IMTIYAZ MURTAZA,J. - (1.) PRESENT contempt proceeding emanates from the Reference made by Sri Himanshu Bhatnagar, the then Chief Judicial Magistrate, Ghaziabad with accompanying letter of the District Judge dated 11.5.2007 studded with the request for initiation of contempt proceeding against the contemnors namely, Shailendra Sharma and Nahar Singh Yadav, Advocates, Civil Courts Ghaziabad.
(2.) THE abridged version as encapsulated in the Reference made to this court is that the application for surrender bearing no. 176 of 2007 State v. Shiv Kumar, P.S. Modi Nagar had been moved before the Addl. Chief Judicial Magistrate, VIII Ghaziabad which subsequently came up before the Chief Judicial Magistrate on 16.5.2007. The aforesaid application was fixed for 17.5.2009 on which date the contemnors put in appearance and demanded early hearing attended with prayer to summon the case diary. However, the officer in his discretion posted the matter for 21.5.2007 for disposal of the application attended with the order to summon the case diary. However, adjourning the application to 21.5.2007 was not relished by the contemnors. It would further transpire that as soon as the officer retired to his chamber after finishing the court work, the contemnors followed him and entered the chamber indulging in name calling and using vituperative language. To be precise, one of the contemnor namely, Shailendra Sharma caught hold of the hands of the officer while contemnor Nahar Singh Yadav tried to bolt the door of the chambers. Sensing trouble, the Presiding officer rushed back to Dais and sat in the court. In the meanwhile, Senior Administrative officer of the Judgeship was sent for, who came there and took the two lawyers to the chambers of the District Judge. After about 10 to 15 minutes, the two lawyers again came to the chamber of the officer and indulged in abrasive behavior using disrespectful, impolite and discourteous and un -parliamentary language against the officer. It is precisely stated that on their return again, the precise words used by the contemnor Nahar Singh Yadav against the officer were to the effect: "Tu Mujhe Yahan Nazar Andaz Kar Ke Kam Nahi Kar Payega. Adhivakta Ke Alva Mere Aur Bhi Bahut Se Dhande Hain. Mera Yahan Pata Bhi Nahi Payega. Use Jail Vail Say Koi Dar Nahi Hai Aur Voh To Pahle Kitne Hi Mukdamon Mein Band Ho Chuka Hai." The precise words uttered by contemnor Shailendra Sharma are to the effect: "Use Kisi Awmanana Ki Karvahi Se Koi Dar Nahin Lagta Uske Upar 4 Awmanana Ki Karvahi Chl Chuki Hai Jo Aapse Ban pade Kar Lo." It is further stated that the contemnor Nahar Singh also threatened the officer to kill him. On 21.5.2007, it would transpire, the matter was put up before the Administrative Judge Ghaziabad who appended the following remarks: "Approved for action in contempt. Place before Hon. C.J." Hon. Chief Justice vide order dated 20.2.2008 appended approval to the Reference with the direction to list the Reference before the Appropriate Bench. It is in this conspectus that the matter has come up before the Bench. Sri Satish Trivedi assisted by Sri V.K.Jaiswal, Manu Yadav and Nitin Gupta appeared for the contemnors and pleaded for merciful view in the matter. On being called upon to argue the case on merit of the case, he referred to apology stating that the contemnor has already tendered the apology and prayed for discharge taking a benign view further urging that that the contemnors were fairly senior having been enrolled as Advocate in the year 1975 in so far as Nahar Singh Yadav is concerned attended with further submission that he can not be said to be addicted to using contemptuous language and making scurrilous attacks nor is there any previous instance of his showing disrespect to the court in so far as contemnor Shailendra Sharma is concerned and whatever has happened in Court was in the spontaneity. Ultimately, he stated that the contemnors should be given a chance to expiate their deviant behaviour if it be so. We are anguished that we have to deal with a case involving lawyers under the Contempt of Court Act. We however indicate to ourselves the piece of advice that the Court while dealing with contempt matter should not be over or hypersensitive and should not exercise this jurisdiction on any exaggerated notion of the dignity of the Judges and must act taking a dispassionate view of the entire matter. It is the settled principles that the rule of contempt is not to be lightly invoked and is not to be used as a cloak to cow down somebody into submission on the basis of fancied claim. It is intended to offer protection to the court itself or to a party in judicial proceeding whose interest may be affected or the authority of the court is lowered and the confidence of the people in the administration of justice is weakened. At the same time, it should be borne in mind that the Court is the protector of public justice and it has a stake in the dignity and protection of those who man the court.
(3.) IN the counter affidavit filed by the contemnor Shailendra Sharma sworn on 23rd August 2008, the contemnor in Para 3 has begun with the statement that he has had the highest respect for the court and never acted in a manner which even remotely identified him with a contempt of court fringed with submission that without going into the merits of the allegations, he tenders his unconditional apology for his unintentional act which the Court views as contempt of the Court. In Para 4, the contemnor craved leave to bring on record the actual facts and events which according to him are demonstrative of his complete innocence and unmasks the falsehood of the allegation so labelled against him. In Para 5, he has set out the sequence of events attended with averment that Himanshu Bhatnagar has levelled false allegations against him and Nahar Singh Yadav. In Para 7, he has denied the allegations imputed to him attended with averments that on 4.4.2007 surrender application was moved by Pradeep Tyagi Advocate on behalf of Shiv Kumar before Addl. Chief Judicial Magistrate VIII Ghaziabad and the report was called for from the concerned police station the same day. In Para 8, it is averred that the report was submitted by the police on 5.4.2007 that Shiv Kumar was wanted in case crime no. 214 of 2007. In Para 9, it is averred that the offences in which aforesaid Shiv Kumar was wanted, was bailable offence but no orders were passed by the learned Magistrate on that date. In Para 10, it is averred that on 6.4.2007, the learned A.C.J.M called for fresh report from the police station and fixed 9.4.2007. The police submitted its report on 9.4.2007 in which aforesaid Shiv Kumar was also shown to be wanted in section 420 IPC. The application was rejected on 9.4.2007. In Para 11, it is averred that aforesaid Shiv Kumar filed application for surrender on 16.5.2007 before the Addl. Chief Judicial Magistrate VIII Ghaziabad. The application was transferred before the Chief Judicial Magistrate Ghaziabad fixing 17.5.2007. The Chief Judaical Magistrate posted the matter for 21.5.2007. In Para 12, it is stated that Shiv Kumar surrendered before the C.J.M on 22.5.2007 followed by application for bail before the learned Special Judicial Magistrate (C.B.I.). The bail application was however rejected vide order dated 22.5.2007 passed by learned Special Judicial Magistrate (CBI). In Para 14, he denied the allegations that he exerted pressure on the C.J.M on 17.5.2007 for fixing early date as there was no occasion for him on account of the fact that 19.5.2007 was closed due to local strike and 20.5.2007 was Sunday. He also denied that there was any incident on 17.5.2007 as he immediately returned to his chamber. The averments made in Para 15 appear to be argumentative in that it is suggested that if any incident as alleged had happened on 17.5.2007, the presiding officer should have noted the same on the application dated 16.5.2007 itself which could only be forwarded to the District Judge for recommendation for initiation of contempt proceeding. In Para 16, it is stated that no such order or complaint was noted on the surrender application dated 16.5.2007 further suggesting that in fact no such incident had taken place. It is also stated that he sought queries in the form of question and answer but he was refused the certified copy of surrender application and orders passed thereon. In Para 17, it is stated that on 7.7.2008, the contemnor filed an application seeking documents regarding surrender application and orders passed thereon. The contemnor it is further averred made queries from the office regarding surrender of Shiv Kumar on 22.5.2007 and orders passed on the bail application but the office reported back that bail application dated 22.5.2007 and surrender application dated 16.5.2007 were not available on record. In Para 18, it is averred that on 22.7.2008, again question answer was applied in respect of surrender application no. 176 of 2007 dated 16.5.2007 and order passed by learned Magistrate dated 17.5.2007 but the office reported back that the application in question was not available on record. In Para 19, it is averred that the certified copies as demanded by him were refused by the office with a purpose to a design. It is suggested that no noting was scribed on the application No. 176 of 2007 on 17.5.2007 as regards the incident and therefore, it was inferable that no such incident took place. In Para 20, it is averred that the contemnor has been falsely nominated in the contempt petition. The contemnor made the imputation that his nomination in the contempt proceeding was a sequel to the fact that the contemnor as a senior Advocate of the Ghaziabad had headed a delegation which met Hon. Chief Justice on 13.5.2008 for taking action against Himanshu Bhatnagar attended with prayer to transfer him from Ghaziabad. In Para 21, it is averred that as a consequence of meeting of delegation which comprised him and Nahar Singh Yadav and other Advocates, the Chief Justice passed orders for making enquiry by Special Vigilance officer High Court Allahabad. In Para 22, the averments relate to his ailment and treatment. In Para 23, he reiterated that he had every respect for the court and the judicial officers and he had not indulged in any act as alleged in the complaint. He also stated that he has been practising for the last 28 years and has also served as elected secretary of the Bar Association. In Para 24 he averred that the complaint was made by the officer against him and Nahar Singh Yadav with the avowed object of saving his skin and also to crank up pressure upon the contemnors. In Para 25, he has referred to letter of the District Judge dated 11.5.2007 enclosing therewith the complaint of Himanshu Singh C.J.M dated 17.5.2007 attended with submission that if the incident had occurred on 17.5.2007 how could Distt Judge forward the complaint by means of letter dated 11.5.2007. In Para 26, it is averred that the complaint has been made against him and Nahar Singh Yadav with a view to putting pressure upon him and Nahar Singh Yadav to withdraw/not press the complaint made to Hon. Chief Justice. In Para 27, it is averred that the contemnor has not indulged in any act as alleged but if the Hon. Court comes to the conclusion that the answering respondent had committed contempt of court, the deponent renders his unconditional apology. He also prayed for dismissing the contempt petition and discharging the notices issued against the answering respondent.;