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TMI Blog2004 (4) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... in any court unless he has purged himself of the contempt. Contending that the said provision is violative of Articles 14 and 19(1)(g) of the Constitution of India as also Section 34(1) of the Advocates Act on the ground that it seriously impinges upon and usurps the powers of adjudication and punishment conferred on the Bar Councils under the Act as also the principles of natural justice as application thereof is automatic, this writ petition has been filed by the Petitioner. It is not in dispute that the validity of the said rule came up for consideration before a Bench of this Court in Pravin C. Shah Vs. K.A. Mohd. Ali and Another [(2001) 8 SCC 650] and therein it was upheld. The question appears to have also been deliberated upon before a Constitution Bench of this Court in Ex-Capt. Harish Uppal Vs. Union of India and Another [(2003) 2 SCC 45]. SUBMISSIONS: Despite the said decisions Mr. V.R. Reddy, learned senior counsel appearing on behalf of the writ petitioner, would urge, relying on or on the basis of the decision of this Court in Supreme Court Bar Association Vs. Union of India and Another [(1998) 4 SCC 409], that as in terms of the provisions of the Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile ethics and law were treated to be at par. Inherent power of the Court to punish a person for committing contempt of the court is universally recognised. The law of contempt is governed by the Statutes including Contempt of Courts Act, 1971 or other statutory laws relating thereto as, for example, Indian Penal Code and Code of Criminal Procedure but the powers of the superior courts are engrafted in the Constitution by reason of Articles 129 and 215 thereof providing that the Supreme Court and the High Court being a court of records shall have all the powers of such a court including the power to punish for contempt of itself. Apart from constitutional and statutory provisions, the inherent power of the court in that behalf is recognised. (See R.L. Kapur Vs. State of Madras (1972) 1 SCC 651). The country is governed by rule of law. Disobedience of the court's order has, thus, been held to strike at the very root of the said concept having regard to the system upon which our government is based. (See Kapildeo Prasad Sah and Others Vs. State of Bihar and Others (1999) 7 SCC 569) An advocate is allowed considerable freedom in conducting his case. In the interest of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, whether, for the future, decency and decorum shall or shall not be preserved in Courts of Justice; or whether, under colour of defending himself against any particular charge, a defendant is at liberty to introduce new, mischievous, and irrelevant matter upon the trial. I agree that a defendant, in all cases, should have every facility allowed him in his address to the jury, provided he confines himself within those rules which decency and decorum require. In every case, the subject of the discussion before the jury is to be considered, and a Judge is bound to see that the arguments which are adduced, are such as are consistent with decency and decorum, and not foreign to the matter on which the jury have to decide. In the said treatise, it has furthermore been noticed: Lord Goddard, C.J.'s last suggestion of barristers using threatening or abusive behaviour, or using provocative language, have already been discussed and need no further explanation, but as regards his first suggestion, that complete disregard of a Judge's ruling can amount to contempt, two cases may be cited to illustrate this type of contempt. The first is a recent Australian case, Lloyd Vs. Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the superior court, the right of freedom of speech conferred upon a citizen under Article 19(1)(a) of Constitution of India cannot stand as a bar as the power of this Court under the Article 129 and that of the High Court under Article 215 are independent and not subject to Article 19(1)(a); particularly when Clause (2) thereof excludes the operation thereof. (See Dr. D.C. Saxena Vs. Hon'ble the Chief Justice of India, (1996) 5 SCC 216). An advocate does not enjoy absolute privilege when acting in the course of his professional duties. The dignity of the court is required to be maintained in all situations. However, far-reaching implications the case may have but a lawyer is not justified in making personal attack upon the complainant or witnesses on matters not borne out by the record nor in using language which is abusive or obscene or in making vulgar gestures in court. An advocate in no circumstances is expected to descend to the level of appearing to support his view in a vulgar brawl. Our view is only illustrative in nature to show that the courts ordinarily exercise its power of contempt with due care and caution and not mechanically and whimsically. The pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tody and take cognizance of the offence and after giving the offender a reasonable opportunity of showing cause why he should not be punished to a fine of ₹ 200/- or imprisonment in default for one month. Section 346 provides for the procedure where the Court is of the opinion that the offender should be imprisoned otherwise than in default of payment of fine or that a fine exceeding two hundred rupees should be imposed on him or such court is for any reason of opinion that the case should not be disposed of under Section 345, such court after recording the facts constituting the offence and the statement of the accused may forward the case to a Magistrate having jurisdiction to try the same, and may require security to be given for the appearance of such person before such Magistrate or if sufficient security is not given, shall forward such person in custody to such Magistrate. Section 345 of the Code of Criminal Procedure deals with five classes of contempt, namely, (i) Intentional omission to produce a document by a person legally bound to do so; (ii) refusal to take oath when duly required to take one; (iii) refusal to answer questions by one legally bound to state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its jurisdiction under Article 129 of the Constitution of India which can be imposed on a finding of professional misconduct recorded in the manner prescribed under the Advocates Act and the rules framed thereunder but as has been noticed in the Supreme Court Bar Association (supra); professional misconduct of the advocate concerned is not a matter directly in issue in the matter of contempt case. In Supreme Court Bar Association (supra),however, this Court held: 57. In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing professional misconduct , depending upon the gravity or nature of his contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. The power to punish an advocate by suspending his licence or by removal of his name from the roll of the State Bar Council for proven professional misconduct vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts. The constitution Bench, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly functioning of the Courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the Courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of client even though his appearance inside the Court is not permitted. Conduct in Court is a matter concerning the Court and hence the Bar Council cannot claim that what should happen inside the Court could also be regulated by them in exercise of their disciplinary powers. The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the Court may be a specie. But the right to appear and conduct cases in the Court is a matter on which the Court must and does have major supervisory and contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a Court. Even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court. Thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts just as practice outside Courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other. This Court is bound by the aforementioned decisions. The question came up directly for consideration in Pravin C. Shah (supra). Thomas, J. speaking for the Bench inter alia observed that Rule 11 does not bind the disciplinary committee or any other organ of the Bar Council. It is in no way involved. It, however, may have a duty to inform a delinquent advocate of the Bar under Rule 11. 'Rule 11 concerns dignity and the orderly functioning of the courts', the court held and further observed: 16...Conduct in court is a matter concerning the court and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the said contention. NATURAL JUSTICE: Principle of natural justice is required to be observed by a court or Tribunal before a decision is rendered involving civil consequences. It may only in certain situation be read into Article 14 of the Constitution of India when an order is made in violation of the rules of natural justice. Principle of natural justice, however, cannot be stretched too far. Its application may be subject to the provisions of a statute or statutory rule. Before a contemnor is punished for contempt, the court is bound to give an opportunity of hearing to him. Even such an opportunity of hearing is necessary in a proceeding under Section 345 of the Code of Criminal Procedure. But if a law which is otherwise valid provides for the consequences of such a finding, the same by itself would not be violative of Article 14 of the Constitution of India inasmuch as only because another opportunity of hearing to a person, where a penalty is provided for as a logical consequence thereof, has been provided for. Even under the penal laws some offences carry minimum sentence. The gravity of such offences, thus, is recognized by the Legislature. The courts do not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby... The principles of natural justice, it is well-settled, must not be stretched too far. (See also Marda Chemicals Ltd. etc. etc. v. Union of India Ors. etc. etc. [ (2004) 4 Scale 338] and Canara Bank and Others Vs. Debasis Das and Others [(2003) 4 SCC 557]) In Union of India and Another Vs. Tulsiram Patel [(1985) 3 SCC 398] whereupon reliance has been placed by Mr. Reddy, this Court held: 97. Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal strait-jacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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