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2004 (4) TMI 577
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....round 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 Advocate Act, the Bar Council of India is entitled to punish an Advocate counsel for commission of misconduct whether professional or otherwise in terms of Section 35 thereof; Rule 11 framed by the High Court ....
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.... 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 client, he even can cast reflections upon the character, conduct or credit of parties or witnesses with impunity, provided such comments are relevant to the issue before the court and the same is not defamatory in charact....
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....s, 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. Biggin. Lloyd, a barrister, wanted a magistrate to rule whether or not certain evidence was admissible but the magistrate refused, stating that the question was not for him to decide. Lloyd then said: "But your Worship must determine ..." H....
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....t 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 power of contempt is not exercised only because it is lawful to do so but when it becomes imperative to uphold the rule of law. ADVOCATES ACT: The said Act was enacted to amend and consolidate the law relating to legal practitioners and to provide for the constitution of B....
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....der 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 the truth; (iv) refusal to sign a statement made to a public servant when legally required to do so; and (v) intentional insult or interruption to a public servant at any stage of a judicial proceeding. An advocate practicing in the Court can also be punished under the aforementioned provisions. DIST....
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....ncerned 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, in no uncertain terms observed: "80. In a given case it may be possible, for this Court or the High Court, to prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptu....
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....nts, 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 controlling power. Hence Courts cannot be and are not divested of control of supervision of conduct in Court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of Court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead....
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....y 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 hence the Bar Council cannot claim that what should happen inside the court could also be regulated by the Bar Council in exercise of its 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 whi....
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....e, 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 have any role to play in such a matter. Rule 11 framed by the Kerala High Court is legislative in character. As validity of the said rule has been upheld, it cannot be said that the same by itself, having not provided for a further opportunity of hearing the contemnor, would attract the wrath of Article 14 of the Constitution of India. In Mohinder Singh Gill and anot....