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In Re: Provash Chandra Mallick, Advocate - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtKolkata High Court
Decided On
Case NumberCase No. 1 of 1960
Reported inAIR1961Cal495,1961CriLJ334
ActsContempt of Courts Act, 1952 - Section 1; ;Bar Councils Act, 1926 - Section 10
AppellantIn Re: Provash Chandra Mallick, Advocate
Advocates:S.C. Jana and ;Arun Kumar Jana, Advs.;D.K. Ghosh, Adv.;M.M. Sen, Adv.
Cases ReferredIn Lalit Mohan Das v. Advocate General
- .....act, 1926. in consultation with the bar council the reference was made in march 1960 to the district judge, howrah, who after recording oral evidence, found the advocate concerned to have used some words towards a magistrate, constituting a contempt of court.2. as there is a direct conflict of testimony between that of the advocate and the magistrate, it is necessary to refer in brief to the history of the litigation and the circumstances in which the words complained of arc alleged to have been uttered. as early as august 1955 there were disputes between one suresh chandra bera and one bejoy kumar mondal with regard to a cinema home in village shyampur within the jurisdiction of the magistrate's court of uluberia in the district of howrah, there were proceedings under section 145.....

G.K. Mitter, J.

1. This matter arises out of a reference made by this Court for inquiry under Section 10(2) of the Indian Bar Councils Act, 1926. In consultation with the Bar Council the reference was made in March 1960 to the District Judge, Howrah, who after recording oral evidence, found the Advocate concerned to have used some words towards a Magistrate, constituting a contempt of Court.

2. As there is a direct conflict of testimony between that of the Advocate and the Magistrate, it is necessary to refer in brief to the history of the litigation and the circumstances in which the words complained of arc alleged to have been uttered. As early as August 1955 there were disputes between one Suresh Chandra Bera and one Bejoy Kumar Mondal with regard to a cinema home in village Shyampur within the jurisdiction of the Magistrate's Court of Uluberia in the district of Howrah, There were proceedings under Section 145 of the Criminal Procedure Code in theCourt of the Second Officer, Ulberia, in which the said Snresh Chandra Bera was the first party, Bejoy Kumar Mondal was the second party No. 1 andone Jnanendra Nath Bera was second party No. 2. An interim order of attachment of the Cinema house was made on August 5, 1935 accompanied by an order for appointment of a Receiver. On an application for revision to the High Court preferred by Bejoy Mondal the order for appointment of the Receiver was set aside and the case was sent hack for trial. The Magistrate of Uluberia after recording evidence decided the issue of possession in favour of Bejoy Mondal and lifted, the attachment. On February 12, 1957 possession of the cinema house was delivered to Bejoy Mondal. Suresh Chandra Bern then moved the High Court. The Rule obtained by him was finally disposed of on August 19, 1958 and the case was remanded for trial by a Magistrate at Howrah. It was then transferred to the file of R. B. Saha, aMagistrate of Howrah, the complainant in this case. On December 20, 1958 one Rabindra Nath Bera filed an application for attachment of the Cinema house. Objection thereto was preferred by Bejoy Mondal. The Magistrate Mr. Saha ultimately made an order for attachment. January 13, 1959 was one of the dates fixed for hearing of the application. It is alleged that an advocate of this Court Chinta Haran Roy had been briefed tor Rabindra Nath Bera on that day. As Mr. Roy failed to turn up, when the matter was called on, a request was made by a Muktear Benoy Bancrjee to the Magistrate to wait for a little while to allow Mr. Roy to come. The Magistrate agreed to do so and as there did not happen to be any other work on the hand of the Magistrate at that time, some conversation is alleged to have taken place between him and the lawyers of the parties in course of which the Magistrate is said to have remarked that he was well acquainted with Mr. Roy as a neighbour and had social inter-course with him. On this Bejoy Mondal became apprehensive about a fair deal from the Magistrate and instructed his lawyer to move the Sessions Judge of Howrah under Section 528 of the Criminal Procedure Code for transfer of the case to the file of some other Magistrate. On January 27, 1959 an application was made to the High Court by Bejoy Mondal against the order for attachment issued by the Magistrate. A Rule was obtained by the applicant and stay of proceedings granted. The High Court also called for the records of the case. On September 4, 1959 the said Rule was discharged. It is alleged that in the mean time Suresh Chandra Bera had sold his interest in the cinema house to Bejoy Mondal who purchased it benami in the name of his brother Paresh Kumar Mondal. On September 9, 1959 Paresh Kumar Mondal filed an application before the Magistrate Mr. Saha for inclusion of his name in place of Suresh Bera and for cancellation of the order of attachment on the ground that there was no longer any dispute pending between the parties. The Magistrate ordered the application to be put up with the records when received. aS the cinema house had been closed for some time Bejoy Mondal was naturally anxious to bring the procecdings to an end and caused a watch to be kept for the arrival of the records from the High Court. It is not disputed that the records were sent down from the High Court and received in the court of the Ma-gistiale on September 23, 1959.

3. The incident leading to the inquiry is said to have happened on the day following Mr. P. C. Malick the advocate whose conduct has been taken exception to, had appeared for Bejoy Mondal in the proceedings which were spread over three or four years. It is his evidence that he had appeared both in the court at Uluberia and before the Magistrate at Howrah. A senior advocate and the Government Pleader for Howrah for many years he was also President of the Howrah Bar Association. The Magistrate concerned was also a very senior Magistrate and as a matter of fact he retired from service early in February 1961. He was not doing any judicial work on September 24, 1959 but had reserved the day for administrative business. It is not dis-puted that Mr. Mallick with his juniors appeared before the Magistrate on two occasions on that date. According to the Magistrate the incident is alleged to have taken place On the second occasion while according to the advocate concerned although he was not satisfied with the conduct of the Magistrate he did not utter the words which are imputed to him.

4. According to the explanation of the Advocate he approached the Magistrate with his juniors and one Mr. Surhid Biswas, lawyer for Paresh Mondal, and prayed for the proceedings being dropped in view of the compromise between the parties when the Magistrate told him that as the records had been called for by the Sessions Judge in the proceedings under Section 528 Cr. P.C. he could not do anything on that date. The records were thereafter sent up to the court of the Sessions Judge on the very same day and an application was moved before the Sessions Judge by the junior . lawyers that the matter having been compromised between the parties a mere formal order was necessary to be recorded and the records of the case might be sent back to the trial Magistrate. The Sessions Judge ordered the return of the records to the Magistrate with a direction that they should be sent back to his Court by November 4, 1959 as the day following, namely November 5, 1959, had been fixed for the hearing of the case under Section 528 Cr. P.C. The records were then sent back to the Magistrate and Mr. Mallick with his juniors and the lawyers for Paresh Mondal appeared before the Magistrate again at about 4 p.m. On the same day. The Magistrate was alone in the room when Mr. Mallick prayed for disposal of the matter or for fixing a date prior to November 5, 1959. The Magistrate after hearing the submissions made told Mr. Mallick that he was not at that time functioning as a Court but was engaged in departmental work. Mr. Mallick then pointed out to the Magistrate that a formal order was all that was necessary and not more than a couple of minutes of the Magistrate's timewould be taken up. At this the Magistrate asked Mr. Mallick not to disturb him and told him further that he would fix a date for hearing the matter. Mr. Mallick then urged before the Magistrate that the parties had come from a long distance with their witnesses to prove the sale deed, if necessary, and if the Magistrate could spareonly a few minutes the parties would be saved from much trouble, harassment and unnecessaryexpenses. Mr. Mallick further asked the Magistrate to put himself in the position of the litigant and to consider whether or not he would feel that trouble and harassment would be saved by passing an order on that very day. The Magistrate felt greatly disgusted and asked the parties peremptorily to leave the room.

5. According to the report of Mr. Saha to the District Magistrate bearing date September 24, 1959, he had perused the order of the High Court and looked into the petition of Paresh Kumar Mondal after the records were received back on September 23, 1959 and put up before him. On September 24, Mr, Mallick appearing before him with his juniors requested him to proceed with the caseon the prayer of Paresh Kumar Mondal. The Magistrate told the Advocate that as the application under Section 528 Cr. P.C. was still pending before the Sessions Judge he could not take up the matter. Mr. Mallick and his assistants left the Magistrate's room but re-appeared at about 4.30 p.m. and stated that the records had been sent back by the Sessions Judge with a direction that the same should be before him on November 4, 1959 and the Magistrate could therefore pass an order on the petition of Paresh Kumar Monda!. The Magistrate said that he had nothing more to add to what had been stated by him before. This infuriated the Advocate who made the following remarks in an angry tone :

'Mr. Saha, you are going to retire soon from service, you should not disoblige lawyers as you will have to join the lawyers after your retirement. The Sessions Judge, Howrah accommodated me but you are not doing the same. You think your position to be too important. But it is not so. You will not be able to retain this position for long. You are spiteful. You are not going to accommodate lawyers. This matter will be circulated. You are a public servant and you are working in this way.'

6. As Mr. Mallick left the court room immediately after making the above remarks, the Magistrate could not take action against him under Section 480, Cr. P. C.

7. The following is the text of the order recorded on the order-sheet dated September 24, 1959:

'I perused the petition of Paresh Kumar Mondal who is neither 1st party nor 2nd party in this case. In the petition he prayed for inclusion of his name in place of 1st party and to cancel the Order made under Section 145 (1), Cr. P. C. I heard his lawyers.

An application for transfer under Section 528, Cr. P. C. has been filed in the court of the Section J. Howrah, in respect of this case. I think I should not proceed with this case before the disposal of that application by the Sessions Judge. Send the record to the Sessions Judge on 4-11-1959 as directed.

Put up the petition of Paresh Kumar Mondal after the decision of the Sessions Judge to respect of the application under Section 528, Cr. P. C. is received.

Paresh Kumar Mondal was represented by Sri Provash Chandra Mallick, Advocate and three assistants (lawyers). Sri Mallick made certain remarks while I was considering the petition or Paresh Kumar Mondal. His remarks and his conduct amount to a contempt of Court. Before I could take action as laid down under Section 480, Cr. P. C. against Sri Provash Mallick, he hurriedly left my Court room with his assistants.

I am submitting a separate report to the District Magistrate in this matter,'

8. The Magistrate had no stenographer and was alone in the room when the above derogative remarks about him* are said to have been made. He reported the matter in writing to the District Magistrate. The report bears the date September 24, 1959. It was argued on behall of the Advocate that the report was not made on that date but much later. The report consists of two type-written pages giving a short history of the case and the circumstances in which the remarks against him were made. There is no thing to show when the report was received by the District Magistrate who was examined before the District Judge, Howrah in the enquiry stage. In his evidence before the District Judge, the District Magistrate stated that he passed an order on the report and made some marks thereon in red pencil. But as no date was given by him it was not possible to say when he had made his comments. His practice generally was to put some marks on documents when he wanted to dictate notes to his stenographer. In the last week of September and throughout October, 1959, he was pre-occupied with flood relief and he could not remember when exactly he first saw the report of Mr. Saha. The note of the District Magistrate. Howrah, that complaint ought to be made against the behaviour of Mr. Mallick bears the date November 6, 1959. The transfer application under Section 528, Cr. P. C. was heard by the Sessions Judge on November 5, 1959, when an order was made, transferring the case from the file of Mr. Saha. The happenings on the two last mentioned dates will show that the Magistrate, Mr. Saha, could not possibly have complained to the District Magistrate, after the case was transferred from his file, a suggestion which seems to have been made on behalf of the Advocate Mr. Mallick at the enquiry stage.

9-17. The question then arises as to whose version of the incident should be accepted. (After considering the evidence His Lordship concluded :) I, therefore, accept the finding of the District Judge and conclude that the accusation of the Magistrate is true in substance.

18. There can be little doubt that the words mentioned in Mr. Saha's report undoubtedly are contumacious in their nature when addressed to a judicial officcr and amount to a contempt of Court.

19. Reliance was placed on the case of, A, a Pleader v. Judges of High Court of Madras , in support of the contention that the charge of professional misconduct must be clearly proved and not merely inferred. It was argued at the bar that this was a case of oral testimony of two Magistrates against that of three lawyers and a litigant and no contemporaneous records having been kept of the exact utterances made by Mr. Mallick, the matter was not beyond doubt and that it cannot be said that Mr. Mallick had uttered the very words which arc to be found in the complaint of the Magistrate. While it is not Possible to hold that Mr. Mallick used all the words imputed to him in the order in which they find a place in the report and while it cannot be said that he might have said something more or might not have used one or two of the expressions therein contained, I have no doubt in upholding that Mr. Mallick called the Magistrate 'spiteful', admonished him for being disobliging to lawyers and warned him that the matter would be given publicity. In my opinion the use of the words imputed to Mr. Mallick has been established in this case.

20. Various cases were cited at the Bar containing dicta as to what would or would not amount to a contempt of court. It would be sufficient to refer to a judgment of the Supreme Court where the pronouncement of Mukherjea, J., was made in very clear terms. The matter arose out of a resolution passed by the executive committee of the District Bar Association at Muzaffarnagar imputing incompetency and lack of courtesy to a judicial officer. Referring to the resolution and the publication thereof Mukherjea, J., said :

'It will be an injury to the public if it tends to create an apprehension in the mind of the people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the Court's administration of justice, or, it it is likely to cause embarrassment in the mind of the Judge himself in the discharge of judicial duties. It is well established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tends in any way, to interfere with the proper administration of law'. See Brahma Prokash v. State of U. P., AlR 1954 SC 10 at p. 14.

21. In R. v. Gray. (1900) 2 QB 36, Lord Russel of Killowen, C. J., pointed out that

'any act done 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 ***** Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the courts is a contempt of Court. ****** 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 could or would treat that as contempt of Court.' (page 40).

22. Judged in the light of the above, the utterance of Mr. Mallick on September 24, 1959, must be held to be calculated to lower the authority of the Magistrate and interfere with the administration of justice. To say of a Judge in his court that his conduct is 'spiteful' and to take him to task for being disobliging to lawyers is, in my opinion, enough to constitute a contempt of court and as such be misconduct within the meaning of Section 10 of the Bar Councils Act.

23. Lastly it was argued that the Magistrate was not doing any judicial work on that date but was busy with the administrative work. As such he was not acting as a Court and anything said to him cannot amount to a contempt of court. For this purpose reliance was placed on a judgment of Orissa High Court in the case of Purna Chandra Majhi v. State, AIR 1956 Orissa 28. In that case Purna Chandra Majhi had filed a complainant against a Sub-Divisional Magistrate under Section 504 of the Indian Penal Code. He was examined by a Magistrate, Mr. Hota, and his statement on oath was recorded. The Magistrate felt that the complaint was not maintainable for want of sanction under Section 197 of Cr. P. C. and dismissed the complaint under Section 203, Cr. P. C. After passing the order the Magistrate directed the complainant to bring his lawyer so that, he might go through the order passed by him. The complainant expressed surprise at this, and enquired how his complaint could be dismissed without any examination of his witnesses. According to the Magistrate, the complainant repeated this several times with the deliberate intention of insulting him. The Sessions Judge who made a reference to the High Court held that after pronouncing his order of dismissal the Magistrate ceased to function as a judicial officer and consequently there was no Court in the view of which he offence of contempt can be said to have been committed. The learned Judge of the Orissa High Court observed that after having pronounced the order of dismissal the Magistrate lost seisin of the matter and his direction to the complainant to bring his Vakil could not be regarded as an order of the Court trying the matter. In my opinion, the facts of this case arc very different from those before the Orissa High Court. True it is that the Magistrate said that he was not doing any judicial work on that date but it was in connection with the administration of justice viz. entertaining a petition and passing an order regarding the proceedings that the utterances were made. He was approached as a Court to make an order and it was as a Court that he declined to make it.

24. In the result, I hold that in making the utterances contained in the report of the Magistrate, Mr. Mallick was guilty of misconduct amounting to a contempt of court, It is highly regrettable that there should have been such lapse on the part of a very senior advocate who has held high position for many years. In moments of anger a person is apt to say things which he would regret afterwards. One feels reluctant to censure an advocate of Mr. Mallick's standing and position but in upholding the law and administering justice Mr. Mallick must he reprimanded for his misconduct.

Datta, J.

25. I agree.

S.P. Mitra, J.

26. I agree. Upon going through the evidence recorded by the District Judge I have no doubt that the allegations of the Magistrate against Shri Provash Chandra Mallick are substantially correct. I intend to emphasise that, a legal practitioner is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has been admitted; and if he departs from the high standards which that profession has set tor itself and demands of him in professional matters, he is liable to disciplinary action : vide In the matter of G, a senior Advocate of Supreme Court, AIR 1954 SC 557 and in re : M, an advocate, : 1957CriLJ300 .

27. In Lalit Mohan Das v. Advocate General, Orissa, : [1957]1SCR167 , it is observed as follows :

'A member of the Bar undoubtedly owesa duty to his client and must place before theCourt all that can fairly and reasonably be submitted on behalf of his client. He may evensubmit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsiff in open court. In suggesting that the Munsiff followed no principle in his orders, the appellant was adding insult to injury; because the Munsiff had merely upheld the order of his predecessor on the preliminary poi4t of jurisdiction and court-fees, which order had been upheld by the High Court in revision. Scandalising the Court in such manner is really polluting the very fount of justice : such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the Judicial Service; it brought into disrepute the whole administration of justice.'

28. It was open to this Court on the facts of the case to impose a more severe punishment on Shri Provash Chandra Mallick. But having regard to his age and status and the surrounding circumstances, I concur with the order My Lord has made.

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