1. This is a contempt of Court matter set in motion by the Secretary, Rajasthan Bar Council, against two Sub-Inspectors of Police Nathuram and Harnamsingh in relation to the arrest of Shri Fateh Chand Kothari, an advocate of this Court, practising at Churu.
2. The material facts which have culminated in the present proceedings are briefly these. Shri Kothari was briefed by one Sagarmal in a complaint filed by him under Sections 452 and 506, I.P.C. against his son-in-law Maniram and another person Manoharlal (obviously a friend of Maniram) in the Court of the Extra Magistrate, First Class, Churu, on 22-7-1953.
The allegations made by Sagarmal were that his daughter Mt. Lilawati was being treated by her husband Maniram with great cruelty and so she had come to her father's house, that Maniram and Manoharlal had come over to Churu about four days ago and met Sagarmal on the night of the 21st July and called upon him to send Mt. Lilawati with them else they threatened that they would take her away by force and cut her nose and then leave her.
It was also mentioned in the complaint that Manoharlal had stated at the meeting that 'the Thanedar of Churu' was his friend and that it would not be difficult for them to implicate Sagarmal and his daughter falsely. Sagarmal further complained that the Thanedar accompanied by two or three persons of Churu had come to his house on the 20th July and had asked the latter to send his daughter away with Maniram whereupon Sagarmal requested the Thanedar to find out from the girl herself whether she was willing to go but she replied to him that she would not.
The suggestion is that this complaint had considerably annoyed Sub-Inspector Nathuram who was the station officer of the Churu thana. Harnamsingh was the second officer. It is said that on coming to know of the allegations made against him (though not by name) in his complaint by Sagarmal, Sub-Inspector Nathuram went to Shri Kothari and wanted him to withdraw from the case. Shri Kothari did not agree.
It then transpired that on 26-7-1953, at 10 P.M. Maniram lodged a report in the thana against five persons including Mt. Lilawati, Sagarmal and also Shri Kothari under Sections 403, 411 and 109, I.P.C. The allegations made in this report briefly were that Maniram had come to Churu to take back his Wifebut that his father-in-law Sagarmal and his wife had refused to send Mt. Lilawati with him and that Shri Kothari (who was counsel for Sagarmal) was at the back of the refusal.
Maniram further stated that when his wife Mt. Lilawati came to Churu, she had brought certain ornaments of his mother (of course with his own permission) with her but she had declined to return those ornaments and that in doing so she was being instigated by Shri Kothari, among others. On the aforesaid report a case was registered by Sub-Inspector Nathuram against Shri Kothari and Sagarmal (and three other persons) and a warrant of arrest was issued by Nathuram for the arrest of Shri Kothari on 28-7-1953, and made over to the second officer Harnamsingh for execution, at about 10 or 11 A. M.
It is alleged that Shri Kothari was in the Court of Shri Goyal, at about 1 P. M. and was appearing on behalf of the accused in Abdul Rehman v. Kalyan Singh pending in that court. Mr. Keshoprasad Gupta Advocate was counsel for the complainant in that case. Some two or three witnesses had been examined in chief and then crass-examined by Shri Kothari. The examination-in-chief of another witness had begun.
It appears that Shri Kothari then happened to look outside towards -the door of the court-room (it is said that he wanted to spit) when Harnamsingh, who was in plain clothes and whom Shri Kothari did not know from before, beckoned to him and said that he wanted to consult him whereupon Shri Kothari told Harnamsingh that he was engaged in a case and that Harnamsingh might see him later.
But it is said that Harnamsingh immediately pushed Shri Kothari below the verandah of the Court. Thereafter Harnamsingh hand-cuffed Shri Kothari without showing him the order for his arrest. The case of the petitioner is that both Nathuram and Harnamsingh had come to the Court of the Extra 1st Class Magistrate Mr. Goyal and they were accompanied by a few constables, and that Harnamsingh after hand-cuffing Shri Kothari made over the Key of the hand-cuffs to Nathuram.
Shri Kothari had to cross-examine the prosecution witness who had been examined-in-chief by Shri Keshoprasad. It was immediately reported to Shri Goyal, the Magistrate, that Shri Kothari had been arrested by the police. It is said that Shri Goyal asked Shri Keshoprasad first and then Ganpat, Court-peon, to ask the police-men to produce Shri Kothari before him but Sub-Inspector Harnamsingh declined to do so, and Shri Kothari was taken away hand-cuffed to the police thana through the Bazar.
It appears that the Magistrate soon after this incident sent a report to the District Magistrate, Churu that Shri Kothari had been arrested by Sub-Inspector Harnamsingh in the court precincts while he was conducting a case on behalf of the accused and without his orders. The Magistrate also reported that Harnamsingh had failed to produce Shri Kothari when ordered to do so and that such conduct amounted to contempt of Court.
Shri Keshoprasad who was also president of the Bar Association, Churu, filed a report before Shri Goyal that the policemen should be hauled up for contempt of Court in arresting Shri Kothari although that application has not been placed before us. The Magistrate Shri Goyal testifies to such an application having been presented to him but he was unable to recollect where he had filed it.
3. The defence of Sub-Inspector Nathuram is that a case against Shri Kothari was registeredon the report of Maniram and that a warrant of arrest had been issued by him against Shri Kothari but he had done so in the normal course and honest discharge of his duty as a station officer and that in doing so he was not actuated by any extraneous motives whatsoever.
This respondent, however, denied his presence in or near the court-room of the Magistrate Shri Goyal at the time of the arrest of Shri Kothari. He also denied that he had any knowledge of the complaint filed by Sagarmal in Court on 22-7-1953, or of the fact that Shri Kothari was Sagarmal's counsel in that case, or that he had ever contacted Shri Kothari to withdraw from Sagarmal's complaint.
Nathuram's case further is that he did not know and could not have known that Shri Kothari's arrest would be effected 'in the vicinity of the court-room or just after he had come out of the court precincts after disposing of his professional work'.
4. So far as Harnamsingh is concerned, he has of course denied all that is alleged to have passed between Sub-Inspector Nathuram and Shri Kothari but his version is that he had arrested Shri Kothari in compliance with a lawful order passed by his senior officer arising out of Maniram's report against Shri Kothari among others in a cognizable case. His case further is that he had arrested Shri Kothari not in Court or in the precincts thereof but on main thoroughfare leading to the railway station, Churu.
According to Harnamsingh he had informed Shri Kothari that he was being arrested in connection with a report made against him under Sections 406, 411 and 109 I.P.C. and as Shri Kothari tried to run away, Harnamsingh had hand-cuffed him and brought him to the thana and handed him over to the station officer Nathuram. Harnamsingh has flatly denied the circumstances under which Shri Kothari's arrest in alleged to have been managed, according to the petitioner or to Shri Kothari.
Harnamsingh has also denied knowledge of the fact that Shri Kothari had been conducting a case and that he was to address himself to it again. Harnamsingh finally denies that Shri Keshoprasad or Ganpat had informed him to produce Shri Kothari before the Magistrate Shri Goyal or that he refused to obey any such order of the Magistrate.
The plea of this respondent also was that he had acted in the honest discharge of his duties In arresting Shri Kothari and that he was not actuated by any ulterior motives and that it was never his intention to do anything derogatory to the dignity or authority of the Magistrate's Court.
5. It may be mentioned here that in the case instituted by the Churu police against Shri Kothari and others on Maniram's report the Magistrate discharged all the accused including Shri Kothari inasmuch as no prima facie case had been made out by the prosecution against the principal accused and the case against Shri Kothari, according to the Magistrate, stood on a much weaker footing.
6. The Secretary, Bar Council, has strenuously urged before us that the respondents had committed a two-fold contempt inasmuch as, first, they had arrested Shri Kothari almost in face of the Court and secondly, they had disobeyed the order of the Magistrate communicated to them through Shri Keshoprasad and Ganpat to produce Shri Kothari alter his arrest and in utter disregard thereof had taken him away to the thana.
7. In support of their respective cases, affidavits were put in by Shri Kothari on the side of the petitioner and respondents Nathuram and Harnamsinghon the other side. But we considered it desirable togive them an opportunity to lead evidence before us, although we indicated to the parties that the enquiry was to be of a more or less summary character.
Accordingly on behalf of the petitioner, we examined Shri Keshoprasad Gupta Advocate who was undoubtedly present in Court and was opposing Shri Kothari in the criminal case at the time of the latter's arrest, Shri Goyal, Extra First Class Magistrate, Churu, in whose Court Shri Kothari was appearing at the relevant time and Ganpat Court-peon and Shri Kothari himself.
On the other side, the two respondents examined themselves and two more witnesses Razzak and Banwarilal. Razzak was a prosecution witness in the case in which Shri Kothari was appearing for the accused and whose statement remained uncompleted and Banwarilal is another son-in-law of Sagarmal, who is said to have signed the search list of Shri Kothari at the time of his arrest, which according to the defence was made at some distance from the court-room of Shri Goyal.
8. The first matter for determination before us is one of fact. The question is whether Shri Kothari was arrested while he was in Court or in the court precincts or while he was on the public thoroughfare, near the Magistrate's court, and further whether Shri Harnamsingh the officer who effected his arrest knew or must have known that he (Shri Kothari) was in the midst of a case at the time of the arrest. A further question of fact is whether Harnamsingh had disregarded the order of the Magistrate Shri Goyal to appear and produce Shri Kothari before the Magistrate.
9. We may state at once that even from the evidence produced on behalf of the petitioner, we are unable to come to the conclusion that Shri Kothari was arrested in the court-room or in face of the Court. For one thing, if that were so, the Magistrate Shri Goyal could not have, to our mind, failed to see him being arrested. Nor could have Shri Keshoprasad failed to witness the actual arrest. None of these persons depose to have seen the actual arrest.
Shri Goyal has deposed that some witnesses in the case had been examined and when another witness was in hand, he (Shri Goyal) was informed that Shri Kothari had been arrested just outside the court-room. Even according to Shri Kothari, immediately before he was arrested, he was going to the door to spit. He also says, however, that at that time respondent Harnamsingh whom he did not know from before had backoned to him, and thinking him to be a client he was in plain clothes. Shri Kothari told him (Harnamsingh) to see him after the case was over but Harnamsingh forthwith caught hold of his hand and pulled him out of the court-room and then the constables pushed him down the verandah in front of the courtroom.
Now it is admitted before us that this verandah in front of the court-room is about four feet wide and if Shri Kothari wanted to spit, we would normally expect him to go out of the room and somewhere near the edge of the verandah to spit, as any decent person would do. That being so, we are disposed to think that Shri Kothari had gone out of the court-room in the verandah and it was then and there that he was arrested.
We are, therefore, not prepared to believe the statement of Ganpat when he says that when Shri Kothari was arrested his one foot was within the court-room and the other outside in the verandah. Obviously Ganpat is exaggerating the matter when he says so and his statement on this aspect of the case cannot be accepted at its face value.
10. Now, according to the version of Harnamsingh he had never beckoned to Shri Kothari to come out. This may or may not have been so, but even it we were to assume that Harnamsingh had not done so, it is reasonable to conclude that Harnamsingh must have been in or very near the verandah and that as soon as Shri Kothari came therein, Harnamsingh laid hands on him and put him under arrest.
Let us look at the broad situation as it seems to us. Shri Kothari was appearing in a case on behalf of the accused in which evidence was being recorded. Some witnesses had been examined in chief by Shri Keshoprasad and cross-examined by Shri Kothari. According to Shri Keshoprasad he had finished the examination in chief of another prosecuting witness (this witness is D. W. Razzak) and it was Mr. Kothari's turn to cross-examine him.
Immediately before, however, Shri Kothari had gone out of the court-room and the report came forth that Shri Kothari had been arrested. The arrestor of Shri Kothari must in such circumstances have been on the look out for him even if he did not beckon to him; and Harnamsingh if we credit him with the ordinary intelligence and watchfulness of an average police officer, could not have omitted to see that Shri Kothari was conducting a case in the Court.
We also cannot omit to consider that the first and the most natural reaction of a member of the bar of the standing and experience of Shri Kothari would have been upon his sudden arrest to tell the arresting officer that he was engaged in a case and that therefore, the officer should keep his hands off him and allow him to finish his case. Yet Shri Kothari was arrested and hand-cuffed and carried to the thana.
11. We have carefully perused the evidence ofD. W. Razzak in this connection and, if anything, it lends support to the conclusion that Shri Kothari was conducting the case on behalf of the accused, which had been brought by his cousin Abdulrehman and that as a result of the arrest of Shri Kothari (who according to the witness had gone down the verandah of the court-room) his cross-examination could not be proceeded with and the case had to be adjourned to another date.
The story propounded by Harnamsingh and D. W. Banwarilal that Shri Kothari had been arrested at some appreciable distance from the courtroom and that he had been searched and a search list prepared then and there and signed by Banwarilal is too thick to carry any conviction with us.
The reason is that if Shri Kothari had been subjected to the formalities of a regular search, and a search list prepared, on the spot of arrest, this would have certainly taken time and if this time was anything like half an hour or even considerably less than what Banwarilal put it, then we are certain that events would most probably have not moved in the way they did and there would have been no occasion for Ganpat to say that Harnamsingh had already gone, to some distance away from the Court when he (Ganpat) shouted to him that the Magistrate wanted Harnamsingh to appear with Shri Kothari before him.
In these circumstances we are also bound to hold that Harnamsingh was aware, or, at any rate must be credited with the knowledge that Shri Kothari was engaged in the performance of his duties as a member of the legal profession in a court of law and Harnamsingh cannot be heard to say either that he had arrested Shri Kothari on a thoroughfare or in circumstances that he was not aware that he was in the midst of a case.
12. Turning to the remaining question of fact, we have the evidence of Shri Keshoprasad, counsel, opposing Shri Kothari in the criminal case before the Magistrate according to which the Magistrate Shri Goyal had asked him (on being informed that Shri Kothari had been arrested by the police) to go and ask the police-men to bring Shri Kothari before him.
Shri Keshoprasad says that he did not know Harnamsingh from before but there were constables in uniform and he had asked them to produce Shri Kothari as desired by the Magistrate. Sub-Inspector Harnamsingh must have been there -- and according to Shri Keshoprasad he asked Shri Keshoprasad who he was to interfere. Shri Keshoprasad says that he thereupon informed the Magistrate that there was somebody with the constables who would not allow Shri Kothari to be produced before him.
Mr. Keshoprasad states that the Magistrate then sent Ganpat to ask the policemen to produce Shri Kothari before him and that Ganpat also reported (of course orally) that the policemen did not pay any heed to his call and were taking Shri Kothari away.
13. So far as the Magistrate Shri Goyal is concerned, we have already stated above that he did not see the actual arrest. Shri Goyal has, however, clearly supported the broad story put forward on behalf of the petitioner and states that he was informed by Shri Keshoprasad that Shri Kothari had been arrested.
Thereupon Shri Goyal states to have directed his peon Ganpat to call the policemen along with Shri Kothari though he says that he had not asked Shri Keshoprasad to ask the police to produce Shri Kothari before him. Ganpat reported that the Sub-Inspector had refused to obey the order and carried away Shri Kothari.
One significant contradiction was brought out between the evidence of Shri Goyal in the Court and what he had stated in the departmental inquiry conducted by a Superintendent of the Police in the matter of Shri Kothari's arrest and that is this.
Shri Goyal had stated to the Superintendent of Police that he had made further enquiries from Harnamsingh, Shri Kothari and Ganpat and had thereafter made another report in continuation of his first one but in this Court Shri Goyal said that he had later ascertained things from Shri Kothari and Harnamsingh only but not from Ganpat. This discrepancy, in our opinion, is in itself immaterial.
What is of importance, however, in the statement of Shri Goyal is that from this further inquiry he came to know that Ganpat had merely shouted to the Sub-Inspector (Harnamsingh) to come and that he did not shout that the Magistrate was wanting him. The statement of Shri Goyal is not satisfactory on this aspect of the case, and is not quite consistent with what he had stated earlier in his report to the District Magistrate made immediately after incident that he had sent Ganpat to call the Sub-Inspector Harnamsingh With Shri Kothari but Harnamsingh had refused to carry out the order.
So far as Ganpat is concerned, the trend of his statement on the whole is that Sub-Inspector Harnamsingh did not pay any heed when the former told him that he was wanted by the Magistrate along with Shri Kothari but as he had stated before the Superintendent of Police earlier he also stated before us that he had shouted to Harnamsingh from a distance of about 95 poundas.
Ganpat's version before us, however, is that Harnamsingh had definitely heard his shout, and that he had not merely shouted the name of the Sub-Inspector Harnamsingh but had also shouted that the Magistrate was wanting him. Be that as it may, Shri Keshoprasad has clearly deposed before us that he had, at the bidding of the Magistrate Shri Goyal, gone to the policemen and told them that the Magistrate wanted them to produce Shri Kothari before him.
It is true that Shri Goyal does not support this version, may be, due to lapse of memory. But the statement of Shri Keshoprasad in this connection is clear and has not been shaken in cross-examination in any way and, therefore, we see no reason to disbelieve him on the point.
That Shri Goyal was himself anxious that Shri Kothari be produced before him is evident because the former sent an order in writing to the Sub-Inspector Nathuram shortly after the arrest to produce Shri Kothari and eventually Shri Nathuram did produce Shri Kothari before the Magistrate when the latter released him on bail on the same day.
It is unfortunate that the application filed by Shri Keshoprasad soon after the incident which was undoubtedly received by the Magistrate Shri Goyal is not forthcoming and Shri Goyal does not remember where he had filed it. But having regard to all the evidence and the probabilities of the case, we feel persuaded to hold that Shri Goyal had required Harnamsingh through Shri Keshoprasad and Ganpat to produce Shir Kothari before him immediately after his arrest but Harnamsingh wilfully failed to carry out the order.
14. The next question which we are called upon to determine is: what is the precise position in law with respect to the arrest of counsel while he is actually in Court or in the precincts of the Court. The position which was strenuously advanced before us on behalf of the learned Secretary of the Bar Council was that counsel were exempt from any such arrest while in Court or in the precincts of the Court and that if any arrest is made in such circumstances, it would amount to contempt of Court.
The argument is that such arrest would tend to lower or impair the dignity of the Court (which term embraces officers of the Court including legal practitioners) in the estimation of the public and also constitutes an improper interference with the administration of justice. Reliance was mainly placed in this connection on In re Johnson (1888) 20 QBD 68 (A).
15. In that case the facts were that upon a ' matter having been decided by a learned Judge-sitting at chambers, the solicitor for the defendant after the parties had left the room of the Judge and were proceeding towards the exit of the court house hurled most foul abuse at the solicitor of the plaintiff with reference to the decision given by the Judge and also raised his hands at the face of the plaintiff's solicitor in a threatening manner.
Upon an application made in Court the same learned judge found that the offending solicitor did within the precincts of the Court threaten, assault or intimidate the plaintiff's solicitor and had thereby committed a contempt of Court and sent him to prison. On appeal, Lord Esher M.R. held, dismissing the appeal, that such conduct was or was intended to be, an insult to the administration of justice.
It was further held that in order to constitute a contempt of Court, it is not necessary that thecontempt should be in Court or of a judge sitting in Court but what is necessary is that there should be a contemptuous interference with judicial proceedings in which the judge is acting as a judicial officer and reliance was placed for these observations on the undelivered judgment of Wilmot C.J. in Rex v. Almon, (1765) Wilm 243 (235) (B) which has been since approved and followed in a large number of cases.
16. Now we are in respectful agreement, if we may say so, with what has fallen from Lord Esher as an exposition of the law as to contempt of Court generally and with reference to the special facts of that case; but what we wish to say is that the case cited above was of a different class from the one before us. That was a case of abuse and assault between solicitors, of course within the precincts of the Court.
The case before us is of a different character in which a counsel was arrested in the verandah just outside a court-room or let us even say, just a lew steps away from it, for that in our opinion would make no real difference -- in pursuance of an order of arrest, issued on information of a cognisable offence by an officer in charge of a police station and executed by a junior officer, and we propose to deal with this type of cases presently.
But before we do so, we may also say that we were referred to a few cases of libels on individual judges or the entire Court in or outside the Court but these cases again are only remotely relevant and are. not helpful and we do not propose to specifically refer to them.
We are also aware of cases in which it has been laid down that contempt of Court for misbehaviour is and cannot be limited to such conduct in the court-room or in the actual presence of the Court only but extends to every part of the place set apart for the use of its officers, jurors and witnesses and constitutes disrespect to the authority of the Court in every such place also, at least when the Court is in session. These cases again are not directly in point in deciding the question we are called upon to consider, and we do not propose to pause to consider them.
17. Turning to the type of case we have before us, we wish to state at once that on a most careful and earnest consideration of the whole matter, it seems to us that the proposition that the arrest of counsel in the precincts of the Court, in itself, necessarily constitutes contempt of Court, is too sweeping and cannot be accepted as an accurate statement of the law.
18. Now, generally speaking, arrest is of two kinds; (i) civil and (ii) criminal. So far as civil arrest or arrest in obedience to the process of a Court in civil matters is concerned, Section 135, Civil P. C., affords immunity from arrest to counsel, among other persons, while they are in Court or are going to or returning from Court. Sub-section (2) is relevant for our purposes and runs as under:
'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 ........ shall be exempt from arrest under civil process other than process 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.'
19. But the law does not permit any such immunity from arrest in criminal matters. The Criminal Procedure Code contains no provision analogous to Section 135, Civil P. C. and we know of no other law, which gives exemption from criminal arrest to any persons including counsel while going to or from the Court or even in Court. The absence of such a provision cannot but be deliberate and is, to our mind, grounded upon the distinction which the law recognises between arrest in civil process and that under criminal process.
20. One class of cases arises where counsel is sought to be arrested under criminal process white he is actually in Court which is sitting. We have little hesitation in saying that such an arrest should be effected only with the permission of the Court, and if not, it would amount to contempt of Court,
Nor have we any doubt that any sane arresting officer will ever think of effecting such arrest in the face of the Court without its permission (except, perhaps in a case of the very gravest emergency). The reason is that an arrest in Court may actually cause an obstruction in the working of the Court, or, at any rate, it may well tend to the causing of improper obstruction.
21. But other class of cases arises where the arrest under a criminal process is made not in the face of the Court itself but in what are called court precincts, or, say, in the common Bar Association Hall where counsel may be waiting for their case to be reached or in similar circumstances.
As regards this type of cases, it seems to us that each case must depend upon its own circumstances; but, generally speaking, arrest of counsel in the court precincts, without more, may not amount to contempt of Court because it cannot generally be predicated of an arrest in such cases that it constitutes a contemptuous interference with the administration of justice or that it has the tendency to cause any such obstruction.
What is, therefore, further necessary in such cases to constitute contempt is that those seeking to establish it must show that the arrest of counsel was made in bad faith or was a contrivance to prevent him from appearing in a case before the Court or which was to come before it & that the arrestor had some motive or interest in such interference or that the arrest was a fraudulent proceeding to get round or frustrate some order of the court, or that the arrest, for a similar or other valid reason, caused an improper interference with the normal course of justice or tended to cause an undue interference with it.
22. We may at this stage refer to Sukh Dayal v. Firm Gobinda Mal Nand Lal, AIR 1944 Lah 169 (FB) (C) which is about the nearest case to which we were referred at the bar and upon which considerable reliance was placed on behalf of the respondents before us. In that case Mr. Pardiwala a barrister advocate practising in Bombay had gone to Lahore to file an application under Section 491, Criminal P.C. in connection with the release of Shri Jaiprakash Narain who had been detained under the Defence of India Rules by the Punjab Government.
The application came before a Division Bench on the 8-11-1943. As the application was defective, it again came after the defect was removed before the Bench on the 9th when it was admitted and notice was directed to issue to the Punjab Government.
Mr. Pardiwala remained in the court premises on the 9th November until about 4 P.M. when the Bench rose for the day. Thereafter he was proceeding towards the Bar Association when one of the respondents a police Sub-Inspector arrestedhim and informed him that he was doing so under the orders of another respondent who was the Superintendent of Police.
Mr. Pardiwala was then lodged in jail and was later released and allowed to return to Bombay. Thereafter he moved the Lahore High Court praying that the respondents should be punished for contempt of Court inasmuch as they had arrested him in the Court premises. He also raised another ground in his application but with that ground we are not concerned.
It was strongly contended on behalf of Mr. Pardiwala that his arrest in the court premises on the afternoon of the 9th amounted to contempt of Court. Harries C. J. who delivered the main judgment of the special bench before which the case came repelled that plea and held that an arrest, to constitute contempt in this class of cases, must be something more than arrest without legal justification and that 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, and that an honest, though mistaken arrest, even if it interfered with the due course of justice would not be contempt.
The learned Chief Justice further held that even assuming that the arrest of Shri Jai Prakash Narain could not be justified, no contempt was made out as the police had no intention of interfering directly or indirectly with the proceedings on the petition under Section 491, Criminal P. C.
It was strenuously urged before us on behalf of the respondents that on the authority of the Lahore case (C) we should hold that the arrest of Shri Kothari by Harnamsingh even if mistaken or unjustified, was bona fide and, therefore, it does not amount to contempt of Court.
23. We may point out in the first place that every case has to be decided on its own facts and the facts in one case cannot serve as a basis for decision in another case, and in the second place, the case of Sukh Dayal v. Firm Gobind Mal Nand Lal (C) was of the arrest of counsel after the sitting of the Court for the day was over and counsel was returning from the court-room and going to the Bar Association.
24. What are the broad facts in the present case, and how do the principles we have propounded above, apply to them? Here, Shri Kothari was conducting a criminal case in the Magistrate's Court (of course not connected with Maniram or Sagarmal). While Shri Kothari had casually gone out of the court-room--and was to return to conduct the case in court, Harnamsingh arrested him and having hand-cuffed him, took him away to the thana.
The case before the Magistrate had to be adjourned and the statement of the witness who was in hand remained unfinished. This case clearly does not fall in the categories we have discussed above, namely, where counsel is arrested under criminal process while going from his house to the Court or on his way back or somewhere in the precincts of the court such as in the Bar Association Room merely waiting for his case to be reached and In which kind of cases it appears to be necessary to constitute contempt to establish a sort of 'nearness' or proximate connection between the arrest and the alleged contempt in the sense that the arrest was not merely wrong or unjustified but that it was in its actual result a contemptuous interference with the course of justice or was calculated or tended to cause such obstruction.
On the other hand, the case before us is more akin to the category of cases of the first class where an arrest is sought to be made in the view of the Court or almost in its view and which causes an actual obstruction to the judicial duties performed by the presiding officer at the time of the arrest complained against.
Harnamsingh did know or under the circumstances of the case must be credited with the knowledge that Shri Kothari was actually conducting a case and that he had come out of the court-room for a brief-while and was to go back to conduct the same case in Court while he was arrested.
25. We have, therefore, no hesitation in holding that this was a clear contempt of Court and that the contempt was of a substantial character, and we cannot but express our severe disapproval of Harnamsingh's conduct. In a case like the present, it cannot avail Harnamsingh to say that he was merely carrying out the order of his senior officer and that it was no part of his purpose to cause any interference with the course of justice.
26. This is enough to dispose of the case of Harnamsingh, even if we were not to hold him responsible for deliberately disregarding the order of the Magistrate to produce Shri Kothari before him after he had been arrested. We might add, however, that on the finding at which we have arrived above, Harnamsingh is guilty of showing disrespect to the authority of the Magistrate in not producing Shri Kothari before him after the arrest and we hold Harnamsingh guilty of contempt on this account also.
27. So far as the other respondent Nathuram is concerned, we are of opinion that his case stands on a somewhat different footing. Admittedly, he was not the person who actually arrested Shri Kothari. Besides, we are not at all sure on the summary proceedings before us that he was necessarily present at the time of the actual arrest near the court-room.
It is true, nevertheless, that he was the person who had ordered the arrest, and although the reasons for such arrest may or may not be good, we prefer not to express any opinion on this point as we are informed that Shri Kothari has filed a civil suit for damages for his illegal arrest against the present respondents and that suit is pending.
We feel that any pronouncement of opinion on our part as to any indirect part played or not played by Nathu Ram in this affair may prejudice one party or the other. We consider it sufficient to say under the circumstances that no case of contempt of Court has been established against Nathu Ram.
28. The only question which remains to decide is what punishment we should give to Harnamsingh. We are disposed to think on the whole that this officer is young and inexperienced and that he had allowed his zeal to carry out the order of his senior officer to get the better of his discretion. We further understand that he had been posted at Churu only a few months before this incident and he could have very little personal motive in the matter.
This is not to deny, however, that his conduct was singularly unwise and clearly amounts to a substantial contempt. Having regard to all these circumstances, we hereby hold him guilty of contempt of the court of the Magistrate and direct him to pay a fine of Rs. 100/- within a month from today and in case of default we sentence him to simple imprisonment for one month. We dismiss the complaint so far as Nathuram is concerned. In all the circumstances of the case, we make no order as to costs.