Decided on March 17,1961

STATE Respondents


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 the Court 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 and one 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, a Magistrate 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.;

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