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TMI Blog1954 (10) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ion against him and treating him as a national of Pakistan which he never was. He prayed for an interim order of prohibition against the State from deporting him after the expiry of the permit. The High Court granted the interim order of prohibition against the action complained. At the hearing of the case on 11th August, 1950, a preliminary objection was raised on behalf of the State that Zikar had suppressed material facts in the petition filed by him and that the petition was therefore liable to be dismissed without going into the merits. Shri Shareef, who was counsel for Zikar, combated this contention and further submitted that the preliminary objection could not be adequately dealt with without going into the merits of the case. On behalf of the State another affidavit was filed on 17th August, 1950, stating certain facts, and Zikar was also directed to file an affidavit in reply by the 21st August, 1950, and this he did by that date. The relevant proceedings of that date are recorded in these terms :- Shri Shareef for the petitioner. Shri Naik for the respondent. He files an affidavit and copies of applications dated 25th February, 1949 and 19th January, 1950. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e committed for contempt for scandalizing the Court, with a view to perverting the due course of justice by making statements in the transfer application impeaching the impartiality of the Judges. 5. Dr. Kathalay filed his written statement in reply to the show cause notice, on the 4th October, 1950. He averred that he could not honestly admit that he scandalized the Court and committed contempt either in fact or in law and contended that in his whole career at the Bar for forty years he observed the highest traditions of this learned profession, upholding always the dignity of the Courts and that he had no animus against the Judges of the Division Bench. He asserted that by signing the application he did not scandalize or intend to scandalize the Court and that he bona fide thought that an application could be made for transferring a case in the High Court from one Bench to another and that the question did not concern him alone but the Bench and Bar generally and a question of great principle emerged, viz., whether a counsel was guilty of contempt in signing such an application, or whether it was his professional duty to do so if his client was under that bona fide impression. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part renders it difficult for the court to accept the belated plea of an error of judgment. Even the expression 'error of judgment' was not so much mentioned in the argument until the last day of the argument. We have already shown in para. 100 how it was introduced in the two statements on 16th October, 1950, quite contrary to fact. If the two advocates felt that there was an error of judgment on their part, it would have been more appropriate to make a candid and clear admission of that and make reparation for the injury done by an adequate apology. We cannot treat the expression 'I very much regret that all this should have happened' as an apology at all. Nor were we ever asked to treat it as such. What is it that the two advocates regret ? So many things have happened since 21st August, 1950. Any expression of regret to merit consideration must be genuine contriteness for what the contemners have done. 9. In the result the learned Judges passed the following order :- We accordingly sentence Shri M. Y. Shareef to pay a fine of ₹ 500 or in default to undergo simple imprisonment for two weeks and we sentence Dr. D. W. Kathalay to pay a fine of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne at all. 14. Having approached the matter thus, the learned Judges referred to a large number of cases for the admitted proposition of law that a sincere apology does not entitle a contemner as of right to a remission of the sentence. It was further thought that acceptance of apology would lead to an invidious distinction being made in the case of two advocates and Zikar. In the result the apology was not accepted and the report concluded with the following observations : - If in the circumstances of this case, the apology were to be accepted, we would be encouraging the notion that it is the contemners's right to get his apology accepted when he chooses and in whatever manner he tenders even in a case where he has aggravated the original offence. We will be unsettling established principles, and setting a bad precedent. Above all, we would be dealing a blow to the authority of the court, the consequence of which cannot be viewed with equanimity. 15. When the appeal came back to us, we asked Dr. Tek Chand who appeared for the two advocates whether his clients were even now genuinely sorry for signing the transfer application and whether the expression of regr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of justice, are themselves guilty of contempt of Court, and that it is no duty of a counsel to his client to take any interest in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications. Once the fact is recognized as was done by the High Court here, that the members of the Bar have not fully realized the implications of their signing such applications and are firmly under the belief that their conduct in doing so is in accordance with professional ethics, it has to be held that the act of the two appellants in this case was done under a mistaken view of their rights and duties, and in such cases even a qualified apology may well be considered by a Court. In border line cases where a question of principle about the rights of counsel and their duties has to be settled, an alternative plea of apology merits consideration; for it is possible for a judge who hears the case to hold that there is no contempt in which case a defence of unqualified apology is meaningless, because that would amount to the admission of the commission of an offence. In this case the learned judges themselves had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above. Once however the High Court found that they were guilty of contempt, they would have been well advised to tender an unqualified apology to that Court forthwith. But perhaps they were still under the delusion that they were right and the Court was in error, and that by coming to this Court they might be able to have the question of principle settled as they contended. As soon as we indicated to the learned counsel that they were in error, they and their counsel immediately tendered an unqualified apology which, as already indicated, was repeated again in absolute terms at the second hearing. We have not been able to appreciate why the learned Judges of the High Court should have doubted the genuineness of this apology. It certainly was not the object and could not be the object of the learned Judges of the High Court to humiliate senior counsel and to expect something more from them than what they had already done in this Court. While unhesitatingly deprecating very strongly the conduct of the appellants in scandalizing the Court by becoming parties to an unnecessary and untenable transfer application, we still feel that in the matter of measure of punishment the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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