M.P. Thakkar, C.J.
1. In an appeal memo filed by opponent No. 1 Lakhiram Shivram in the Court of City Sessions Judge at Ahmedabad (Criminal Appeal No. 173/81) imputations were made against the Chief Metropolitan Magistrate who bad decided the case (Summary Case No. 313/81 decided on 27th August 1981 giving rise to the appeal) in the course of which he had convicted the said Lakhiram Shivram of an offence under Section 29 of the Industrial Disputes Act, 1947 and sentenced him to undergo rigorous imprisonment for three months and imposed a fine of Rs. 2000/- in default of which to undergo rigorous imprisonment for fifteen days more. The imputations were such which would amount to criminal contempt as defined by Section 2(c)(i) reading as under:
2(c)(i) 'criminal contempt' means the publication (whether by wards, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
The imputations are per se such that they result in scandalising the Judge who decided the matter and lowering the authority of the Court presided over by him. In the course of his memorandum of appeal, he had referred to the Chief Metropolitan Magistrate who had passed the order of conviction and sentence against him as a great hypocrite in paragraph 12 of the appeal memo. In paragraph 14 of the appeal memo it has been mentioned that the learned Chief Metropolitan Magistrate had taken down the statement 'not as told by him' but has taken down the statement 'quite according to his whim will and caprice'. In the course of the same paragraph he has made the following imputations:
It seems that the learned Chief Metropolitan Magistrate has reserved for himself, the rights of running down the witnesses, who do not depose, according to his notions and wishes, sitting like a padagogue, on a raised platform he has formed the habit of making all sorts of comments on the accused appellant....
In paragraph 15(iii) it has been stated that the learned Chief Metropolitan Magistrate has dishonestly recorded the further statement of the accused-appellant and has written down the facts in a positive manner, though they were totally denied by the accused. Thus, opponent No. 1 Lakhiram Shivram has made serious imputations against the learned Chief Metropolitan Magistrate which scandalises the Court and lowers the authority of the Court presided over by him. He is, therefore, guilty of committing contempt of Court punishable under Section 12 of the Contempt of Courts Act, 1971. The said Lakhiram has placed on record his unconditional apology and has withdrawn the allegations and imputations made by him unconditionally. The apology is sworn by him on February 23, 1983. Learned Counsel appearing for him states that his client is feeling contrite and has tendered his unconditional apology. In paragraph 2 of his affidavit containing his apology it has in terms been stated that the appeal memo was got typed by him and that the contents of the appeal memo had been explained to him in Gujarati and that he knew what was written in the appeal memo. We do not think that merely because opponent No. 1 Lakhiram Shivram has tendered his unconditional apology and has withdrawn the imputations made against the learned Chief Metropolitan Magistrate, we should allow him to go unpunished, otherwise all that one has to do is to commit contempt of Court by scandalising a Magistrate presiding over the Court in any terms that he likes and all that he has to do is to tender unconditional apology which does not result in his having to undergo any suffering. If such an apology were to be accepted, as a matter of course, we would in fact be issuing a licence to scandalise Courts and commit contempt of Court with impunity. It will be difficult to persuade members of the Bir to join judiciary and to act in a fearless manner without maintaining their independence. We cannot permit litigants to make such imputations against them with impunity. A line has to be drawn somewhere and an example has to be set much as we dislike exercising the contempt jurisdiction which we are fully aware must be exercised very sparingly and with circumspection. We do not think that we can adopt the attitude of showing mercy on our part when a great deal of damage is caused to the institution and the Judge who has decided the matter against the litigant has been subjected to a torture of being scandalised in this manner. We have yet to come across an instance of a Judge who can deliver a judgment which does not displease one side or the other. By the very nature of his work he has to decide matters against one or other of the parties. If the mere fact that he decides the matter against the litigant were to expose him to such risk, no member of the Bar would come forward to join Judiciary and it will cause great damage to the institution. We, therefore, cannot take a lenient Or indulgent view of this matter. We do not want to create a situation where a Judge cannot work with dignity and independence by reason of the fear he has to entertain of the cankerous litigants who can hurl any abuses that strike them. We, therefore, think that this is a case where considerations regarding maintenance of the independence of the Judiciary and the morale of the Judges demand that we do not allow opponent No. 1 to escape with impunity on mere expression of regrets and tendering of an apology. The apology does not wipe out the mis-chief arising on account of the scandalous allegations made in the appeal memo. We are, therefore, of the opinion that this is a matter where a sentence must be imposed on opponent No. 1. We hold opponent No. 1 guilty of committing contempt of Court punishable under Section 12 of the Contempt of Courts Act. We will now proceed to impose an appropriate sentence on him. We think that we should have have imposed substantive sentence of atleast one month's imprisonment having regard to the circumstances of the case and with a view to see that the others who are like-minded do not indulge in these activities without resultant consequences. However, we have been persuaded by the learned Counsel for opponent No. 1 who has made a fervent appeal for making a sympathetic approach. We think that the ends of justice will be met if opponent No. 1 is sentenced to imprisonment till the rising of the Court end fine of Rs. 1000/- is imposed on him. On failure to pay the fine he will have to undergo further sentence of imprisonment for fifteen days. The fine will have to be paid by 14th March 1983. On his failure to pay the fine, the learned Public Prosecutor will apply for a warrant of his arrest and detention for fifteen days in Civil Prison to issue.
2. So far as opponent No. 2 is concerned, we have taken into account the affidavit placed on record by him and we do not think that in the circumstances of the case any action is called for against opponent No. 2 who is a junior Advocate and who doss not seem to have taken any active part in drawing up the appeal memo. We have no doubt that he will be very careful in future and will not even allow himself to be indirectly associated with a litigant who makes such allegations.
3. Before parting, we may say that the learned Additional City Sessions Judge at Ahmedabad who heard 'Criminal Appeal No. 178/81 preferred by opponent No. 1 has dealt with imputations against the learned Chief Metropolitan Magistrate in paragraph 7 of his judgment. Says the learned Judge:
The appellant has in his memo of appeal made certain undesirable remarks against the learned trial Magistrate by branding him as a 'great hypocrate'. That is in para 12 of the appeal memo. Similarly in paragraph 14 of the appeal memo also the appellant has made certain undesirable remarks against the learned trial magistrate. I think the appellant ought to have exercised same restraint in this regard. A judicial order might be erroneous or illegal. Its correctness can always be challenged. But then such challenge should be couched in a language befitting such challenge. Restraints should be observed in giving expression to such challenge and no motives against any judicial authority should be attributed. Use of derogatory or disparaging remarks against a judicial officer cannot and does not tilt the balance in favour of the author of such remarks because ultimately every case will have to be decided on its own merits.
4. We must place on record our extreme distress at the manner in which this aspect has been dealt with by the learned Additional City Sessions Judge. In fact the learned Judge should have refused to hear the appeal till the scandalous allegations were deleted from the appeal memo. In any case, the learned Additional City Sessions Judge on his own should have made a reference to this Court for initiating contempt proceedings against the appellant before him, namely, Lakhiram Shivram. It was not sufficient merely to disapprove of the allegations made in the appeal memo. A copy of this order shall be sent to the learned Additional City Sessions Judge who decided Criminal Appeal No. 173.
5. In the result, the petition in so far as opponent No. 1 Shri Lakhiram Shivram is concerned, is allowed. Opponent No. 1 is held guilty of the offence of committing contempt of court punishable under Section 12 of the Contempt of Courts Act. He is punished to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 1000/-, in default, to suffer simple imprisonment for fifteen days. The fine is directed to be paid on or before 14th March 1983. On his failure to pay the fine, the learned Public Prosecutor will apply for a warrant for his arrest and detention for fifteen days in Civil prison.
6. In so far as opponent No. 2 Shri M. B. Modi is concerned, the proceedings are dropped.
7. The petition is partly allowed. Rule is made absolute to the aforesaid extent.