# Nisha Srivastava v. Dinesh Kumar

- **Citation:** (2010) 1 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-05
- **Case number:** Criminal Contempt No. 09 of 2009
- **Bench:** Imtiyaz Murtaza, S.S. Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nisha-srivastava-v-dinesh-kumar-41523
- **Pages:** 11

## Headnote

Contempt of Court Act, 1971-Section 2
(c)(1)-Criminal
Contempt-a
practicing
lawyer intimidate the Magistrate to get
favorable order-by throwing copy of
complaints with certain photo graphs
attack
made
on
presiding
officer
disapproving character and derogatory
to her dignity-shake the confidence of
public-would
be
termed
as
vitriolic
attack
on
judiciary-unconditional
apology also imputing the conduct of
Magistrate-held-not bona fide-5 months
simple
imprisonment
with
fine
of
Rs.20,000/- punishment imposed.

Held: Para 22 & 23

Now the question arises what would be
the appropriate sentence on the point. It
is the grossest contempt of court and in
the interest of justice and to uphold the
majesty of the courts, it is desirable to
award jail sentence in addition to fine.
The contemnor filed a paper at a last
stage styling as unconditional apology
although as stated supra, it does indicate
clear lack of real contriteness.

We accordingly convict him for offences
under section 2 (C) (1) of the Contempt
of Courts Act and sentence him to
undergo simple imprisonment for five
months and to pay a fine of Rs.20,000/-.
In
default,
it
may
be
prescribed,
contemnor shall undergo further simple
imprisonment for 15 days. However, the
punishment so imposed shall be kept in
abeyance for a period of sixty days so as
to enable the contemnor to approach the
Apex Court if so advised. It needs hardly
be said that immediately after expiry of
sixty days in case no stay order is
furnished by the contemnor, he would be
taken into custody forthwith to serve out
the sentence immediately.
Case law discussed:
(1991) 4 SCC 406, (1994) 4 SCC 687, [1984] 3
SCC 405, (1991) 4 SCC 406, (1991) 3 SCC

## Text

1 All] Nisha Srivastava V. Dinesh Kumar
67
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2010

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE S.S. TIWARI, J.

Criminal Contempt No. 09 of 2009

Nisha Srivastava

...Applicant
Versus
Dinesh Kumar

...Opposite Party

Counsel for the Appellants:
A.G.A.

Counsel for the Opposite Party:
Sri R.P. Mishra
Sri S.K. Srivastava

Contempt of Court Act, 1971-Section 2
(c)(1)-Criminal
Contempt-a
practicing
lawyer intimidate the Magistrate to get
favorable order-by throwing copy of
complaints with certain photo graphs
attack
made
on
presiding
officer
disapproving character and derogatory
to her dignity-shake the confidence of
public-would
be
termed
as
vitriolic
attack
on
judiciary-unconditional
apology also imputing the conduct of
Magistrate-held-not bona fide-5 months
simple
imprisonment
with
fine
of
Rs.20,000/- punishment imposed.

Held: Para 22 & 23

Now the question arises what would be
the appropriate sentence on the point. It
is the grossest contempt of court and in
the interest of justice and to uphold the
majesty of the courts, it is desirable to
award jail sentence in addition to fine.
The contemnor filed a paper at a last
stage styling as unconditional apology
although as stated supra, it does indicate
clear lack of real contriteness.

We accordingly convict him for offences
under section 2 (C) (1) of the Contempt
of Courts Act and sentence him to
undergo simple imprisonment for five
months and to pay a fine of Rs.20,000/-.
In
default,
it
may
be
prescribed,
contemnor shall undergo further simple
imprisonment for 15 days. However, the
punishment so imposed shall be kept in
abeyance for a period of sixty days so as
to enable the contemnor to approach the
Apex Court if so advised. It needs hardly
be said that immediately after expiry of
sixty days in case no stay order is
furnished by the contemnor, he would be
taken into custody forthwith to serve out
the sentence immediately.
Case law discussed:
(1991) 4 SCC 406, (1994) 4 SCC 687, [1984] 3
SCC 405, (1991) 4 SCC 406, (1991) 3 SCC
600.

(Delivered by Hon'ble Imtiyaz Murtaza J.)

1. Present contempt petition has its
genesis in the reference made by Km.
Nisha Srivastava, Judicial Magistrate I
Allahabad
for
initiating
contempt
proceeding under the Contempt of Court
Act 1971 against Sri Dinesh Kumar and
others for scandalizing the officer by
lodging F.I.R which was registered at case
crime No. 462 of 2009 under section 384
IPC P.S. Indrapuram District Ghaziabad.

2. In reference made to this Court,
the officer recapitulated the facts as
under: On 8.3.2009, the officer left for
Sonebhadra for her native place for Holi
festival. It is alleged that on 13.3.2009 at
about 10 a.m, a bunch of papers was
thrown inside her house i.e. J-8 situated in
judicial officer's colony known as Juhi
Colony Rajapur, Allahabad. It is further
alleged that her sister was at that time
present at the house having returned to
Allahabad on 13.3.2009 at 5 a.m. The
sister, it is further alleged, untied the
bunch of papers which consisted of photo
copies of complaint made to Hon. Chief
68 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Justice, paper cuttings and F.I.R dated
28.2.2009 lodged at Ghaziabad naming
one lady SO and the officer and one
person
(male)
of
Mahila
Thana
Allahabad. The complaint substantially
mentioned that two ladies accompanied
by one male had visited the complainant
house on 22.2.2009 demanding illegal
gratification to the extent of Rs. 2 lac
from him in exchange for favour of
expunging the case lodged at case crime
No. 68 of 2007. The allegation further is
that the Lady S.O gave her identity and
conveyed to him that she had come in
connection with investigation of the case.
It is further alleged that when the
complainant rang up the local police, both
the ladies with accompanying male left
the place. In her reference, the officer
explained that 22.3.2009 being Sunday,
and 23.3.2009 being also holiday on
account of Shivratri, she was present at
Allahabad and there was no occasion for
her to have left the station and further that
she had no acquaintance with Leena
Srivastava the lady S.O.

3. On the reference the office of this
Court scripted a note in which it was
opined that the act of Sri Dinesh Kumar
complainant of District Ghaziabad falls
within the ambit of Criminal Contempt of
Court. The matter ultimately reached the
end of Hon. Chief Justice who vide order
dated
6.5.2009
referred
it
to
the
appropriate Bench on judicial side.

4. It would transpire from the record
that a criminal case was already pending
against the complainant Dinesh Kumar at
case crime No. 68 of 2007 registered at
P.S. Mahila Thana Allahabad at the
instance of the wife of younger brother of
the complainant on 4.12.2007 under
sections 498 A, 323, 504, 506, 406, 420,
376, 511 IPC and 3⁄4 of the Dowry
Prohibition Act. It brooks no dispute that
the officer being posted at Allahabad as
judicial Magistrate was seized of the
matter. The police had submitted Final
report in the case and after weighing up
the materials on record in all its pros and
cons, the officer passed the order dated
27.1.2009 whereby she did not accept the
final report and directed the matter to be
reinvestigated. It is in this backdrop that
the complainant embroidered the story in
order to lend colour to the contents in the
F.I.R.

5. On the case being called out to
day, an objection having complexion of
preliminary objection has been raised by
way of an application seeking discharge
from
contempt
proceeding.
In
his
application, he has raised three fold
questions firstly that the officer has cited
certain decisions of the Apex Court the
ratio of which has been misinterpreted to
screen herself from departmental enquiry
and criminal acts. The second question
canvassed is that acts done in discharge of
duties do not include cases of abuse of
powers and to prop up this contention, he
has relied upon a decision of the Apex
Court reported in AIR 2009 SC 1404. The
third point canvassed is that the officer
prevailed upon the investigating officer
investigating case at case crime no. 462 of
2009 under section 384, 120 B IPC
lodged at P.S. Indirapuram Ghaziabad
naming the officer and lady S.O of Police
Station
Mahila
Allahabad.
All
the
questions have been dealt with at length
in the order dated 23.10.2009 and the
relevant part of the order is excerpted
below.

"The case referred i.e. AIR 2009 SC
1404 upon being scrutinized, appears to
1 All] Nisha Srivastava V. Dinesh Kumar
69
be one relating to police officer and
therefore, the ratio of that case cannot be
imported for application to a judicial
officer who is protected by separate Act
called Judicial officer Protection Act.
Besides, it may be stated that the position
is well settled by a stream of decisions
that there would be no court without a
presiding officer and therefore, the word
court used in the Contempt of Courts Act
has the meaning of a Court with a
presiding officer and not the empty court
room. Under the circumstances, abusing
or scandalizing the Presiding officer of
the Court is really the crux of the matter
and constitutes contempt of Court under
the Act.

The third point canvassed before us
is that the officer prevailed upon the
investigating
officer
to
scuttle
the
investigation.
To
bolster
up
this
contention, he stated that the investigation
was taken to finality within a span of six
days which is unheard of in history. The
learned counsel has also referred to
conversation allegedly recorded by the
complainant Dinesh Kumar which is
annexed as Annexure R.10 to his
Discharge Application. We have gone
through the Annexure R. 10. It refers to
conversation between Dinesh Kumar
complainant and one S.C. Sharma, the
investigating officer of the said case i.e.
case crime No. 462 of 2009 lodged at
Ghaziabad. We have searched the entire
conversation translated in English which
is contained in Annexure R-10 for
reference to the officer. The crux of what
has been stated therein is that there was
pressure upon the person describing
himself as S.C. Sharma to file final report
in the matter. However, there is not an
iota therein bespeaking that the officer
was involved or she tried to prevail upon
the investigating officer. Even otherwise,
the truthfulness of the conversation
whether the person speaking as S.C.
Sharma was the same person or someone
was
impersonating
himself
as
S.C.
Sharma, remains untested. The officer is a
judicial officer who could not leave the
station without permission to leave the
station. The contemnor has not brought
on record anything which could evince
that the officer had left Allahabad for
Ghaziabad on and around the date
alongwith lady S.H.O. Come what may, it
is not the stage at which the veracity of
the allegations can be gone into."

6. It is settled position in law that
any conduct by which the course of
justice is perverted either by a party or a
stranger is a contempt. Acts which are
calculated to undermine the authority of
the court and disturb the confidence of the
citizen in the efficacy of its order will
have to be considered as contempt. It is
obvious from the record that the officer
had passed the order on 29.1.2009
rejecting the final report which annoyed
the contemnor and ostensibly, in an an
attempt to avenge for the orders he
embroidered the story and filed the F.I.R.
This conduct of the contemnor offends the
majesty of law and undermines the
dignity of the court.

7. Be that as it may, it would suffice
to say that there are catena of decisions on
the point by which the judicial officers
have been amply protected for harassment
either from the executive or by the public
at large for the acts done in the discharge
of judicial functions. Besides the decision
of Delhi Judicial Service Association v.
State of Gujarat (1991) 4 SCC 406, there
is ex-cathedra decision of the Apex Court
in U.P. Judicial Officers Association v.
70 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Union of India (1994) 4 SCC 687
wherein the Apex Court added to the
guidelines issued in Delhi Judicial Service
Association v. State of Gujarat (supra).
While laying down guidelines, the Delhi
Judicial Officers Association v. State of
Gujarat, the Apex Court had spelt out that
the above guidelines were not exhaustive
but these were minimum safeguards
which must be observed in case of arrest
of a judicial officer. These guidelines
should be implemented by the State
Government as well as by the High
Courts.
In
U.P.
Judicial
officers
Association v. Union of India the para 3
being germane to the issue involved in
this matter is abstracted below.

"In
Delhi
Judicial
Service
Association v. State of Gujarat this Court
issued the following guidelines: (SCC pp
411- 12)
"(A) AJjudicial Officer should be arrested
for any offence under intimation to
District Judge or the High Court as the
case may be.
(B) In case of necessity for immediate
arrest of a Judicial Officer only a
technical or formal arrest may be
effected.
(C ) The fact of such arrest should be
immediately communicated to the District
and Sessions Judge of the concerned
District and the Chief Justice of the High
Court.
(D) The Judicial Officer so arrested shall
not be taken to a police station, without
the prior order or directions of the
District and Sessions Judge of the
concerned district, if available.
(E) Immediate facilities shall be provided
to the Judicial Officer for communication
with his family members, legal advisers
and Judicial officers, including the
District and Sessions Judge.
(F) No statement of a Judicial Officer
who is under arrest be recorded nor any
panchnama be drawn up nor any medical
tests be conducted except in the presence
of the Legal Adviser of the Judicial
Officer concerned or another Judicial
Officer of equal or higher rank, if
available.
(G) Ordinarily there should be no
handcuffing of a Judicial Officer.
The above guidelines are not exhaustive
but these are minimum safeguards which
must be observed in case of arrest of a
Judicial officer. These guidelines should
be implemented by the State Government
as well as by the High Courts."
The aforesaid guidelines were in regard
to all offenses generally; but when any
criminal conduct is attributed to a judicial
officer in discharge of his duties or in
purported exercise or discharge of his
duties, we direct that in addition, no
crime
for
investigation
should
be
registered pursuant to any FIR without
the permission of the Chief Justice of the
High Court concerned."

8. Reverting to the facts of the
present case, it would appear, as stated
supra, the officer had not accepted the
Final Report submitted in the criminal
case registered by the wife of younger
brother of Dinesh Kumar on 27.1.2009
and aggrieved by the order aforesaid, the
F.I.R naming the officer as one of the
accused in the matter was lodged.
Therefore, the F.I.R against the officer ex
facie appears to be the off-shoot of order
dated 27.1.2009 whereby the final report
had not been accepted by the officer. The
object of the contempt proceeding is that
the authority of the court is not lowered
and the confidence of the people in the
administration of justice is not weakened.
In the instant case, the action of lodging
1 All] Nisha Srivastava V. Dinesh Kumar
71
the F.I.R, it would appear, is fraught with
the consequence of undermining the
confidence
of
the
public
in
the
competence and integrity of the officer
and it cannot be ruled out that it is likely
to deflect the court itself from a strict and
unhesitant performance of its duties.

9. 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.

10. In the affidavit filed by the
contemnor alongwith application seeking
discharge. The prayer for discharge has
already been disallowed. In para 2, the
contemnor averred that after passing order
dated 27.1.2009 officer stood transferred
to Lucknow and therefore she was not
seized of the file of crime no. 68 of 2007
and therefore, the plea that the contemnor
filed FIR at case crime no. 462 of 2009
dated 28.2.2009 to put pressure on her for
favourable order in crime no. 68 of 2007,
is false. It is also averred that the
contemnor and his brother do not practise
law at Allahabad and therefore, the
question of interference as alleged does
not arise. In the self same para, the
contemnor reiterated the contents of the
F.I.R stating that some lady of the same
complexion
and
stature
personating
herself as Magistrate posted at Allahabad
approached
him
and
demanded
gratification. In para 3, the contemnor
denied that he knew the Magistrate from
before or that he ever appeared before her
or before any court till filing of the
counter affidavit. In para 4, it is averred
that the contempt has been initiated
against the contemnor as a counter blast
to criminal action sought against her
through complaint dated 14.3.2009 which
it is alleged is already pending before
Chief Justice and before Director General
of Police Lucknow. In para 6, it is averred
that the crime received wide publicity in
newspaper on 2.3.2009 and he had no role
and explained that he inquired from the
news agency and he was informed that the
news was collected from the police station
before being published in the news
papers. In para 7 of the affidavit, it is
averred that he verified personally from
Allahabad and he was satisfied that the
lady personating herself as Magistrate
who had tried to extort money from him
was in fact posted as Magistrate at
Allahabad and her name was Nisha. In
para 8, the contemnor averred that on
enquiry made in the first or second week
of March 2009 from Allahabad he
surfaced that the case at case crime No.
68 of 2007 fell within the jurisdiction of
the self same Magistrate who had
approached her and had demanded money
and thereafter he made complaint to Hon.
Chief
Justice
for
taking
necessary
department and criminal action under
section 384, 218, 219 120 B IPC followed
72 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
by complaints to the Governor of U.P.
D.G.P Lucknow. He also explained that
had he known the Magistrate from before
he would have certainly mentioned her
name in the F.I.R instead of saying that
one of the ladies told her name as Ms.
Nisha Magistrate on being asked. In para
9, he averred that he received letter dated
4.4.2009 and 14.4.2009 from C.O. Police
V Allahabad to come over to Allahabad to
assist him in the investigation of the
complaint dated 14.3.2009. In para 11 the
contemnor averred that to frustrate actions
yet to be taken by the High Court
administration, Ms. Nisha intentionally
filed
contempt
application
dated
17.4.2009 and succeeded in getting notice
issued on 20.5.2009 and such course of
action amounted to grave misconduct on
her part. In para 12, he denied to have
knowledge whether any final report was
filed by the police or what orders were
passed on final report by the concerned
Magistrate and he termed efforts to link
order dated 27.1.2009 with case crime no.
68 of 2007 as baseless. In para 13, it is
averred that the proceeding in case crime
No. 68 of 2007 were taken in challenge in
writ petition in which Division Bench of
the High Court stayed the proceeding. It
would transpire from the record that in the
proceeding challenged before the High
Court, the Division Bench passed the
order referring the matter to Mediation
Centre on account of the case being one
relating to dowry dispute and the stay
order against arrest was limited subject to
report of mediation centre. It is further
averred that Ms. Nisha after passing order
dated 27.1.2009 in case crime no. 68 of
2007 has been transferred to Lucknow.
This averment does not commend to us
for acceptance as the officer has not been
transferred on any administrative ground
by way of punishment as a result of
complaint made by the contemnor. The
office has not reported whether the
complaint preferred by the contemnor
against the officer addressed to Chief
Justice is still in active consideration.
However, it would suffice to say that we
are dealing with contempt proceeding and
we are not concerned with any action if
any being taken on administrative side by
this Court.

11. An application anointed as
Unconditional apology has been filed by
the contemnor which is not either
accompanied with any affidavit nor does
it appear to be proper application as it
does not bear any registration number or
does it appear to have been processed and
filed by adopting procedure prescribed.
However, in the said application, it is
stated that he was not aware of any
statutory law or case law reported till date
which bars reporting of crime/registration
of FIR for the offence of extortion as
defined under section 384 IPC against a
Judicial
Magistrate.
However,
he
canvassed that the aforesaid case law does
not bar reporting of extortion to the police
against the judicial officer. In para 3 it is
stated that reporting of crime to the police
against the officer at Ghaziabad was
neither intention nor deliberate. In para 4
it is stated that the contemnor undertakes
not to report such offence ever against
judicial
officer
and
tender
his
unconditional apology for reporting of
such offence/incident to the local police at
Ghaziabad against Ms. Nisha Srivastava
Judicial Magistrate.

12. Before we proceed further with
the matter, we would also not flinch from
saying that the apology is not to be used
as a weapon of defence forged always to
be used as a shield to protect the
1 All] Nisha Srivastava V. Dinesh Kumar
73
contemnor as a last resort. It is intended to
be evidence of real contriteness. The
apology, in order to dilute the gravity of
the offence, it has repeatedly been ruled in
catena of decisions, should be voluntary,
unconditional and indicative of remorse
and real contrition and it should be
tendered at the earliest opportunity. We
have to administer caution to ourselves
that we should not be inveigled into
accepting apology from those who are
addicted to using contemptuous language
and making scurrilous attacks and have to
their
discredit,
earlier
instance
of
misfeasance. From the apology tendered
by the contemnor, there is discernible lack
of contriteness inasmuch as in para 2 it is
stated that the case law cited does not bar
reporting of offence of extortion to the
police against the judicial Magistrate. In
the counter affidavit as discussed above, it
clearly transpires that the contemnor at no
stage was repentant for his conduct and
instead, split up the facts in order to show
that the officer approached him at
Ghaziabad alongwith lady police officer
and demanded illegal gratification for
showing favour in the criminal case
pending in her court.

13. In L.D. Jaikwal v. State of
U.P., [1984] 3 SCC 405, the Apex Court
described the apology as a 'paper apology
and refused to accept it in the following
words:

"We do not think that merely because
the appellant has tendered his apology we
should set aside the sentence and allow
him to go unpunished. Otherwise, all that
a person wanting to intimidate a Judge by
making the grossest imputations against
him has to do, is to go ahead and
scandalize him, and later on tender a
formal empty apology which costs him
practically nothing. If such an apology
were to be accepted, as a rule, and not as
an exception, we would in fact be virtually
issuing a 'licence' to scandalize courts
and commit contempt of court with
impunity. It will be rather difficult to
persuade members of the Bar, who care
for their self-respect, to join the judiciary
if they are expected to pay such a price
for it. And no sitting judge will feel free to
decide any matter as per the dictates of
his conscience on account of fear of being
scandalized
and
persecuted
by
an
advocate who does not mind making
reckless allegations if the Judge goes
against his wishes. If this situation were
to be countenanced, advocates who can
cow down the Judges, and make them fail
in line with their wishes, by threats of
character assassination and persecution,
will be preferred by the litigants to the
advocates
who
are
mindful
of
professional
ethics
and
believe
in
maintaining the decorum of courts."

14. In the above perspective, it
cannot be ruled out that the contemnor set
up the entire theory in order to save his
skin. In this view of the matter, the
apology offered does not commend to us
for acceptance and it is turned down.

We would like to quip here that if the
judiciary has to perform its function in a
fair and free manner, the dignity and
authority of the court has to be respected
by all concerned failing which the very
constitutional scheme and public faith in
the judiciary would run the risk of being
eroded. Since the contemnor is an
Advocate practising law as reported by
the office in its note dated 2.5.2009, the
matter requires to be considered with a
little more seriousness. We feel called to
say that the contemnor who is stated to be
74 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
an Advocate is not exempt from ordinary
disability which the law imposes and his
position is not inviolable and his
privileges cannot extend to interfere with
the administration of justice. On the other
hand he is expected to help in sub-serving
the course of justice and not impede it in
any manner. Any departure would be
construed to be violative and neglecting
his duties and obligations. A lawyer is a
person educated and trained in law. There
are barriers which must be known to a
lawyer and it should not be crossed. He
should not overstep the limits of decency
and ethics in the matter of his behavior
towards the court.

15. In Delhi Judicial Service
Association v. State of Gujrat, (1991) 4
SCC 406, the Apex Court held as under.

"The definition of criminal contempt
is wide enough to include any act by a
person which would tend to interfere with
the administration of justice or which
would lower the authority of court. The
public have a vital stake in effective and
orderly administration of justice . The
Court has the duty of protecting the
interest of the community in the due
administration of justice and so, it is
entrusted with the power to commit for
contempt of court, not to protect the
dignity of the Court against insult or
injury, but to protect and vindicate the
right
of
the
public
so
that
the
administration of justice is not perverted,
prejudiced, obstructed or interfered with."

16. In N.B. Sanghvi v. High Court
of Punjab and Haryana (1991) 3 SCC
600 the Apex Court observed as under:

"The tendency of maligning the
reputation
of
Judicial
Officers
by
disgruntled elements who fail to secure
the desired order is ever on the increase
and it is high time it is nipped in the bud.
And, when a member of the profession
resorts to such cheap gimmicks with a
view to browbeating the Judge into
submission, it is all the more painful.
When there is a deliberate attempt to
scandalize
which
would
shake
the
confidence of the litigating public in the
system, the damage caused is not only to
the reputation of the concerned judge but
also to the fair name of the judiciary.
Veiled threats, abrasive behaviour, use of
disrespectful language and at times
blatant condemnatory attacks like the
present
one
are
often
designedly
employed with a view to taming a Judge
into submission to secure a desired order.
Such cases raise larger issues touching
the
independence
of
not
only
the
concerned Judge but the entire institution.
The foundation of our system which is
based
on
the
independence
and
impartiality of those who man it will be
shaken if disparaging and derogatory
remarks are made against the Presiding
Judicial Officers with impunity. It is high
time that we realise that the much
cherished judicial independence has to be
protected not only from the executive or
the legislature but also from those who
are an integral part of the system. An
independent
judiciary
is
of
vital
importance to any free society. Judicial
independence was not achieved overnight.
Since we have inherited this concept from
the British, it would not be out of place to
mention the struggle strong-willed judges
like Sir Edward Coke, Chief Justice of the
Common Pleas, and many others had to
put up with the Crown as well as the
Parliament at considerable personal risk.
And when a member of the profession like
the appellant who should know better so
1 All] Nisha Srivastava V. Dinesh Kumar
75
lightly trifles with the much endeared
concept of judicial independence to
secure small gains it only betrays a lack
of respect for the martyrs of judicial
independence and for the institution itself.
Their sacrifice would go waste if we are
not jealous to protect the fair name of the
judiciary from unwarranted attacks on its
independence."

17. The foundation of judicial
system
which
is
founded
on
the
independence and impartiality of those
who man it will be shaken if every
disgruntled
litigant
is
permitted
to
proceed against the Presiding judicial
officers with impurity in the manner as
has been done by the contemnor, the
much cherished judicial independence
which is of vital significance to any free
society has to be protected not only from
the executive or the legislature but also
from those who are an integral part of the
system. The tendency of browbeating the
judicial officers into submission is on the
increase and when there is deliberate
attempt to scandalise, it not only shakes
the confidence of the litigating public in
the system but causes damages to the
reputation of the presiding judge and
brings disgrace to the fair name of the
judiciary.

18. A Judge or Magistrate has a duty
to discharge his judicial functions and he
passes order in the manner as he likes fit
to the best of his capability in the facts
and circumstances of the case. The courts
cannot be intimidated to seek favourable
orders or to make the court run on his
dictate. In the present case, the conduct of
the contemnor amounts to intimidating
the court and lowering the authority and it
clearly amounts to interference with due
course of judicial proceedings which were
being conducted by the Presiding officer.
The power of the High Court of
superintendence and control over the
subordinate judiciary under Article 235 of
the Constitution includes within its ambit
the duty to protect members of the
subordinate
courts.
In
the
above
conspectus, the charge related to criminal
contempt framed against the contemnor is
fully established.

19. In the above conspectus, we
have no hesitation to say that the charges
of criminal contempt established against a
practising lawyer cannot be taken lightly
who carries the trapping of an officer of
the Court whose duty is to assist the Court
and uphold the majesty of law and dignity
of the person manning the court. No
judicial system can tolerate such ignoble
act and conduct of a practising Advocate.
The crucial question that remains is what
would be the appropriate punishment to
the contemnor.

20. Reverting to the case in hand, we
are of the firm opinion that the apology
tendered by the contemnor does not exude
bona
fide
or
manifest
genuineness
ostensibly for the reasons that the apology
has been tendered at a stage when the
contemnor sensed that his goose was
cooked. As stated supra, he has set out his
own version referring to various acts of
omission
and
commission
by
the
presiding officer and lastly stated that she
has made reference actuated by malice
against him. It would clearly transpire that
aggrieved by the order passed by the
Magistrate, the contemnor set up falsely
plea and lodged the F.I.R. As a lawyer, it
does not appeal to us that he was not
aware of the statutory provision or the
latest law on the point. It must also be
noticed that a judicial officer in case he or
76 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
she has to leave the station, she has to
obtain permission indicating the place
where he or she wishes to visit but in the
instant case, no such document was
brought to our notice suggesting that on
the date indicated by the contemnor, the
officer
was
in
fact
at
Ghaziabad
demanding illegal gratification to the
extent of Rs. 2 lacs to protect the
contemnor and his brother from further
criminal action. There is a felt need to
curb such incidence. To cap it all, the
majesty and dignity of the court has to be
preserved. It should not be forgotten that
frequent attacks on the dignity of the
courts would shake the very foundation of
the judiciary. The courts have to perform
judicial functions in responsible yet
disagreeable ambiance and they require
utmost protection. The attack made on
presiding officers disparaging in character
and derogatory to his/her dignity would
vitally shake the confidence of the public
in him/her. The entire story set up by the
contemnor may well be termed as vitriolic
attack on the officer. The vitriolic attacks
made on the officer were much more than
mere insult and in effect the contemnor
scandalized the officer who manned the
court in such a way as to create distrust in
the popular mind and impair confidence
of the people in court. The administration
of justice must remain independent, clean,
fearless and impartial. If an Advocate
uses the vile of browbeating the Presiding
officer by his toxic vitriolic attack, it is
indeed disquieting and should not be
viewed with equanimity.

21. As a result of foregoing
discussion, the reference made to this
Court is allowed and the contemnor
Dinesh Kumar is held guilty of criminal
contempt.

22. Now the question arises what
would be the appropriate sentence on the
point. It is the grossest contempt of court
and in the interest of justice and to uphold
the majesty of the courts, it is desirable to
award jail sentence in addition to fine.
The contemnor filed a paper at a last stage
styling as unconditional apology although
as stated supra, it does indicate clear lack
of real contriteness.

23. We accordingly convict him for
offences under section 2 (C ) (1) of the
Contempt of Courts Act and sentence him
to undergo simple imprisonment for five
months and to pay a fine of Rs.20,000/-.
In
default,
it
may
be
prescribed,
contemnor shall undergo further simple
imprisonment for 15 days. However, the
punishment so imposed shall be kept in
abeyance for a period of sixty days so as
to enable the contemnor to approach the
Apex Court if so advised. It needs hardly
be said that immediately after expiry of
sixty days in case no stay order is
furnished by the contemnor, he would be
taken into custody forthwith to serve out
the sentence immediately.

24. The matter shall be listed before
this Court on 11.5.2010 for ensuring
compliance.
---------
1 All] Kuldeep Kumar Tripathi V. Rang Bahadur and others
77
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2010

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.
THE HON'BLE SANJAY MISRA, J.

Special Appeal No.807 of 2008

Kuldeep Kumar Tripathi
...Petitioner
Versus
Rang Bahadur and others ...Respondents

Counsel for the petitioner:
Sri A.N. Tripathi
Sri Arvind Kumar Mishra,
Sri R.P. Mishra

Counsel for the Respondent:
Sri M.C. Chaturvedi
Dr. Y.K. Srivastava
C.S.C.

High Court Rules Chapter VIII Rule 5Special Appeal against the order passed
by single judge during summer vacationmatter cognizable by Division BenchWhether special appeal maintainable? -
held-Yes.

Held: Para 38

In view of the foregoing discussions and
conclusions, we answer two questions
referred, in following manner:

(I) Against the order and judgment of
one
Judge
passed
during
vacation
exercising jurisdiction in cases which are
cognizable by Division Bench, special
appeal under Chapter VIII Rule 5 of the
Rules of the Court is maintainable.
(II) The Division Bench judgment in
Allahabad Galla Tilhan Vyapari (supra)
does not lay down the correct law. The
view expressed by Division Bench in
State
of
U.P.
Vs.
Meera
Sankhwar
(supra) is approved.
Case Law discussed:
1985 UPLBEC1064,2004(4) AWC 3162, 1952
(2) A.C. 109, AIR 1955 S.C. 661, (1979) 4 SCC
204, (2000) 2 SCC 699, (2003) 1 UPLBEC 496,
(2004) 11 SCC 672, (2002) 4 SCC 578, 1994
AWC 1137.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. This Full Bench has been
constituted to answer the following two
questions referred by a Division Bench
noticing conflict in two Division Benches
of this Court-

"(1)
Whether
against
the
order/judgement of one judge passed in
vacation exercising jurisdiction in cases
which are cognizable by a Division Bench
an special appeal under Chapter VIII Rule
5 of the Rules of the Court is
maintainable?

(2) Whether the Division Bench
judgement in Allahabad Galla Tilhan
Vyapari Sangh, 25, Muthiganj and
others, 1985 UPLBEC1064 (supra) or
Division Bench Judgement in State of
U.P. And others Vs. Smt. Meera
Sankhwar and others, 2004(4) AWC
3162, lays down the correct law?"

2. The fact of the case necessitating
the reference briefly noted are that writ
petition no. 26716 of 2008 was files by
the respondent no. 1 during summer
vacations praying for order and direction
in the nature of certiorari, quashing the
notice dated 13/14th may, 2008 convening
meeting
of
Kshetra
Panchayat
for
consideration of no confidence motion
against Pramukh of Kshetra Panchayat,
Rang Bahadur Panday. A mandamus was
also sought for directing the opposite
parties not to interfere in the working of
the petitioner as Pramukh. The writ