# C. K. DAPBTARY & ORS v. O. P. GUPTA & ORS

- **Citation:** [1971] Supp. 1 S.C.R. 76
- **Court:** Supreme Court of India
- **Decided:** 1971-03-19
- **Bench:** S. M. Snrn, ]. M. Shelat, C. A. Vaidialingam, A. N. Grover, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/c-k-dapbtary-ors-v-o-p-gupta-ors-5420
- **Pages:** 37

## Headnote

Contempt of Court-Existing law if violateJ freedom of speech
und~r
Art. 19(1)(a) of Constitution-Evidence to justify allegation• amounting to contempt-If can be
permitted-Scope of contents of petitiou
and evidence of contempt when to be adduced-Contemnor's right to ope
portunity-Scope of-Delay in filing petition, what f,._Right of Attorney
General and other members of Bar to move for contempt-Other contemnors if necessary parties-Pun'ilhment.
Constitution of India, 1950, Art. !OS-Publication of pamphlet pr<-
pared for impeachment of Judge-Pamphlet containing scurrilous attack
cm Judge-If protected by Art. 105.
Parliamentary Proceedings (Protection of Publication) A.ct (24 of 1956),
ss. 3 and 4-Scope of-If protect publication of pamphlet constitutir.g contempt of court.
The State of U. P. filed an appeal in this Court against the judgment
of the High Court holding the dismissal of the first respondent from service
invalid. The appeal was heard by two Judges of this Court and the junior
Judge delivered judgment on behalf of the Court, allowina the appeal. Tia
first respondent thereupon wrote, got printed and published and circulated
a pamphlet containing scurrilous criticism of the senior Judge using the
word dishonest judgment, open dishonesty deliberately and dishonestly a"d
utter dishonesty.
He also stated in the pamphlet that the senior Judge
cleverly asked the junior Judge to deliver the judgment, and that the junior
Judge toed his line by writing what the senior Judge told him to write.
The President of the Bar Association of the Supreme Court and three other
Advocates filed a petition supported by the affidavits of the advocate" about
4 months after the circulation of the pamphlet, for committing thefin~t
respondent and the printer and publisher of the pamphlet for contempt
of court.
The first respondent deliberately avoided service till the 1enior Judge
retired and then filed a counter affidavit containing an unconditional apo~
logy and fresh abuses of the senior Judge.
HELD: (I) Under Art. 129 of the Constitution this Court bas the
power to punish for contempt of itself, and under Art. 143(2) it can in·
vestigate any such contempt [98A-BJ
The Constitution makes this Court the guardian of fundamental rigb&s
and hence it would not enforce any law which imposis unreasonable ret·
trictions on the precious right of freedom of speech. [920-E]
Under the existing Jaw of contempt of court any publication which
is calculated to interfere· with the due course of justice or proper adminis·
tration of law by this Court would amount to contempt of court.
A
C. J:, DAPHTARY v. GUPTA (Sikri, J.)
1crurrilous attack on a Judge, in respect of a judgment- or past conduct
has in our country the inevitable effect of undermining the confidence of
the public in the Judiciary; and if confidence in Judiciary goes administration of ju1tice definitely suffers.
[97C-E]
Therefore, assuming Art. 19(2) applies to the existing law of contempt
the restrictions on freedom of speech. are reasonable and are in public
interest [97B]
Perspective Publications Ltd. v. State of Maharashtra, [1969] 2 S.C.R.
779, 791, 792 and R. C. Cooper v. Union of India, [1970] 2 S.C.C. 298, 301,
followed.
Legal Remembrancer v. B. B. Das Gupta, [1953] I.L.R. 32 Pat. 1069,
1091, Lakhan Singh v. Balbir Singh, l.L.R. [1953] I All 796, and State v
Vikar Ahmed, I.L.R. [1954] Hyd. 270, 278, approved.
(2) The pamphlet in the present case, read as a whole, constituted
gross contempt of this Court. [98F]
The first respondent admitted that he assisted in drafting an in1peachment motion against the senior Judge. The pamphlet '\\':tli ostensibly prepared for that purpose. He therefore used the word dishonest in the p:unphlet in order to bring the allegations against the senior Judge within the
\\'Ord misbehaviour in Art. 1.'.!4(4), and not, with the special sense or n1eaning tha1 the Judge committed errors; because, even gross errors cannot
amount to misbehaviour. To say that the junior J

## Text

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C. K. DAPBTARY & ORS.
v.
O. P. GUPTA & ORS.
March 19, 1971.
[S. M. Snrn, C. ]., ]. M. SHELAT, C. A. VAIDIALINGAM,
A. N. GROVER AND A. N. RAY, JJ.J
Contempt of Court-Existing law if violateJ freedom of speech
und~r
Art. 19(1)(a) of Constitution-Evidence to justify allegation• amounting to contempt-If can be
permitted-Scope of contents of petitiou
and evidence of contempt when to be adduced-Contemnor's right to ope
portunity-Scope of-Delay in filing petition, what f,._Right of Attorney
General and other members of Bar to move for contempt-Other contemnors if necessary parties-Pun'ilhment.
Constitution of India, 1950, Art. !OS-Publication of pamphlet pr<-
pared for impeachment of Judge-Pamphlet containing scurrilous attack
cm Judge-If protected by Art. 105.
Parliamentary Proceedings (Protection of Publication) A.ct (24 of 1956),
ss. 3 and 4-Scope of-If protect publication of pamphlet constitutir.g contempt of court.
The State of U. P. filed an appeal in this Court against the judgment
of the High Court holding the dismissal of the first respondent from service
invalid. The appeal was heard by two Judges of this Court and the junior
Judge delivered judgment on behalf of the Court, allowina the appeal. Tia
first respondent thereupon wrote, got printed and published and circulated
a pamphlet containing scurrilous criticism of the senior Judge using the
word dishonest judgment, open dishonesty deliberately and dishonestly a"d
utter dishonesty.
He also stated in the pamphlet that the senior Judge
cleverly asked the junior Judge to deliver the judgment, and that the junior
Judge toed his line by writing what the senior Judge told him to write.
The President of the Bar Association of the Supreme Court and three other
Advocates filed a petition supported by the affidavits of the advocate" about
4 months after the circulation of the pamphlet, for committing thefin~t
respondent and the printer and publisher of the pamphlet for contempt
of court.
The first respondent deliberately avoided service till the 1enior Judge
retired and then filed a counter affidavit containing an unconditional apo~
logy and fresh abuses of the senior Judge.
HELD: (I) Under Art. 129 of the Constitution this Court bas the
power to punish for contempt of itself, and under Art. 143(2) it can in·
vestigate any such contempt [98A-BJ
The Constitution makes this Court the guardian of fundamental rigb&s
and hence it would not enforce any law which imposis unreasonable ret·
trictions on the precious right of freedom of speech. [920-E]
Under the existing Jaw of contempt of court any publication which
is calculated to interfere· with the due course of justice or proper adminis·
tration of law by this Court would amount to contempt of court.
A
C. J:, DAPHTARY v. GUPTA (Sikri, J.)
1crurrilous attack on a Judge, in respect of a judgment- or past conduct
has in our country the inevitable effect of undermining the confidence of
the public in the Judiciary; and if confidence in Judiciary goes administration of ju1tice definitely suffers.
[97C-E]
Therefore, assuming Art. 19(2) applies to the existing law of contempt
the restrictions on freedom of speech. are reasonable and are in public
interest [97B]
Perspective Publications Ltd. v. State of Maharashtra, [1969] 2 S.C.R.
779, 791, 792 and R. C. Cooper v. Union of India, [1970] 2 S.C.C. 298, 301,
followed.
Legal Remembrancer v. B. B. Das Gupta, [1953] I.L.R. 32 Pat. 1069,
1091, Lakhan Singh v. Balbir Singh, l.L.R. [1953] I All 796, and State v
Vikar Ahmed, I.L.R. [1954] Hyd. 270, 278, approved.
(2) The pamphlet in the present case, read as a whole, constituted
gross contempt of this Court. [98F]
The first respondent admitted that he assisted in drafting an in1peachment motion against the senior Judge. The pamphlet '\\':tli ostensibly prepared for that purpose. He therefore used the word dishonest in the p:unphlet in order to bring the allegations against the senior Judge within the
\\'Ord misbehaviour in Art. 1.'.!4(4), and not, with the special sense or n1eaning tha1 the Judge committed errors; because, even gross errors cannot
amount to misbehaviour. To say that the junior Judge toed the lint! and
surrendered his own judgment in deference to or to the dictation of another Judge is flagrant contempt. The first respondent's apology and avowed ri1<;pcct for the junior Judge were not genuinely intended. [99A; 101G;
104E]
In re Moti Lal Ghose, [1918] I.LR. Cal. 169, 182, Emperor v. Marmaduic l'akhal/, A.l.R. 1923 Born. 8, IO and In Re. Murli Monohar Prasad,
[1929] l.L.R. 8 Pat. 323, 340, approved.
(3) Article 105(2) does not apply to the facts of the case. There was
nothing to establish the publication of the pamphlet as a pubUca.tion by
or under the authority of either House of Parliament.
[102G; 1048]
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(4) The Parliamentary Proceedings (Protection of Publication)
Act,
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1956. does not protect the first respondent, because the protection of ss. 3
and 4 of that Act is limited to newspapers or broadcasting agencies, and
that too provided the publication was in public interest and without malice.
But in the present case, the publication was not in a newspaper. [102D, F;
I03F, HJ
(5) In thC pamphlet the judgment was criticised as containing errors
and dishonesty of the senior Judge was alleged.
No evidence to justify
the contempt could be allowed because, if such justification is allowed, the
court hearing the contempt application._ will have to act as an appellate
court, which is not its function: and it 'would encourage disappointed litigants to avenge their defeat by abusing the Judge. [l04H ; l05A]
In the matter of K. L. Gauba, [1942] I.LR. 13 Lab. 411, approved.
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(6) Notice· was issued to the respondents and opportunity was given
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to them to file affidavits stating facts and contentions in their defence. The
first respondent's request for adjournment of the ground that the advocates
be wanted to engage were engaged in fighting elections was refused, because,
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SUPRBMB COURT REPORTS
[1971] SUPP. S.C.R.
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the Court considered the request uirreaoooable and wu made with a view
to delay matters. The contemnor1, therefore, were aiven a fair and reason·
able opportunity to defend themselves.
[lOSE-F]
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(7) Since the essential facts stated in one advocate's aftidavit were
admittei by the first respondent, and the pamphlet aqd the affidavit of
another advocate were annexed to prove the facts, it was not necessary
to disclose any further source of information. [106A, B-E]
(8) All affidavits were filed alo111 with the petition and the entire
evidence of the petitioners was disclosed with the initial petition. [106F]
(9) There was no irrelevant material in the petition. On the facts the
charge against the first respondent was quite clear and simple and it was
not necessaty that a formal charge •hould have been drawn up by the petitioners or this Court. By setting oul the extracts from the pamphlet pointed attention had been drawn to the offending passaaeo. [106G-H; 107D-0]
Nagar Mahapa/ika of the City of Kanpur v. Mohan Singh, Cr. A. No.
27/1964 di. 31-1-1966, referred to.
(10) Whether there baa been delay or 001 in filing a petition depeod5
on the facts of a particular case. In the present case, after the first respondent distributed a copy of the pamphlet in the Bar Association of the
Supreme Court, the petitioners had to ascertain facts regarding its publication, printing etc.
Further the petitioners had to take •teps only after
the Attorney General did not move in the matter. [108B-G]
State Government Madhya Pradesh v. Vinaya Kumar, A.l.R. [1952)
Nag. 34, referred to.
(11) It is not the law, even in England, that only the Attorney-General
should move in contempt matters.
Besides, the position of an Attorney
General in England is quite different from that of the Attorney General
in India.
Unlike the Attorney General in India, he does not have to re ..
ceive instructions from Government to move a contempt petition.
Moreover, there is nothing in law which prevents this Court from entertaining a
petition at the instance of the President of the Supreme Court Bar Association and other Advocates of this Court, since the Bar is vitally concerned in the maintenace of the dignity of courts and the proper administration
of justice. Further, this Court can issue a notice suo moto. [1090-G]
(12) There was no allegation or proof that any of the signatories of
the motion of impeachment circulated the pamphlet outside Parliament,
and hence, there was no necessity to join them as parties. Also, the fact
that those members of Parliament had not been made correspondents did
not exonerate the first respondent or make his publication any the less
contempt of court. [102C; 109G-HJ
(13) The fact ihat the first respondent filed a writ petition containing
the substance of the impeachment motion did not afford a defence whCn
he committed contempt by circulating the pamphlel [llOA-C]
(14) Even if the senior Judge did not choose to take any action for
contempt when the allegations were made during the hearing of the ap.
peal it was open to the petitioners to initiate tho proceedinp. [llOC-DJ
(15) There was no substance in tho contention that the petition was
filed with the object of protecting the senior Judge who was the first ~·
tioner's junior at the Bar and friend and therefore the filing of tho petition
with a vengeful motive was itself contempt of court. [llOD-F]
C. I:. DAPHTAllY" GUPTA (Sikri, J.)
(16) The pamphlet constituted gross contempt of this Court.
His
apology was no apolo1Y when it was coupled with freoh abuse& of the oenior
Judge. Therefore, he deserved a heavy sentence, but since •uch contempt•
of this Court were happily rare, a lenient sentence of 2 months &irnple
imprjsol)IDont should be impooed. (1100; 1110-H]
[The Court however warned that any such future contempt will not
be dealt with so leniently.]
CR!MINAL APPELLATE
JURISDICTION Criminal Misc. Petition
No. 1259 of 1970.
Petition under Article 129 of the Constitution of India praying for action being taken against the respondents for 1he con·
tempt of the Supreme Court.
The petitioner appeared in person.
Respondent No. 1 appeared in person .
.'agadish Swarup, Solicitor-General, V. A. Seyid Muhammad
and S. P. Nayar, for the Union of India.
Mela Ram. one of the partners of respondent No. 2 was also
present in person.
The Judgment. of the Court was delivered by
Sikri, C. 1. This is a petition under Article 129 of the
Constitution of India by Shri C. K. Daphtary and three other
advocates bringing to our notice the alleged contempt of this
Court committed by the respondents (l) 0. P. Gupta, (2) Rising
Sun Press, Delhi, through its proprietor, and (3) M/s Kanak Book
Depot.
Respondent No. 3-Kanak Book Depot-has not been
traced. Respondent No. l, 0. P. Gupta, appeared in person, and
the proprietor of the Rising Sun Press, Mela Ram, also appeared
in person.
In the petition itis stated that Civil Appeal No. 1731 of 1967
was filed in this Court by the State of U. P. against the judgment
of the High Court of Allahabad whereby the High Court had held
that the· order of· dismissal from service passed against respondent
No. 1, O. P. Gupta, was invalid. This appeal came up for hear·
ing before this Court on various occasions and was ultimately
heard by a Bench consisting of Shah. 1.. as he then was, and
Hegde, J., on October 15, 1969 and October 16, 1969 (and, accord·
ing to respondent No. l, also on October, 17, 1969). It appears
that the appeal was first heard on February 22, 1969 by Hidayatullah, C.1., and an0ther Hon'ble Judge, but later on it was heard,
as already stated, by Shah and Hcgde, 11, and the judgment was
delivered on October 28, 1969 by Hegde, J.
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It is further stated in the petition that respondent No. 1 "with
the deliberate design of bringing into disrepute and scandalising
this Hon'ble Court, wrote and got printed and published, by and
through Respondent No. 2, a pamphlet which though ostensibly
meant for the convenient use of members of Parliament was
actually widely circulated and was made available for sale at Ml s
Kanak Book Depot, P. 0. Ramsanehi Ghat, Distt.
Barabanki,
U. P., Respondent No. 3." It is also stated that "the said pam·
phlet was, as the petitioners believe, sold or offered for sale to the
public by Respondent No. 3."
It is further stated in the petition that the pamphlet "disparages and brings into contempt the authority of this Hon'ble Court
and tends to weaken the confidence of the people in it and in any
event has the tendency and object of so doing.
It is submitted
that the pamphlet "by attacking Hon'ble Mr. Justice J. C. Shah
and Hon'ble Mr. Jnstice Hegde, while acting in their judicial
capacity, scandalises and brings into disrepute this Hon'ble Court
and is clearly contempt of this Hon'ble Court."
In para 7 of the petition certain passages from the pamphlet
were extracted. It is necessary to reproduce these paras in order
to show the nature and content of the scandalous remarks made
against Mr. Justice Shah and Mr. Justice Hegde.
''Moreover, having wrongly persisted in hearing the
case, he delivered a demonstrably dishonest judgment
which cannot fail to show to any disce:ning person that
he did so only to feed fat his prejudice and bias. He has
gone to the extent of writing total falsehoods in the
judgment in the defiant belief that there is none to look
into and scrutinise bis judgments. His action is highly
condemnable and derogatory of a man in his position."
"As this enquiry proceeds, hundreds of similar other
instances of his misbehaviour are bound to come to light,
as he appears to be in the habit of being influenced by
extrajudicial considerations and of victimising the disliked party through dishonest means."
"In view of the clear admission by the U. P. Govern·
ment that the file had never gone to the Governor at all,
there was nothing on merits for that Government to file an
appeal but still the U. P. Government filed an appeal in
the Supreme Court in the hope that they may be able to
influence the judgment and get a wrong decision in their
favour.
They thought of Shri J. C. Shah, Judge of the
Supreme Court in this connection."
C. K. DAPHTARY V. GUPTA (Sikri, J.)
"So even while the mater remained pending in the
High Court they moved for exparte ad.interim stay in the
Supreme Court.
This was manged to be heard by Shri
J. C. Shah and another.
Shri J. C. Shah at once ordered
stay not only of the balance decretal amount, but even
of the Rs. 50,000 which had been received by Shri 0. P.
Gupta after furnishing full security."
"The Respondent's counsel, Shri S. P. Sinha, argued
on 25th April, I 966 from 11 a.m. to 11 : 40 a.m. Throughout these arguments Shri J. C. Shah made such extremely
unreasonable, biased and iilegal observations that the
counsel Shri S. P. Sinha had to give up the arguments in
disgust."
"Shri 0. P. Gupta went back to Allahabad greatly
perturbed and upset at such open dishonesty of a Senior
Judge of the highest Court of Justice in the land".
"Whereas in the Lok Sabha every word that is spoken
is written down, in the Supreme Court none of the arguments by the parties or observations by the Judge are
noted.
This is the reason why Shri J. C. Shah makes such
illegal and dishonest observations orally in the Court in
the belief that these observations will not find place on
the record and nobody will be able to catch him."
"Note : Although both the Judges who delivered
this judgment are responsible for it, the responsibility of
Shri J. C. Shah is much more serious as he was the Senior
Judge and had been specifically charged with bias.
The
other Judge merely toed his line.
His cleverness in getting the judgment delivered by his junior colleague will
deceive no one."
"It is not as if the judge has missed those contentions through carelessness.
He has done so deliberately
and dishonestly because the High Court had emphasised
this contention very $trongly and had given clear findings
on it."
"It was only the height of dishonestly on the part of
Shri J. C. Shah to ignore and go against all law in this
matter."
"Ill' view of all these binding rulings Shri J. C. Shah
has not only conducted himself dishonestly in the above
observation but has flouted the Constitution most directly
and want only to feed fat his bias."
"Further, in A. I. R. 1961 S. C. 1070, the Supreme
Court has emphatically laid down that admissions have
to be taken as a whole.
It is not possible for a judge to
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take a few sentences here and there from a statement and
treat them as admission and ignore other sentences which
explain those so-called admissions. Only a dishonest and
prejudicial Judge could have done this."
"In para 9, Shri J. C. Shah himself says that one of
the essential requirements of reasonable opportunity is
that 'he must be given reasonable opportunity to crossexamine the witnesses produced against him.
He has
belied his own standard and shown not only utter dishonesty but also a feeling that being a Judge of the
Supreme Court there is none who can . scrutinise his
actions."
In para 8 of the petition it is sta.ted that petitioner No. 3,
Shri S. N. Prasad, Advocate, while in Patna and Gauhati during
the summer vacation, was asked by several people including some
Judges of the High Court about the said pamphlet and was also
shown the pamphlet for the first time in Patna.
It is fnrtber
stated that petitioner No. 3 was also informed by one of the Chief
Justices that the said pamphlet had been sent to him. It is
submitted that "this makes it obvious that the pamphlet had been
very widely circulated."
Para 9 of the petition may be set out in full :
"That soon after reopening of the Court after summer acation, Respondent No. 1 was found in the Bar
Association room of the Supreme Court and was seen
talking to some members.
Shri B. P. Singh, Advocate,
on spotting the Respondent No. l, went to the table at
which he was sitting with the intention of asking him to
leave the Bar Association room as he was not a member .
On reaching the table, Shri B. P. Singh found the Respondent No. 1 discussing the aforesaid Pamphlet. Shri
B. P. Singh asked the Assistant Librarian of the Bar Associatioii to ask Respondent No. 1 to leave the Bar Association room immediately.
However, before the Respondent No. 1 actually left the Bar Association room, he sold
a copy of the said Pamphlet to Shri 0. N. Mahindroo,
Advocate."
In para 10 it is submitted that "from the above mentioned
facts it is clear that the Respondant No. 1 has personally distributed and published the aforesaid pamphlet." It is further stated
H . in para 11 that the pamphlet as a whole is ex facia contempt of
Court and has the tendency a.nd object of bringing into disrepute
the authority of the court and to weaken the confidence of the
public in its justice and fair play.
C· Jt, DAPJITAll.Y v. GUPTA (Slkri, /.)
It is praiyed in the petition that this Court be pleased to issue
notice to the Respondents to show cause why they should not be
committed for contempt of Court and upon hearing the Respon·
dents (a) order attachment and committal, lb) impose such other
"penalty as may be deemed fit. and (c) pass such order or orders
, as this Court may thiJ,Jk proper:
Shri S. N. Prasad~ .petitioner No. 3, has filed an affidavit
with the petition. Shri B. P. Singh, Advocate, Supreme Court,
luis also filed an affidavit In thfs affidavit it is stated; "Som&-
times after the r~pening of. the Court after the summer vacations
in July .1970, I saw~· 0. P. Gupta. moving about in the Supreme
Court Bar Association.
I recognise Mr. 0. P. Gupta, as I remem·
bcr having seen him arguing his own case in the Supreme Court.
On that day Mr. 0. P. Gupta was carrying a baig with him and
was aimlessly moving about within the Association's premises."
It is further stated in the affidavit :
"That Shri 0. P. Gupta ultimately sat down to talk
to some of the members of the Bar Association and was
discussing certain matters with them.
Having noticed his
presence and having known that he had printed some
pamphlet which contains scurtilous remarks against some
of the Judges of the Hon'ble Court, I became suspicious
as to the purpose of his visit to the Supreme Court Bar
Association.
I, therefore, went to the table where he was
sitting and found that he was discussing the contents of
his pamphlet which he chose to describe as a "booklet".
Among other members present at the table I distinctly remember the presence of Shri 0. N. Mahindroo.
I protested against the presence of Shri 0. P. Gupta within the
Supreme Court Bar Association premises as he was not
a member of the Association. .. .. .. .. .. .. In spite of my
protest l found that Mr. Gupta had no intention of leaving the Bar Association, and I, therefore, called Shri Gopi,
Assistant -Librarian an<! asked him to see to it that Mr.
Gupta left the Bar Association premises immediately.
Thereafter Mr. Gupta agreed to leave the Association premises."·
It is further stated that "while he was leaving he collected a few
copies of the 'booklet' which he had circulated amongst the members present there. I distinctly remember that Shri O. N.
Mabindroo . asked for a copy of the booklet and paid a sum of
Re. I/• to Mr. 0. P. Guj>ta. which was the price demanded by
Mr. Gupta for the booklet Thereafter Mr. Gupta was made to
leave the asSociation premises."
An affidavit was also filed by Shri 0. N. Mahindroo. It Is
stated in the alfidavit :
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"I have read the Affidavit of Mr. B. P. Singh, Advocate, and I confirm what has been stated in paras. 2
and 3 of his affidavit about Mr. 0. P. Gupta and me. I
did pay him a Rupee as desired by Mr. Gupta foc a copy
of the booklet as stated in para. 3 of the said affidavit."
This petition was called for hearing on November 23, 1!170,
and upon hearing Mr. C. K. Daphtary, one of. the petitioners, the
Court directed issue of notice of this petition to the respondents
returnable IO days hence, peremptorily. The office reported on
December 3, 1970, that "neither the Registered Cover nor A.D.
Card in respect of notice issued directly to Respondent No. l,
viz. Shri 0. P. Gupta has been received back so far. Similarly
no report in respect of Respondent No. 1 has been received from
the District Judge, Allahabad." On December 4, 1970, this
Court directed that another notice be sent to respondents Nos. 1
and 3 returnable on December 9, 1970. It was further directed
that notice be sent to respondent No. I at his Delhi address also,
returnable on December 9, 1970. The notices were also directed
to be served through the District Magistrates. It may be mentioned that respondent No. 2 Wa6 present in Court and had filed an
affidavit to which we shall later refer.
The Sub-Divisional Magistrate, Delhi, returned the notice in
respect of 0. P. Gupta, unserved, with the following report :
"The wife of the addressee, viz.. Mrs. Mithles
Kumari, who was prese11t at the address given in the
notice, has stated that her husband had gone out to
Poona.
She had no knowledge about the return of her
husband.
She did not inform us about !tis address at
Poona.
On enquiries being made from Shri Baij Nath Kureel,
resident of 69, South Avenue (M. P. flats) he stated that.
he (Mr. Gupta) comes and stays with him as a guest, off
and on, and he goes back.
Mr. 0. P. Gupta is deliberately concealing himself
and is avoiding service of the notice.
Therefore, the
notice is being returned unserved.
The writing of Mr.
0. P. Gupta's wife is enclosed."
As regards the notice sent to 0. P. Gupta, through
the District Magistrate, Allahabad, the Additional District Magisrate who was contacted on Trunk telephone by the Office on December 8, 1970, reported that Gupta was stated to be in Delhi and
was staying at 69, South Avenue. The District Judge of Allahaba4
and Barabanki reported that notices could not be served on O. P.
Gupta a~ he Wa6 reported to be in Delhi in connection with some
case.
C. K. DAPHTARY V. GUPTA (Sikri, J.)
On being satisfied on materials before it that respondent No.
I was deliberately avoiding service, the Court on December 9, 1970,
difected issue of non~bai!able warrant for the arrest of respondent
No. I (wherever he may be in India) and his production in this
Court on Monday, the 14th December, 1970.
The Additional
District Magistraite, Delhi, thereupon submitted the following
reports:
"The local police has informed us that despite be.st
of L'ieir efforts they have not been able to arrest Shri 0. P.
Gupta whose where-abouts in Delhi aA'e not known. However we are making further efforts to find out his whereabouts and will be abfo to send you a final report on
Sunday evening.
You may kindly inform their Lordships accordingly."
On December 10, 1970, 0. P. Gupta sent a letter to the Registrar, giving his address "C/o Station Master, Jagannath Puri
(Orissa)", stating that he had heard a rumour that "the Hon'ble
Court requires my presence in connection with contempt of Court."
He further stated that he was trying to reach Delhi as soon as possible in about ten days. He requested that the matter may be listed
for his appearance any day in January 1971. He gave a• firm
undertaking that he would present himself before the Court on
the day the Court reopened after winter vacation. On December
14, 1970 this Court ordered that the "warrant will remain outstanding returnable a day after the reopening of the Court in January
1971, i.e. 5-1-1971".
On December 15, 1970, referring to the
letter of the respondent, mentioned above, this Court observed
that "the address given on the letter is c/o the Station Master,
Jaga.nnatb Puri, Orissa. This clearly shows that he does not want to .
disclose his wherabouts so that proper processes may be issued
to him ...... In view of this letter, we are further fortified in our
view that he is avoiding service and concealing himself. Warrants
will be executed as ordered by us."
The office reported again on January 4, 1971 that the authorities had informed that despite their best efforts they had not
been able to arrest 0. P. Gupta nor his where-abouts could be
found.
Respondent No. I wrote another letter on December 24, 1970,
objecting to the issμe of non-bailable warrants. He stated:
"As written in my previous letter I had planned to
reach Delhi by about the 20th instant and to present myself in Court when it reopens on 4th January, 1971 ......
But the shocking news of a non-bailable warrant has upset all my plans."
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He further stated that he had thus no alternative l>ut to go hack;.
he wa.nted to reach the Court as a free man and before appearing.
in Court he wished to get about two or three weeks time for
medical aid. He, therefore, prayed that the warrant be withdrawn
and the case fixed for Monday, the !st February. 1971.
On January 5, 1971, this Court ordered tlrat "warrants be
executed as already directed by this Court. District Magistrates
of Allahabad, Delhi and Barnbanki should take immediate action
with the assistance of the Police, to execute the warrants."
On January 25, 1971, at last 0. P. Gupta appeared before
the Court, and this Court ordered th3t the "warrant which was
ordered to be issued against respondent No. I will not be executed
on condition that he shall furnish a personal bond in tlte sum of
Rs. 5,000 /-with a surety in the like amount to the satisfaction of
the Registrar of this Court. Respondent No. I will file affidavit io
reply within a week from today. Liberty to the petitioners to file
a rejoinder, if any. The Petiton will come up for hearing on the
12th Fsbruary, 197_!."
On January 28, 1971, respondent No. I filed an application
alleging that the petition for contempt was not maintainable and
deserved to be dismissed without the ·applicant being called upon
to answer it on merits. He stated various grounds regarding the·
non-maintainability of the petition. On February 12, 1971, the
Court adjourned the matter to February 18, 1971, and respondent
No. I 'Yas directed to file an affidavit on merits by February 16,
1971, which, however, he failed to do.
On February 22, 1971, respondent moved another application
praying that the hearing of the case may be postponed because
he wanted to engage a counsel and counsel whom he wished ta
engage (M/s R. D. Bhandare, Mohan Kumaramangalam, K. K.
Nayar, D. L. Sen, etc.) were parliamentarians and they were extremly busy in their elections and could not come to Delhi before
the middle of March, 1971.
We have given these facts iii order to show that respondent
No. I was deliberately avoiding service for a long time. We could not
at first understand his object in doing so, but during the course of
arguments the object became quite clear. Chief Jutice Shah was '1ue
to retire on January 21, 1971 and if the respondent had made the
affidavit, to which we will presently refer to, before that date, it
would have amounted to contempt. When it was pointed out to
him during the course of hearing that he had abused Mr. Justice
Shah in his affidavit he replied that it was not contempt because
it was the law that there could not be any contempt in respect of
C. K. DAPHTARY Y. GUPTA (Sikri, J.)
a Judge who has retired. It seems to us clear that in order to
hurl fresh abuses on Mr. Justice Shah, he deliberately avoided
service of the notice so that he would not have to file his affidavit
before the date of retirement of Mr. Justice Shah.
We are also surprised at the inability of the Executive to have
0. P. Gupta traced and warrants served on him. Article 144 of
the Constitution provided that "a.U authorities, civil and judicial,
in the territory of India, shaU act in aid of the Supreme Court."
We have noticed with regret that in this case the Executive has
not shown due diligence in complying with this constitutional provision.
Respondent No. I filed another application on February l8,
l 971, praying tha.t the arguments on maintainability of the petition
be heard first and that question decided. It was further requested
that the petitioners be asked to produce all their evidence because
he would like to cross-examine them. It was further stated that
after the petitioners had closed their evidence, he "will summon
documentairy and oral evidence on his behalf, after which arguments may be heard." He requested that the petitioners be asked
to produce the "book" or the "pamphlet" from which they had
copied annexure 1 to their petition. It was suggested that it would
throw great light on their allegations.
We may mention that the pamphlet or the booklet woo annexed to the petition in original and we could not understand this
prayer.
This Court directed that the petition would be heard
on the affidavits already filed by the parties. This Court also informed respondent No. 1 that the petitioners had no other evidence
to lead.
Respondent No. I filed a lengthy counter affidavit on February
18, 1971. He started with tendering unreserved, unqualified and
unconditional apology to this Court. He, however, went on to
state that in borderline cases it was permissible to make a.Jternative
and additional defence of no contempt also and he therefore proceeded to submit his defence.
In para 3 of the counter-affidavit he maintadned that because
of the many !aches, illegalities and infirmities the petition should be
dismissed. In para 3.2 he stated that "I am not at this stage
making any attempt to contradict evidence given or to give any evidence on my side. This will be done if and when the occasion
arises or the Hon'ble Court so orders. I will have to summou
some documents a.lso for that purpose." This statement was made
in spite of the direction of this Court that he should file his affidavit on the merits. Until now we have not been told what documents or evidence he would bve called, especially in view
of the admissions made by him, which we. will presently refer to.
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ln para 4 he complained that he could not find the SJJccific
charge. We had informed him that, in brief, the cha~ge against
him was that he had committed contempt of Court by the publication and distribution of the pamphlet or the booklet outside
Parliament.
In para 5 he proceeded to assert that the petition wa~ not
bona fide at all. He cast asperisions on Mr. C. K. Daphtary, who
is senior advocate of this Court, and the President of the Supreme
Court Bar Association. We need not refer to these because this
is really an abuse of the process of this Court.
In para 8, 8.1, 8.2 and 8.3 the respondent complained against the
language of the petition ~ not being quite respectful to the Members of Parliament. In para 8.4 he stated that "as to facts I must
frankly admit that the grievous wrong that Shri J. C. Shah had
done to me had created such deep anguish, frustration and desperation in me tha,t had God almightly not intervened Shri J. C. Shah
would not have seen the end of 1969." we wondered what exactly
he meant by this passage, but he admitted that it meant that he
had at one time decided to murder Mr. Justice Shah. He explaoined
that it was some Member of Parliament who saved him from this
act by suggesting that he might instead try to convince the Members
of Parliament of the genuineness of his ca~e and prepare them to
file an impeachment motion.
In para 8.5 it was stated that !.~ had a right to approach a·nd
convince the Hon'ble Members and he exercised that right. Nobody
has said before us tha·t he had no right to approach and convince
the Hon'blc Members.
In para 8.6 and 8.7 he mentioned about the filing of the impeachment motion in the Lok Sabha on May 15, 1970 and its rejection by the Hon'ble Speaker.
In para· 9 he said that "a large number of Hon'ble Members
of Parliament made that draft, in the making of which I too took
ao active part and made my contribution." He submitted that
che "dra·fting" of the motion could not be a charge.
We may
mention that he has not been charged with the drafting of the
motion.
Regarding the printing of the pamphlet, he stated in para.
9.2
"The Impeachment Motion was printed by respon·
dent No. 2 and I went to him to get it printed.
The
printing was done under orders and at the instance of
the signatories of the Motion.
There were 200 of them
c. K. DAPHTARY V. GUPTA (Sikri, J.)
and they were anxious to have several copies each.
They
had a right to have the copies.
lt was impossible for
tllem to have the copies without printing the motion. It
still possess a letter from Hon'ble Shri George Farnandes
asking for six copies which I sent to him by registered
post."
He submitted that the printing of the motion could not be a charge
against him aind that "neither the Hon'ble Members who ordered
the printing, nor I who got the work actually done, nor respondent
2, who actually printed the motion are in any way guilty of
contempt
for
that action.
We
need
not
go into
this
submission as he was not being charged for printing or assisting
in the printing of the motion.
In para 9.3 he contended that the word" "pamphlet" for
the printing lmpea-:hment Motion was highly condemnable.
In
para 9.4 he stated that he never offered the book for sale nor did
he widely circulate it.
Further in para 9.5 he stated that the
"book given to Shri 0. N. Mahindroo, from which this annexure
must have been copied, was not ai new copy, but was a used one
inasmuch as it contained several red pencil marks and pen writing
in its body. This shows and proves that it was not given to him
by way of sale a-nd it was not being offered for sale in general."
In para 9.6 it was stated that annexure I to the petition was
nothing but the Impeachment Montion filed in the Lok Sabha
reproduced in a printed book.
In pua 10 he submitted that para 6 of the petition "has
needlessly dragged in the fair name of Hon'ble Mr. Justice Hegde
in the petitioner's wholesale onslaught."
He submitted: Read
the entire Impeachment Motion.
The name of Hon'ble Mr.
Justice Hegde does not occur even once anywhere either disparagingly or otherwise. I have the greatest rega·rd and respect for
His Lordship, just as I have for every other Judge in India." He
gave reasons why Mr. Justice Hegde's name was not mentioned
in the Impeachment Motion, although he had actually delivered
the judgment.
In para 10.l he submitted that "the very same
judgment
can lead to the Impeachment of one Judge who signs it know·
ing that its conclusions are wrong while leaving out com·
pletely the other Judge who signs it genuinely believing
that the conclusions are right."
In parn 10.2 he referred to the petition dated 27-10-69 under
Art. 32 of the Contitution to demonstrate his great regard and
respect for Mr. Justice Hegde.
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In para 10.3 he stated thus :
"It is entirely wrong to say that the Impeachment
Motion "disparages and brings into contempt the authority of this Hon'ble Court and tends to weaken the confidence of the people in it and in any event has the tendency and object of so doing."
The Motion was solely
aimed against a "decayed fish" and its laudable object
was to save the "entire tank" from contamination, as explained above in para. 9.1.
Therefore, the object of the
motion clearly was to save the prestige and honour of the
Hon'ble Court and to enhance public confidence in it and
not the reverse."
In para 10.4 he submitted that the judgment in question
did not excite respect for Mr. Justice Shah.
In para 10.5 he stated that the Impeachment Motion did
not attribute any corruption like bribary, liquor, sex, influence,
favouritism, etc. to Mr. Justice Shah.
He further added:
"What, however, was a fatal weakness in him, was
that he made up his mind m the result of a case either
when he read the file at home in a few minutes or within
the first few minutes of the opening arguments, and once
he made up his mind, he dogmllltically refused to listen
even to the most reasonable arguments of the party disfavoured by him.
In order to shut down the arguments
of that party, he would go to the length of talking absurdly
and like a mad man in open court.
Such behaviour
made all his virtues useless and made him a man
thoroughly unfit to be a judge."
We need not refer to instances he gave of some other Judges
and their behaviour in Court.
In para 10.8 he submitted:
"The Impeachment Motion ought to be read in this
light.
Wherever it says "prejudice", "bias", "grudge",.
"vengeance" etc., everywhere it means the same--that he
had formed his opinion and was seeking to stick to it
whatever came his way, and the more I tried to make him
see reason, the more offended and revengeful he become.
"Extra-judicial considerations" also means the same,
because
becoming
prejudiced by one sided argument is certainly not judicial.
In this light the entire
Impeachment Motion is nothing but .extremely fair and
and just comment on a man who richly deserved it.
The
two illustrations given on the back of the title cover,
c. K. DAPHTARY >.GUPTA (Sikri, J.)
9}
which are the gist of the entire impeachment motion, also
A.
point to this trait of Shri J. C. Shah's character. There
is no hint of any other weakness.
Even my letter to Shri
C. K. Daphtary, annexure A, clearly points only to this
weakness of Shri J. C. Shah. Fair comment is not contempt."
In para 11 he asserted that excerpts given in para 7 of the · B
petition, reproduced above, were all correct excerpts from the
Impeachment Motion and not from any pamphlet.
He further
submitted that "they are all true, correct and fair criticism of
Shri J. C.