wanted the maintainability of the contempt proceeding to be preliminarily decided. When this Court refused to do so, he carried an appeal to the Supreme Court and in the memorandum of appeal made allegations against the Court amounting to further contempt. A Special Bench of five Judges was constituted to hear the charges of contempt against the contemner in the said proceeding. The case was heard by the Special Bench consisting of the learned Chief Justice, Mr. Justice B. K. Ray, Mr. Justice B. K. Patra and two of us, that is, Mr. Justice Misra and Mr. Justice B. K. Ray. Judgment was delivered on 5-2-1973. In course of delivery of judgment the contemner presented an application to the Court therein alleging that contempt had been committed by the learned Chief Justice and the members of the Special Bench. The said application for contempt filed by the contemner was registered in this Court as Original Criminal Misc. Case No. 3 of 1973 and by order dated 13-2-1973, a Special Bench of this Court dismissed it.

3. The contemner had alleged in the petition that the learned Chief Justice and the other learned Judges forming the Special Bench had committed contempt of Court by disposing of an administrative proceeding against the contemner on 8-12-1972 while the Special Bench was still hearing the contempt matter against him. The learned Judges constituting the Special Bench who participated in the Full Court meeting held on 8-12-1972 came to further hear the contempt proceeding against the contemner with a biased mind when the hearing was resumed. The contemner further alleged that the charges in the administrative proceeding and in the contempt case were common. The Special Bench which rejected the plea of contempt raised by the contemner by order dated 13-2-73 came to find-.The substantial questions which were debated in the judicial proceeding (Or. Cr. Misc. Case No. 8 of 1972) were the following:

(1) Whether an appeal lay to the Governor against an order of suspension passed by the High Court against the petitioner during the pendency of the disciplinary proceeding;

(2) Assuming that an appeal in fact lies to the Governor, whether the petitioner is entitled in such representation to scandalise the High Court and make imputations which would amount to contempt of the Court;

(3) Whether any disparaging remarks made against a Judge in his administrative capacity and not in relation to the discharge by him of judicial functions would amount to contempt of Court; and

(4) Whether the impugned passages as mentioned in the notices issued to the petitioner constituted contempt.

None of these questions arose for decision in the disciplinary proceeding. Apart from the factual issues involved in the disciplinary proceeding, the only constitutional questions which may be said to have arisen by implication there, were (1) whether the High Court had the right to place a Judicial Officer under suspension pending initiation and finalisation of disciplinary proceeding against him and

(2) whether the High Court has power to reduce a Judicial Officer in rank. As already indicated, the Supreme Court in Bagchi's case had already decided these questions and it was not open to the petitioner to question their correctness. It is thus clear that none of the matters which arose for adjudication in the contempt proceeding was in issue in the disciplinary proceeding started against the petitioner. We would, therefore, reject the contention of the petitioner that the six Judges who participated in the finalisation of the disciplinary proceedings against the petitioner have committed contempt of the Full Bench or that the five Judges who constituted the Full Bench approached the issues which arose for consideration therein with pre-conceived notions and as such are guilty of contempt of Court.

On the same day the learned Advocate-General applied to this Court for instituting a proceeding for contempt against the contemner for the allegations made in the petition. That application of the learned Advocate-General was in due course registered and on 15-2-1973, the contemner was called upon to show cause as to why he may not be punished for contempt. The contemner entered appearance on 16-4-1973 and wanted that the proceeding be stayed till the disposal of Criminal Appeal No. 84 of 1973 filed by him in the Supreme Court against the rejection of his application for contempt against the Judges of the Court in Or. Criminal Misc. Case No. 3 of 1973. The Court rejected the prayer of the contemner and allowed him time till the reopening day of the Court after the summer vacation to show cause against the notice of contempt. On 18-6-1973, when the Court re-opened the contemner showed cause. On 10-6-1973. the case was posted for fixing a date of hearing. The contemner was then represented by counsel. On consent of both sides the case was posted for hearing to 25-6-1973.

On 25-6-1973, when the case was called out for hearing the contemner's counsel filed a memorandum for permission to retire from the case, The contemner applied to the court for adjourning the case on several grounds. The contemner's counsel was permitted to retire as craved for. By a reasoned order the petition for adjournment was rejected and the case was taken up for hearing. The learned Advocate-General was heard in support of the petition and the Court adjourned the case to 3-7-1973 to hear the contemner as prayed for by him subsequently.

On 3-7-1973, the contemner appeared, but stated that he would not argue. He filed a written memorandum and wanted us to treat the same to be his written submissions and to dispose of the case after considering the contents of the said memorandum.

4. The learned Advocate-General has submitted that all the contents of the petition are objectionable and constitute contempt. For convenience only, states the learned Advocate-General, in his petition he had referred to some portions thereof. It may be noted that along with the petition the contemner had added an appendix which, according to him, was a document filed by him in Original Criminal Misc. Case No. 8 of 1972. He wanted the said appendix marked as Annexure X to be treated as a part of the petition.

The disparaging remarks in paragraphs 19, 22, 23, 24, 25 and 26 of the petition which have been referred to in the application of the learned Advocate-General may now be extracted (in portions).

19... the aforesaid decision of the points in the said disciplinary proceeding and its publication by the Hon'ble Judges on the administrative side constituted a criminal contempt of the Full Bench, inasmuch as the said decision tended to substantially interfere with, and substantially obstruct and prejudice to the due course of justice in the part-heard judicial proceeding of Or. Cr. Misc. Case No. 8 of 1972, besides lowering the authority of the Full Bench by indicating to the public that even resuming hearing on 2-1-73, the Full Bench could no longer give free, full and fair consideration on the self same points, involved in the judicial proceeding, but would, in the circumstances of the case, uphold them as already held in the aforesaid administrative orders, thus, reducing this Full Bench to a mockery....

22.... The Hon'ble Judges are supposed to have participated with a preconceived and pre-judged notion about the lis, and the learned Advocates and myself lost the norm for arguing out the controversies because of the apparent futility on that account, thus, all resulting in interference with due course of justice, besides reducing that sacred seat of justice. This being the outcome of the decision and publication of the disciplinary proceedings on 8-12-72, it is submitted that the connected Hon'ble Judges on their administrative side, are liable for contempt.

23. The Hon'ble Judges, presiding over the Full Bench may also be liable for contempt as specifically provided in Section 16 of the Contempt of Courts Act, 1971, particularly when they discharged their judicial functions with pre-conceived and pre-judged notion on the controversial aspects involved in the said lis, thus, ridiculing the very seat of justice and bringing into disrespect the fountain of justice in the eyes of the public. If parties, witnesses and even counsels can be proceeded for contempt on such accounts, the Presiding Judges need be deemed to have committed graver contempt of their own Court, particularly when for reasons, mentioned above, there is no good faith behind such conduct. It may be submitted that the contempt proceeding is not meant to protect the Judges personally, but it is concerned for safeguarding the honour of the seat of justice, which must never be allowed to be ridiculed or interfered with, so as to make a common man feel that the halo of divinity and justice is kept pure and unsullied and that he can always look to the person, enthroned in that seat of justice as a dispassionate emblem of justice without any prejudged mind.

24. ...Hence, the opposite party seems to have changed his mind as to the deferring of the decision in the aforesaid disciplinary proceeding till after the judgment of this judicial proceeding was over, but got the orders, letters and Notifications, in question prepared' and convened the Full Court meeting for 8-12-1972, during the part hearing of that judicial proceedings - all with a view that the said Hon'ble Judge/Judges, if made committed in the process of decision of the disciplinary proceeding, to the controversies, might not change such opinion in the judicial proceeding...

25. The opposite party in such motivated campaign for strengthening his attempt and to have the other Hon'ble Judge/Judges further committed to the aforesaid views, brought about further actions in pursuance of the aforesaid decision dated 8-12-1972, by subsequent actions, in the Full Court, giving rise to the Court's letter dated 25-1-1973, and 1-2-1973, all before the date of judgment fixed on 5-2-1973, thus, with a motive to influence the judicial decision of the other Hon'ble Judge/Judges, which itself amounts to wanton contempt of this Hon'ble Court.

26. The opposite party at last seems to be guilty of contempt of the Full Bench on account of his malice/mala fides against me, as mentioned herebefore, and as narrated in the Annexure X, which do form part of this petition. Other events of such malice/mala fide on the part of the opposite party may be narrated, if necessary, in supplementary petition....

The cause title of the application showed the opposite parties to be-.The Honourable Justice Sri Gati Krushna Misra, Chief Justice of the Orissa High Court (referred to in this application as the opposite party) and other Hon'ble Judge/Judges of the said Court - all in their personal character,' and the prayer in the application was:

I. in the above premises, most respectfully pray that your Lordships may be pleased to take into consideration the aforementioned facts and circumstances and initiate a proceeding for contempt of this Hon'ble Court against the opposite party, and other Judge/Judges of this Hon'ble Court, as may be deemed necessary....The learned Advocate General contends that the allegations referred to above constitute criminal contempt within the meaning of Section 2(c) (i) and (iii) of Act 70 of 1971. According to him the application made by the contemner was not tenable in view of the provisions of Section 15(1)(b) of the Act inasmuch as the contemner had not applied to this Court with the consent in writing of the Advocate General as required under Section 15 thereof. He submits that the plea of the contemner that he has carried an appeal to the Supreme Court against the rejection of the petition is only for providing him cover against any possible proceeding for contempt and that appeal, the learned Advocate General pleads, was filed after the initiation of this proceeding only as a cloak against the proceeding.

The disparaging allegations referred to above cast aspersions on the conduct of the Judges, dispute their integrity and have reference both to their administrative as also judicial conduct. The contemner has alleged that after disposing of the disciplinary proceeding against him, the learned Judges who sat as members of the Special Bench to hear Original Criminal Miscellaneous Case No. 8 of 1972 had no more an open mind and they were committed to a particular view.

Even if the disciplinary proceeding and the judicial proceeding had common question to be agitated there is no foundation for the allegation that the Judges stood committed to a particular position and had no open mind while they were hearing the judicial proceeding. Several administrative orders passed by learned Judges have come to be impugned judicially before the same Court and there are instances where learned Judges acting judicially have quashed their administrative decisions. The allegations in the petition not only scandalise the learned Chief Justice and the other learned Judges, but clearly interfere with the administration of justice. The sole purpose of the contemner in making such false, frivolous and statement untrue to his own knowledge is an attempt to intimidate the Judges so that they may not freely decide the cases in which the contemner is involved according to their own judgment.

5. In the charges supplied to the contemner in this proceeding it had been categorically stated that each and every paragraph of the petition and its annexure contains scurrilous allegation's of scandalous nature attributing lack of impartiality, fairness and good faith to the learned Chief Justice and his Companion Judges of this Court who constituted the Special Bench to hear Original Criminal Misc. Case No. 8 of 1972 and the learned Judges who constituted the Full Court for disposing of the disciplinary proceeding. A bare reading of the text of the petition would lead to the indisputable conclusion that the remarks are scurrilous, motive has been imputed and integrity of the Judges has been doubted. By saying that mockery of justice has been made the contemner has tried to substantially lower the position of the Court.

By saying that the learned Chief Justice got the other learned Judges committed to a particular view by making them party to the order made in the disciplinary proceeding not only imputes motive to the learned Chief Justice but is a scurrilous allegation against the other four learned Judges of the Special Bench on their impartiality and on their being worthy of Judges. In C. K. Daphtary v. O.P. Gupta : 1971CriLJ844 the learned Judges of the Supreme Court have said:.We are unable to agree with him (contemner) that a scurrilous attack on a Judge in respect of a judgment or past conduct has no adverse effect on the due administration of justice. This sort of attack in a country like ours has the inevitable effect of undermining the confidence of the public in the Judiciary. If confidence in the Judiciary goes the due administration of justice definitely suffers.

In that very decision in paragraph 80, the learned Chief Justice speaking for the Court stated:.The expression 'toed the line' used in reference to Mr. Justice Hegde, by clear implication, means that the learned Judge, contrary to his own views, followed what was imposed upon him by Mr. Justice Shah, There can be no more flagrant contempt of a Judge than to say that he. surrendered his own judgment in difference to or dictation by another Judge sitting with him.

The allegations made in the petition before us which have been referred to above thus amount to clear contempt.

6. The allegations made against the learned Judges of this Court are patently scandalous and since no other view is possible on a bare reading of the petition we do not think it necessary to deal with this aspect further and we conclude that the allegations are grossly scandalous and scurrilous. The law relating to contempt of this type has been dealt with at great length by the Special Bench of this Court in the contemner's case in : AIR1973Ori244 , (Registrar of the Orissa High Court v. Baradakanta Misra).

7. In his memorandum filed before us in the last paragraph the contemner has said-

In the above circumstances, if his impugned application dated 5-2-1973 is finally considered to be constituting contempt of this Hon'ble Court, the opposite party hereby tenders his sincere and unqualified apology for his mistaken views on facts and law and implore that this opposite party may be discharged on this bona fide apology.

Section 12(1) of the Act provides that an accused may be discharged or punishment awarded may be remitted on apology being made to the satisfaction of the Court. The explanation under that sub-section provides that an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. Apology for consideration, therefore, has to be bona fide and to the satisfaction of the Court. We shall now examine as to whether the statement made in the memorandum can be taken to be a sincere apology made bona fide for our consideration.

8. The contemner is a judicial officer who on his own saying was recruited in 1947 as a Munsif. He has thus held judicial office for about 26 years by now and is due to superannuate in January next year. During his long period of judicial service the contemner has been a Munsif, a Subordinate Judge, an Additional District Magistrate (Judicial). Additional Legal Remembrancer and Joint Secretary to Government in the Law Department, Commissioner of Endowments and a District Judge. He has thus experience over a quarter of a century as a judicial officer. In dealing with a person like the contemner to find out the bona fides of his conduct the test applicable to an ordinary person cannot be applied.

9. The contemner has also to his credit several convictions for contempt. The first case in which he was convicted for contempt of this Court is reported in ILR (1971) Cut 986 (Bhimsen Dixit v. B. K. Misra, Commr. of Hindu Religious Endowments, Orissa). The proceeding on that occasion had been initiated as the contemner as Commissioner of Endowments had refused to follow a decision of this Court. Dealing with his contempt, this Court had said:.We do not find any trace of bona fides of the contemner in the order dated the 19th Jan., 1970 nor in his conduct which is reflected in the cause shown before us to the notice. The contemner is a senior judicial officer who has already put in 23 years of service; having been recruited as a Munsif he has now risen to the rank of District Judge. We regret to find that though he has functioned as a judicial officer for about 23 years he has not been able to pick up the approach and attitude of a judicial officer, and has been actuated by the bias so often manifested in actions of the executive today while disposing of a judicial proceeding and when found fault with has come up with the stand that he was acting administratively.

The conviction given in this Court has already been upheld by the Supreme Court and the judgment of the Hon'ble Supreme Court is reported in : 1973CriLJ19 (Baradakanta Misra v. Bhimsen Dixit). The learned Judges quoted with approval the paragraph which has been extracted above and also came to hold that the contemner deliberately avoided to follow the decision of this Court by giving wrong and illegitimate reasons and his conduct was clearly mala fide.

Then followed several other convictions which have been referred to in paragraph 98 of the judgment, of the Special Bench in the contemner's case reported in ILR (1973) Cut 134 : AIR 1973 Orissa 244 FB. At the hearing in most of the cases against the contemner he was directly participating. In his own case before the Special Bench he had personally argued having disengaged a senior counsel who was earlier appearing for him. We are, therefore, fully justified in assuming that the contemner was acquainted with the law of contempt. Apart from being a judicial officer of standing he having dealt with his own cases of contempt, we would not be wrong in proceeding on the basis that he was fully aware of the consequence of his actions.

10. Before the Special Bench, hearing of Original Criminal Misc. Case No. 8 of 1972 had concluded on 10-1-1973 and the case had been posted to 5-2-1973 for judgment. The judgment of the Special Bench was quite a long one and ran into 106 paragraphs, The whole judgment was also not read out in Court when it was pronounced. Without reading the contents of the judgment and knowing in what manner the stand of the contemner had been dealt with, the contemner came ready with the impugned petition to be presented before the Court making all possible scurrilous allegations against the learned Judges, That goes to show the attitude of the contemner.

11. The Special Bench rightly indicated at page 233 of the Reporter-

He (contemner) was an unbalanced and inefficient officer with a chequered career. The Court showed great leniency in promoting him from stage to stage despite his inefficiency and unbalanced behaviour. When ultimately the Court decided on substantial grounds which have been enumerated in this judgment to demote him, the contemner found no other way but to resort to scandalising the High Court so that it would desist from taking any disciplinary action against him....

At page 240 of the Reporter, it was again said:

The history of service of the contemner shows that soon after his recruitment he started showing indisciplined conduct. Restraint, detachment, considerateness and similar other virtues which are essential requirements for a judicial officer were wanting in the contemner. The High Court as the controlling authority was obliged not to overlook the lapses of the contemner. A little analytical survey of the history of the service of the contemner would indicate that this Court has not been as strict as it should have been in regard to him. Compassion had been introduced into the treatment of the contemner by the Court with a genuine belief that the contemner would mould his ways, pick up the usual judicial temper and correct himself. Unfortunately, the expectations have been belied. On the other hand, the contemner instead of realising his own mistakes, developed an attitude of considering his own actions to be above board and anybody who found fault with him to be on the erring side. He took to making reckless and scurrilous allegations against his administrative superiors and even this Court. When any step was taken for correcting his lapses, he took to intimidation of this Court in answer.

We have no doubt that the allegations in the present petition were in furtherance of the normal conduct of the contemner and the petition which he had come prepared with on 5-2-1973 was a deliberate attempt to further intimidate the learned Judges. Possibly he was apprehensive that he may not be enlarged on bail which he moved for after the judgment was delivered and in his attempt to cow down the learned Judges constituting the Special Bench he had taken to filing of the impugned petition. We do not find any bona fides in his expression of apology. In fact he did not think it appropriate to make a statement in open Court that he was apologetic and throughout took the stand of obstinate defiance. We are not satisfied about his apology, nor do we find that it is a bona fide one. Section 12(1) of the Act has, therefore, no application. As pointed out by the learned Judges of the Supreme Court in AIR 1972 SC 1107 : 1972 Cri LJ 754 (Mulkh Raj v. The State of Punjab).

Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace apology is shorn of penitence. If apology is offered at a time when the contemner finds that the Court is going to impose punishment it ceases to be an apology and it becomes an act of a Cringing coward....

The offer contained in the last paragraph of the written memorandum is nothing but what the learned Judges of the Supreme Court have stated above.

12. The next question that remains for consideration is as to what would be the appropriate punishment. The Special Bench considered with great care and anxiety what punishment would be appropriate for the contemner in that case and gave good reasons for the punishment meted out to the contemner in that case.

Chief Justice Taft of the Supreme Court of the United States in Cooke v. United States (1924) 267 US 517 at p. 539 has stated:

The power of contempt which a Judge must have and. exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the Court is most important and indisputable. But its exercise is a delicate one and care is needed to avoid arbitrary and oppressive conclusion. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the Judge. The Judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the Court by too great leniency.' In the case of Amrik Singh v. State (Delhi Adrmi.) : (1971)3SCC215 . the learned Judges of the Supreme Court have also indicated-It is not from any exaggerated notion of the dignity of any one of us that we are proceeding against the petitioner for contempt of Court, but because it is imposed upon this Court the duty of preventing brevi manu in contempt to interfere with the administration of justice. The petitioner has been deliberately interfering with the course of justice and for that purpose scandalising the Judges.

We think it also appropriate to recall a passage from a judgment of this Court in the case of Sarat Chandra Biswal v. Surendra Mohanty ILR (1968) Cut 437 : 1969 Cri LJ 763-

This Court is also conscious of the position in law that the power of committal for contempt must be wielded with the greatest of care and caution, should be exercised with the greatest of reluctance and the greatest of anxiety and only with the object of seeing that the dignity and authority of the Court be not impaired....

13. The act of the contemner is thoroughly contumacious. He has been a judicial officer for over a quarter of a century. He had previous convictions within the last 2 to 3 years in proceedings for contempt against him and is thoroughly aware of the law of contempt. We do not find the slightest scope for any compassionate attitude in his favour. He had been warned several times to change his conduct; otherwise he had been told, stricter view would be taken and the maximum punishment available under the law would be imposed. With regard to the contemner punishment imposable in law does not seem to be a deterrent. Time and again the contemner is prepared to play with the majesty of the Court not bothered by the risk involved in the scurrilous game played by him. Keeping the background in view, taking his status in life into consideration, weighing his past conduct and keeping all other circumstances in our anxious consideration we think it appropriate, while convicting him for criminal contempt of this Court, to punish him with simple imprisonment of three months. The contemner is present in Court. We direct that he be taken into custody to suffer the sentence and we further authorise the Registrar of this Court to take all appropriate steps to give effect to our judgment.

R.N. Misra, J.

14. I agree.

B.K. Ray, J.

15. I agree.


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