J.C. SHAH, J.
1. Harbans Kaur (appellant herein) filed in the Court of a Magistrate at Calcutta a complaint against Dr A.N. Mukerji charging him with committing offences under Sections 417, 493, 494, and 376 of the Indian Penal Code. The case was transferred by order of this Court for trial to the Court of Session at Varanasi.
2. It was the case of the complainant that she developed intimacy with Dr Mukerji and that she went through a ceremony of marriage by the side of a lake at Calcutta; that Dr Mukerji persuaded her to believe that it was a valid marriage “in the presence of the moon and that she had become properly his married wife”, that thereafter she lived occasionaly with Dr Mukerji as his wife and that she was persuaded on diverse occasions to part with property which in the aggregate was of the value of Rs 7,00,000. The complainant said that Dr Mukerji had taken from her jewellery of considerable value, that later the relations between her and Dr Mukerji worsened and they drifted apart, and that she realised that she had been deceived into going through the ceremony of marriage and that she was made to part with property of considerable value fraudulently and dishonestly. Dr Mukerji admitted that he knew the complainant, but he denied the story of the complainant about “the marriage” or of any deception practised upon her or that she had given him property of the value of Rs 7,00,000, or any amount.
3. The learned Sessions Judge acquitted Dr Mukerji of all the charges except the charge under Section 417 IPC. For the offence under Section 417, Dr Mukerji was convicted and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs 75,000. Dr Mukerji appealed to the High Court of Allahabad against the order of conviction and sentence. The trial before the High Court of Allahabad lasted several days. Mr P.C. Chaturvedi an Advocate of the High Court argued the case on behalf of Dr Mukerji at considerable length. It is the case of the complainant that: (1) in the course of his argument Mr Chaturvedi used “filthy and abusive language” not befitting a lawyer, and that he made abusive references to the complainant and the Judges did not give her any protection; (2) that Mr Chaturvedi made obscene gestures in Court; (3) that he said that the complainant had many men friends and was used to indiscriminate sexual intercourse with several persons and one of such persons was Dr Mukerji; (4) that in the course of his arguments Mr Chaturvedi recited some Sanskrit verses depicting the debased character of women in general; (5) that he suggested that the complainant was a “corrupter of society”; and (6) that he made gestures and vulgar jokes when he was addressing the Court and all those who were present in Court roared with laughter and even the Judges joined in that laughter.
4. On these allegations the complainant requested the presiding Judges to take proceedings in contempt against Mr P.C. Chaturvedi. The learned Judges of the High Court considered the application and apparently asked Mr Chaturvedi who was present in Court if he intended to say anything in the matter. They then proceeded to reject the application. The learned Judges observed that a part of the argument for Dr Mukerji was addressed by Mr S.S. Tiwari who took up the argument in the absence of Mr P.C. Chaturvedi for some time and that Mr Tiwari insisted that there was a finding of the Court below that the complainant was a concubine of Dr Mukerji, and he (Mr Tiwari) had a right to use the word “kept” in connection with the complainant. At that stage the Court interrupted and asked Mr Tiwari not to use language which might be derogatory to the dignity of the Court. They further stated that Mr Chaturvedi had recited some Sanskrit verses disparaging women, but the Judges had pointed out to him that there were other verses which extolled women. The Judges then proceeded to observe:
“While dealing with the finding of the learned trial Judge that the ‘complainant remained a mistress or concubine of the accused’, Shri Chaturvedi did make comments on the character of the prosecutrix on the basis of this finding and the evidence on record which could not in the very nature of things be palatable to her. In our opinion, however, it was within his province to make these comments in order to discharge his duty as a defence counsel. We did not, however, notice any indecent gestures being made by Shri Chaturvedi or any abusive terms used by him during his arguments.”
Referring to the letters Exts. Ka-37 and Kha-22 which it was alleged were written by the complainant, the learned Judges observed, after referring to certain disparaging remarks concerning one Mrs Dorothy, that Mr Chaturvedi objected to “the unparliamentary language used by the prosecutrix in describing Mrs Dorothy who is said to be the daughter-in-law of one Sukumar Roy a brother of late Dr B.C. Roy” and “perhaps made some remarks meaning thereby that the prosecutrix was in no way better than Mrs Dorothy”. They also observed that on certain occasions when Mr Chaturvedi “was advancing his arguments the prosecutrix interjected inspite of the presence of her counsel and entered in a dialogue with him which could not be heard from the dais, and it was repeatedly pointed out to her that she could not interfere while the arguments were being advanced on behalf of the defence”. They held that Mr Chaturvedi had not used any vulgar, obscene or abusive language and dismissed the application. The appellant Harbans Kaur has appealed with special leave.
5. The evidence in the case contained unsavoury details of the relation between the complainant and Dr Mukerji. Dr Mukerji was charged with committing serious offences, and if his conviction was maintained he would undoubtedly be a ruined man. Counsel pleading the case of a person charged with the commission of an offence is entitled to present the evidence on the record in the best light possible and for that purpose to argue that the complainant and the witnesses are unreliable. But counsel does not enjoy absolute privilege when acting the course of his professional duties. He will not be justified in making a personal attack upon the complainant or witnesses on matters not borne out by the record, nor in using language which is abusive or obscene or in making obscene or vulgar gestures in Court. The dignity of the Court must be maintained however serious the charge made against the party for whom he is appearing. Counsel has no privilege because the person for whom he is appearing is charged with a serious offence, to descend to the level of appearing to support his view in a vulgar brawl.
6. The case of the complainant is that in the presence of the Judges who heard the appeal, obscene and vulgar language was used and obscene and vulgar gestures were made. If Mr Chaturvedi acted in the manner in which the complainant says his conduct would be unbecoming the conduct of a responsible Advocate. But the learned Judges were not satisfied with the truth of the allegations made by the complainant. It is true that the Court did not issue a notice to Mr Chaturvedi and proceeded in a somewhat informal way in dealing with the application. But on that ground we are unable to hold that the proceedings are vitiated. If they did not invest the proceeding with greater formality, no fault may be found with their order, for whatever had transpired in Court was within the personal knowledge of the learned Judges.
7. Our attention is invited to a letter stated to have been addressed by one N. Alykhan, Advocate of the High Court of Allahabad. The letter is addressed to Mr Chari (who we are informed is Mr A.S.R. Chari, Senior Advocate, Supreme Court). It is stated in the letter:
“It is true that improper language not befitting was used on the 15th November, 1967. I was also present amongst a crowd of other lawyer and public men and were shocked to hear the type of language used. But it would be embarrassing for me to swear any affidavit owing to the local circumstances and personality involved and moreover I did not attend all the dates of hearing.”
Little reliance may be placed upon a letter of this sort. There is no evidence that it was written by Mr Alykhan. There is not even a statement of Mr Chari that he had invited Mr Alykhan to write to him his version as to what had taken place in the Court when the appeal of Dr Mukerji was argued, and the apparent unwillingness of the writer to support the statements made by a formal affidavit tells its own tale, especially when the writer seeks to contradict what the learned Judges have recorded.
8. From the judgment of the High Court, however, it does appear that Mr Chaturvedi had made some remarks which in the view of the learned Judges implied that the complainant was in no way better than Mrs Dorothy concerning whom the complainant had used vulgar epithets. We are at this stage not called upon to decide whether the inference drawn by the learned Judges was true when they have not set out what the statement of Mr Chaturvedi was. It must be remembered that Dr Mukerji was charged with a very serious offence. The case of the complainant contained many details about her relations with Dr Mukerji. If Mr Chaturvedi in criticising the conduct of the complainant in writing the letter concerning Mrs Dorothy made a submission before the High Court which went beyond legitimate criticism of the complainant, this Court would not be justified in taking proceedings in contempt. If the complainant feels that she has been defamed by what Mr Chaturvedi said or that Mr Chaturvedi has committed other offence punishable under the ordinary law of the land, her remedy lies in taking appropriate proceedings under the Indian Penal Code or other law and not by an application for punishment for contempt of Court. An advocate arguing a case of this gravity, where the offence charged was serious, the trial was prolonged and the record was heavy, would undoubtedly be under a great strain. If in the course of the hearing he said something which in retrospect may appear to overstep the limits of fair advocacy, this Court would not be justified, in disagreement with the High Court, in taking proceedings in contempt against the advocate concerned.
9. It is necessary to refer to one more order of the High Court on which counsel for the complainant relied. After the order was made by the Division Beach of the High Court hearing the appeal, the complainant moved a petition before the Chief Justice of the High Court relying upon a role of the High Court, that contempt proceeding should normally be referred to another Judge. By the order of the Chief Justice of the High Court the proceeding was referred to Mr Justice S.N. Katju. The learned Judge rejected file application holding that he was bound by the judgment of the Division Bench. Against that order a special leave petition was filed in this Court being Special Leave Petition (Criminal) No. 793 of 1968 which was later withdrawn, and with the leave of the Court, the petition out of which the present appeal arises was filed. We are not concerned in this appeal with the correctness of the orders of Katju, J.
10. The appeal fails and is dismissed.