2006 ALL MR (Cri) 2201
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
J.N. PATEL AND B.P. DHARMADHIKARI, JJ.
Col. Mahendra Pratap S/O. Bhawani Shankar Choudhary Vs. Shri. Sanjay S/O. Govinddas Rathi & Ors.
Criminal Contempt Petition No.1 of 2003
20th April, 2006
Petitioner Counsel: Mr. R. R. SHRIVASTAVA
Respondent Counsel: Mr. S. V. PUROHIT
Contempt of Courts Act (1971), S.2(C) - Criminal contempt - Scandalizing court - Application for review of lower court's judgment - Review sought alleging that lower court had taken into consideration "extraneous considerations" while passing order - Contempt petition filed on ground that the words "extraneous conditions" in application for review amounted to contempt of court - Contempt proceeding dropped with caution that such words should not be used by advocate in future draftings.Words and Phrases - Extraneous considerations.
The words or phrase "extraneous considerations" has been generally used only to emphasize & indicate that authority considering the issue has acted with irregularity in the exercise of its jurisdiction by considering some material which could not have been looked into. It does not necessarily mean that such authority has acted malafide with a view to unduly favour anyone of the contesting parties before it or was biased. Normally, it indicates the bonafide and honest mistakes which any authority while discharging the obligations cast upon it may commit. But no principle of universal application in this respect can be stated & answer in each case will depend upon the situation & circumstances in which said words are employed. Hence by itself, these words are neither disparaging nor scandalising. [Para 11]
In the instant case, the use of words "extraneous considerations" does not in any way impute any bias or favouritism of the Court. The plea of petitioner that these words damage confidence in judicial system, creates apprehension about the integrity, ability or fairness of the judge, undermines the status of judiciary, tend to make its mockery or terrorise the judge are not supported by any material on record. The only meaning which can be ascribed to said words is consideration of material which is besides the issue and evaluating the material which is not germane. [Para 15]
A dispassionate and detached attitude by Advocates while drafting the pleadings is essential. However, if during the process, any words, which can have two/dual meanings depending upon the background/context in which they are being employed, are to be used, it becomes the duty of Advocate drafting the pleading to avoid such word and use other more deft and apt word so as to circumvent contingency of any such unpleasant situations. An Advocate is not a puppet representing his client but, he is a responsible officer of the Court playing vital role in administration of justice. He can have no right to seek justice for his clients if he himself can not honour the confidence reposed in him as such by the System. He has therefore to take precaution while drafting to avoid such confusing or unnecessary words & adjectives. An attempt should always be made to see that majesty of Courts is always maintained and should not even be allowed to be doubted remotely. No attempt on it even to the smallest extent should be tolerated and effort should be made to add to the confidence of clients in the judicial process. [Para 17]
In the circumstances it could be held that use of words "extraneous consideration" may not amount to contemptuous use and cannot be considered as such. But if the same are used in such a manner that one can only arrive at a conclusion that the words are used to attack the competence and integrity of a Judge, whether the superior Court or the subordinate Court, then definitely it would amount to scandalise the Court itself. This does not appear to be a case of that nature. In any case benefit of doubt extended to contemnor with a caution that in future while drafting matter he would refrain from using such words in the pleading and use temperate language. With this warning the contempt proceedings dropped. [Para 18]
In Re Ajay Kumar Pandey, AIR 1998 SC 3299 [Para 6,12]
District and Sessions Judge, Aurangabad Vs. Deelip Balaram Bedekar, 2001 ALL MR (Cri) 2137=2002 Bom.C.R. (Cri) 209 [Para 6,12]
Rajendra Sail Vs. M. P. High Court Bar Association, AIR 2005 SC 2473 [Para 7,9]
Mrityunjoy Das Vs. Sayed Hasibur Rahaman, 2001(4) ALL MR 255 (S.C.)=AIR 2001 SC 1293 [Para 7,9,16]
Madhukar Verma Vs. State of M. P., 2005 ALL MR (Cri) 2292 (S.C.)=2005(9) SCC 629 [Para 7,9]
Bijayini Das Vs. Loknath Mishra, 2005 ALL MR (Cri) 2290 (S.C.)=2005(9) SCC 194 [Para 7,8]
Bal Thackrey Vs. Harish Pimpalkhute, 2005 ALL MR (Cri) 538 (S.C.)=2005(1) SCC 254 [Para 8]
State of Kerla Vs. M. S. Mani, 2001(4) ALL MR 489 (S.C.)=2001(8) SCC 82 [Para 8]
R. C. Tamrakar Vs. Nidi Lekha, AIR 2001 SC 3806 [Para 11]
Biman Krishna Bose Vs. United India Insurance Company, 2001(6) SCC 477 [Para 11]
S. Jamaldeen Vs. High Court of Madras, AIR 1997 SC 3780 [Para 11]
Manjushree Pathak Vs. The Assam Industrial Development Corporation, AIR 2000 SC 2769 [Para 11]
State of M. P. Vs. S. S. Kourav, AIR 1995 SC 1056 [Para 11]
Union of India Vs. Hindustan Development Corporation, AIR 1994 SC 988 [Para 11]
M/s. Babubhai & Co. Vs. State of Gujarat, AIR 1985 SC 613 [Para 11]
High Court of Judicature at Bombay Vs. Shashikant S. Patil, 1999(4) ALL MR 500 (S.C.)=AIR 2000 SC 22 [Para 11]
The Collector (District Magistrate) Allahabad Vs. Raja Ram Jaiswal, AIR 1985 SC 1622 [Para 11]
V.T.S. Chandrasekhara Mudaliar Vs. Kulandaivelu Mudaliar, AIR 1963 SC 185 [Para 11]
A. K. Kaul Vs. Union of India, AIR 1995 SC 1403 [Para 11]
Shalini Bhimrao Gaikwad Vs. M. D. More, 2000(2) Mh.L.J. 677 [Para 12]
In Re Arundhati Roy, 2002 ALL MR (Cri) 1674 (S.C.)=AIR 2002 SC 1375 [Para 12]
Dr. D. C. Saxena Vs. Hon'ble the Chief Justice of India, AIR 1996 SC 2481 [Para 12]
Bar Council of India Vs. High Court of Kerla, AIR 2004 SC 2227 [Para 12]
E. S. Reddi Vs. The Chief Secretary, Government of A.P., AIR 1987 SC 1550 [Para 12]
Shri. Baradakanta Mishra Vs. Registrar of Orissa High Court, AIR 1974 SC 710 [Para 12]
Thakur Jugal Kishore Sinha Vs. The Sitamarhi Central Co-operative Bank, AIR 1967 SC 1494 [Para 12]
Lalit Mohan Das Vs. The Advocate-General, Orissa, AIR 1957 SC 250 [Para 12]
Hema Ravishankar Vs. K. R. Ravishankar, 2004(1) ALL MR 124=2004(3) Bom.C.R. 143 [Para 12]
Biman Bose Vs. State of W. B., 2004(13) SCC 95 [Para 16]
M. Y. Shareef Vs. Hon'ble Judges of the Nagpur High Court, AIR 1955 SC 19 [Para 17]
Rajasthan High Court Vs. Radha Mohan Lal, 1993 Cri.L.J. 3182 [Para 17]
B. P. DHARMADHIKARI, J.:- This is application under section 15 read with section 2(C) of Contempt of Courts Act, 1971 (referred to as 1971 Act hereafter) read with article 215 of the Constitution of India. The petitioner/original plaintiff begs to point out that use of words "extraneous considerations" by respondents/original defendants in application for review filed before lower court scandalizes that court and constitutes criminal Contempt as defined in section 2(C) of 1971 Act.
2. Present petitioner Col. Mahendra Pratap Choudhary has filed Special Civil Suit No.400/2002 in the Court of Civil Judge Senior Division, Nagpur for cancellation of sale deed dated 14/3/2000 and for restoration of his possession and for permanent perpetual injunction. For the purposes of present controversy the details of said dispute are not relevant. The sum and substance of grievance of petitioner is that, respondents who obtained sale deed from him had agreed to provide a penthouse with open terrace and they have breached that promise. He also filed application for grant of temporary injunction to prohibit purchaser from proceeding further with the construction and from creating any third party interest in the suit property. The court below granted him that injunction partially. Both the parties had approached this court in Appeal Against Order No. 55/2005 and 76/2005. The limited controversy involved therein was then compromised and on 1/12/2005 this court disposed of both these appeals.
3. Petitioner has also filed a criminal complaint before Judicial Magistrate, First Class, 2nd Court, Nagpur against present respondents for offences punishable under sections 406, 420, 467, 468, 469, 471 r/w 34 and 120(b) of Indian Penal Code and for offences under Maharashtra Ownership of Flats Act, 1963. It appears that, application at Exhibit-25 was moved by respondents with a view to protect their defence and they sought stay of further proceedings of Civil Suit till disposal of criminal prosecution. The prayer was opposed by present petitioner and on 25/9/2002 that prayer was rejected. On 10/10/2002, respondents moved application (exhibit-30) for permission to file reply to temporary injunction application and also written statement on record and for that purpose to set aside ex-parte order passed below exhibit 1 and 5 on 13/9/2002. On 30/12/2002, the trial court only permitted filing of reply opposing prayer for grant of temporary injunction but did not permit filing of written statement in view of provisions of order 8 rule 1 CPC. This court has on 1/12/2005 while disposing of 2 Appeals permitted filing of this written statement also. The respondents then filed application under Order 47 rule 1 for reviewing this order dated 30/12/2002 to the extent it did not permit them to file written statement on record by setting aside order dated 13/9/2002 passed below exhibit-1. The word "extraneous considerations" has been used in paragraph no. 3 of this application. This court has issued Rule in the matter on 4/3/2003.
4. Respondents have filed their return/reply affidavit on 2/9/2004. In order to show their bonafides, they have given history of the matter to show that transaction was of outright purchase and present petitioner is unnecessarily harassing them. They have stated that the above word has been used only to mean that the learned judge of the trial court did not apply his mind to the facts and circumstances of the case in hand by applying relevant provisions of law. They state that effort was to point out that provisions of law which were not relevant have been looked into and facts which were not germane or connected are considered. It is contended that gloss sought to be put on said word by original plaintiff was never intended or meant. It is contended that Suit was filed prior to coming into force of amended provisions of CPC and said fact has been overlooked by the trial court. The respondents have also tendered unconditional apology in the matter.
6. Learned counsel for petitioner, Shri. Shrivastava narrated the facts and pointed out that the proceedings have been initiated after obtaining consent of Advocate General on 13/2/2003. He invites our attention to definition of Criminal Contempt as contained in section 2(C) of 1971 Act to argue that the words "extraneous considerations" are deliberately used with particular intention and they signify only one aspect. According to him by using these words honesty and integrity of the judge presiding over the trial court has been challenged. He states that these words only mean that the said judge/court has favoured present petitioner on account of some other reason which cannot form part of judicial record. He states that this is nothing but scandalizing the court and amounts to its criminal Contempt. He points out the dictionary meaning of said word "extraneous" and places reliance upon judgment of Hon'ble Apex Court in In Re Ajay Kumar Pandey reported at A.I.R. 1998 SC 3299 and of Division Bench of this court in case of District and Sessions Judge, Aurangabad Vs. Deelip Balaram Bedekar and another reported at 2002 Bom.C.R. (Cri) 209 : [2001 ALL MR (Cri) 2137].
7. Advocate Purohit on the other hand begs to tender unconditional apology and without prejudice to it seeks to point out the circumstances and background in which said word has been used in application for review. He points out that entire application needs to be read to understand its exact implication. He also points out dictionary meaning of "extraneous" and "consideration". He has pointed out about 12 judgments of Hon Apex Court in which word "extraneous consideration" has been used by it. Reference to these judgments is being made at appropriate place in the body of this judgment. Relying upon the same, he states that word does not indicate any dishonesty or lack of integrity as is sought to be contended by petitioner. It is neither derogatory nor stigmatic and grievance made by petitioner is misconceived. He also relies upon judgment of Hon Apex Court in case of Rajendra Sail Vs. M. P. High Court Bar Association reported at A.I.R. 2005 SC 2473 to state in what circumstances and how cognizance of such complaint needs to be taken. He also relies upon Mrityunjoy Das Vs. Sayed Hasibur Rahaman reported at A.I.R. 2001 SC 1293 : [2001(4) ALL MR 255 (S.C.)] and Madhukar Verma Vs. State of M. P. reported at 2005(9) SCC 629 : [2005 ALL MR (Cri) 2292 (S.C.)] to point out the standard and nature of proof required in the matter and also the responsibility of burden of proof in the matter. He also relies upon Bijayini Das Vs. Loknath Mishra - 2005(9) SCC 194 : [2005 ALL MR (Cri) 2290 (S.C.)] to state that in the absence of consent of Advocate General present petition is not maintainable.
8. First it is necessary to consider the argument about consent of Advocate General. Judgment of Hon'ble Apex Court in Bijayini Das Vs. Loknath Mishra - 2005(9) SCC 194 : [2005 ALL MR (Cri) 2290 (S.C.)] lays down that prior written consent of Advocate General of the State under section 15 of Act is necessary for private party before invoking the Contempt jurisdiction of the High Court. Earlier judgments of Hon Apex Court in Bal Thackrey Vs. Harish Pimpalkhute (2005(1) SCC 254 : [2005 ALL MR (Cri) 538 (S.C.)]) & State of Kerla Vs. M. S. Mani (2001(8) SCC 82 : 2001(4) ALL MR 489 (S.C.)), clinch this issue. However in the facts of present case, such consent is already obtained and it is placed on record along with petition. Advocate General has given his consent vide communication AG/68/02 dated 13/2/2003 addressed to present petitioner. It mentions the application dated 10/2/2003 moved by present petitioner and also Annexure in which word "extraneous consideration" has been used and it is observed that a prima facie case of criminal Contempt has been made out. Present petition is filed on 28.02.2003, hence, preliminary objection raised by Advocate Purohit on behalf of respondents in this respect is found to be misconceived and unsustainable.
9. Now it will be proper to find out when such jurisdiction can be exercised by High Court. Also nature of that jurisdiction, standard of proof required and the person on whom the onus lies are the issues which fall for consideration. Rajendra Sail Vs. M. P. High Court Bar Association reported at A.I.R. 2005 SC 2473 is the leading judgment of Hon'ble Apex Court in this respect. It arose out of a news report in which the judgment of M. P. High Court acquitting the accused in murder trial by reversing the judgment of conviction was commented upon in irresponsible language. In paragraph 25 of said judgment, Hon'ble Apex Court observes that the question whether there is Contempt of court or not is a serious one as the court is both the accuser as well as the judge of accusation. The court therefore has to act with great circumspection. It is only when a clear case of contemptuous conduct not explainable otherwise, arises that the contemnor must be punished. It is observed that scandalizing the court means hostile criticism of Judges as Judges or judiciary. It is held that fair criticism in good faith and in public interest may not amount to Contempt. To ascertain good faith and public interest, the courts have to see all surrounding circumstances including the person responsible for comments, his knowledge in the field and the intended purpose sought to be achieved. Standard of proof is laid down to be as that in criminal proceedings and the breach is to be established beyond reasonable doubt. In this ruling support is drawn from earlier ruling of Mrityunjoy Das Vs. Sayed Hasibur Rahaman reported at A.I.R. 2001 SC 1293 : [2001(4) ALL MR 255 (S.C.)]. In latter ruling, it is held that the burden of proof is upon the person who seeks to point out Contempt. If there is any doubt, benefit thereof is to be given to the alleged contemnors. Hon'ble Apex Court has in Madhukar Verma Vs. State of M. P. reported at 2005(9) SCC 629 : [2005 ALL MR (Cri) 2292 (S.C.)] reiterated the view that the Contempt jurisdiction should be exercised sparingly and in appropriate cases only. Keeping in mind the above norms, the factual matrix herein is required to be considered.
10. The entire debate before us has been about the sweep and comprehension of phrase "extraneous considerations". The exact sentence which contains this phrase and also the other relevant part of application in which this phrase appears are being considered little later. However for the present, it will be necessary to find out its plain simple meaning and whether in field of law it has acquired any particular meaning. Advocate Shrivastava for present petitioner argues that use of said phrase in review application is to show that order of which review is sought has been passed for some other consideration which is not legal and moral. It is his contention that it is direct attack on the integrity and honesty of the court which passed the said order. As per Oxford dictionary meaning pointed out by petitioner, word extraneous is stated to be adjective and its meaning is given as "of external origin, foreign to, not belonging to or not pertaining to". As per Webster's dictionary relied upon by respondents, its meaning is given as "not intrinsic or essential to matter under consideration, foreign". Thus, this word plain and simple, by itself, does not appear to be stigmatic. The word "consider" is a verb which means to think about or deliberate upon or to examine mentally. "Consideration" is a noun which denotes act of considering. It also means a circumstance to be taken into account while applying mind. It has got one more meaning and that means "something given in return for service, remuneration". It is obvious that petitioner wants "considerations" in phrase under scrutiny to be interpreted in last sense while the respondents want it to be interpreted in second sense i.e. in relation to object for application of mind. This aspect is therefore required to be considered in the background in which said phrase appears in their application for review by present respondents.
A. First judgment of Hon'ble Apex Court pointed out to us is R. C. Tamrakar Vs. Nidi Lekha, A.I.R. 2001 SC 3806. It was in dispute between landlord and tenant and the word has been used in paragraph 9 as under:-
"9. Regarding bona fide requirement of the landlady, the Trial Court after appreciation of the evidence on record held that premises in question was required by the landlady for bona fide occupation for residential purpose for herself. The First Appellate Court set aside the finding on the ground that need of the landlady was not bona fide as her son has constructed a house where she could stay. Though the tenant left the suit premises on his transfer to a place called Shivani where he has been provided accommodation by his employer, where he is living with his wife and he has also a house at Sivani, the First Appellate Court erroneously took into consideration that the suit premises is required for accommodation of his ailing grandmother and his son, who is doing business in the suit premises. These are absolutely extraneous consideration as while considering the bona fide need of the landlord under the Act, the Court need not take into consideration these facts."
It is thus apparent that the phrase has been used to point out that irrelevant factors have been looked in to by the Appellate Court. Here it does not in any way reflect on the honesty or integrity of that Court or its motive.
B. The second judgment is of Biman Krishna Bose Vs. United India Insurance Company reported at 2001(6) SCC 477. The question whether there can be renewal of insurance policy with retrospective effect has been examined and in paragraph 5, the Hon'ble Apex Court observes :-
"--------If we take the view that the mediclaim policy cannot be renewed with retrospective effect, it would give handle to the Insurance Co. to refuse the renewal of the policy on extraneous consideration thereby deprive the claim of insured for treatment of diseases which have appeared during the relevant time and further deprive the insured for all time to come to cover those diseases under an insurance policy by virtue of the exclusion clause--------."
In same case, in paragraph 3, the Court observes:-
"--------Even in an area of contractual relations, the State and its instrumentalities are enjoined with the obligations to act with fairness and in doing so, can take into consideration only the relevant materials. They must not take any irrelevant and extraneous consideration while arriving at a decision. Arbitrariness should not appear in their actions or decisions.--------"
Again therefore the phrase is used to indicate the factors in relation to which mind is to be applied & nothing more.
C. The Third Judgment is S. Jamaldeen Vs. High Court of Madras at A.I.R. 1997 SC 3780. The challenge was to rule governing seniority. In paragraph 17 it is observed :-
"The appeal Court held that the third proviso to Rule 20 was valid, logical and reasonable."
"The mere fact that their services may be regularised or even regularised in respect of some of them from such earlier dates of their temporary officiation under Rule 11(4) of the Rules is an irrelevant and extraneous consideration in so far as fixation of inter se seniority of the members of the service forming the integrated service is concerned. The inter se seniority shall have to be determined only by applying the principles contained in the third proviso to Rule 20 of the Rules."
Again therefore use of phrase is to indicate circumstance which was not necessary to be considered for fixation of interse seniority.
D. The fourth judgment is Manjushree Pathak Vs. The Assam Industrial Development Corporation reported at A.I.R. 2000 SC 2769. The propriety of issuing show cause notice to an employee who had opted to proceed on voluntary retirement after such decision was under consideration and the Hon Apex Court in paragraph 15 observes as under:-
"15. The Division Bench of the High Court has failed to see that the scheme conferred discretion on the corporation under Clause 8.1 coupled with the duty to act judiciously when application for voluntary retirement was made by an employee. The said clause did not confer any unfettered discretion upon the corporation to refuse the benefit of the scheme to any employee being an authority coming within the meaning of Article 12 of the Constitution. It was not open to the Managing Director of the respondent-Corporation to act on extraneous consideration by issuing a show-cause notice dated 15/16-2-1996 so as to deprive the appellant of the benefit flowing from acceptance of her voluntary retirement. It is true that under Clause 8.1 of the Scheme discretion was available to the respondent-corporation but that discretion was not absolute. It was circumscribed by the terms mentioned in the said clause and it was to be exercised judiciously. In the case on hand the Managing Director of the Corporation has failed to act reasonably and fairly. He abdicated his duty by not exercising discretion at all in the light of facts and circumstances of the case stated above in sufficient details".
The phrase is used to denote the event which was not relevant while applying mind to the aspect of voluntary retirement.
E. The fifth judgment is State of Madhya Pradesh Vs. S. S. Kourav at A.I.R. 1995 SC 1056 which arises out of transfer of an employee and its quashing by State Administrative Tribunal. In this background, the Hon'ble Apex Court observes in paragraph 4 as under :-
"4. It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was no justification to transfer him again to Jagdalpur. We cannot appreciate these grounds. The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place".
F. The 6th judgment is Union of India Vs. Hindustan Development Corporation reported at A.I.R. 1994 SC 980. It arises out of Tender proceedings and formation of cartel. The relevant observations are in paragraph7 (1) and read :-
"7.(1) There is no enough of material to conclude that M/s. H.D.C., Mukand and Bharatiya formed a cartel. Because of mere quoting identical tender offers by the said three manufacturers for which there is some basis, the conclusion that the said manufacturers had formed a cartel does not appear to be correct. However since the offers of the said three tenderers were identical and the price was somewhat lower, the Tender Committee entertained a suspicion that a cartel had been formed and the same got further strengthened by the post-tender attitude of the said manufacturers which further resulted in entertaining the same suspicion by the other authorities in the hierarchy of decision making body including the Minister of Railways. Though there is no enough of material to establish formation of a cartel as is understood in the legal parlance but at the same time it cannot be contended that such an opinion entertained by the concerned authorities including the Minister was per se malicious or was actuated by any extraneous considerations. After a careful examination of the entire record and facts and circumstances of the case we are of the view that all the Railway authorities including the Minister acted in a bona fide manner in taking the stand that the three manufacturers formed a cartel".
G. The seventh judgment is M/s. Babubhai & Co. Vs. State of Gujarat reported at AIR 1985 SC 613. Lands of Appellant were required for public purposes as per sanctioned scheme and he was called upon to hand over the possession to Municipal Corporation in exercise of powers under section 54 read with rule 27 of Bombay Town Planning Act, 1954 and 1955 rules framed there under. Validity of those rules was questioned on the ground of absence of corrective machinery and effort before Hon Apex Court was to point out need of reading of opportunity of hearing in rule 27. The following observations in paragraph 6 are important for present purposes:-
"6.--------Regard will have to be had to several factors, such as, on whom the power is conferred, whether on a high official or a petty officer, what is the nature of the power - whether the exercise thereof depends upon the subjective satisfaction of the authority or body on whom it is conferred or is it to be exercised objectively by reference to some existing facts or tests, whether or not it is a quasi-judicial power requiring that authority or body to observe principles of natural justice and make a speaking order etc..; the last mentioned factor particularly ensures application of mind on the part of the authority or body only to pertinent or germane, material on the record excluding the extraneous and irrelevant and also subjects the order of the authority or body to a judicial review under the writ jurisdiction of the Court on grounds of perversity, extraneous influence, mala fides and other blatant infirmities. Moreover all these factors will have to be considered in the light of the scheme of the enactment and the purpose intended to be achieved by the concerned provision.--------".
H. The eighth judgment is Union of India Vs. Hindustan Development Corporation reported at A.I.R. 1994 SC 988. In fact this is reasoning in detail provided for by Hon'ble Apex Court in relation to its judgment between same parties reported at page 980 in same volume (supra). The relevant part in paragraph 17 reads:-
"--------.Under these circumstances though the attitude of these three big manufacturers gave rise to a suspicion that they formed a cartel but there is not enough of material to conclude that in fact there was such formation of a cartel. However, such an opinion entertained by the concerned authorities including the Minister was not malicious nor was actuated by any extraneous considerations. They entertained a reasonable suspicion based on the record and other surrounding circumstances and only acted in a bona fide manner in taking the stand that the three big manufacturers formed a cartel".
I. The ninth judgment is of High Court of Judicature at Bombay Vs. Shashikant S. Patil reported at A.I.R. 2000 SC 22 : [1999(4) ALL MR 500 (S.C.)]. While holding that adequacy or reliability of evidence cannot be canvassed in writ petition following observations are made in paragraph 16 :-
"16.-------- Interference with decision of departmental authority can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted.--------".
J. The tenth judgment is The Collector (District Magistrate) Allahabad Vs. Raja Ram Jaiswal at A.I.R. 1985 SC 1622. It considers in exercise of power by authority to acquire the land and following observations in paragraph 26 are important :-
"26. Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context 'in good faith' means 'for legitimate reasons'! Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides. In such a situation there is no question of any personal ill-will or motive.--------".
This judgment gives/uses wider meaning of the phrase extraneous or irrelevant considerations and states that exercise of power for such reasons is colourable exercise and fraud on power.
K. The 11th judgment is V.T.S. Chandrasekhara Mudaliar Vs. Kulandaivelu Mudaliar reported at A.I.R. 1963 SC 185. The question considered is power with widow to adopt and the relevant part as contained in paragraph 18 at page 195 of the report reads:-
"In effect and substance he introduces his personal interest in the matter of his assent, with a view to secure the properties to his branch. It would only be a matter of degree should he extend the choice of the widow to the divided branches of his family comprehending a large group of sapindas, for even in that case the sapinda seeks to enforce his choice on the widow on extraneous considerations. In giving or withholding his consent in his capacity as guardian or the protector of the widow, the sapinda should form an honest and independent judgment on the advisability or otherwise of the proposed adoption with reference to the widow's branch of the family: see 65 Mad LJ 388: (AIR 1935 PC 190)). The sapinda should bring to bear on impartial and judicial mind on the problem presented to him and should not be swerved by extraneous and irrelevant considerations--------".
Again this judgment uses the phrase in wider sense.
L. The last and 12th judgment is A. K. Kaul Vs. Union of India reported at A.I.R. 1995 SC 1403. While narrating the circumstances having bearing upon satisfaction of President or Governor to dispense with holding of departmental inquiry, following observations are made at the end of paragraph 24 :-
"--------If an order passed under Article 311(2)(c) is assailed before a Court of law on the ground that the satisfaction of the President or the Governor is not based on circumstances which have a bearing on the security of the State the Court can examine the circumstances on which the satisfaction of the President or the Governor is based and if it finds that the said circumstances have no bearing on the security of the State the Court can hold that the satisfaction of the President or the Governor which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations".
It is thus clear that the word/phrase has been generally used only to emphasize & indicate that authority considering the issue has acted with irregularity in the exercise of its jurisdiction by considering some material which could not have been looked into. It does not necessarily mean that such authority has acted malafide with a view to unduly favour anyone of the contesting parties before it or was biased. Normally, it indicates the bonafide and honest mistakes which any authority while discharging the obligations cast upon it may commit. But no principle of universal application in this respect can be stated & answer in each case will depend upon the situation & circumstances in which said words are employed. Hence by itself, these words are neither disparaging nor scandalising.
12. It will also be beneficial to find out in what circumstances pleadings of parties have been held to constitute contempt of court. Simultaneously, observations about the duty cast upon advocates in this respect can also be noticed.
A. Counsel for petitioner has relied upon Division Bench of this court in case of District and Sessions Judge, Aurangabad Vs. Deelip Balaram Bedekar and another reported at 2002 Bom.C.R. (Cri) 209 : [2001 ALL MR (Cri) 2137]. This was a reference made against respondent advocate by Chief Judicial Magistrate, Aurangabad. Summary Criminal Case was filed against said advocate by one person under section 138 of Negotiable Instruments Act and said Magistrate convicted him. Criminal Appeal filed by said advocate was pending. He filed Criminal Complaint against said Chief Judicial Magistrate and it was dismissed by Judicial Magistrate, First Class, Court No 14. In said complaint statement of Advocate Bedekar (complainant) under section 200 of Cr.P.C. was recorded and the burden of song of advocate was that the order passed by the Chief Judicial Magistrate was passed on extraneous considerations. The filing of Complaint case was reported in local daily "Apala Mahanagar". Observations of Division Bench in paragraph 6 are important for present purposes. Said paragraph reads :-
"6. We make no bones in observing that the avernment made by Deelip Bedekar in his statement under section 200 of the Code of Criminal Procedure, which in term is that the judgment passed by the Chief Judicial Magistrate, Mr. Chaudhari, was passed on extraneous considerations, undoubtedly, scandalises, tends to scandalise, lowers and tends to lower the dignity of the Court of the Chief Judicial Magistrate, Aurangabad, and, therefore, Deelip Bedekar would be guilty of the offence of Criminal contempt under section 2(c) of the said Act. We also make no bones in observing that since Nishikant Bhalerao published the said avernments in the issue dated 9th January, 1997 in the daily newspaper "Apala Mahanagar", he would also be guilty of the said offence."
It is apparent that there was no dispute before said Division Bench about the meaning of these words and arguments on present lines were not advanced by defence. Even otherwise, from the background facts it is clear that the Division Bench was right in concluding that the use of said words/phrase constituted Criminal contempt. Contemner advocate filed independent Criminal Case before another court against Chief Judicial Magistrate and used these words in his statement before other court. This was also published in newspaper. This judgment is therefore not an authority to hold that in all situations whenever these words are used, there would be criminal contempt.
B. In Re Ajay Kumar Pandey reported at A.I.R. 1998 SC 3299 : [2002 ALL MR (Cri) (S.C.) 1674] is also pointed out by petitioner. This again is the matter of advocate who filed criminal complaint against another advocate and a lady Additional District Judge. His complaint was dismissed and he filed Criminal Revision in the High Court which dismissed it. Learned Single Judge of High Court found that veiled object of lame prosecution was to disgrace, humiliate or cause harassment to the accused and effort was to malign learned Lady Judge. After dismissal of Criminal Revision, said advocate filed Special Leave Petition before Hon'ble Apex Court along with independent Contempt Petitions against learned Single Judge of High Court as also against lady Additional District Judge. He also filed contempt petition against District Judge, two Additional District Judges and also a Special Judge. The language used by him states that these judicial authorities fraudulently, corruptly and with collusion of said Lady Judge dismissed his complaint and the Hon'ble Judge of High Court also fraudulently, forgedly and maliciously dismissed his Revision. The Hon'ble Apex Court gave him opportunity to make amends but he refused to do so. It is in this background that the Hon'ble Apex Court observes in paragraph 24 as under :-
"24. Thus, it is now settled that abuses, attribution of motives, vituperative terrorism and scurrilous and indecent attacks on the impartiality of the Judges in the pleadings, applications or other documents filed in the Court or otherwise published which have the tendency to scandalise and undermine the dignity of the Court and the majesty of law amounts to criminal contempt of Court".
C. Division Bench of this court in Shalini Bhimrao Gaikwad Vs. M. D. More reported at 2000(2) Mh.L.J. 677 has heavily relied upon In Re Vs. Ajay Kumar Pandey (supra) in practically similar situation. The petitioner, 2nd Additional Sessions Judge made reference against respondent advocate. It appears that bail applications moved by him were rejected and he attributed it to previous complaint lodged by him against said Judge. After rejection he filed review application making these allegations and also made some other personal allegations against the Judge. Not only this he also threatened with proceedings in High Court stating that said Judge would be joined as party in person thereto. This court refused to accept unconditional apology and sentenced said advocate to pay fine and in default, to suffer simple imprisonment of one month.
D. In case of In Re Arundhati Roy reported at A.I.R. 2002 SC 1375 : [2002 ALL MR (Cri) 1674 (S.C.)], in paragraph 21 it has been held that word scandalising means expression of scurrilous attack on the majesty of justice which is calculated to undermine the authority of the Courts and public confidence in administration of justice. Earlier judgment in case of Dr. D. C. Saxena Vs. Hon'ble the Chief Justice of India (A.I.R. 1996 SC 2481), has been mentioned in support. In latter judgment it has been observed that imputing partiality, corruption, bias, improper motives to Judge is scandalisation of the Court. Dr. D. C. Saxena had filed a petition in public interest for directing P. V. Narasinha Rao to disburse certain amounts to Union of India. It was dismissed and thereafter he filed another writ petition seeking certain reliefs against the then Chief Justice of India which included declaration that the Hon'ble Judge was unfit to hold that post, direction to lodge FIR against him, his prosecution under Prevention of Corruption Act and other similar disparaging reliefs. Hon'ble Apex Court initiated contempt proceedings against him. In this judgment, in end of paragraph 45 duty of advocate while drafting the pleadings is also stated as under:-
"45.--------In the light of the above discussion, we have little doubt to conclude that when an advocate or a party appearing before the court requires to conduct himself in a manner befitting to the dignity and decorum of the court, he cannot have a free licence to indulge in writing in the pleadings the scurrilous accusations or scandalisation against the Judge or the court. If a reputation and dignity of the Judge, who decides the case are allowed to be prescribed in the pleadings, the respect for the court would quickly disappear and independence of the judiciary would be a thing of the past".
E. Bar Council of India Vs. High Court of Kerla is another ruling of Hon'ble Apex Court reported at A.I.R. 2004 SC 2227 which considers the issue of contempt of court and this conduct by advocates. It is observed there in paragraph 12 that :-
"12. An advocate is allowed considerable freedom in conducting his case. In the interest of the client, he even can cast reflections upon the character, conduct or credit of parties or witnesses with impunity, provided such comments are relevant to the issue before the Court and the same is not defamatory in character. So long the conduct of the advocate does not amount to insult to the Court, he may not be held up for contempt".
F. In E. S. Reddi Vs. The Chief Secretary, Government of Andhra Pradesh reported at A.I.R. 1987 SC 1550 duty of advocate while settling the pleadings has been pointed out. The offending pleading is reproduced in paragraph 8 and role of advocate about it & also while addressing the Court is specified in other paras. Paragraphs 8 to 13 are important for present purposes and the same read:-
"8. Turning next to C.M.P. No.25533/86, we must strongly deprecate the conduct of the applicant T. V. Choudhary, a member of the Indian Administrative Service and working as Managing Director of the Andhra Pradesh State Textile Development Corporation, to have made reckless allegations and cast aspersions on the Court. After denying his complicity, the applicant T. V. Choudhary goes on to assert-
"The Order of this Hon'ble Court directing the Government to suspend the other delinquent officers is made without affording an opportunity to the Applicant and presumably without considering the relevant provisions of law, case law and the parameters of judicial power and the necessity to observe the principles of natural justice.
It is submitted that the Order of this Hon'ble Court dated 11th August, 1986 is illegal, insofar as it directed the Government to suspend the applicant and others, in view of the fact that the Government has exercised its discretion and transferred the applicant taking into consideration the recommendation of the Anti-corruption Bureau. It is well settled that a Court of law cannot compel a statutory authority to exercise its statutory discretion in a particular manner. The legislative will in conferring discretion in an essentially administrative function cannot be interfered with by Courts."
To say the least, the averments are highly objectionable. It was expected that the applicant, who is a very senior member of the Indian Administrative Service, should have shown greater responsibility before making such unfounded allegations and uncalled for aspersions. On a motion being made on September 5, 1986 by Shri P. P. Rao, learned counsel for the applicant, it was directed that the application shall be listed for hearing on September 9, 1986. At the same time, we drew the attention of the learned counsel to the improper and objectionable averments made by the applicant. We were given the impression that the application had been settled by the learned counsel without noticing the offending averments.
9. We wish we could have rested content with concluding the judgment with the operative portion of our conclusions on the merits of the case but we find with a sense of anguish and heaviness of heart that we have to express our disapproval of the manner in which the arguments were advanced before us on behalf of the applicant T. V. Choudhary. Not only were the arguments advanced with undue vehemence and unwarranted passion, reflecting identification of interests beyond established conventions but were of degrees not usual of enlightened senior counsel to adopt. The majesty of law and the dignity of Courts cannot be maintained unless there is mutual respect between the Bench and the Bar and the counsel act in full realisation of their duty to the Court alongside their duty to their clients and have the grace to reconcile themselves when their pleas and arguments do not find acceptance with the Court. It is needless for us to say that neither rhetoric nor tempestuous arguments can constitute the sine qua non for persuasive arguments.
10. By virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position akin to a Queen's counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience by the Chief Justice and the Judges of this Court. They thus become leading counsel and take precedence on all counsel not having that rank. A senior counsel though he cannot draw up pleadings of the party, can nevertheless be engaged "to settle" i.e. to put the pleadings into "proper and satisfactory form" and hence a senior counsel settling pleadings has a more onerous responsibility as otherwise the blame for improper pleadings will be laid at his doors.
11. Lord Reid in Rondel Vs. Worsley (1967)3 All ER 993 has succinctly set out the conflicting nature of the duties a counsel has to perform in his own inimitable manner as follows-
"Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. As an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. By so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him."
12. Again as Lord Denning, M. R. in Rondel Vs. W., (1966)3 All ER 657 would say 'he (the counsel) has time and again to choose between his duty to his client and his duty to the Court. This is a conflict often difficult to resolve; and he should not be under pressure to decide it wrongly. When a barrister or an advocate puts his first duty to the Court, he has nothing to fear. In the words of Lord Denning:
"It is a mistake to suppose that he is the mouthpiece of his client to say what he wants. : ..................He must disregard the most specific instructions of his client, if they conflict with his duty to the Court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline."
13. We are constrained to give expression to our views with a feeling of remorse to remind the counsel of that sense of detachment and non identification they are expected to maintain with the causes espoused by them and not with a view to belittle the profession or cast aspersions on counsel.
It is thus obvious that a lawyer cannot plead anything as per the wishes of his client but he has to air the grievance of his client in descent and proper language taking precaution that majesty of Court is not compromised in any way in the process.
G. Judgment of Hon Apex Court in Shri. Baradakanta Mishra Vs. Registrar of Orissa High Court reported at A.I.R. 1974 SC 710 also needs to be considered. Appellant/employee Shri Mishra approached Hon'ble Apex Court challenging his conviction and sentence by Full Bench of 5 Judges of Orissa High Court under Contempt of Courts Act. Paragraph 21 of the judgment points out the objectionable grounds of appeal by employee which refer to palpable incorrect views of High Court, High Court putting exchequer to heavy loss, High Court disapproving the governments order, High Court not gracefully accepting said order, High Court adopting subterfuge to counteract the government decision by a novel step, patent malafide action of High Court etc. Hon Apex Court in paragraph 40 observes:-
"40. So far as the first part of the argument is concerned the same must be dismissed as unsubstantial because if, in fact, the language used amounts to contempt of Court it will become punishable as criminal contempt. The right of appeal does not give the right to commit contempt of Court, nor can it be used as a cover to bring the authority of the High Court into disrespect and disregard. It has been held by this Court in Jugal Kishore Vs. Sitamarhi Central Co-op. Bank, AIR 1967 SC 1494 = (1967 Cri.L.J. 1380) that allegations of mala fides in the grounds of appeal to the Joint Registrar of Co-operative Societies from the Order of the Assistant Registrar would constitute gross contempt."
Observations in paragraph 85 are also important and same read :-
"85. At this stage it must be noticed that in the State of Madhya Pradesh Vs. Reva Shanker 1959 SCR 1367 = (AIR 1959 SC 102 = 1959 Cri.L.J. 251) this Court ruled that aspersions of a serious nature made against a Magistrate in a transfer petition could be punishable as a contempt if made without good faith. However, in (1972)1 SCC 740 = (AIR 1972 SC 989 = 1972 Cri.L.J. 620), this Court reviewed the decisions on the point and ruled that if in the garb of a transfer application scurrilous attacks were made on a Court imputing improper motives to the Judge there may still be contempt of Court, although the Court referred with approval to the ruling in Swarnamayi Panigrahi Vs. B. Nayak, AIR 1959 Orissa 89 = (1959 Cri.L.J. 626) that a latitudinarian approach was permissible in transfer applications. The core of the pronouncement is that a remedial process like a transfer application cannot be a mask to malign a judge, a certain generosity or indulgence is justified in evaluating the allegations against the judge. Eventually, Grover J., held that the allegations made in the proceeding in question were not sufficiently serious to constitute contempt. A liberal margin is permissible in such cases but batting within the crease and observing the rules of the game are still necessary. Irrelevant or unvarnished imputations under the pretext of grounds of appeal amount to foul play and perversion of legal process. Here, the author, a senior judicial officer who professionally weighs his thoughts and words, has no justification for the immoderate abuse he has resorted to. In this sector even truth is no defence, as in the case of Criminal insult - in the latter because it may produce violent breaches and if forbidden in the name of public peace, and in the former because it may demoralise the community about courts and is forbidden in the interests of public justice as contempt of Court".
H. In Thakur Jugal Kishore Sinha Vs. The Sitamarhi Central Co-operative Bank reported at A.I.R. 1967 SC 1494, the following ground taken in memo of appeal against the order of an Assistant Registrar functioning under Bihar and Orissa Co-operative Societies Act has been held to amount to contempt of court. Said ground reads :-
"3.--------One of the grounds of appeal ran as follows - "For that the order of respondent No.2 is mala fide inasmuch as after receiving the order of transfer he singled out this case out of so many for disposal before making over charge and used double standard in judging the charges against the defendants Nos.1 and 2.
It is prayed that it should be declared that the order of the Assistant Registrar is without jurisdiction, illegal and mala fide and heavy costs should be awarded making respondent No.2 responsible mainly for such costs."
I. In Lalit Mohan Das Vs. The Advocate-General, Orissa and another (A.I.R. 1957 SC 250), Hon'ble Apex Court has expressed itself about the nature of obligation on advocate. The following observations are germane :-
"11. On merits we agree with the High Court that the appellant was undoubtedly guilty of grave professional misconduct. A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant was adding insult to injury; because the Munsif had merely upheld an order of his predecessor on the preliminary point, of jurisdiction and court fees, which order had been upheld by the High Court in revision. Scanadalising the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; it brought into disrepute the whole administration of justice. From that point of view, the conduct of the appellant was highly reprehensible. The appellant gave no evidence in support of his version of the incidents, though he had an opportunity of doing so, if he so desired."
J. Reference in this respect can be made to judgment of learned Single Judge of this Court in case between Hema Ravishankar Vs. K. R. Ravishankar reported at 2004(3) Bom.C.R. 143 : [2004(1) ALL MR 124]. There, in an application moved before Hon Chief Justice for transfer of matter to another Judge, the petitioner wife used sentences like "the learned Judge was adamant in granting access to the respondent", "the learned Judge is insisting upon submitting to such a settlement", "the learned Judge is virtually threatening to pass custody orders in my petition if settlement is not gone through", "the learned Judge is insisting on settlement and therefore states in open Court that copies of reports are not necessary" and "the learned Judge is however not inclined to hear my Advocate otherwise than on the settlement proposed by the respondent". This Court granted opportunity to Advocates representing wife to withdraw these allegations after they accepted to take responsibility about the contents of the document in question. This Court issued notices to both the Advocates for showing cause as to why they should not be punished for committing its contempt. Also this Court has made reference to various cases decided by Hon'ble Apex Court and observed in paragraph 29 as under:-
"29. As mentioned earlier, imputation of unfairness or bias made against me by the Advocates for the petitioner constitutes grave professional misconduct, as is observed in the case of Lalit Mohan Das (supra). The Constitution Bench of the Apex Court in 1998(4) SCC 409 paras 57 and 79 in the case of (Supreme Court Bar Association Vs. Union of India), has expressed that in a given case an Advocate found guilty of committing contempt of Court may also be guilty of committing "professional misconduct". Both this jurisdictions are separate and distinct and exercisable by different forms by following separate and distinct procedures. In the light of the above, I am disposed to forward copy of this decision to the Bar Council of Maharashtra and Goa for taking appropriate action against the concerned Advocate in accordance with law."
13. It is thus clear that if present respondents in any way wanted to contend that the Lower Court was influenced by some other means and induced to pass order in favour of present petitioner, they would be guilty of contempt of court. However for that purpose, examination of the application in which these words appear, becomes essential.
14. Here, it is only one word in the review application preferred by present respondents which is being pointed out as constituting contempt. It will therefore be necessary to make reference to essential contents of that review application. Said application is under order 47 rule 1 of Court of civil procedure for partly reviewing the order dated 30/12/2002 passed below exhibit 30. The respondents begin it as "The defendants named above humbly and respectfully submit as under". Thereafter in paragraph 1 it has been mentioned that the Hon Court by order dated 30/12/2002 was pleased to allow defendants to file their reply to temporary injunction application. It is further mentioned that Hon'ble Court by same order did not permit defendants to file written statement by setting aside order dated 13/9/2002 passed below exhibit-1. It is thereafter stated that the Hon Court while rejecting that prayer committed a grave mistake and error apparent on face of record and it is alleged that there were sufficient reasons for reviewing the order dated 30/12/2002. In paragraph 2 it is stated that the Hon Court solely relied upon provisions of Order 8 Rule 1 and totally ignored and disregarded provisions of Order 8 Rule 9 which was pointed out to it at the time of arguments on exhibit-30. It is stated that the impugned order was thus passed by Hon Court by committing a grave error of law apparent on face of record. Then comes paragraph 3 in which the words/phrase "extraneous considerations" has been used. In paragraph 4, it is reiterated that the Hon Court while passing order dated 30/12/2002 did not consider provisions of Order 8 Rule 1, Order 8 Rule 9, Order 9 Rule 7 etc. in proper perspective and in harmony and erred in holding that defendants could not be allowed to file written statement after 90 days. In paragraph 5 defendants have sought leave of Hon court to refer to and rely upon contents of exhibit 30 while considering its instant review application. Paragraph No.6 is formal. Then there is prayer which requested the Hon court to review partly its order and to permit defendants to file written statement on record. It will thus be seen that there is nothing objectionable in any of these paragraphs and on the contrary, the request has been made after mentioning the alleged error in decent language keeping in view the dignity and prestige of the Court. It will now be proper to make reference to paragraph 3 which reads:-
"3. That, a bare perusal of Exhibit-30 would reveal that cogent and sufficient reasons and cause was made out for setting aside the order dated 13/9/2002 passed below Exhibit-1 as well as Exhibit-5. This Hon Court has considered the set of reasons and causes given in the application Exhibit-30 as sufficient for setting aside the order passed below Exhibit-5 dated 13/9/2002, however, this Hon Court has not considered the set of reasons as sufficient for setting aside the Order dated 13/9/2002 passed below Exhibit-1 on extraneous considerations. This Hon Court while rejecting the request of the defendants to set aside the order dated 13/9/2002 passed below Exhibit-1, has totally disregarded the provisions of Order 8 Rule 9 by virtue of which the Written Statement filed by the defendants could have been taken on record. That, because of the above said situation, it seems that this Hon court has rejected the prayer of the defendants for taking their written statement on record. A bare perusal of their reply to the temporary injunction application and the written statement which is to be taken on record, would reveal that the defendants have adopted the reply to Temporary Injunction application as their written statement. This Hon Court ought to have therefore, taken the written statement on record as no prejudice would have been caused to the plaintiff. Under the circumstances, the order dated 13/12/2002 needs to be reviewed in the interest of Justice".
15. It is clear that this use of words "extraneous considerations" does not in any way impute any bias or favouritism to the Court which decided application at exhibit-30. The case of present petitioner that these words damage confidence in judicial system, creates apprehension about the integrity, ability or fairness of the judge, undermine the status of judiciary, tend to make its mockery or terrorise the learned judge are not supported by any material on record. The only meaning which can be ascribed to said words is consideration of material which is besides the issue and evaluating the material which is not germane. The words are used in 2nd sense as pointed out in para no.10 above. It cannot be said that it is irresponsible or reckless use of words by the respondents. Entire tenor of application preferred by present respondents reveal that they approached the trial Court with full confidence in it pointing out what according to them is an error apparent. That is not browbeating the Presiding officer at all. On the contrary, entire application reveals that the respondents have made an attempt to ventilate their grievance before same court and hence, it is not possible to accept that they wanted to even remotely suggest any bias or partial attitude or inclination towards present petitioner by the Presiding Officer/Court. These words certainly do not signify any consideration not acceptable in administration of justice. From the meaning flowing from above referred judgments of Hon Apex Court, it can be seen that limits of judicial scrutiny are circumscribed by well-defined pegs in each jurisdiction and consideration of any other factor outside those limits is held to be bad. The authority evaluating the correctness or otherwise of the action impugned has to examine it qua such pegs or tests only. The points of view for such an authority are already fixed and viewing matter from any other point of view is extraneous consideration of the matter/challenge. Thus, zone or area in which the mind is to be applied is circumscribed and events/issues falling outside such area or zone are extraneous. These tests laid down while judicially scrutinising any action/order furnish the grounds or object for reaching the particular opinion. If some other ground or object is looked into, the application of mind stands vitiated. The mind in that event and contingency is applied and opinion is reached on account of extraneous considerations. Such extraneous grounds or objects are no doubt considerations but not "consideration" as understood in any contract or agreement. It does not represent a compensation or reimbursement for any act or service undertaken/discharged by one for the other. The "consideration" as understood in contract or agreement between parties is the basis thereof for which one agrees to do or foregoing from doing something for the other. It is an inducement or motive which moves its recipient to do something in favour of the person releasing it. Such meaning cannot be attached to the words "extraneous considerations" used in their application by respondents. The respondents have stated that they only meant that the learned judge of trial Court did not apply mind to the facts & circumstances of the case before him by applying relevant provisions of law viz. Order 8, Rule 9 or Order V, Rule 1 etc. which were pointed out to it. The learned Judge took into consideration the facts which were not germane and connected with the controversy to be decided and applied those principles of law which were not applicable. They have also stated that the alleged contemnors never meant and intended to mean that the order was obtained for some consideration as sought to be canvassed by petitioner. It is their stand that the suit was instituted before coming into force of amended CPC, the learned trial Court could not have applied amended provisions or its analogy to refuse to take their written statement on record. This explanation cannot be said to be misconceived and cannot be brushed aside.
16. In Mrityunjoy Das Vs. Sayed Hasibur Rahaman reported at A.I.R. 2001 SC 1293 : [2001(4) ALL MR 255 (S.C.)], it is held that the burden of proof is upon the person who seeks to point out Contempt. If there is any doubt, benefit thereof is to be given to the alleged contemners. In Biman Bose Vs. State of W. B. & Others, 2004(13) SCC 95, after reiterating in paragraph 8 that standard of proof required in the matter is that of any other criminal proceedings, benefit of doubt has been given to alleged contemnor. Following observations are important:-
"9. The present case is of two versions, one as published in the newspaper Bartman on the basis of which the appellant has been found guilty of contempt and the other version that appeared in other newspapers. Without the clear finding based on material on record that the version as appeared in the newspaper Bartman is correct, it is not possible to uphold the conclusion that the appellant is guilty of contempt of court. The contempt proceedings are quasi criminal. The charge is required to be proved beyond reasonable doubt and not on probabilities. In M. R. Parashar Vs. Dr. Farooq Abdullah, while dealing with contempt matter arising out of a speech made by the Chief Minister, this court observed that if the Chief Minister had made the statements attributed to him, he was clearly in contempt but noticing that the Chief Minister denied having made those statements and that no record of his speech was cited to prove that the Chief Minister scandalised the courts and assailed the character of judges, it was held that in the face of denial by one and an assertion by other without more, it is difficult to decide who was right.
10. In Chhotu Ram case, the observations of Lord Denning that have been cited with approval are "where there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt". This principle is fully applicable to the facts of the present case. Merely on the basis of publication in the newspaper Bartman which has been seriously controverted, a finding that the appellant made the statements attributed to him and is committed contempt of court could not have been returned."
Hence, even if it is held that words "extraneous considerations" is capable of two meanings, in view of the language used in the application and the background in which these words are used, the only meaning sought to be attached to it by present petitioner cannot be accepted.
17. Hence while proceeding to dismiss present petition, we cannot refrain from observing that precaution needs to be taken by Advocates while drafting. No detailed discussion in this respect is warranted in present judgment but the nature of precaution can be gathered from the cases discussed above. Reference to AIR 1955 S.C. 19 "M. Y. Shareef Vs. Hon'ble Judges of the Nagpur High Court" is found to be sufficient. In paragraph 11 the following important observations are made by Hon'ble Apex Court :-
"11. 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 of reasonably satisfying themselves about the prima facie 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 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 self of the two appellants in this case was done under a mistaken view of their rights and duties, and in such cases even a qualified apology may well be considered by a Court. In border line cases where a question of principle about the rights of counsel and their duties has to be settled, an alternative plea of apology merits consideration; for it is possible for a judge who hears the case to hold that there is no contempt in which case a defence of unqualified apology is meaningless, because that would amount to the admission of the commission of an offence. In this case the learned judges themselves had to wade through a large volume of English and Indian 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 they had studied the law more deeply, they would not have done so."
In "Rajasthan High Court Vs. Radha Mohan Lal" at 1993 Cri.L.J. 3182 Division Bench of that High Court relied upon case of M. Y. Shareef (supra) and observed :-
"26. Thus, the legal position which emerges on the basis of the adjudications in the aforesaid cases is that the counsel who signs and presents an application containing allegations of impeaching the impartiality of a Judge, of showing lack of confidence and to seek listing of the case before other Bench to the exclusion of the Judge against whom the allegations are made and takes interest in pursuing such applications without taking the least trouble or effort to verify even prima facie the correctness or otherwise of such allegations against the Judge about which he is informed by his client is guilty of equally contumacious conduct. To espouse the plea and prayer that, 'no impartial justice would be imparted from this Bench' and further that, 'non-petitioners are known to have lost faith in this bench for reasons obvious', coupled with the prayer that, 'the above revision may kindly be allowed to be listed before a bench not constituted of Hon'ble Mr. Justice Kejriwal' is sufficient to exhibit scant regard for Shri R. S. Kejriwal as a Judge of this Court; seeking to stigmatise his conduct so as to tarnish his image as a part and parcel of the judiciary as an institution; it seeks to ridicule the Judge on the one hand and shakes the confidence about the administration of justice creating an impression that the Judge was partial and at least puts a question mark against his impartiality on the other hand. We are therefore fully convinced and have no hesitation in holding that Shri. S. L. Yadav has acted in a manner so as to weaken the sense of confidence which people have in the administration of justice and, therefore, we hold that Shri. S. L. Yadav is also guilty of committing the contempt within the meaning of Sec.2(c) of the Contempt of Courts Act, 1971."
Thus a dispassionate and detached attitude by Advocates while drafting the pleadings is essential. However, if during the process, any words, which can have two/dual meanings depending upon the background/context in which they are being employed, are to be used, it becomes the duty of Advocate drafting the pleading to avoid such word and use other more deft and apt word so as to circumvent contingency of any such unpleasant situations. An Advocate is not a puppet representing his client but, he is a responsible officer of the Court playing vital role in administration of justice. He can have no right to seek justice for his clients if he himself can not honour the confidence reposed in him as such by the System. He has therefore to take precaution while drafting to avoid such confusing or unnecessary words & adjectives. An attempt should always be made to see that majesty of Courts is always maintained and should not even be allowed to be doubted remotely. No attempt on it even to the smallest extent should be tolerated and effort should be made to add to the confidence of clients in the judicial process. We cannot help ourselves from expressing that the present situation and petition could have been avoided by proper handling of skills of advocacy. Again, in the facts of present case, it is not necessary for us to comment more.
18. In view of the aforesaid discussions, we are of the opinion that use of words "extraneous consideration" in the facts and circumstances may not amount to contemptuous use and cannot be considered as such. But if the same are used in such a manner that one can only arrive at a conclusion that the words are used to attack the competence and integrity of a Judge, whether the superior Court or the subordinate Court, then definitely it would amount to scandalise the Court itself. This does not appear to be a case of that nature. In any case, we are, therefore, inclined to extend benefit of doubt to the present respondents/contemnors but with a caution that in future the advocate drafting the matter would refrain from using such words in the pleading and use temperate language. With this warning, we drop the contempt proceedings and discharge the respondents. Rule discharged.