# [1955] 1 S.C.R. 757

- **Citation:** [1955] 1 S.C.R. 757
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Criminal Appeal No. 72 of 1952
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-1-s-c-r-757-1197
- **Pages:** 13

## Headnote

S.C:R.
SUPREME COURT REPORTS
757
M. Y. SHAREEF AND ANOTHER
ti.
THE HON'BLE JUDGES OF THE HIGH COURT
'
OF NAGPUR AND OTHERS.
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t
1
...
[MEHR CHAND MAHAJAN C.J., S. R. DAs,
GHULAM
HASAN,
BHAGWATI and
JAGANNADHADAS JJ.J
Contempt of Court-Advocate signing application or pleading
which scandalizes the Court-Advocate's obligations to the Courts and
duty to the client-Plea of justification or in the alternative apology
:_When permissible.
A section of the Bar seems to be labouring under an erroneous
impression that when an advocate is acting in the interests of his
client or in accordance with his instructions he is discharging his
legitimate duty towards him even when he signs an application or
3. pleading which contains matter scandalizing the Court and that
when there is conflict between his obligations to the Court and his
duty to the client, the later prevails.
ft should be widely made known that an advocate who signs
an application or pleading containing matter scandalizing the Court
which tends to prevent or delay the course
of justice is
himself
guilty of contempt of Court unless he reasonably satisfies himself
about the prima facie existence of adequate grounds therefor and
that it is no duty of an advocate 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.
It is well-settled that in a matter relating to the contempt of
Court there cannot be both justification and an apology.
The two
things are incompatible. An apology is not a weapon of defence to
purge the guilty of their offence, nor is it intended to operate as a
universal panacea but it is intended to be evidence of real contriteness.
In border line cases where a question of principle about the
rights of an advocate and his duties has to be settled an alternative
plea 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.
Every form of defence in a contempt case cannot be regarded
as an act of contumacy.
It depends on the circumstances of each
case and on the general impression about a particular rule of ethics
amongst the members of the profession.
1954.
M. r. s,,.,.,ef
and An•ther
T,
Thi Htm'.lt
Judges ef the
High C1111t ef
Nagpur.
758
SUPREME COURT REPORTS
[1955]

## Text

S.C:R.
SUPREME COURT REPORTS
757
M. Y. SHAREEF AND ANOTHER
ti.
THE HON'BLE JUDGES OF THE HIGH COURT
'
OF NAGPUR AND OTHERS.
-
t
1
...
[MEHR CHAND MAHAJAN C.J., S. R. DAs,
GHULAM
HASAN,
BHAGWATI and
JAGANNADHADAS JJ.J
Contempt of Court-Advocate signing application or pleading
which scandalizes the Court-Advocate's obligations to the Courts and
duty to the client-Plea of justification or in the alternative apology
:_When permissible.
A section of the Bar seems to be labouring under an erroneous
impression that when an advocate is acting in the interests of his
client or in accordance with his instructions he is discharging his
legitimate duty towards him even when he signs an application or
3. pleading which contains matter scandalizing the Court and that
when there is conflict between his obligations to the Court and his
duty to the client, the later prevails.
ft should be widely made known that an advocate who signs
an application or pleading containing matter scandalizing the Court
which tends to prevent or delay the course
of justice is
himself
guilty of contempt of Court unless he reasonably satisfies himself
about the prima facie existence of adequate grounds therefor and
that it is no duty of an advocate 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.
It is well-settled that in a matter relating to the contempt of
Court there cannot be both justification and an apology.
The two
things are incompatible. An apology is not a weapon of defence to
purge the guilty of their offence, nor is it intended to operate as a
universal panacea but it is intended to be evidence of real contriteness.
In border line cases where a question of principle about the
rights of an advocate and his duties has to be settled an alternative
plea 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.
Every form of defence in a contempt case cannot be regarded
as an act of contumacy.
It depends on the circumstances of each
case and on the general impression about a particular rule of ethics
amongst the members of the profession.
1954.
M. r. s,,.,.,ef
and An•ther
T,
Thi Htm'.lt
Judges ef the
High C1111t ef
Nagpur.
758
SUPREME COURT REPORTS
[1955]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 72 of 1952.
Appeal by Special Leave
from the Judgment and
Order
dated the 30th
November, 1950, of the High
Court of
Judicature at
Nagpur (Dev and Rao JJ.) in
Contempt of Court
Proceedings Miscellaneous Petition
No. 16 of 1950.
Dr. Bakshi Tek Chand,
(Hardyal
Hardy, B. R.
Mandlekar, B. D. Kathalay, Ganpat
Rai and K.
L.
Arora, with him) for the appellant.
C. K. Daphtary, Solicitor-G"11eral for India ( T. P.
Naik and I. N. Shroff, with him) for respondent No. l.
T. L. Shevde, Advocate-General
for
the
State of
Madhya Pradesh, (T. P. Naik and I. N. Shroff,
with
him) for respondent No. 2.
B. Sen and /. N. Shroff for respondent No. 3.
1954. October 15. The Judgment of the Court was
delivered by
MEHR CHAND MAHAJAN C.J.-This appeal by special
leave arises out of contempt proceedings taken against
two very senior members of the Nagpur Bar and one
of their clients.
Shri Shareef, one of the appellants, at
one time was
Minister for Law and Justice in the State.
Dr. Kathalay, the
second appellant, 1s a Doctor of
Laws and an author of legal works. The matter
which
resulted in the issue of the show cause notices for contempt took a protracted
course and has to a certain
extent resulted in embittered feelings.
What happened
was this:
Shri Zikar who was charged along with the two
appellants for
contempt made an
application
under
article 226 ( 1) of the Constitution for enforcement of his
fundamental right,
alleging that he was a citizen of
Bharat, and that the Custodian of Evacuee
Property
and the police were taking wrongful .~ction 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,
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S.C.R.
SUPREME COURT REPORTS
759
1950, a preliminary objection
was
raised on behalf of
the
State that Zikar had suppressed material facts in
the
petition
filed bv 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 pro-
•ceedings 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
Shareef files a statement and
an affidavit.
His attention was drawn to paragraph 4 of the affidavit
and he was asked whether his client has reallv understood the contents which arc in English adding ·that he
might change in the Supreme Court and say that he had
not understood them.
Shri
Shareef then said that he
has explained the contents to his clients.
Paragraph 6 of the statement and the affidavit is
uncalled for as the appellant only desired to file an
::lffidavit with reference to paragraph 10 of the affidavit
d
the
non-applicant : Vide order sheet dated 17th
August, 1950. A remark was made by one of us "Whether paragraph 6 was inserted for founding an argument
.before the Supreme Court."
Shri
Shareef replied he has
~tated facts ......... .
Thereafter Shri Naik continued his arguments on the
preliminary point till we rose for lunch .
When we
reassembled
Shri
Shareef informed us
that he wants time to apply for transfer of this case to
another
Bench
because of the observations
made . by
us regarding paragraphs 4 and 6 of his affidavit. Case
is therefore adjourned to 25th August, 1950 to enable
Shri Shareef to make an application in the meanwhile."
On the 23rd Al!gust, 1950, an application for the
transfer of the case from the Bench hearing it to
1954
M. r. Shareef
and Another
v.
The Hon'ble
Judgu of the
High Court of
Nagpur.
Mahajan C. ].
1954
M. r. Sharu
ond Anolhd
v.
Tiu. Hon'ble
Jud:u eftM
HithC(llJrt of
Nagpur.
Ma!.ajan C.].
760
SUPREME COURT REPORTS
[1955J
another Bench of the
High Court was made on the
following grounds :-
"1. The
observations
and
references
to
the
Supreme Court by
Rao and Deo JJ. created a bona fide
belief in the applicant's mind that they were prejudiced
against him and had made up their minds and indicated
that
he shall
have to go in appeal to the Supreme
Court.
2. The
observations
and
references
to
the
Supreme
Court were absolutely unnecessary and left no
doubt in the applicant's mind that he would not receive
justice at the hands of the
Hon'ble Judges.
Prayer : In the interest of dispensation of impartial justice, the case
be
transferred to another Civil
Division Bench for disposal."
This application was
not only signed by Zikar but
also by the two appellants as counsel for the applicant
and was rejected in due
course and
with that matter
we are no longer concerned. The preliminary objection
raised by the
State was upheld and the petition under
article 226 was dismissed. The learned
Judges them
ordered notices to issue· to the applicant
and his two
counsel
to show
cause why they
should not all be
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.
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 tliat 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 tl1e question did not concern him alone but
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S.C:R.
SUPREME COURT REPORTS
761
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. In the last paragraph
of the reply it was stated-
"Whatever the circumstances,
I do see how much
this application for transfer
dated the 23rd August,
1950, has hurt the feelings of the Hon'ble Judges and I
very much regret that all this should have happened."
Shri Shareef also put in a similar written statement.
He asserted that when
the transfer application was
made he did not know or believe the law to be that it
could not be
made, and rightly or wrongly he was
always under the impression that an application could
be made for transferring a case in the
High Court
from one
Bench to another.
He also expressed similar
regret for what had happened. Further written statement was filed by
Shri
Shareef on
16th
October,
1950. In paragraph 7 of that statement
he
said
as
follows:-
"I was grieved to know that the accusation against
me in these proceedings
should be
of malice
and
mala fides for my taking up Zikar's brief in connection
with his
application
for
transfer, dated the 23rd
August, 1950. If I am thus defending the proceedings,
I am doing so for
vindicating my professional honour
and personal self-respect, and it would' be a misfortune
if this was all going to be construed as aggravating the
contempt, as hinted by the Hon'ble Court during my
counsel's arguments, though remotely.
But even as
I
am making my defence, it is, I admit, quite likely .that
I wmmitted an error of judgment in acting as I did,
causing pain to the Hon'ble Judges, which I deeply
regret, as
I have already done before and
so has my
coumel on my behalf in the course of his arguments."
(The Judges in the Judgment under appeal have taken
exception to the last sentence of this paragraph.)
Dr. Kathalay also put in a similar reply.
The High Court in a very lengthy judgment in which
very large number of authorities were considered and
1954
M. r. SfUJ~eef
a11d Anethtr
v.
The Hon'ble
Judges of the
High Court of
Nagpur.
Maliajan C. J.
1!)54'
M. 1". Sliarref
•nJ .A.notlur
v.
Tht Han'•le
]udxu of thz
liith CoUrl of
NalJJUr.
Mnho.jtin C. J.
762
SUPREME COURT REPORTS
119551
.
. .
discussed,
held
that
the
application
for
transfer
constituted contempt because the Judges were scanda- ·
lized with a view to diverting the due course of justice.
The two adrncates who
signed
and
prosecuted the
application were found guilty of contempt.
As reganis
the plea of error of judgment, this is what the learned
Judges said :-
"The attitude of defiant justification
adopted
by
them in spite of our pointing our at a very early stage
in these
proceedings
that we would be prepared to
consider any mistake on their 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
rn1ury
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 e:pression of regret to
merit
consideration
must be genuine contriteness for what
the
contemners
have clone."
In the result the learned Judges passed the following
order:-
"We accordingly sentence Shri
M.
Y. Shareef to
pay a fine of Rs. 500 or in default to undergo simple
imprisonment for two weeks and we sentence Dr. D. \V.
Katthalay to pay a fine of Rs. 1000 or in default to
undergo simple imprisonment for one month. \Ve are
not sure if the sentences we have awarded are adequate
to the gravity of the offence, but on this occasion we
refrain from being stern and bringing the full power of
the court into play considering the misconceptions about
the advocates' responsibility that seem to have so far prevailed at any rate in a section of the Bar."
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S.C.R.
SUPREME COURT REPORTS
763
Leave to appeal to this
Court was refused but was
granted here.
On the
12th May,
heard by
this
Court,
orJer :-
1954, when the
appeal
was
we
recorded
the following
"The appellants
have
tendered
an unqualified
apology to this court and to the High Court, and they
are prepared to purge the
contempt for which they
have been convicted. In our opinion, the apoiogy is a
sincere expression of their regret for what happened in
court at the time the transfer
application
was made
and for the
allegations
made
therein.
We therefore
adjourn this appeal for two months and direct that the
apology
tendered
here
be tendered to the Division
Emch before which the contempt is said to have been
committed. We are sending it to the High Court with
the full confidence that the learned Judges will consider
the apology in the spirit in which it has been tendered
and
they
will pass
appropriate orders and send an
intimation to this court as to what orders they pass."
\Vhen the case went back to the High Court, it
again took an unfortunate turn.
The learned Judges
posed the question
that
they had to consider in this
form:-
"The question 1s
whether remission of the punishment awarded is called for in view of the statement
now filed by the contemners,"
and it was answered thus :
"We are constrained to observe that the spmt in
which the
apology was tendered here is not much
different from that originally shown.
The idea of the
contemners is that because they have filed the apology
as directed, they have a right to expect the acceptance
of it by the court. How else can the
absence of any
prayer or what the contemners
desire
be explained ?
\Ve record
that
there was hardly anything apologetic
the way the apology was tendered ............. .
We neither gave the
extreme penalty which we
might well have given, nor did we give the maximum
of the lesser penalty. But for the manner of justification and the contumacy,
there might not have been a
sentence of fine at all."
1954
M. r.·Sl=eif
and Another
-.'f.
T/., Hon' hie
Judges of the
High Court of
·Nagpur.
Mahajan C. J.
J954
M.•r. Shareef
and Another
,.
Tiu Hon'ble
Judges of tlu
lf.igh Court of
Nagpur.
-.-
Mnhajan C. J.
764
SUPREME COURT REPORTS
[1955]
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."
When the appeal came back to us, we asked Dr. Tek
Chand who appeared for the two advocates whetl1cr his
clients were even now genuinely sorry for signing the
transfer
application
and whether
the expression of
regret made in this Court was a genuine expression of
their feelings, Dr. Tek Chand replied in the affirmative
and emphatically said "Absolutely".
In this situation, the question for
consideration in
the appeal now is whether the two appellants have
purged
the
contempt
by tendering
an
unqualified
apology in this
Court as well as to the High Court, the
genuineness of which has been again emphasized
by
their counsel before us, or whether the sentence of fine
awarded to them by the High Court should necessarily
be maintained for upholding the authority and dignity
of the Court.
The proposition is well settled and self-evident that
there cannot be both justification and an apology. The
two things are incompatible.
Again an apology is not
a weapon
of defence
to
purge
the
guilty of their
offence ; nor is
it intended to operate as a universal
panacea, but
it is intended to
be evidence of real
contriteness.
The
appellants
having
tendered an
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S.C.R.
SUPREME COURT REPORTS
765
unqualified apology, no exception can be taken to the
decision of the High Court that the application
for
transfer
did constitute
contempt because
the judges
were scandalized
with
a view to diverting the due
course of justice, and that in signing this application
the
two advocates
were
guilty
of contempt. That
decision therefore stands.
The fact however remains, as found by the High
Court, that there was at the time these events happened
considerable misconception amongst a section of
the
Nagpur Bar about advocates' responsibilities in matters
of
signing transfer applications containing allegations
of this character. It cannot be denied that a section
of the Bar is under an erroneous impression that when
a counsel is acting in the interests of his client, or in
accordance with his instructions he is discharging his
legitimate
duty to his client even when he signs an
application or
a pleading
which
contains matter
scandalizing the Court. They think that when there
is conflict between their obligations to the Court and
their duty to the client, the latter prevails. This misconception
has
to be rooted out by a clear and
emphatic pronouncement, and we think it should be
widely made known that counsel who sign applications
or pleadings containing matter scandalizing the Court
without
reasonably
satisfying
themselves about the
prima f acie existence of
adequate grounds therefor,
with a view to prevent or delay the 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
1954
M. r. Sharuj
Another
v.
The Hon'bl•
Judges of the
High Court of
Nagpur.
Mahaian C.J.
1954
M. r. Sharee
and Another
Y.
The Hon'ble
Judges of the
High Court of
·Nagpur.
Mahajan C. J.
766
SUPREME COURT REPORTS
[ 19551
line cases where a question of principle about the rights
of counsel anJ 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. Jn this case
the learned
judges themselves
haJ to wade through a large volume
of
English
and
JnJian case-law before
they could hold that the act of
the appellants constituted contempt and
thus it could
not be said that the matter was so patent that on the
face of it their act amounted to
contempt. Moreover,
it appears from the proceedings that the counsel were
genuinely under the belief that their professional
duties
demanded that, when their client was under a bona fide
belief that the
Court was
prejudiced against him and
decided to
apply for transfer, they were bound to take
his brief and sign
the application. We cannot help
observing that the admitted reference by the judges to
the Supreme Court in their remarks during the course
of the hearing was unfortunate and seems to indicate
an
unnecessary
and indecorous
sensitiveness which
may well have been misunderstood by the party and
the
advocates.
The counsel seem to
have genuinely
believed that they were right in what they did, though
as a matter of fact if thev had studied the law more
deeply, they would not h~ve done so. In these circumstances it cannot be said that what they did was wilful
and their
conduct in getting the
law settled in this
matter by
ra1s111g
the
defence
that they_ did was
contumacious. The
authorities relied
upon by
the
High
Court
have no application to
cases of this
character. How else is the validitv of a defence of this
kind to be settled, except
by an· argument that the·
counsel was entitled in the interests of his client to
advise a transfer and give grounds for that transfer
which were bona fide believed by
the
client. Every
form of defence in a contempt case cannot be regarded
as an act of contumacy. It depends
on the circumstances of each case and
on
the general impression
about a particular rule of ethics amongst the members
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S.C.R.
SUPREME COURT REPORTS
767
of the profession. The learned Judges, as already said,
have themselves
said that such
an impression was
prevalent since a long time amongst a section of the
Bar in Nagpur.
It was thus
necessary to have that
question settled
and
any
effort on
the
part
of
these
two learned counsel to have that
point settled
cannot be regarded as contumacy or a circumstance
which
aggravates the
contempt.
\Ve
think that
the expression of
regret in the
alternative in this
case
should not have been ignored but should have
been given
due consideration.
It was made in the
earliest
written
statement submitted
by the counsel
and_ cited 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 scandalising 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 Court
should have after an unqualified apology was tendered
taken a different view. We have no doubt that whatever the learned Judges of the High Court did in this
case, they did in the firm belief that the dignity of the
Court had to be maintained and
the members of the
Bar, howsoever big or learned, cannot be allowed to
scandalize the judges or to divert the course of justice
11-88 S. C. India/59
195+
M. r. Shareef
and Another
v.
The Hon'ble
Judges of the
High Court of
Natpur.
MahqjanC.J•
1954
M. r. Shareef
and Another
v.
The Hon'blt
Judges of the
HighCaurtof
Nazpur.
Maht/jan C. J.
768
SUPREME COURT REPORTS
[1955]
by attempting to take a case out from one Bench to
another Bench of the Court when they find that the
Bench
1s
expressing opinions
seemingly
adverse
to
their clients. We have firm hope that this kind of conduct will not be repeated by counsel in any
High Court
in this country, and no more test cases of this kind
would have to be fought out.
In the peculiar circumstances of this case and in view of the circumstance
that the learned Judges themselves were of the op11110n
that there would not have been a sentence of
fine at
all if there was no plea of justification and there was
no contumacy, we are of the opinion that the unqualified
apology was sufficient to purge the contempt committed
by the two appellants as we have reached the conclusion contrary
to that arrived at by the High Court
that the plea of justification in this case did not amount
to contumacy.
It has also to be kept 111 view that
condemnation for contempt by a High Court of senior
members of the Bar is itself a heavy punishment to
them, as it affects them in their professional career and
is a great blot on them. There has been nothing said
in the lengthy judgment of the High Court that these
counsel in their long career at the Bar have ever been
disrespectful or discourteous to the Court in the past.
This one act of indiscretion on their part in signing the
application should not have been viewed m the very
stringent manner in whi.ch the High Court viewed it in
the first instance and viewed it again after we had
sent the case back to it. It is not the practice of this
Court in special leave cases and in exercise of our overriding powers to interfere with a matter which rests in
the
discretion of the
High
Court except
in very
exceptional cases. After a careful consideration of the
situation that arises in this case we have reached the
.decision that the dignity of the High Court would be
sufficiently
upheld if the unqualified apology tendered
in this
Court in the first instance and reiterated m
absolute terms by Dr. Tek Chand agam at the next
hearing is accepted and that apology is regarded as
sufficient to
purge
the
contempt. The
matter has
become very stale and the ends of justice do not call
for maintaining the punishment of fine on two senior
-
-
S.C.R.
SUPREME COURT REPORTS
769
counsel for acting wrongly under an erroneous impression of their rights and privileges.
For the reasons given above we allow this appeal to
the extent that the sentence of fine passed on both the
appellants is set
aside,
and the unqualified apology
given by them to this
Court .and the High Court is
accepted. We also desire to issue a strong admonition
and warning to the two
counsel for their conduct.
There will be no order as to costs in these proceedings
throughout.
Appeal allowed.
1954
M. r. Shareef
and Another
v.
The Hon'bie
Judges of the
High Court of
Nagpur,
LAXMANAPPA
HANUMANTAPPA
JAMKHANDI
1954
(I.
'I'HE UNION OF INDIA AND ANOTHER.
;MEHR CHAND MAHAJAN C.J., s. R. DAS, GHULAM
HASAN, IlHAGWATI and VENKATARAMA AYYAR JJ.]
Constitution of India, Arts. 31(1), 32, 265-Deprivation of pro-
·t>erty-Otherwise than by imposition or collection of tax-Right conferred by Art. 265-Whether can be enjorced by Art. 32.
Held, that as there is a special provision in Art. 265 of the
Constitution that no tax shall be levied or collected except by
authority of law, clause ( 1) of Art. 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax and as the right conferred by Art. 265 is
!l-Ot a fundamental right conferred by Part III of the Constitution,
it cannot be enforced under Art. 32.
Ramjilal v. Income-tax Officer,
Mohindcrgarh ([1951] S.C.R
t ,
127) followed.
Suraj Mal Mohta and Co. v. A. V. Visvanatha Sastri (A.LR
1954 S.C. 545) referred to.
OmcJNAL JuRrsmcTioN : Petition No. 492 of 1954.
Petition
under article 32 of the Constitution for
the e,nforcement of Fundamental Rights.
B. Sen, l. N. Shroff and B. P.
Singh for the
petitione1 .
.._
M. C. Setalvad, Attorney-General
for
India, and
C. K. Daphtary, Solicitor-General for India (G' N. foshi.
October 21