Contempt Petition No.17 of 2003

11th August, 2011

Petitioner Counsel: Mr. C.M. KOTHARI
Respondent Counsel: Mr. NITIN PRADHAN,Ms. S.D. KHOT,Mr. J.P. YAGNIK,Mr. P.S. HINGORANI

Cases Cited:
Mrs.Damyanti G. Chandiramani Vs. S.Vaney, A.C.J. 1964 Page 381 [Para 17]
Delhi Judicial Services Association, Tis Hazari Court, Delhi Vs. State of Gujarat and Others, (1991) 4 SCC 406 [Para 17]
Daroga Singh and Others Vs. B.K. Pandey, (2004) 5 SCC 26 [Para 17]
Nandini Satpathy Vs. P.L. Dani and Anr., (1978) 2 SCC 424 [Para 18]
Ex-Capt.Harish Uppal Vs. Union of India, 2003(1) ALL MR 1169 (S.C.)=(2003) 2 SCC 4 [Para 18]
J.R. Parashar, Advocate and Ors. Vs. Prasant Bhushan and Ors., Judgment Today 2001 (7) SC 189 [Para 18]
Homi Rustomji Pardiwala Vs. Sub-Inspector Baig and Others, AIR (31) 1944 Lahore 196 [Para 18]

JUDGMENT

NARESH H. PATIL, J. :- Bar Council of Maharashtra and Goa, a Statutory body constituted under the provisions of Advocates Act, 1961 filed present contempt petition on 10th July, 2003 against respondent nos.2 and 3. The petitioner contends that respondent no.2 was a Police Inspector (Mumbai) attached to Bhoiwada police station. At the relevant time respondent no.2 had caused simple hurt to Shri Harish Bhatia and had wrongfully confined in Bhoiwada police station on 20th January, 2003. Respondent No.3 was Sub-Inspector of Police attached to the said police station. Shri Harish Bhatia was a practicing advocate, a Professor of Law as well as author of Law books. He was practising on civil side and according to the petitioner he was not a regular visitor to the police station.

2. The petitioner further contends that on or about 20th January, 2003 at about 2 pm advocate Shri Harish Bhatia on request of his client cum friend, namely, Shri Rajkumar L.Pahuja had visited Bhoiwada police station for rendering legal assistance to the client who was summoned to police station at the instance of respondent no.2. That respondent no.2 and 3 without any provocation from the side of Advocate Shri Harish Bhatia got furious with him for the reason that Shri Harish Bhatia wanted to know whether a non -cognizable or cognizable case was filed against his client so that he could advice his client accordingly. It is the case of petitioner that 5-10 policemen pushed advocate Shri Harish Bhatia with fist blows on his chest and face and slapped him on his face and head. Respondent no.2 took away mobile phone and bag of the advocate and his client, which were later on returned to them. The Respondent no.2 did not allow the advocate to make any phone call from the said police station and threatened him that he would be booked under false case. This incident was witnessed by Shri Devendra Madhukar Yadav and Chandrakant Ubhe of the Dadar Bar association. They heard entire conversation between respondent nos.2 and 3 and advocate Shri Harish Bhatia before the incident of assault. They assured advocate Shri Harish Bhatia that they would be taking legal action against respondent no.2. The Respondent no.2 thereafter released advocate Shri Bhatia from wrongful confinement at about 4.30 pm. He was allowed to leave police station with permission of Senior Inspector of Police and the Assistant Commissioner of Police. It is further contended that Shri Harish Bhatia straight way went to 29th Court, Bhoiwada which is opposite to police station hardly at distance of two minutes walk. He learnt that Advocate Shri Ashok Malushte, President of the Bar Association had filed a private complaint bearing No.11/S/03 against respondent no.2 under section 323, 504, 342 of IPC. The bar association had also filed a complaint bearing No.25/N/03 before the learned Magistrate for issuance of search warrant under section 97 of the Code of Criminal Procedure. The search warrant was issued and police accepted the same at about 5 pm or so.

3. It is contended that the police submitted reply to the learned Magistrate at about 5.45 pm. The learned Magistrate recorded the statement on oath of advocate Shri Harish Bhatia and after perusing the entire record passed an order on 20th January, 2003 by issuing process against accused - respondent no.2 for the offence punishable under section 323, 342 and 504 of IPC making it returnable on 24th January, 2003. The offence also came to be registered against Shri Harish Bhatia in Bhoiwada police station bearing C.R. No.31/03 under section 353 of IPC which was on information given by the police officer. The advocate Shri Bhatia got himself medically examined at K.E.M. Hospital at around 9.40 pm and thereafter went to his residence. The complaint bearing No.11/S/03 is pending hearing and final disposal alongwith criminal case filed by the police authorities bearing No.83/P/03.

4. The Bar Council passed resolution No.72 of 2003 in the meeting held on 19th February, 2003 which reads as under :

"RESOLVED that the Bar Council condemns the atrocity committed on lawyer Mr.Bhatia by the Mr.P.I.Khanvilkar, Police Inspector and other officers of Bhoiwada police station. This Association takes a serious note of the said matter and expresses its opinion that it is the dignity of the legal fraternity which is undermined. It also amounts to intereference in the legal profession.

It is, therefore, RESOLVED that initially representations may be made to the Hon'ble Chief Justice of the Bombay High Court, Hon'ble Chief Minister, Hon'ble Home Minister, Secretary, Home Department and the Commissioner of Police, Bombay for taking immediate and appropriate action, including suspension and departmental enquiry of Mr.P.I.Khanvilkar, Police Inspector and other concerned officers of Bhoiwada police station.

IT IS FURTHER RESOLVED that if the representations are not suitably responded and appropriate action is not taken, the Bar Council will file a public interest Writ Petition.

IT IS FURTHER RESOLVED that Hon'ble Mr.M.P.Vashi, Senior Member of the Bar Council is authorised to file a Writ Petition and other appropriate proceedings on behalf of the Bar Council at the relevant time. In view of the various incidents reported of assaults or man handling and the inhuman treatment given to the lawyers, IT IS RESOLVED to form a Special Privilege Committee consisting of Hon'ble M/s.Rajiv Patil, Vice- Chairman, S.B.Sabnis, Member (BCI), M.P.Vashi, V.A.Gangal and P.K.Dhakepalkar, Members to take appropriate and suitable action in this matter."

It was resolved that Bar Council would file public interest writ petition in respect of atrocity committed on lawyer Shri Harish Bhatia by police Inspector Mr.Khanvilkar. Shri M.P.Vashi, Senior Member was authorised to file writ petition and other appropriate proceedings on behalf of the Bar Council at the relevant time. Consequent thereto the present petition was filed by the Petitioner.

5. The petitioner submits that an advocate is officer of the court who is part and parcel of administration of justice. Any disrespect or disregard of an advocate (by threatening or abusing him etc.) while discharging his professional duty amounts to contempt of court. Learned Advocate General by his communication dated 3rd May, 2003 granted his consent to the petitioner to file contempt petition under section 15 of the Contempt of Courts Act, 1971.

6. The petitioner, therefore, prayed that respondent nos.2 and 3 and other concerned police personnel be punished as contemplated by provisions of Contempt of Court Act, 1971 as defined under section 2(c)(iii) thereof, alongwith other prayers.

7. The respondent no.2 Mr.Arun Kanvilkar filed an affidavit in reply. The respondent-contemnor stated in the reply that entire affidavit contains one side narration favouring advocate Shri Bhatia and castigating himself and respondent no.3 - PSI Jadhav as police officers. Respondent No.2 stated that on the other hand behaviour of Mr.Bhatia was rude and unbecoming of a lawyer at a public place/Government office. Shri Bhatia used abusive langugage against respondent no.3. He threatened the officer and fellow officer that he would beat him with the shoes like a dog on the streets. This incident had taken place in full view of various persons gathered at police station. It is contended that some of the lawyers who were regularly practising in Bhoiwada Court had previously expected undue favour from respondent no.2 as a police officer and his subordinates and since they did not accede to their persuasion they were having grudge particularly against respondent no.2. Shri Harish Bhatia was never confined to police station in order to humiliate him or to cause any interference or obstruction in administration of justice. Respondent No.2 had asked client of Shri Harish Bhatia to come in the evening after return of PSI Kharade for making enquiry into complaint against him so that Shri Harish Bhatia and Shri Pahuja need not linger without any reason in the police station. It is contended that subsequent conduct of Shri Bhatia obstructing PSI Jadhav respondent no.3, who was busy recording the complaint was not only annoying but gravely insulting too. Shri Bhatia flared up and started abusing in front of other people. The Respondent No.2 offered for amicable settlement of dispute and to maintain dignity of office and profession to which Shri Bhatia belongs.

8. The Respondent no.2 filed further affidavit on 28.7.2011 and tendered his sincere apologies to the court in the event of having committed contempt of this court. It was stated therein that criminal case No.76/PW/2006 arising out of C.R.No.31 of 2003 filed by respondent no.3 against Shri Harish Bhatia for offence punishable under section 353 of IPC and Criminal Case No.5/SS/2006 filed by Shri Harish Bhatia against respondent no.2 for offence punishable under section 323 and 341 of IPC are pending. The Respondent no.2 further stated that in criminal case filed by the State against Shri Harish Bhatia, eight witnesses were examined and statement under section 313 of the Code of Criminal Procedure of Shri Harish Bhatia was recorded on 28.7.2010. Shri Harish Bhatia preferred an application calling for Handwriting Expert's opinion with respect to the signature of P.W.8 - the investigating officer. The said application was rejected by the learned Chief Metropolitan Magistrate on 26.20.2009 which order was challenged in criminal revision application No.1616 of 2009 in Sessions Court which was rejected by an order dated 2.5.2011. Writ Petition No.1397 of 2011 was filed against the order of rejection in the High Court under order passed by the trial Court. The trial was stayed. Respondent No.2 submits that in criminal case filed by Shri Bhatia, the trial is yet not commenced. Respondent No.2 prayed that in the light of order passed on 17.12.2003 by the High Court it is appropriate to postpone hearing of this petition till final judgment is pronounced in criminal case.

9. Shri Harish Bhatia had filed criminal writ petition No. 1115/2003 for various prayers including prayer for FIR to be quashed by the police (C.R.No.31 of 2003). The petition is dated 29th July, 2003. By an order dated 17th December, 2003 rule was granted in criminal writ petition and liberty was granted to parties to get the matter listed for final hearing after both the proceedings in the trial Court were decided by the concerned learned Judge. Contempt Petition No.17 of 2003 which was already admitted was to be heard alongwith criminal writ petition.

10. By an order dated 11th April, 2005 the Division Bench of this court observed that contempt petition be posted for hearing after intimation is given by the petitioner about the conclusion of criminal proceedings in case No.83/P/03 and the private complaint bearing No.11/S/2003 by the court of Metropolitan Magistrate. By an order dated 14.7.2004 the Division Bench granted liberty to withdraw criminal writ petition no.1115 of 2003. Rule was accordingly discharged. By an order dated 23rd June, 20011 the Division Bench directed that criminal contempt petition no.17 of 2003 be listed for hearing on 30th June, 2011.

11. Learned counsel Shri Kothari, appearing for the Bar Council of Maharashtra and Goa submitted that an advocate is an officer of court and part and parcel of administration of justice. In case advocate is stopped from discharging his professional duties by way of threatening, abusing or assault by any person including police officer, the said Act would amount to "committing contempt of court" and such person would be liable to be punished under the Contempt of Courts Act, 1971. In the light of provisions of section 2(c)(iii) of the Contempt of Courts Act, 1971 interference into administration of justice in any other manner would include man-handling, abusing, pushing, assaulting, insulting an advocate. In the submission of learned counsel even if an advocate is engaged in act of providing legal assistance, advice to his client in police station in presence of a police officer he would be discharging his duty as an officer of the court and misbehaviour with officer of the court by any person including police officer would amount to committing criminal contempt of court. It was submitted that there is no bar on lawyer to visit police station and advice client who is called by police for purpose of interrogation, investigation and who is in need of legal assistance. Learned counsel submitted that even while a lawyer functioning in his or her chamber is acting as officer of the court.

12. Learned counsel further submitted that Shri Harish Bhatia was required by his client to give him legal assistance as he was in police station. There was nothing wrong on part of Shri Bhatia who visited police station and was giving assistance and advice to his client. The police unnecessarily termed presence of Shri Bhatia as interference in interrogation and badly treated Shri Harish Bhatia, abused him and assaulted which is highly objectionable on the part of police officer. The police officer who is engaged in maintenance of law and order ought not to have forgotten that he was not only dealing with an advocate but the officer of the court according to learned counsel. It was submitted by the counsel that to give counter blast to the complaint filed by Shri Harish Bhatia police concocted story and filed criminal case against Shri Harish Bhatia. The Bar association has taken issues seriously. After considering entire record the Bar Council of Maharashtra which is Apex body of the advocates in the State of Maharashtra had by a resolution decided to initiate proceedings against police. Learned counsel submits that pendency of cases before the trial Court is no bar to hear this contempt petition which is pending since last so many years.

13. Learned counsel Shri Nitin Pradhan appearing on behalf of respondent no.2 and 3 submitted that Bar Council has expressed its opinion that conduct of respondent nos.2 and 3 had undermined dignity of legal fraternity and amounts to interference in legal profession. Bar Council, therefore, resolved to file public interest writ petition and authorised Mr.M.P.Vashi, Senior Member of Bar to file writ petition and other appropriate proceedings on behalf of bar association at the relevant time. It was further resolved to form a Special Privilege Committee to take appropriate and suitable action in the matter, in view of various incidence reported of assault, manhandling and inhuman treatment given to the lawyers. Learned Counsel Shri Pradhan submits that resolution was not in favour to file a contempt petition. The privilege committee was constituted to enquire into such incident by way of delegation of powers of General Body of the Bar Council. It was submitted that learned counsel Mr.M.P.Vashi, Senior Member of Bar Council did not file petition neither initiated any proceedings pursuant to resolution passed by the Bar Council on 19.2.2003, therefore, present petition was filed without any authority and is not maintainable. Learned counsel further submitted that learned Advocate General is ex-officio member of the Bar Council under provisions of section 3(2) of the Advocates Act. Learned Advocate General preferrably did not file contempt petition.

14. Learned counsel Shri Nitin Pradhan for respondent nos.2 and 3 further submitted that there is no immunity in law granted to an advocate for his/her conduct while functioning as a lawyer not connected with court proceedings. Professional discharge of duties by a lawyer in an individual capacity outside court, cannot be equated with functioning as Officer of the Court while participating in court proceedings. Learned counsel submitted that issue in respect of alleged misbehaviour of respondent nos.2 and 3 and man-handling of advocate Shri Harish Bhatia is sub-judice before the trial Court and any observation in respect of merits of incident and evidence would hamper fair trial. In fact cross cases are pending in the trial Court and in the said cases part of evidence is already recorded. Both the cases are clubbed and considering the facts of the case serious disputed questions of facts arise in matter which cannot be gone into proceedings of this nature. Learned counsel referred to the provisions of section 29, 30 and 32 of the Advocates Act.

15. The provisions of section 29, 30 and 32 of the Advocate's Act read as under:

"29. Advocates to be the only recognised class of persons entitled to practise law. - Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.

"30. Right of advocates to practise. - Subject to provisions of this Act, every advocate whose name is enterted in the (State roll) shall be entitled as of right to practise throughout the territories to which this Act extends, -

(i) in all Courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.

32. Power of Court to permit appearances in particular cases. - Notwithstanding anything contained in this Chapter, any Court, authority, or person any permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular cases."

Section 135 of the Code of Civil Procedure - Exemption from arrest under civil process:

(1) No Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from, his Court.

(2) Where any matter is pending before a tribunal having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their pleaders, mukhtars, revenue-agents, and recognised agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.

(3) Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution or where such judgment-debtor attends to show cause why he should not be committed to prison in execution of a decree.

16. The provisions of section 2 (c) (iii) of the Contempt of Courts Act read as follows:

"2 (c) "criminal contempt" means the publication (whether by words spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which -

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."

17. Learned counsel for the petitioner Shri Kothari has placed reliance upon the following judgments: Mrs. Damyanti G. Chandiramani Vs. S.Vaney (A.C.J. 1964 Page 381). In the facts of the present case the Division Bench of the Bombay High Court referred to the case of Rajendra Singh V. Uma Prasad which reads thus:

"The view taken by the Nagpur High Court has been endorsed by the Allahabad, Madras and Lahore High Courts. In Rajendra Singh Vs. Uma Prasad during the pendency of the suit a notice was sent on behalf of the plaintiff through his advocate to the defendant, threatening him that unless he withdrew the plea and paid a certain sum as damages he would be criminally prosecuted for defamation of the plaintiff's deceased father. Proceedings or contempt were taken out on this notice. It was held :

"Interference with the administration of justice is one of the well recognized heads of contempt of Court. In the present case the notice was undoubtedly intended to put extraneous pressure on the defendant in order to compel him, under threat of drastic action being taken against him, to withdraw the plea which had been taken by him specifically in the written statement. It amounted to a direct interference with the administration of justice in preventing or attempting to prevent the defendant from pressing the plea, which might prove to be a very substantial and legitimate defence; and in that way an indirect attempt was made to exclude that plea from the consideration of the court." (1934) I.L.R. 57 All. 573.

In the case of Delhi Judicial Services Association, Tis Hazari Court, Delhi Vs. State of Gujarat and Others (1991) 4 Supreme Court Cases 406 alongwith companion matters. It was held thus :

"43. The Chief Judicial Magistrate is head of the Magistracy in the district who administers justice to ensure, protect and safeguard the rights of citizens. The subordinate courts at the district level cater to the need of the masses in administering justice at the base level. By an large the majority of the people get their disputes adjudicated in subordinate courts, it is, in the general interest of the community that the authority of subordinate courts is protected. If the CJM is led into trap by unscrupulous police officers and if he is assaulted, handcuffed and roped, the public is bound to lose faith in courts, which would be destructive of basic structure of an ordered society. If this is permitted Rule of Law shall be supplanted by Police Raj. Viewed in this prespective the incident is not a case of physical assault on an individual judicial officer instead it is an onslaught on the institution of the judiciary itself. The incident is a clear interference with the administration of justice, lowering its judicial authority. Its effect was not confined to one District or State, it had a tendency to effect the entire judiciary in the country. The incident highlightes a dangerous trend that if the police is annoyed with the orders of a presiding officer of a court, he would be arrested on flimsy manufactured charges, to humiliate him publicly as has been done in the instant case. The conduct of police officers in assaulting and humiliating the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice. "The summary power of punishment for contempt has been conferred on the courts to keep a blaze of glory around them, to deter people from attempting to render them contemptible in the eyes of the public. These powers are necessary to keep the course justice free, as it is of great importance to society." (Oswald on Contempt of Court). The power to punish contempt is vested in the Judges not for their personal protection only, but for the protection of public justice, whose interest requires that decency and decorum is preserved in Courts of Justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct."

In the case of Daroga Singh and Others Vs. B.K.Pandey, (2004) 5 Supreme Court Cases 26 it was held thus :

"45. Long back Sardar Patel had said, after achieving independence: "the police have inherited a legacy of suspicion and dislike. For this reason, there is insufficient respect for the police today. But, now that the country is free both the public and the police must change their attitude." Shri S.V.M.Tripathi, former Director General of Police has, in his evaluation "Indian Police After Fifty Years of Independence", said: "A sensitive police officer can ensure justice and fair play as no other public servant can. The least he should do is to prevent injustices on the poort in the society and other areas of administration, specially, a police station. Upholding human rights, and protection of life and property of citizens should be a matter of habit with the police rather than that of display. The sooner we accept this premise as imperative and honestly work towards achieving it, the better it would be for the society and the nation. The police leadership will have to push the limits of feasibility for this purpose."

18. Learned counsel for the respondent nos.2 and 3 Shri Nitin Pradhan has placed reliance upon the following judgments : Nandini Satpathy Vs. P.L. Dani and Anr. (1978) 2 Supreme Court Cases 424. The Apex Court observed as follows:

"63. Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence. The Miranda decision has insisted that if an accused person asks for lawyer's assistance, at the stage of interrogaton, it shall be granted before commencing or continuing with the questioning. We think that Article 20(3) and Article 22(1) may, in a way, be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Overreaching Article 20(3) and Section 161(2) will be obviated by this requirement. We do not lay down that the police must secure the services of a lawyer. That will lead to "police-station-lawyer" system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will, was the project.

64. Not that a lawyer's presence is a panacea for all problems of involuntary self-crimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insist on questions and answers being noted where objections are not otherwise fully appreciated. He cannot harangue the police but may help his client and complain on his behalf, although his very presence will ordinarily remove the implicit menace of a police station.

65. We realize that the presence of lawyer is asking for the moon in many cases until a public defender system becomes ubiquitous. The police need not wait more than for a reasonable while for an advocate's arrival. But they must invariably warn - and record that fact -- about the right to silence against self-incrimination; and where the accused is literate take his written acknowledgment.

67. The symbiotic need to preserve the immunity without stifling legitimate investigation persuades us to indicate that after an examination of the accused, where lawyer of his choice is not available, the police official must take him to a magistrate, doctor or other willing and responsible non-partisan official or non-official and allow a secluded audience where he may unburden himself beyond the view of the police and tell whether he has suffered duress, which should be followed by judicial or some other custody for him where the police cannot reach him. That collector may briefly record the relevant conversation and communicate it - not to the police - but to the nearest magistrate. Pilot projects on this pattern may yield experience to guide the practical processes of implementing Article 20(3). We do not mandate but strongly suggest."

In case of Ex-Capt.Harish Uppal Vs. Union of India, (2003) 2 Supreme Court Cases 45 : [2003(1) ALL MR 1169 (S.C.)] it was held thus :

"34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocate Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practise in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be concerning the dignity and orderly functioning of the courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practise. He may even file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court also be regulated by them in exercise of their disciplinary powers. The right of practise, no doubt, is the genus of which the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The power to frame such rules should not be confused with the right to practise law. While the Bar Council can exercise control over the latter, the courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practise i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practise and procedure of the court including inter alia rules as to persons practising before this Court. Similarly section 34 of the Advocates Act empowers High Courts to frame rules, inter alia to lay down conditions on which an advocate shall be permitted to practise in courts. Article 145 of the Constitution of India and section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to appear in a court. An advocate appears in a court subject to such conditions as are laid down by the court. It must be remembered that section 30 has not been brought into force and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in court will always remain with the court. Thus even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be subject to conditions laid down by the Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other."

In case of J.R. Parashar, Advocate and Ors. Vs. Prasant Bhushan and Ors. Judgment Today 2001 (7) SC 189 it was held thus:

"12. A civil society is founded on a respect for the law. If every citizen chose to break the law, we would have no society at all, at least not a civil one. It is this respect for the law and of the law enforcing agencies that, somewhat paradoxically, ensures the freedoms recognised in the Constitution. The respect is at best a fragile foundation. While it is to be built and sustained by the conduct of the persons administering the law, it has to be shored up by sanctions for actual breaches of the law and for actions destroying that respect. The law of contempt is framed for the second purpose.

31. Holding a dharna by itself may not amount to contempt. But if by holding a dharna access to the courts is hindered and the officers of court and members of the public are not allowed free ingress and egress, or the proceedings in court are otherwise disrupted, disturbed or hampered, the dharna may amount to contempt because the administration of justice would be obstructed. There is no allegation in the petition that the participants in the dharna had picketed the gates of this Court and prevented lawyers or litigants from entering and leaving the court premises. Nor is it the petitioners' case that the "dharna" disturbed or prevented the courts from functioning."

In the facts of case Full Bench of Lahore High Court in Homi Rustomji Pardiwala Vs. Sub-Inspector Baig and Others A.I.R. (31) 1944 Lahore 196 it was held thus:

"According to Mr.Pardivala he must have been arrested to prevent him carryiing out his instructions and to prevent him from obtaining an order from this Court permitting an interview with Jai Parkash Narain. It is in evidence that Jai Parkash Narain had once escaped from detention from the Hazaribagh Jail and it is suggested that the police at Lahore were determined at all costs to prevent any order being made allowing Mr.Pardivala or any one else to interview Jai Parkash Narain whom the police considered so dangerous. To avoid any possible order allowing an interview, Mr.Pardivala alleges that the police arrested him. It is to be observed that on 12th November 1943, the Punjab Government cancelled the order detaining Jai Parkash Narain under Rule 26, Defence of India Rules, and issued and order of detention under Bengal Regulation, 3 of 1818. Under this Regulation this Court had no jurisdiction to inquire into the validity of the detention and it is said that when all fear in connexion with a possible interview with Jai Parkash Narain was over, Mr.Pardivala was released and allowed to proceed to Bombay.

Had Mr.Pardivala been arrested for the reasons suggested by him, I would have no hesitation whatsoever in holding that the respondents had deliberately interfered with the due course of justice and had committed contempt of Court. The respondents on the other hand alleged that there were good security reasons for the arrest of Mr.Pardivala. (After considering the evidence his Lordship held that the arrest of Mr.Pardivala was not made for the reasons suggested by him and proceeded.) On the evidence I am not satisfied that Mr.Pardivala was arrested to prevent him carrying out his instructions and appearing in this Court on behalf of Jain Parkash Narain. Further I am not satisfied that one of the reasons of the arrest was to frighten members of the local Bar and thus make it impossible for Mrs.Purnima Bannerji to obtain any legal assistance in prosecuting her application. That being so, I am bound to hold that there was no intention on the part of these three police officers directly to interfere with the due course of justice.

Mr.Munshi, however, contended that the act of the police would amount to contempt of Court even if they had no deliberate intention of preventing Mr.Pardivala appearing in the Court provided their acts were calculated to interfere with the due course of justice. Mr.Munshi at once conceded that a justifiable arrest of a counsel appearing in a case, though bound to interfere with the hearing of that case, would not amount to contempt of court. No one could possibly suggest that a policeman who arrested a counsel thought to be guilty of murder, whilst he was on his way to Court to appear in a case, would be guilty of contempt. Mr.Munshi's argument, however, was that even if there wre some grounds for arrest, yet such arrest would amount to contempt if the dominant motive or one of the effective motives for arreste was to interefere with the course of justice. It was urged that even assuming that the police though that there were some grounds for the arrest of Mr.Pardivala, yet if he was arrested mainly to keep him out of this Court, then his arrest would amount to contempt. This contention may be well founded but I am not satisfied on the facts that the real or dominant motive for the arrest of Mr.Pardivala was to prevent him carrying on his duties. Further on the evidence I am not satisfied that such was in the contemplation of the police when they arrested him. Upon the evidence it has not been established that this arrest was effected with an intention directly or indirectly to interfere with the course of justice and was made with that end in view.

Mr.Munshi further argued that there was no real ground for the arrest of Mr.Paridvala under R.129, Defence of India Rules, as no reasonable grounds for suspicion existed in the case. It was contended that before such an arrest could be justified, it must be shown that there were grounds which appeared reasonable not only to the officer carrying out the arrest but to the Court. Reliance was placed by Mr.Munshi on certain observations of Gwyer C.J. in A.I.R. 1943 F.C. 11 at pp.6 and 7. However, in this case the Court is not concerned with whether the arrest could or could not be justified under R.129. Defence of India Rules as in my view an arrest honestly made, though unjustifiable in law, cannot amount to contempt of Court. Assume a member of the Bar is arrested on his way to Court by a police officer under an honest, though entirely mistaken, belief that particular counsel had committed a serious crime. Could that arrest be said to amount to contempt of Court ? The arrest would be wholly unjustifiable in the eye of law and might well interfere with the conduct of the case then pending. Nevertheless the arrest could not in my view amount to contempt. In my judgment, to constitute contempt in this class of caes, there must be something more than arrest without legal justification. There must be something in the nature of mala fides, that is, an intention directly or indirectly to interfere with the due course of justice. The arrest must have been intended to interfere with the due course of justice or was calculated to interfere with the due course of justice. An honest, though mistaken, arrest, though it might interfere with the due course of justice, could not possibly amount to contempt. That being so, even assuming this arrest could not be justified under R.129, Defence of India Rules, it could not amount to contempt of Court once it is held, as I do hold, that the police had no intention directly or indirectly of interfering with the proceedings on the petition under S.491, Criminal P.C. It is to be observed that during the conduct of this case Mr.Munshi made it clear that he did not press the case against Mr.Wace. He did not order the arrest and all he did was to approve of it when the reasons for such arrest were given to him by Mr.Robinson. It will be unnecessary, therefore, to consider the case further as against Mr.Wace."

19. In the light of the fact that the trial in both cross cases is pending in the trial Court it would not be proper to enter into disputed questions of fact while dealing with issue of Contempt of Courts Act.

20. Section 41(d) as brought in the Code of Criminal Procedure by amendment reads as under :

"41D. Right of arrested person to meet an advocate of his choice during interrogation.- When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation."

As per Black's Law Dictionary (Eigth Edition)

"Officer of the Court: A person who is charged with upholding the law and administering the judicial system. Typically, officer of the Court refers to a judge, clerk, bailiff, sheriff, or the like, but the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of candor to the court.- Also termed court officer.

As per Advanced Law Lexicon (Third Edition)

"Officer of the Court: A person who is charged with upholding the law and administering the judicial system. Typically, officer of the Court refers to a judge, clerk, bailiff, sheriff, or the like, but the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of candor to the court.- Also termed court officer.

21. We have heard the submissions of learned counsel at length and perused record placed before us. We have perused the judgments cited by learned counsel.

22. Considering the facts of case and incident in question which took place in Bhoiwada police station it cannot be said that Shri Harish Bhatia at the relevant time was discharging his professional duties in the court of law. Shri Bhatia was not prevented to enter court premises or any attempt was made to deter him from participating in the court proceedings. The incident in question does not relate to conduct of the police officer while in premises of the court. It does not emerge from the facts, circumstances and record produced before us that dominant motive of the respondentcontemnor/ police officers was to interfere with course of justice. We do not find that there was intention on the part of respondentcontemnor directly or indirectly to interfere with course of justice.

23. This is not a case where an advocate is prevented deliberately by police while he is on way to attend the court proceedings or is obstructed deliberately in respect of on-going court case while an advocate was leaving the court premises. The incident in question has taken place in the police station while the client of advocate Shri Harish Bhatia was called for interrogation by police. In such situation the alleged incident which took place in police station could not be equated with the proceedings before a court.

24. Considering the provisions of law and case law developed on the issue we are of the considered view that accusations made by Shri Harish Bhatia in respect of insult and assault made by respondent nos.2 and 3 and other officers present while he had visited police station to provide legal assistance to his client Mr.Pahuja would not amount to committing criminal contempt of court. We, therefore, discharge the notice issued to the respondents and dismiss the contempt petition.

25. It is matter of record that both the criminal cases are pending adjudication in the trial Court and in one of the case evidence was recorded partly. We clarify that any observation made by this court in this judgment shall not affect merits of the proceedings pending in the trial Court.

Contempt Petition dismissed.