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B.K. Lala Vs. R.C. Dutt and anr. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtKolkata High Court
Decided On
Case NumberCriminal Misc. Case No. 212 of 1965
Judge
Reported inAIR1967Cal153
ActsContempt of Courts Act, 1952 - Sections 1 and 4; ;Code of Civil Procedure (CPC) , 1908 - Section 80
AppellantB.K. Lala
RespondentR.C. Dutt and anr.
Appellant AdvocateB. Das and ;Dilip Kumar Dutta, Advs.;J.M. Banerjee and ;Madhusudan Banerjee, Advs.
Respondent AdvocateProvash Ch. Bose, ;Satindra Mohan Mukherjee, Advs. for No. 1 and ;I.P. Mukherjee, ;S.S. Mukherjee, ;R. Goho, ;A.K. Das, ;Somraj Dutta and ;Samarendranath Dutta, Advs. for No. 2
Cases ReferredSukhdeo Singh v. S. Teja Singh.
Excerpt:
- sen, j.1. in this rule mr. swayambhu gopal mazumdar, barrister-at-law and mr. r.c. dutt. solicitor were called upon to show cause why they should not be dealt with for contempt of the court of the judge. additional special court. calcutta. the rule was issued on the 30th november, 1965 by this court on perusal of the report made by sri b.k. lala, judge. additional special court, calcutta. hereinafter called the 'judge' he sent a report to the registrar. appellate side of this court on 27th september 1965 to the effect that the aforesaid persons should stand trial for contempt of court for the reasons stated in this report. it is said that on the 22nd september 1965, he was served with a notice under section 80 of the code of civil procedure at his chamber at about 1 p.m. from the.....
Judgment:

Sen, J.

1. In this Rule Mr. Swayambhu Gopal Mazumdar, Barrister-at-Law and Mr. R.C. Dutt. Solicitor were called upon to show cause why they should not be dealt with for contempt of the Court of the Judge. Additional Special Court. Calcutta. The Rule was issued on the 30th November, 1965 by this Court on perusal of the report made by Sri B.K. Lala, Judge. Additional Special Court, Calcutta. hereinafter called the 'Judge' He sent a report to the Registrar. Appellate Side of this Court on 27th September 1965 to the effect that the aforesaid persons should stand trial for contempt of Court for the reasons stated in this report. It is said that on the 22nd September 1965, he was served with a notice under Section 80 of the Code of Civil Procedure at his chamber at about 1 p.m. from the Solicitor Sri R.C. Dutt of 7 Old Post Office Street. Calcutta threatening him on behalf of his client Mr. S.G. Mazumdar Barrister-at-Law with a suit against him for damages for a sum of Rs. 5,10,000/- only Mr. S.G. Mazumder hereinafter called the contemner, was appointed senior Public Prosecutor in the Calcutta Corporation Petrol Theft Conspiracy Case (Case No. 12 of 1959, State v. P.K. Das & others) before the Additional Special Court, Calcutta. He conducted the case on behalf of the prosecution. On the 16th of December 1965 judgment was delivered in the above case by the Judge and on the following date, that is on the 17th December 1965 there was a publication of a short report of the judgment in the Statesman and Hindusthan Standard. On the 22nd September 1965 as stated before, the notice under section 80 of the Code of Civil Procedure was served upon the Judge. The Judge states in his report that there was an allegation in the notice that during the trial the contemner was dealt with in such manner which was hardly consistent with fairness and that he had prejudice against him and it was further stated that as a result it culminated in his severe condemnation in the judgment given by the Judge in that case. It was also asserted that the remarks made by the Judge were definitely beyond the scope of his duty and jurisdiction as Judge and had all along been known to him to be so. In this notice it was also suggested that there was abuse of the Court's power throughout the hearing of the trial and that the Judge acted unfairly and with prejudice, bias and improper motives against the contemner in the course of his judicial function. In the report it is clearly stated by the Judge that the enormous amount claimed as damages clearly indicates that the threat had been given to terrorise the Court and create a feeling of embarrassment in the mind of the Court in the discharge of its duties thereby preventing him from doing justice freely and unhesitatingly and impairing the confidence of actual and prospective litigants and thereby interfering with the administration of justice. In his estimation the notice amounts to gross contempt of Court and the fact that the allegations are contained in a notice sent by the Solicitor under Section 80 C.P.C. does not prevent them from being contumacious.

2. Before the disposal of the Rule the contemner instituted a suit on the 15th December 1965 in the Original Side of this Court being suit No 2197 of 1965. It may also be noted that, an appeal against the judgment and order of the learned Judge is still pending before this Court.

3. Before going into the merits of the arguments advanced by learned counsel appearing for both the parties, it is necessary to give in brief as to what findings were made by the Judge with regard to the conduct of business by the contemner Public Prosecutor. The trial had a long-drawn existence and with great hesitation the learned Judge has remarked that it was his duty to bring to the notice of the authorities one of the reasons which was responsible for protracted trial of the case. He said that in cases like this the Public Prosecutors often do not take sufficient care to sift the evidence, as they should by all means produce the only best evidence to prove the cases; but often without any such sifting the entire mass of evidence, unusually bulky, isproduced which makes the case appear much bigger than what it actually is. The instant case was one of the most glaring examples of the same. Its duration was unnecessarily prolonged with the result that huge expenditure of the State, which could easily have been avoided was incurred and valuable time of the Court was wasted. Thereafter he cites some instances which caused the delay by adducing unnecessary evidence in this case. In his judgment he was not unmindful of the provisions of Section 114(g) of the Indian Evidence Act and has made a remark that he was unable to shut out the evidence, lest the defence thought that if those evidence were adduced the prosecution case would have been falsified. He also has stated in that portion of the judgment some examples as to what, constituted absolutely unnecessary evidence for proving the prosecution case and why he could not control the production of unnecessary evidence and he was of opinion that it was the primary duty of the learned Public Prosecutor to control. He has also made the following remarks:

'.. . .. It is high time when I should draw the attention of the Government and ask the Authorities concerned that proper steps be taken in such big cases so that evidence may be sifted properly before they are produced and unnecessary evidence be not put causing unnecessary waste of time and money.'

4. I have set out the relevant portion of the judgment annexed to the notice under Section 80, C. p. Code. We think that in order to consider whether the words of the notice admittedly issued under the authority of the contemner, were contumacious or not, the relevant portion thereof should be verbatim stated here. It runs inter alia as follows:

'The procedure adopted by my client for proof of the charge being not to your liking, you dealt with my client throughout the hearing in the manner, hardly consistent with fairness and finally, on 16-12-64 when you delivered your judgment of the said case in open Court, it culminated in his severe condemnation of the Court before public eyes and before the Government, which you can very well realise, is bound no t only to injuriously affect his reputation, prestige and professional career, but also to hold him to contempt and ridicule by characterising him in your said judgment (thereby judicially branding him once for all) as a lawyer who did not know his job or the law and who was thoroughly incompetent to act as Public Prosecutor and was mainly interested in unjustifiably enriching himself at the cost of the State by unnecessarily prolonging the trial, and in fact, a brief report of your said judgment appeared in some of the principal newspapers of Calcutta on the next day.

Your prejudice against my client, a highly respected and reputed lawyer of about 40 years standing, came out mostly in your said judgment, a public document, available to the public at large, containing aspersions and remarks wholly derogatory, insulting and highly prejudicial to my said client and he takes the strongest possible exceptions to them, as well is to the those aspersions made in the said judgment, against other Public Prosecutors, conducting some other cases disposed of by you as the Judge of the Additional Special Court, Calcutta before 16-12-64.

The said remarks cannot possibly becovered by judicial immunity, merely becausethey appear in a judgment as they areirrelevant, not at all required for thejudgment itself, and have been made againstall principles of judicial decorum and dignity,principle and propriety, and definitely beyondthe scope of your duty and jurisdiction as Judgethereof, and have been all along known toyou to be so.'

5. We are concerned to see as to whether the recitals in the letter are scurrilous in nature and amount to scandalization of the Judge who acted as the Special Court, subordinate to High Court.

6. It has been laid down in Mcleod v. Aubyn, reported in 1899 A.C. 549 that the contempt of court may be committed by the publication of scandalous matter respecting the court after adjudication as well as when a case is pending before it. Our Supreme Court has laid down the law in clearest possible terms in Brahmaprakash v. State of U. P. reported in : 1954CriLJ238 that an act or conduct which lowers the authority of the Court and weakens the sense of confidence of people in the administration of justice is contempt. It runs as follows inter alia at p. 1176 of the Report (SCR) : (at p. 13 of AIR)

'It admits of no dispute that the summary jurisdiction exercised by superior courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the courts. If would be only repeating what has been stated so often by various Judges that the object of contempt proceedings is not to afford protection to Judges personally from imputations to which they may be exposed as individual; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any part; the authority of the Court is lowered and the sense of confidence of people in the administration of justice by it is weakened.'

7. At this place we may also refer to another judgment reported in 1900-2 Q.B. 36, R. v. Gray. The observation of Lord Russel of Killowen runs as follows:

'Any act done or writing published calculated to bring a court or a Judge of the Court into contempt or lower his authority is a contempt of court. That is one class of contempt. Further any act done or writing published calculated to obstruct or interfere with the due administration of courts of justice or the lawful process of the courts is a contempt of court.'

8. From these judgments it appears clear that contempt of Court may be committed by the publication of scandalous matter respecting the Court after adjudication and that if the offending language used in a document is calculated to lower the authority of the Court and sense of confidence of the people in the administration of justice it may amount to contempt. It is also the settled law that to say to a Judge that he is a prejudiced Judge or to say a Judge, in the course of his judgment made an unjust remark, is an insult amounting to contempt. Similarly, imputing unfairness to a Judge is a contempt. So briefly speaking we are in this case called upon to consider whether recitals in a notice under Section 80 C. P. Code amount to scandalising the Court and whether it is on the face of it scurrilous.

9. Mr. Das learned Junior Standing Counsel appearing for the Judge has in the first instance invited our attention to the following expressions used in the notice:

'The procedure adopted by my client for proof of the charge being not to your liking, you dealt with my client throughout the hearing in the manner, hardly consistent with fairness and finally, on 16-12-64 when you delivered your Judgment of the said case in open Courts, it culminated in his severe condemnation before the public eyes and before the Government.'

10. Secondly, he has quoted the notice, which runs as follows:

'Your prejudice against my client, a highly respected and reputed lawyer of about 10 years standing, came out mostly in your said judgment, a public document, available to the public at large, containing aspersions and remarks wholly derogatory, insulting and highly prejudicial to my said client and he takes the strongest possible exceptions to them '

11. Thirdly, he invites our attention to the following passage.

'The said remarks cannot possibly be covered by judicial immunity, merely because they appear in a judgment as they are irrelevant, not at all required for the judgment itself, and have been made against all principles of judicial decorum and dignity, principle and propriety, and definitely beyond the scope of your duty and jurisdiction as judge thereof and have been all along known to you to be so '

12. By quoting the above extracts from the notice, Mr. Das contends in the first instance that remarks as made by the Judge in the judgment, cannot be said to be actionable inasmuch as a Judge is clothed with immunity from actions under the Judicial Officers' Protection Act.

13. We refrain from making any observation in this matter as to whether the remarks made by the Judge in his judgment can be considered as actionable or not as it is admitted that a suit in the Original Side of this Court has already been instituted and according we should cautiously proceed in this case in order that any of our observations does not amount to prejudging the suit. We are therefore concorned to see whether in the notice the contemner has introduced extraneous matters on which the cause of action was not founded and whether they constitute contempt. Before dealing with the matter in detail, we shall turn to the question whether the alleged scandalous and scurrilous utterances against the Judge given in a notice under Section 80 of the Code of Civil Procedure may amount to contempt.

14. In this regard Mr. Das has referred us to a decision reported in 42 Cri LJ 723 : (AIR 1941 Bom 228), In re: Tulsidas Amanmal. In this decision the facts are that one Karnani, a legal practitioner, appeared as witness before a Judge of the Court of Small Causes His evidence was disbelieved by the Judge and was criticised with some severity Karnani served a notice under Section 80 of the Code of Civil Procedure on the Small Causes Court Judge stating that he intended to file a suit against him in the High Court for a declaration that the remarks passed against him were false and malicious and in doing so the Small Causes Court Judge did not act honestly, judiciously and in good faith It was alleged that the Judge had acted dishonestly and in had faith and did not decide the case according to his own conviction but to please somebody else. The Bombay High Court has found, inter alia that there can be no grosser contempt than saving that a Judge has acted with prejudice, bias and malice in the course of his judicial duties, that he decided 9 case not according to his conviction but to please somebody else and that he abused his powers as a Judge and acted dishonestly and in bad faith. The fact that these allegations were contained in a notice under Section 80. does not prevent it from being contempt of Court.

15. This decision lays down the principle that scandalous and scurrilous attacks against a Judge contained in a notice under Section 80 of the Code of Civil Procedure also amount to contempt. It has to be noticed that this decision was made by the Bombay High Court after the suit instituted by Karnani against the Judge was dismissed On this ground Mr. J.P. Mukherjee, learned counsel appearing for the contemner has argued before us that in so far as a suit against the Judge is pending before the Court, we cannot hold that the remarks in the notice should amount to contempt. We have already pointed out that there is no bar to our taking into consideration the extraneous mailers contained in the notice and to find the contemner guilty, if on fair construction of the terms thereof we conclude that they were contumacious. To counteract this decision Mr. I.P Mukherjee has invited our attention to a Patna High Court decision reported in : AIR1960Pat326 State of Bihar v Siv Prasad Lal. The head-note runs as follows:

''In an appeal by the surety against the Magistrate's order forfeiting his bond, the Sessions Judge held that the order of forfeiture was wrong, on the ground that the order was passed by the Magistrate without holding any enquiry and taking any evidence to satisfy himself. It was also held that there was another illegality in that the bail bond was made out in favour of the King Emperor which was obviously erroneous. Acting on this, the surety sent a notice under Section 80, Civil Procedure Code to the Chief Secretary, the Deputy Commissioner and the Magistrate, of the proposed suit for damages against the Magistrate for the injuries suffered due to the forfeiture order. The notice was signed by a pleader 'A' on the instructions of the surety. Objection was taken to the following statements in the notice on the ground that they amounted to scandalizing the Magistrate and therefore contempt of Court: (a) The learned Magistrate had no jurisdiction to accept, and by accepting the said bond had not acted in good faith, and (b) the learned Magistrate was pleased to make a wilful abuse of his authority, by passing of the order of forfeiture of the bail bond, which order was passed without due care, caution and circumspection in a reckless manner or in contravention of obvious or well-known rules of law or procedure.'

16. The learned Judges of the Patna High Court observed at page 328 of the report as follows:

'The expressions used in the said notice have to be considered with this back ground and the expression 'not acting in good faith' was used for the purposes of showing that the Magistrate had passed the order of forfeiture without complying with the provisions of Section 514 of the Code of Criminal Procedure and the bail bond taken in favour of the King Emperor was not at all valid in law. In view of these irregularities it was alleged in the notice that there was contravention by the Magistrate of the obvious or well-known rules of law or procedure which meant that the learned Magistrate did not take proper care and caution. . Reading the notice as a whole it only indicates that because the Magistrate did not comply with the provisions of law. he made a wilful abuse of his authority and did not act in good faith.'

17. For this reason their Lordships of the Patna High Court negatived the allegation that the notice amounted to scandalizing the Magistrate or showing any disrespect to him by the use of those expressions. This decision shows that no action for contempt would lie where an abuse of the authority of the Court was performed without any lawful background. in this case it has only been argued that the judgment was not written by the Judge according to the provision of Section 367. Cr P. Code, but in the notice it has nowhere been mentioned that the judgment was delivered without any lawful background. In this view of the matter the Patna decision has no application to the instant case.

18. The next branch of argument of both Mr. Das and Mr. J.M Banerjee appearing for the Slate is that the remarks as stated in the notice and quoted before amount to gross contempt of Court for the following reasons:

1. The fairness of the Judge has been questioned;

2. Bias has been imputed;

3. the Judge is said to have acted with prejudice; and

4. the remarks in the judgment have been made against all principles of judicial decorum and dignity, principle and propriety.

19. According to Mr. Das this writing is calculated to bring a Court or the Judge into contempt and has lowered the Judge's authority in the eye of the public. It is needless to repeat here that any act or writing published, calculated to bring a Court or a Judge of the Court into contempt or to lower his authority, is a contempt of Court. This aspect may also be characterised as scandalizing a Court or a Judge. It is, however, true that Judges and Courts are alike open to criticism and if reasonable argument or 'expostulation' is offered against any judicial act. as contrary to law or the public good, no court would treat that as contempt of court.

20. Mr. I.P. Mukherjee has laid stress upon the expression 'expostulation' stated before and has argued that the language in the notice amounts to reasoning with a Judge as to his conduct which was contrary to law and as such cannot be treated as contempt. We have already indicated that this part of the argument of Mr. Mukherjee with reference to the Patna decision is not tenable in view of the fact that there is no allegation that the remarks in the notice amount to expostulation against any judicial act as contrary to law or the public good and the notice in our opinion has therefore to be considered in its true perspective. Mr. Mukherjee, appearing for the contemner has advanced the following arguments for his client:

1. There was no intention on the part of Mr. Mazumdar to scandalize the Court or to interfere with public administration of justice nor was there any obstruction to the public justice,

2. The notice read as a whole is a fair criticism or expostulation as stated before.

3. The words used in the notice were not scandalous or scurrilous, and

4. Mr. Mazumder has by giving the notice discharged the obligation as to service of notice under Section 80 of the Code of Civil Procedure.

21. As regards the first point he has argued before us that the element of mens rea has to be gone into with meticulous care in a proceeding like this as Mr. Mazumder was greatly harmed in his reputation in so far as his profession was concerned and in order to found his cause of action he had to lay bare the feeling which he had in his mind on account of the remarks in the judgment for the purpose of bringing an action against the Judge. The Supreme Court in Sukhdeo Singh v. S. Teja Singh. reported in AIR 1954 S.C. 186 lays down that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court and the High Court can deal with it summarily and can adopt itsown procedure. All that is necessary is that the procedure should be fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. Thus it appears that although the matters in so far as contempt cases are concerned, are dealt with by Criminal Bench in this Court, it does not follow that the provisions of criminal law should be attracted for deciding a contempt case. Moreover, we do not consider that mens rea was a necessary constituent of contempt as held in Re: Regina Odham's Press Ltd. 1957, 1 Q.B. 73. It was laid down by Lord Goddard as a principle that mens rea was not a necessary constituent of a contempt of which the Court would take cognizance and punish and that lack of intention or knowledge was only material in relation to the penalty which the court would inflict and the test was whether the matter complained of was calculated to interfere with the course of justice and not whether the contemners intended that result. It has been also decided in case reported in AIR 1943 Lab 329 (FB) in Re: Subrahmanyam by Harries C. J. presiding over a Full Bench that a person may be guilty of contempt though there was no intention to commit contempt. It is sufficient if the effect of the Article complained of is to create prejudice and to interfere with the due course of justice.

22. In these circumstances, we are of the view that irrespective of the intention of Mr. Mazumder the words used in the notice have to be considered on their face value and we need not embark upon an enquiry as to what his intention was. As regards his second point we have already said that the words used cannot be considered to be an expostulation nor can it be said that it is a fair criticism of the judgment as passed by the learned Judge.

23. As regards his third point that the words in the notice cannot be construed as scandalous or scurrilous, it requires careful consideration. We have already pointed out the main ingredients of the notice and it is argued by Mr. Mukherjee on behalf of the contemner as staled before that as the Judge did not write his judgment in conformity with the provisions of Section 367 of the Code of Criminal Procedure and introduced in it something which was extraneous to the merits of the case, no contempt can be said to have been committed in respect of the words used in the notice. The question whether the remarks as made by the Judge against Mr. Mazumder in his judgment were within his power or not cannot be decided by us, as appeal against the conviction is pending in this Court and as a matter of fact the entire judgment is before this Court for a decision whether such remarks against the learned counsel Mr. Mazumder was justified or not Mr. Mazumder in his affidavit has stated that he wanted to have the remarks expunged under Section 561-A of the Code of Criminal Procedure and for this purpose he sought permission of the Legal Remembrancer, but he was not given the requisite permission to do so. In so far as this aspect of the matter is concerned we refrain from expressing any view. We have already said that we are concerned to find as to what the language used in the notice really connoted. In this connection we have to find whether the notice contained matters which were irrelevant or unnecessary for the purpose of the suit which was ultimately instituted. Section 80 requires that the cause of action should be stated in the notice and it also shall contain the name, description and place of residence of the plaintiff and the relief which he claims and that the plaint shall contain a statement that such notice has been so delivered or left. We have had the opportunity of going through a copy of the plaint at the instance of the contemner and the State, which was filed in this court for recovery of damages for malicious abuse of the process of the court as also 'for defamation arising out of the original act of the Judge for malicious abuse of the process of the court'. In this copy of the plaint which has been kept in the record, it appears that in paragraph 6 it has been categorically stated that in the judgment the Judge in colour of his office, in malicious abuse of the process of the court, wilfully, wrongfully, injuriously and without any jurisdiction, and/or in excess of jurisdiction severely condemned the plaintiff in 8 language purported or calculated to injure the plaintiff in his said profession and in his reputation and position as senior lawyer not only in the eye of the Government but also before the public by making serious aspersions against the plaintiff, by characterising the said case as one of the most glaring examples, where the best evidence to prove the case was not produced by the Public Prosecutors, who often without sifting evidence produced unusually, bulky mass of evidence, unnecessarily prolonging the duration of the trial, resulting in huge expenditure of the State and wasting valuable time of the Court. There were according to the plaint further aspersions against the plaintiff in that, he produced redundant evidence contrary to his primary duty without sifting such evidence thereby causing waste of time and money.

24. From the recitals in the plaint, it appears that the contemner founded his action for damages for malicious abuse of the process of the Court. The question whether such an action is maintainable against the Judge for defamatory words spoken by him while acting in his judicial capacity, will be decided in the suit itself. But it must be said in this connection that excepting allegation of malice the plaint does not disclose the vital allegations as made in the notice. The fourth contention as raised by Mr. Mukherjee for the contemner in this Rule is that he has filed a suit against the Judge claiming damages for defamation for the remarks made in the judgment concerning him and that by sending the notice under Section 80, C. P. Code he was merely discharging a statutory obligation. What is alleged in the plaint is that the remarks against the plaintiff made by the Judge in colour of his office werereally without jurisdiction and amounted to malicious abuse of the process of the Court. The malice referred to in the plaint does not necessarily imply personal malice or spite. It is well established that in a suit for damages for defamation, where it is necessary to prove malice in order to counter a possible claim of privilege that the defendant might claim, it is not essential that the defendant must be shown to have a personal malice or ill will against the plaintiff; malice in this context means that the defendant used an occasion which was privileged for some indirect or improper purpose, purpose which had no connection with the object that made the occasion privileged. Allegation of personal malice may be material on the question of quantum of damages but not essential for founding a cause of action. In the plaint filed by the contemner there is no allegation that the Judge in making the remarks was actuated by any ill will or spite against him. The allegations made therein that the 'offending' remarks were made 'wilfully', 'wrongly', 'injuriously' and 'in malicious abuse of the process of the Court' do not suggest any personal malice on the part of the Judge. Therefore even assuming as correct the contention raised on behalf of the contemner that sending the notice under Section 80, C. P. Code was a statutory obligation which the contemner had to discharge in order to be able to file his suit, we find no excuse for imputations of prejudice, lack of fairness and of judicial decorum and dignity and propriety contained in the notice, which find no place in the plaint. That these extraneous allegations in the notice under Section 80 amount to contempt can hardly be questioned.

25-26. We have already dealt with the case of Tulsidas Amanmal reported in 42 Cri LJ 723: (AIR 1941 Bom 228) and it appears that this Bombay decision with which we agree, is an authority for the proposition that Section 80 of the Code of Civil Procedure cannot be used as a cloak or screen for insulting or vilifying a Judge while acting in judicial capacity. When this has been done in the instant case, we are inclined to conclude that the impugned portion in the notice also amounts to scandalization of the Court, as it has been couched in such a language, which per se is contumacious regarding the Judge acting in his judicial capacity. Furthermore, we are of the view in the instant case that to call a Judge a 'prejudiced Judge' and to ascribe unfairness to him also amount to 'gross contempt of Court'. The language used cannot by any stretch of imagination be said to be a fair criticism of the action of the Judge for founding a cause of action and we may say that it has, in unequivocal terms, clearly scandalized the Judge, lowered the authority of the Court and the sense of confidence of the people in the administration of justice has been greatly shaken.

27. In his affidavit the contemner in paragraph 17 has stated as follows:

'That in case it is made out and held that I have no such right under the Constitution and laws of India and in the facts and circumstances to vindicate my honour and reputation subjected to 'serious aspersions' made in the judgment against me, without ever being given any opportunity to meet any of these criticisms, allegations and aspersions, I am ready and willing to tender my unconditional apology for sending the said notice under Section 80 of the Code of Civil Procedure.'

28. Furthermore, in paragraphs 15 and 16 of the affidavit he has given reasons which according to him justify the language used in the notice. For the reasons given by us in the foregoing paragraphs, the plea of justification is untenable and it may be said in conclusion that in the absence of any satisfactory reasons of justification, the impugned recitals in the notice are calculated to interfere with and obstruct the administration of justice and the lawful process of the Court. The contemner has described himself as a highly respected and reputed Barrister of about 40 years standing and as such we never expected from him that he would during the pendency of the appeal against the judgment of the Judge, use such expressions in the notice which are calculated to obstruct the administration of justice in so far as the High Court is also concerned.

29. Lastly Mr. Mukherjee has stated before us that if the Court thinks that Mr. S.G. Mazumdar is really guilty of contempt of Court, he is willing to tender his apology before this Court. Section 4 of the Contempt of Courts Act (Act XXXII of 1952) runs as follows:

'Save as otherwise expressly provided by any law for the time being in force, a contempt of Court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to Rs. 2,000/- or with both:

Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court:

Provided further that notwithstanding anything elsewhere contained in any law for the time being in force no High Court shall Impose a sentence in excess of that specified in this section for any contempt either in respect of itself or of a Court subordinate to it.'

30. At the present moment we are concerned with the first proviso to the said section and have to consider whether the contemner may be discharged as the learned counsel on his behalf has offered an apology in the same terms as contained in the contemner's affidavit. The contemner has stood fast on his alleged legal rights and it has been urged without giving up his legal rights that if he is found to be guilty of contempt, he tenders an apology. We are of the opinion that the proper method for tendering an apology by the person complained against in an action for contempt of Court, is to offer it in the first instance.

Where he seeks to justify his action in the first instance and then in the alternative offersan apology, that is not the correct method. The reason is that the contemner cannot both justify his conduct and tender an apology,--the two being clearly inconsistent with each other. In the circumstances, the conditional apology as offered on behalf of the contemner cannot in our opinion be accepted as such an apology is not to our satisfaction.

31. Mr. Mukherjee in this case has referred to us a number of decisions. We have in our judgment quoted the decisions which are relevant for the purpose of the instant case and on perusal of the rest it appears to us that the principles reported therein cannot be attracted for a decision in favour of the contemner. As such we have refrained from referring them in our judgment.

32. The opposite party No. 1 Mr. R.C. Dutt is the Solicitor who issued the notice under Section 80 of the Code of Civil Procedure. At the commencement of the hearing of the case he has filed an affidavit to this Court in which it has been stated as follows:

'I admit that service of the said notice (on the petitioner--Judge) appears to constitute a contempt of Court and I express my sincere regrets and apologize to this Hon'ble Court for my action in the matter.'

33. On his behalf, Mr. Basu, learned Advocate has also tendered an unconditional apology before the Court. Accordingly, the tender of such an apology being to our satisfaction, the Rule shall stand discharged as against him. In so far as Mr. S. G Mazumder is concerned, the Rule must be made absolute for the reasons stated in our judgment and we find him guilty of contempt of Court and direct that he shall pay a fine of Rs. 200/-only under Section 4 of the Contempt of Courts Act.

34. The contemner opposite party No. 2 shall also pay the costs incurred by the State as also by the Judge, Additional Special Court, Calcutta, in this case which are assessed at a consolidated amount of thirty gold mohurs.

35. At the request of the Counsel appearing for Mr. S.G. Mazumder, he is allowed seven days time from this date to deposit the amount of fine. He is also permitted to deposit the amount of costs within a month from this dale.

GUPTA. J:

37. I agree.


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