M.P.THAKKAR, S.A.SHAH - (1.)In all appeal memo filed by opponent No. 1 Lakhiram Shivram in the Court of City Sessions Judge at Ahmedabad (Criminal Appeal No. 173/81) imputations were made against the Chief Metropolitan Magistrate who had decided the case (Summary Case No. 313/81 decided on 27/08/1981 giving rise to the appeal) in the course of which he had convicted the said lakhiram Shivram of an offence under sec. 29 of the Industrial Disputes Act 1947 and sentenced him to undergo rigorous imprisonment for three months and imposed a fine of Rs. 2000 in default of which to undergo rigorous imprisonment for fifteen days more. The imputations were such which would amount to criminal contempt as defined by sec. 2(c)(i) reading as under:
"2(c)(i) criminal contempt means the publication (whether by word. spoken or written or by signs or by visible representations or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalise or tends to scandalise or lowers or tends to lower the authority of any court; or
The imputations are per se such that they result in scandalising the Judge who decided the matter and lowering the authority of the Court presided over by him. In the course of his memorandum of appeal he had referred to the Chief Metropolitan Magistrate who had passed the order of conviction and sentence against him as a great hypocrite in paragraph 12 of the appeal memo. In paragraph 14 of the appeal memo it has been mentioned that the learned Chief Metropolitan Magistrate had taken down the statement not as told by him but has taken down the statement quite according to his whim will and caprice. In the course of the same paragraph he has made the following imputations:
"It seems that the learned Chief Metropolitan Magistrate has reserved for himself the rights of running down the witnesses who do not depose according to his notions and wishes sitting like a padagogue on a raised platform In he has formed the habit f making all sorts of comments on the accused applicant."
In paragraph 15(iii) it has been stated that the learned Chief Metro- politan Magistrate has dishonestly recorded the further statement of the accused-appellant and has written down the facts in a positive manner though they were totally denied by the accused. Thus opponent No. 1 Lakhiram Shivram has made serious imputations against the learned Chief Metropolitan Magistrate which scandalise the Court and lowers the authority of the Court presided over by him. He is therefore guilty of committing contempt of Court punishable under sec. 12 of the Contempt of Courts Act 1971 The said Lakhiram has placed on record his unconditional apology and has withdrawn the allegations and imputations made by him unconditionally. The apology is sworn by him on 23/02/1983 I earned counsel appearing for him states that his client is feeling contrite and has tendered his unconditional apology. In paragraph 2 of his affidavit containing his apology it has in terms been stated that the appeal memo was got typed by him and that the contents of the appeal memo had been explained to him in Gujarati and that he knew what was written in the appeal memo. We do not think that merely because opponent No. 1 Lakhiram Shivram has tendered his unconditional apology and has withdrawn the imputations made against the learned Chief Metropolitan Magistrate we should allow him to go unpunished otherwise all that one has to do is to commit contempt of Court by scandalising a Magistrate presiding over the Court in any terms that he likes and all that he has to do is to tender unconditional apology which does not result in his having to undergo any suffering. If such an apology were to be accepted as a matter of course we would in fact be issuing a licence to scandalise Courts and commit contempt of Court with impunity. It will be difficult to persuade members of the Bar to join judiciary and to act in a fearless manner without maintaining their independence We cannot permit litigants to make such imputations against them with with impunity. A line has to be drawn somewhere and an example has to be set much as we dislike exercising the contempt jurisdiction which we are fully aware must be exercised very sparingly and with circumspection. We do not think that we can adopt the attitude of showing mercy on our part when a great deal of damage is caused to the institution and the Judge who has decided the matter against the litigant has been subjected to a torture of being scandalise in this manner. We have yet to come across an instance of a Judge who can deliver a judgment Which does not displease one side or the other. By the very nature of his work he has to decide matters against one or other of the parties If the mere fact that he decides the matter against the litigant were to expose him to such risk no member of the Bar would come forward to join Judiciary and it will cause great damage to the institution We therefore cannot take a lenient or inelegant view of this matter. We do not want to create a situation where a Judge cannot work with dignity and independence by reason of the fear he has to entertain of the cankerous litigants who can hurl any abuses that strike them We therefore think that this is a case where considerations regarding maintenance of the independence of the Judiciary and the morale of the Judges den and that we do not allow opponent No 1 to escape with impunity on mere expression of regrets and tendering of an apology The apology does not wipe out the mis- chief arising on account of the scandalous allegations made in the appeal memo We are therefore of the opinion that this is a matter where a sentence must be imposed on opponent No.1 We hold opponent No. 1 guilty of committing contempt of Court punishable under sec. 12 of the Contempt of Courts Act We will now proceed to impose an appropriate sentence on him We think that we should have have imposed substantive sentence of atleast one months imprisonment having regard to the cirCumstances of the case and with a view to see that the others who are like minded do not indulge in these activities without resultant Consequences However wv have been persuaded by the learned counsel for opponent No. 1 who has made a fervent appeal for making a sympathetic approach We time that the ends of justice will be met if opponent No. 1 is sentenced to imprisonment till the rising of the Court and fine of Rs 1000/- is imposed on him on failure to pay the fine he will have to undergo further sentence of imprisonment for fifteen days The fine will have to be paid by 14/03/1983 on his failure to pay the fine the learned Public Prosecutor will apply for a warrant of his arrest and detention for fifteen days in Civil Prison to issue.
(2.)So far as opponent No 2 is concerned we have taken into account the affidavit placed on record by him and we do not think that in the circumstances of the case any action is called for against opponent No. 2 who is a junior Advocate and who does not seem to have taken any active part in drawing up the appeal memo. We have no doubt that he will be very careful in future and will not even allow himself to be indirectly associated with a litigant who makes such allegations.
(3.)Before parting we may say that the learned Additional City Sessions Judge at Ahmedabad who heard Criminal Appeal No. 178/81 preferred by opponent No. 1 has dealt with imputations against the learned Chief Metropolitan Magistrate in paragraph 7 of his judgment. Says the learned Judge :
"The appellant has in his memo of appeal made certain undesirable remarks against the learned trial Magistrate by branding him as a great hypocrate. That is in para 12 of the appeal memo. Similarly in paragraph 14 of the appeal memo also the appellant has made certain considerable remarks against the learned trial magistrate. I think the appellant ought to have exercised same restraint in this regard. A judicial order might be erroneous or illegal. Its correctness can always be challenged. But then such challenge should be couched in a language befitting such challenge. Restraints should be observed in giving expression to such challenge and no motives against any judicial authority should be attributed. Use of derogatory or disparaging remarks against a judicial officer cannot and does not tilt the balance in favour of the author of such remarks because ultimately every case will have to be decided on its own merits."
We must place on record our extreme distress at the manner in which this aspect has been dealt with by the learned Additional City Sessions Judge. In fact the learned Judge should have refused to hear the appeal till the scandalous allegations were deleted from the appeal memo. In any case the learned Additional City Sessions Judge on his own should have made a reference to this Court for initiating contempt proceedings against the appellant before him namely Lakhiram Shivram. It was not sufficient merely to disapprove of the allegations made in the appeal memo. A copy of this order shall be sent to the learned Additional City Sessions Judge who decided Criminal Appeal No. 173.