HIGH COURT OF GUJARAT (D.B.

VASAVA NARPAT SINH (ADVOCATE) AND ANR

V/S
REGISTRAR GUJARAT HIGH COURT AND ORS

Date of Decision: 11 August 2014

Citation: 2014 LawSuit(Guj) 1294

Hon'ble Judges: Bhaskar Bhattacharya, J B Pardiwala

Case Type: Writ Petition (Public Interest Litigation)

Case No: 315 of 2013

Subject: Civil

Head Note:

Public Interest Litigation (PIL) - Advocate Act, 1961 - Secs 30 & 34 - Gujarat High Court Rules,
1993 - Rule 428 - Petitioner prayed for a declaration that rule 428 of the said rules is violative of
sec 30 of the Act, and as such, should be quashed - Held - Right of appearance of an Advocate to
practice anywhere in India as provide in sec 30 of the Act is subject to fulfillment of such
condition as provided in various High Court Rules - Therefore, Rule 482 is not ultra vires -
Petition dismissed

Acts Referred:
CODE OF CIVIL PROCEDURE, 1908 SEC 122
ADVOCATES ACT, 1961 SEC 34, SEC 13, SEC 30
GUJARAT HIGH COURT RULES, 1993 R 428

Final Decision: Application dismissed

Eq. Citations: 2014 (3) GLH 579, 2015 (1) GLR 603, 2014 (3) GCD 2397

Advocates: Kamal B Trivedi, A S Supehia, P K Jani, Manan A Shah, Saurabh G Amin

Reference Cases:
Cases Referred in (+): 3

Judgement Text:-
Bhaskar Bhattacharya, C J

[1] By this Public Interest Litigation, the petitioner, a learned advocate-in-person, has prayed for a
declaration that Rule 428 of the Gujarat High Court Rules is violative of Section 30 of the
Advocates Act, 1961, and as such, should be quashed. The above prayer was made by way of an
amendment, and prior thereto, the petitioner prayed for setting aside the order dated 12th
November 2013 passed by the Registrar General of this Court refusing to entertain a petition filed
by him for want of Advocate code and for a direction to the Registrar General to issue Advocate
Code to the petitioner.

[2] The case made out by the petitioner may be summed up thus:-

[a]. The petitioner is an advocate registered with the Bar Council of Madhya Pradesh at Jabalpur,
and the same has been recognized by the respondent No.3, the Bar Council of India, New Delhi.

[b]. The petitioner passed the All India Bar Examination and got certificate for practice
throughout India in any court.

[c]. The respondent No.4, the Secretary of Ministry of Law and Justice, Department of Legal
Affairs, Government of India, published a notification dated 9th June 2011 by which Section 30
of the Advocates Act had been made applicable all over the country.

[d]. The petitioner wanted to appear in the matters at Gujarat High Court and has taken
membership of the Gujarat High Court Advocates Association.

[e]. The petitioner wanted to file a petition and approached the Registry of Gujarat High Court but
the respondent No.1 refused the same and told the petitioner that the petitioner was required to
first apply for Advocate Code as provided in Rule 428 of the Gujarat High Court Rules.

[f]. According to the petitioner, the action on the part of the Respondent No.1 in refusing to grant
Advocate Code on the ground that the petitioner is not enrolled in the roll of Bar Council of
Gujarat was illegal. By way of subsequent amendment, the petitioner prayed for a declaration that
Rule 428 of the Gujarat High Court Rules was ultra vires Section 30 of the Advocates Act.

[3] During the pendency of this proceedings, the petitioner was enrolled on the roll of Bar
Council of Gujarat and subsequently, the Registrar General of this Court has also granted
Advocate Code in compliance with the provisions contained in Rule 428 of the Gujarat High
Court Rules.

[4] Therefore, the only question that survives in this Public Interest Litigation is whether Rule 428
of the Gujarat High Court Rules is violative of any of the provisions of the existing law.

[5] In view of the importance of the question involved in this writapplication, we appointed Mr.
Trivedi, the learned Advocate General of this State as amicus curiae.

[6] Subsequently, another learned Advocate, Ravi Iyer, moved a Civil Application praying for
allowing him to intervene in the writapplication, and we have allowed such prayer.
[7] The Bar Council of Gujarat has opposed this writ-application by filing an affidavit-in-reply.

[8] In order to appreciate the aforesaid question, it will be profitable to refer to Rule 428 of the
Gujarat High Court Rules and Sections 30 and 34 of the Advocates Act. Those are quoted below:
Rule 428 of the Gujarat High Court Rules:-

"428. Mode of appearance by advocate not on the Roll of Advocates maintained by the Bar
Council of Gujarat.- An Advocate who is not on the roll of advocates of the Bar Council shall not
act in such Court, unless he files an appointment alongwith an advocate who is on the Roll of the
Bar Council and who is ordinarily practising in such Court; but such Advocate who is not on Roll
of Advocates of the Bar Council shall be permitted to appear and plead in such Court if he
appears with or is instructed by an advocate who is enrolled by the Bar Council and who has filed
an appointment. Sections 30 and 34 of the Advocates Act:-

"30. Right of advocates to practise.-

Subject to the provisions of the Act, every advocate whose name is entered in the State roll shall
be entitled as of right to practice 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.

"34. Power of High Courts to make rules.-

(1). The High Court may make rules laying down the conditions subject to which an advocate
shall be permitted to practise in the High Court and the courts subordinate thereto.

(1A). The High Court shall make rules for fixing and regulating by taxation or otherwise the fees
payable as costs by any party in respect of the fees of his adversary's advocate upon all
proceedings in the High Court or in any Court subordinate thereto.

(2). Without prejudice to the provisions contained in subsection (1), the High Court at Calcutta
may make rules providing for the holding of the intermediate and the Final examinations for
articled clerks to be passed by the persons referred to in section 58AG for the purpose of being
admitted as advocates on the State roll and any other matter concerned therewith."

[9] The petitioner-in-person, at the very outset, has relied upon a decision of the Supreme Court in
the case of V. Sudeer v. Bar Council of India, 1999 AIR(SC) 1167where the sole question was
whether the Bar Council of India Training Rules, 1995, as amended by the Resolution of the Bar
Council of India in its meeting dated 19th July 1998 relating to training to entrants of legal
profession, are within the competence of the Bar Council of India or are ultra vires its rule making
powers under the Advocates Act. In that context, the Supreme Court held that the Bar Council of
India Rules 1995 laying down pre-enrolment training as a pre-condition is ultra vires section 49
of the Advocates Act inasmuch as the right of an Advocate cannot be restricted by creating trainee
Advocates qua his seeking only adjournment, and, as such, Rule 15 truncating right to practice is
ultra vires section 49(1) (ah) of the Advocates Act. According to the petitioner, the High Court by
enacting Rule 428 cannot put any restriction on his right to practice in any High Court once his
name was in the roll of the Bar Council, Madhya Pradesh.

[10] Mr. Trivedi, the learned Advocate General appearing as amicus curiae has, however, opposed
the contentions of the petitioner and has contended that Rule 428 of the Gujarat High Court Rules
is, in no way, in conflict with section 30 of the Advocates Act. Mr. Trivedi in this connection has
placed strong reliance upon the observations of a three-judge-Bench of the Supreme Court in the
case of BAR COUNCIL OF INDIA v. HIGH COURT OF KERALA, 2004 AIR(SC) 2227where
constitutionality of Rule 11 of the Rules framed by the High Court of Kerala prohibiting an
Advocate from practising unless he purges the contempt was challenged as ultra vires on the
ground that the same interferes with the right to practice. In that context, the said Bench relied
upon an earlier decision of the Constitution Bench in the case of Ex-Capt. Harish Uppal Vs.
Union of India and Another, 2003 AIR(SC) 739and relied upon the following observations in the
context of right of appearance of an Advocate in a Court.

"34...Section 30 of the Advocates 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 practice 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 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 practice. He may even file Vakalat on behalf of 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 could also be regulated by them in exercise of their disciplinary powers. The right to
practice, no doubt, is the genus of which the right to appear and conduct cases in the Court may
be a specie. But the right to appear and conduct cases in the Court is a matter on which the Court
must and does have major supervisory an controlling power. Hence Courts cannot be and are not
divested of control of 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 or of unbecoming or unprofessional conduct, standing in the Court would
erode the dignity of the Court and even corrode the 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 practice 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 practice 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 practice 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 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."

This Court is bound by the aforementioned decisions."

[11] It appears that in the last two sentences of the above quoted paragraph, the Supreme Court
specifically held that even if Section 30 were to be brought into force control of proceedings in
Court will always remain with the Court and thus even then the right to appear in Court will be
subject to complying with conditions laid down by Courts. The Supreme Court further held that
right to practice is subject to the rule-making power of the High Court under Section 34 of the
Advocates Act, and thus, the right to appear in any Court is not an absolute right in that sense.

[12] In our view, Mr. Trivedi is perfectly justified in his contention that the provision for
Advocate Code is beneficial for the smooth administration of justice and for maintaining natural
justice in the course of judicial proceedings. Otherwise, if without getting a code, an advocate of a
different State is permitted to appear and after filing proceedings if he gets an interim order and
his whereabouts is not traceable, the person against whom such ad-interim order of injunction is
granted will face immense difficulties in vacating the adinterim order of injunction after service
of notice upon the petitioner. As provided in Section 122 of the Code of Civil Procedure, the High
Court is vested with the power to frame rules not only for the proper administration of justice in
the High Court but also in District Courts and the right of appearance of an Advocate to practice
anywhere in India as provided in section 30 of the Advocates Act is subject to fulfillment of such
condition as provided in various High Court Rules.
[13] We, therefore, find that notwithstanding enforcement of section 30 of the Advocates Act with
effect from 2011, an Advocate has no absolute right to have appearance in any court and such
right must be subject to compliance of other laws laid down by the High Court in exercise of
power under section 34 of the Advocates Act and Section 122 of the Code of Civil Procedure.

[14] We, thus, find that there is no merit in this application and the same is accordingly dismissed.

15 We record appreciation for the valuable submissions made by the learned Advocate General as
amicus curiae in this matter.

CASE-2

SUPREME COURT OF INDIA (FROM ALLAHABAD) (D.B.)

BAL KISHAN GIRI

V/S
STATE OF U P

Date of Decision: 28 May 2014

Citation: 2014 LawSuit(SC) 423

Hon'ble Judges: B S Chauhan, A K Sikri

Case Type: Criminal Appeal

Case No: 555 of 2010

Subject: Civil, Contempt of Court

Head Note:

Allahabad High Court Rules, 1952 - Rule 6 - Contempt of Courts Act, 1971 - Sec 12 - Contempt -
power to punish for contempt is a rare species of judicial power which is by very nature calls for
exercise with great care and caution - such power ought to be exercised only where "silence is no
longer an option." - Sec 12(1) of Act provides that if court is satisfied that contempt of court has
been committed, it may punish contemnor with simple imprisonment for a term which may
extend to six months, or with fine which may extend to Rs. 2,000, or with both - hence, in view of
above, fine of Rs. 20,000 imposed on appellant by High Court by way of impugned judgment and
order, is reduced to Rs.2,000 and is directed to deposit said fine forthwith - appeal dismissed

Acts Referred:
CONTEMPT OF COURTS ACT, 1971 SEC 12(1), SEC 12(C), SEC 2(C), SEC 12(2), SEC 12
ADVOCATES ACT, 1961 SEC 35, SEC 36
ALLAHABAD HIGH COURT RULES, 1952 R 6

Final Decision: Appeal dismissed

Eq. Citations: 2014 CrLJ 3072, 2014 (3) PLJR(SC) 145, 2014 AllMR(Cri) 2595, 2014 (7) Scale
489, 2014 (3) RCR(Cri) 224, 2014 (7) SCC 280, 2014 (3) CurCriR 232, 2014 (3) Crimes(SC)
222, 2014 (3) CalLT 43, 2014 (8) JT 199, 2014 (125) RevDec 109, 2014 (6) SCJ 533, 2014 (2)
ALD(Cri) 580, 2014 (3) ALT(Cri)(SC) 8, 2014 (2) AllCriR 2253, 2014 (105) AllLR 689, 2014
AIR(SC)(Cri) 1451, 2014 AIR(SCW) 3375, 2014 (5) Supreme 392, 2014 (4) MhLJ(Cri) 587

Advocates: Jitendra Mohan Sharma, Shikha Bani, Sameer Singh, Pahlad Singh Sharma, Irshad
Ahmad, Abhisth Kumar, Archana Singh

Reference Cases:
Cases Cited in (+): 5
Cases Referred in (+): 21

Judgement Text:-

B S Chauhan, J

[1] In this appeal, impugned judgment and order dated 5.2.2010 passed by the High Court of
Judicature at Allahabad in Contempt Application (Crl.) No. 15 of 2009, by which the appellant
stood convicted for committing criminal contempt under the provisions of Contempt of Courts
Act, 1971 (hereinafter referred to as the 'Act') and sentenced to undergo simple imprisonment for
one month and to pay a fine of Rs.20,000/- and in default to undergo simple imprisonment for two
weeks, has been assailed.

[2] Facts and circumstances giving rise to this appeal are that:

A. An FIR was lodged in P.S. Baleni, District Baghpat on 23.5.2008 by Anil Kumar, appellant in
connected Criminal Appeal No. 686 of 2010 alleging that his younger brother Sunil Kumar
alongwith Puneet Kumar Giri, who were residing in Sitaram Hostel of the Meerut College, were
not traceable and went missing the previous evening. Another inmate of the same hostel Sudhir
Kumar was also reported untraceable. The very next day, three dead bodies of the said missing
persons were found on the banks of river Hindon. A criminal case was therefore registered.

B. During investigation, it came to the notice of the police authorities that the place of occurrence
fell within the territorial jurisdiction of P.S. Kotwali, Meerut, and thus investigation on being
transferred to P.S. Kotwali, Meerut, the case was registered as Case Crime No.190/2008.

C. During investigation, many accused persons including one Haji Izlal were arrested. They
moved bail applications before the Meerut Distt. Court which stood rejected. Aggrieved, all the
accused persons filed bail applications before the High Court of Allahabad. It was on 14.8.2009
during the pendency of the said applications that the appellant submitted an application to the
Hon'ble Chief Justice of Allahabad High Court alleging that the accused therein were gangsters
and had accumulated assets worth crores of rupees by their criminal activities. The accused
persons were closely related to a local M.L.A. and Ex. M.P. and they had links with the Judges of
the High Court including Mr. Justice S.K. Jain who had earlier served as a judicial officer in
Meerut Court. The appellant expressed his apprehension that Mr. Justice S.K. Jain would favour
the accused persons to get bail. A copy of the said complaint was also sent to the Chairman, Bar
Council of U.P.

D. The High Court examined the complaint and placed the matter on the judicial side on
12.11.2009. The court issued a show cause notice dated 14.8.2009 to the appellant as to why the
criminal contempt proceedings be not initiated against him under the provisions of the Act.

E. The appellant submitted an unconditional apology dated 21.11.2009 submitting that the
application was sent by him as he had been misguided by the advocates of District Meerut and he
was in great mental tension as his nephew had been murdered.

F. The High Court after completing the trial convicted the appellant vide impugned judgment and
order dated 5.2.2010 and awarded the sentence as referred to hereinabove.

Hence, this appeal.

[3] Mr. J.M. Sharma, learned senior counsel appearing for the appellant has submitted that the
show cause notice was not in consonance with the provisions of Chapter XXXV-E, Rule 6 of the
Allahabad High Court Rules, 1952 (hereinafter referred to as the Rules). Thus, all subsequent
proceedings stood vitiated. More so, the appellant is a practicing advocate and had written the
said complaint under a mental tension as his nephew had been murdered, and on being misguided
by the advocates of the Meerut Court. Once the appellant has tendered an absolute and
unconditional apology, punishment was not warranted and fine imposed therein is contrary to the
statutory provisions of the Act. Thus, the appeal deserves to be allowed.

[4] Per contra, Mr. Irshad Ahmad, learned counsel appearing for the State has opposed the appeal
contending that very wild and scandalous allegations had been made by the appellant not only
against one judge but against various judicial officers and merely tendering an apology is not
enough. As the appellant had accepted that he had written the letter and also owned its contents,
and filed the reply to the show cause notice issued to him, even if, the statutory rules have not
been complied with, the order would not stand vitiated. The appeal lacks merit and is liable to be
dismissed.

[5] We have considered the rival submissions made by learned counsel for the parties and perused
the record.

[6] The relevant part of the complaint filed by the appellant reads as under:

"4. That Akhalakh family have good connection with all judges posted at Meerut. Hon. Mr.
Justice S.C. Nigam was posted in Meerut in the year 1981 to 1984 and 2002-03 on the posts of
Addl. Civil Judge/A.C.J.M. and Addl. District & Sessions Judge respectively. Hon. Justice Mr.
S.K. Jain was also posted at Meerut as Additional District & Sessions Judge in 2002-03.

5. That all the Hon. Justices V.K. Verma, S.K. Jain and S.C. Nigam have been promoted as High
Court Judges from the cadre of District Judges. Hon. Justice Mr. S.K. Jain and Hon. Justice S.C.
Nigam remained posted in Civil Court Meerut as Additional District Judge together in the year
2002-03 and have been promoted from Meerut Judgeship to the cadre of District Judge. They are
very good friends. Hon. Mr. Justice V.K. Verma also has very good intimacy with them. They
have made a caucus with V.P. Srivastava, Senior Advocate of Allahabad High Court for granting
major bails to known accused in criminal cases illegally and with ulterior motives.

Hon. Justice V.K. Verma has granted bails to two accused namely Rizwan and Wassim in
aforesaid famous triple murder case of Meerut in bail application No.924 of 2009 and 1238 of
2009 on 17.7.2009 illegally and with ulterior motives."

[7] The appellant/complainant further expressed his apprehension of having no confidence and
faith in any of the three Judges of the Allahabad High Court as they could pass any order at the
behest of Shri V.P. Srivastava, Senior Advocate.

In sum and substance, the offending part of the allegation had been as under:

(1) Akhlaq had good relations with Mr. Justice S.C. Nigam from the date since he was posted at
Meerut on three terms, (2) that justice V.K. Verma had good intimacy with the family of the
accused and the accused have made a clique alongwith one V.P. Srivastava, Senior Advocate of
Allahabad High Court for procuring major bails illegally and with ulterior motives. Mr. Justice
V.K. Verma has admitted bail to two accused namely Rizwan and Wasim illegally and with
ulterior motives. The three Judges (V.K. Verma, S.K. Jain and S.C. Nigam) may pass any order at
the behest of V.P. Srivastava, Senior Advocate.

[8] The allegations made by the appellant against the 3 judges of the High Court are too serious,
scandalous and, admittedly, sufficient to undermine the majesty of law and dignity of court and
that is too without any basis. The appellant is a practicing advocate. Plea taken by him that he had
been misguided by other advocates is an afterthought. He must have been fully aware of the
consequences of what he has written. The averment to the effect that provisions of Chapter
XXXV-E of the Rules had not been strictly observed remains insignificant as the appellant had
not only admitted transcribing the complaint but also its contents. The appellant had submitted the
reply to the show cause notice issued by the High Court of Allahabad on the judicial side. In such
a fact-situation, even if, for the sake of argument it is accepted that the aforesaid Rules have not
been complied with strictly, we are not willing to accept the case of the appellant for the reason
that Mr. J.M. Sharma, learned senior counsel for the appellant could not show as to what was that
material which was not considered by the High Court that had been put up as a defence by the
appellant resulting in any miscarriage of justice.

[9] This Court in M.B. Sanghi, Advocate v. High Court of Punjab and Haryana & Ors., 1991
AIR(SC) 1834, while examining a similar case observed :
"The foundation of judicial system which is based on the independence and impartiality of those
who man it will be shaken if disparaging and derogatory remarks are made against the presiding
judicial officers with impunity. It is high time that we realise that the much cherished judicial
independence has to be protected not only from the executive or the legislature but also from
those who are an integral part of the system. An independent judiciary is of vital importance to
any free society".

[10] In Asharam M. Jain v. A. T. Gupta & Ors., 1983 AIR(SC) 1151, while dealing with the issue,
this Court observed as under:

"The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise
and destroy the system of administration of justice by vilification of judges. It is not that judges
need be protected; judges may well take care of themselves. It is the right and interest of the
public in the due administration of justice that has to be protected."

[11] In Jennison v. Baker, 1972 1 AllER 997, it was observed, "The law should not be seen to sit
by limply, while those who defy it go free, and those who seek its protection lose hope"

[12] The appellant has tendered an absolute and unconditional apology which has not been
accepted by the High Court. The apology means a regretful acknowledge or excuse for failure. An
explanation offered to a person affected by one's action that no offence was intended, coupled
with the expression of regret for any that may have been given. Apology should be
unquestionable in sincerity. It should be tempered with a sense of genuine remorse and
repentance, and not a calculated strategy to avoid punishment

[13] Clause 1 of Section 12 of the Act and Explanation attached thereto enables the court to remit
the punishment awarded for committing the contempt of court on apology being made to the
satisfaction of the court. However, an apology should not be rejected merely on the ground that it
is qualified or tempered at a belated stage if the accused makes it bona fide. A conduct which
abuses and makes a mockery of the judicial process of the court is to be dealt with iron hands and
no person can tinker with it to prevent, prejudice, obstructed or interfere with the administration
of justice. There can be cases where the wisdom of rendering an apology dawns only at a later
stage. Undoubtedly, an apology cannot be a defence, a justification, or an appropriate punishment
for an act which tantamounts to contempt of court. An apology can be accepted in case where the
conduct for which the apology is given is such that it can be "ignored without compromising the
dignity of the court", or it is intended to be the evidence of real contrition. It should be sincere.
Apology cannot be accepted in case it is hollow; there is no remorse; no regret; no repentance, or
if it is only a device to escape the rigour of the law. Such an apology can merely be termed as
"paper apology".

[14] In L.D. Jaikwal v. State of U. P., 1984 AIR(SC) 1374, this court noted that it cannot
subscribe to the 'slap-say sorry- and forget' school of thought in administration of contempt
jurisprudence. Saying 'sorry' does not make the slapper poorer. (See also: T.N. Godavarman
Thirumulpad v. Ashok Khot & Anr., 2006 AIR(SC) 2007

So an apology should not be "paper apology" and expression of sorrow should come from the
heart and not from the pen; for it is one thing to 'say' sorry, it is another to 'feel' sorry.
[15] An apology for criminal contempt of court must be offered at the earliest since a belated
apology hardly shows the "contrition which is the essence of the purging of contempt". Of course,
an apology must be offered and that too clearly and at the earliest opportunity. However, even if
the apology is not belated but the court finds it to be without real contrition and remorse, and
finds that it was merely tendered as a weapon of defence, the Court may refuse to accept it. If the
apology is offered at the time when the contemnor finds that the court is going to impose
punishment, it ceases to be an apology and becomes an act of a cringing coward. (Vide:
Debabrata Bandopadhyay & Ors. v. The State of West Bengal & Anr., 1969 AIR(SC) 189; Mulkh
Raj v. The State of Punjab, 1972 AIR(SC) 1197; The Secretary, Hailakandi Bar Association v.
State of Assam & Anr., 1996 AIR(SC) 1925; C. Elumalai & Ors. v. A.G.L. Irudayaraj & Anr.,
2009 AIR(SC) 2214; and Ranveer Yadav v. State of Bihar, 2010 11 SCC 493.

[16] This Court has clearly laid down that an apology tendered is not to be accepted as a matter of
course and the Court is not bound to accept the same. The court is competent to reject the apology
and impose the punishment recording reasons for the same. The use of insulting language does
not absolve the contemnor on any count whatsoever. If the words are calculated and clearly
intended to cause any insult, an apology, if tendered and lack penitence, regret or contrition, does
not deserve to be accepted. (Vide: Baradakanta Mishra v. Registrar of Orissa High Court & Anr.,
1974 AIR(SC) 710; The Bar Council of Maharashtra v. M.V. Dabholkar etc., 1976 AIR(SC) 242;
Asharam M. Jain v. A.T. Gupta & Ors., 1983 AIR(SC) 1151; Mohd. Zahir Khan v. Vijai Singh &
Ors., 1992 AIR(SC) 642; SANJIV DATTA,DEPUTY SECRETARY,MINISTRY OF
INFORMATION AND BROADCASTING,NEW DELHI v. KAILASH VASDEV, 1995 3 SCC
619; Patel Rajnikant Dhulabhai & Ors. v. Patel Chandrakant Dhulabhai & Ors., 2008 AIR(SC)
3016; and Vishram Singh Raghubanshi v. State of U. P., 2011 AIR(SC) 2275).

[17] That the power to punish for contempt is a rare species of judicial power which is by the very
nature calls for exercise with great care and caution. Such power ought to be exercised only
where "silence is no longer an option."

(See: In re: S. Mulgaokar, 1978 AIR(SC) 727; H.G. Rangangoud v. M/s State Trading
Corporation of India Ltd. & Ors., 2012 AIR(SC) 490; Maninderjit Singh Bittav. Union of India &
Ors., 2012 1 SCC 273; T. C. Gupta & Anr. v. Hari Om Prakash & Ors., 2013 10 SCC 658; and
Arun Kumar Yadav v. State of U. P. through District Judge, 2013 14 SCC 127 Power of courts to
punish for contempt is to secure public respect and confidence in judicial process. Thus, it is a
necessary incident to every court of justice.

[18] Being a member of the Bar, it was his duty not to demean and disgrace the majesty of justice
dispensed by a court of law. It is a case where insinuation of bias and predetermined mind has
been leveled by a practicing lawyer against three judges of the High Court. Such casting of bald,
oblique, unsubstantiated aspersions against the judges of High Court not only causes agony and
anguish to the judges concerned but also shakes the confidence of the public in the judiciary in its
function of dispensation of justice. The judicial process is based on probity, fairness and
impartiality which is unimpeachable. Such an act especially by members of Bar who are another
cog in the wheel of justice is highly reprehensible and deeply regretted. Absence of motivation is
no excuse.
[19] In view of the above, we are of the considered opinion that the High Court has not
committed any error in not accepting the appellant's apology since the same is not bona fide.
There might have been an inner impulse of outburst as the appellant alleges that his nephew had
been murdered, but that is no excuse for a practicing lawyer to raise fingers against the court.

[20] Section 12(1) of the Act provides that if the court is satisfied that contempt of court has been
committed, it may punish the contemnor with simple imprisonment for a term which may extend
to six months, or with fine which may extend to Rs.2,000/-, or with both.

Section 12(2) further provides that "notwithstanding anything contained in any other law for the
time being in force, no court shall impose a sentence in excess of that specified in sub-section (1)
for any contempt either in respect of itself or of a court subordinate to it."

Thus, the power to punish for contempt of the court is subject to limitations prescribed in sub-
section (2) of the Act.

[21] Hence, in view of the above, the fine of Rs.20,000/- imposed on the appellant by the High
Court by way of impugned judgment and order, is reduced to Rs.2,000/- and is directed to deposit
the said fine forthwith.

[22] We find no force in the appeal which is accordingly dismissed. The appellant must surrender
to serve out the sentence forthwith, failing which, the learned Chief Judicial Magistrate, Meerut,
would secure his custody and send him to jail to serve out the sentence. A copy of the order be
sent to the learned Chief Judicial Magistrate, Meerut, for information and compliance.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO. 686 OF 2010

Anil Kumar

Appellant

Versus

State of U. P.

Respondent

B.S. Chauhan, J.

In view of the judgment passed today in connected Criminal Appeal No. 555 of 2010, this appeal
is dismissed. However, the fine of Rs.20,000/- imposed on the appellant by the High Court by
way of impugned judgment and order, is reduced to Rs.2,000/- and is directed to deposit the said
fine forthwith.

The appellant must surrender to serve out the sentence forthwith, failing which, the learned Chief
Judicial Magistrate, Meerut, would secure his custody and send him to jail to serve out the
sentence. A copy of the order be sent to the learned Chief Judicial Magistrate, Meerut, for
information and compliance.

CASE-3

HIGH COURT OF MADRAS

G BAPPUDURAI
V/S
REGISTRAR; BAR COUNCIL OF TAMIL NADU

Date of Decision: 23 January 2015

Citation: 2015 LawSuit(Mad) 82

Hon'ble Judges: V Ramasubramanian

Case Type: Writ Petition

Case No: 3513 of 2014

Subject: Civil

Acts Referred:
ADVOCATES ACT, 1961 SEC 49

Final Decision: Petition allowed

Advocates: V Lakshminarayanan, V M G Ramakannan, S Y Masood

Reference Cases:
Cases Referred in (+): 3

Judgement Text:-

V Ramasubramanian, J

[1] The petitioner has come up with the above writ petition, challenging a show-cause notice
issued by the Tamil Nadu Dr.Ambedkar Law University, calling upon him to show cause as to
whether or not he fulfilled the eligibility criteria for admission to a three year B.L. Degree Course
in the Government Law College, Tirunelveli.

[2] I have heard Mr.V.Lakshminarayanan, learned counsel for the petitioner,

Mr.V.M.G.Ramakannan, learned counsel for the first respondent and Mr.S.Y.Masood, learned
counsel for the second respondent.

[3] The petitioner passed the X Standard in April 1997. He joined the Higher Secondary Course
and completed the Course in March 1999. But he failed in one subject.

[4] Without clearing the arrear paper and thereby completing the Higher Secondary Course, the
petitioner joined the Bachelor's Degree Course in Arts, in the Alagappa University, under the
Distance Education Program. In January 2010, the petitioner obtained a degree from the Alagappa
University in Bachelor of Arts in History.

[5] Thereafter, the petitioner appeared for the arrear paper in the Higher Secondary Examination
in March 2010 and cleared it.

[6] During the academic year 2010-11, the petitioner applied for admission to a three year Degree
Course in Law and he was allotted to the Government Law College, Tirunelveli, by the first
respondent University, in the counselling held on 14.09.2010. He was also issued with a
certificate of eligibility to join the three year B.L. Degree Course for the academic year 2010-11.

[7] During the period 2010-13, the petitioner completed the three year Law Degree successfully,
from the Government Law College, Tirunelveli. He was issued with a Provisional Certificate on
19.09.2013 by the University. It appears that the petitioner also paid the necessary fees towards
the Advocates Welfare Fund, Group Insurance Scheme, Resumption Charges and Enrollment
Certificate fee.

[8] However, it appears that a good samaritan sent a letter to the University informing them that
the petitioner was admitted to the three year Law Degree, without having completed the eligibility
criteria of 10 years of schooling, followed by 2 years of Higher Secondary Course and 3 years of
Bachelor's Degree Course. Immediately, the University issued a show cause notice calling upon
the petitioner to show cause as to whether he fulfilled the eligibility criteria for joining three year
B.L. Degree Course. Though the petitioner sent a reply on 16.12.2013, he has also come up with
the above writ petition challenging the show cause notice.

[9] The contention of Mr.V.Lakshminarayanan, learned counsel for the petitioner is basically two
fold namely:-

(a) that the petitioner had in fact fulfilled the eligibility criteria in the year 2010-11 for joining the
three year B.L. Degree Course; and

(b) that the University is estopped from questioning his eligibility, after having issued the
eligibility certificate way back on 21.09.2010 and after having allotted him to the Tirunelveli
Government Law College.
[10] I shall first take up the second contention, since it is capable of being disposed of easily. This
contention relates to estoppel.

[11] It is true that the University issued a recognition-cum- eligibility certificate on 21.09.2010, to
the effect that the petitioner was eligible for admission to the first year of the B.L. Degree Course.
But, there is nothing on record to show that the University was aware of and conscious of the fact
that the petitioner completed the Higher Secondary Course only after securing a degree from the
Alagappa University. As I have pointed out earlier, the petitioner completed SSLC in April 1997
and joined the Higher Secondary Course in June, 1997. Though he completed the Higher
Secondary Course in March 1999, he failed in Mathematics. But, he took advantage of the stream
of Distance Education offered by the Alagappa University and joined the degree course even
without passing Higher Secondary Course. In the examination conducted in May 2009, the
petitioner passed the B.A. degree course. A Provisional Certificate was issued in January 2010. It
was only thereafter that the petitioner wrote the arrear paper in Higher Secondary Course in
March 2010 and passed the same.

[12] Therefore, unless it is established that the University was conscious of and aware of the
sequence in which the petitioner had undergone the Higher Secondary Course and the Degree
Course, no estoppel can be pleaded against the University. In any case, if a person does not fulfil
the eligibility criteria as per the statutes, the mere fact that the University issued a letter of
recognition, will not operate as estoppel. The eligibility certificate dated 21.09.2010 issued by the
University was only provisional in nature. Therefore, the fact that the University had issued a
recognition certificate in 2010, would not prevent them from re-examining the eligibility criteria.
Hence the second contention of the petitioner is rejected.

[13] Coming to the first contention, the case of the petitioner is that as per the Bar Council of
India Regulations, as approved by the Syndicate of the University, the eligibility criteria fixed for
admission of candidates to a three year degree program in Law, for the academic year 2010-11
were as follows:-

"i. A pass in the Bachelor's Degree Course of any University recognized by the Tamil Nadu
Dr.Ambedkar Law University with not less than 45% of marks in aggregate.

ii. Candidates belonging to SC/ST communities should have secured 40% of marks in aggregate
in the qualifying Degree Course.

iii. The applicants who have obtained 10+2 or Graduation/Post Graduation through Open
University system directly without having any basic qualification are not eligible for admission in
the law courses".

[14] Chapter II of the Rules of Legal Education framed by the Bar Council of India contains the
eligibility condition in Rule 5. Rule 5 reads as follows:-

"5 (a) Three Year Law Degree Course: An applicant, who has graduated in any discipline of
knowledge from a University established by an Act of Parliament or by a State Legislature or an
equivalent national Institution recognized as a Deemed to be University or foreign University
recognized as equivalent to the status of an Indian University by an authority competent to
declare equivalence, may apply for a three years degree program in law leading to conferment of
L.L.B degree on successful completion of the regular program conducted by a University whose
degree in law is recognized by the Bar Council of India for the purpose of enrolment.

(b) Integrated Degree Program: An applicant who has successfully completed Senior Secondary
School course (+2) or equivalent (such as 11+1, 'A' level in Senior School Leaving Certificate
Course) from a recognized University of India or outside or from a Senior Secondary Board or
equivalent, constituted or recognized by the Union or by a State Government or from any
equivalent institution from a foreign country recognized by the government of that country for the
purpose of issue of qualifying certificate on successful completion of the course, may apply for
and be admitted into the program of the centres of Legal Education to obtain the integrated degree
in law with a degree in any other subject as the first degree from the University whose such a
degree in law is recognized by the Bar Council of India for the purpose of enrolment.

Provided that applicants who have obtained +2 Higher Secondary pass Certificate or First Degree
Certificate after prosecuting studies in distance or correspondence method shall also be
considered as eligible for admission in the Integrated Five Year Course or three years L.L.B
course, as the case may be.

Explanation: The applicants who have obtained +2 or graduation/post graduation through Open
University system directly without having any basic qualifications for prosecuting such studies
are not eligible for admission in the law course".

[15] In the case on hand, the petitioner had pursued 10 years of schooling, two years of Higher
Secondary Course and a three year degree program. But unfortunately, he had not done this in the
sequence in which, a person is obliged to complete them. Under the guise of opening up
opportunities for people to educate themselves, many Universities have created schools of
Distance Education and Open University Stream. The actual object of creating schools of
Distance Education and Open Universities was to enable the working class, to quench their thirst
for knowledge and education and to enable them to hone their skills. Experts in the filed of
education, starting from those in the University of Wisconsin (where Distance Education was first
effectively conceived) who invented an idea of Distance Education and Open Universities, could
have never imagined that these streams of education will be used to pervert the entire system of
education. Today, some of the schools of distance education, have virtually become places
distanced from education.

[16] Fortunately, the Supreme Court put an end to the perversion created by various Government
Orders, in its decision in Annamalai University vs. Secretary to Government, Information and
Tourism Department, 2009 4 SCC 590. Thereafter, the Government issued orders to the effect that
unless a person had completed 10 years of schooling and two years of Higher Secondary Course
before acquiring a degree, the qualification of a degree obtained through Open Universities will
not be recognized. This Government Order has also been upheld by a Division Bench of this
Court.

[17] Coming to the facts of the present case, it is seen that the petitioner has in fact acquired a
Secondary School Leaving Certificate, a Higher Secondary Course Certificate and a Degree in
Arts. However, they were not obtained in the normal sequence. The petitioner obtained a degree
before completing the Higher Secondary Course. Therefore, the only question is as to whether the
petitioner can be construed to have not acquired the essential qualifications for admission to the
three year B.L. Degree or not.

[18] Mr.V.Lakshminarayanan, learned counsel for the petitioner relied upon the following
decisions:-

(i) M.Bhaskar vs. The Registrar, University of Madras, 1998 2 LW 626;

(ii) K.Sakthi Rani v. The Secretary of the The Bar Council of Tamil Nadu, 2010 2 LW 746;

(iii) J.Joseph Irudayaraj v. Joint Director of School Education [W.A.No.1064 of 2012 dated
06.11.2013]; and

(iv) P.Raman v. The Government of Tamil Nadu [].

[19] In M.Bhaskar, a learned Judge of this Court was concerned with the case of a person, who
had studied 11 years of schooling, three years of degree course in Science and a three year degree
in Law from the Nagpur University. He did not have either 10 years of schooling followed by two
years of Higher Secondary Course or 11 years of schooling followed by one year of Pre-
University Course. Therefore, the candidate's provisional admission to the Masters Degree in Law
was withheld. When he came to Court, the University contended that he should have completed
either 10+2+3 or 11+1+3 pattern of education. However, K.Govindarajan,J, relied upon
Regulation 2(1) of the University Regulations and came to the conclusion that so long as the
degree obtained by the candidate is valid, in terms of Regulation 2(3), it is not open to the
University to turn around later and deny the benefit of the degree to the candidate. 20. But
unfortunately, for the petitioner, much water has flown under the bridge after the aforesaid
decision in M.Bhaskar. No decision rendered prior to the decision of the Supreme Court in
Annamalai University can be relied upon by any one today. In Annamalai University, the very
same argument was raised in a different form to the effect that the degree obtained from Open
Universities is a valid degree in terms of the University Grants Commission Act, 1956 and that
there cannot be a distinction between the degree obtained after a formal education and degree
obtained without any formal education. But, this argument was rejected by the Supreme Court in
Annamalai University. Therefore, the decision in M.Bhaskar is of no assistance to the petitioner.

[20] In K.Sakthi Rani, a Division Bench of this Court was concerned with different types of cases,
some of which were that of those, who had already completed the Law Degree Courses and some
of whom had also been enrolled as advocates. After segregating the cases of persons, who were
entitled to some benefit on the application of the principles of promissory estoppel, acquiescence
and legitimate expectation and equality, the Division Bench virtually directed the Bar Council of
India, to follow the decision of the Supreme Court in Annamalai University and the Rules of
Legal Education 2008 issued by the Bar Council of India. Two portions of the order of the
Division Bench in K.Sakthi Rani may be of relevance. Hence paragraph 92 (ii) and (iii) as well as
para 93 of the decision of the Division Bench are extracted as follows:-

"92. On consideration of the above said factual and legal issues, the following conclusions are
arrived at:
..............

(ii) Explanation to Rule 5 of the Rules of Legal Education, 2008, is neither contrary to Section
24(1) of the Act nor beyond the rule making power conferred on the Bar Council of India under
section 49 of the Advocates Act, 1961;

(iii) The Bar Council of India is well within its rights to insist that a person having a degree from
the Open University under the Indira Gandhi National Open University Act, 1985, cannot be
allowed to join a law course in a Law University recognized by it and the Bar Council of Tamil
Nadu and Bar Council of India can also refuse to enroll such a person who joins the law course
and completes the same. The judgment of the Honourable Apex Court in Annamalai University
represented by Registrar v. Secretary to Government, Information and Tourism Department and
others, is binding on the Bar Council of Tamil Nadu and Bar Council of India insofar as the
applicability of the University Grants Commission Act and Regulations, but the said judgment
cannot be applied to the petitioners who have already obtained the law degree. The Rules of Legal
Education, 2008, cannot be made applicable to the case of the petitioners who had already
completed their law course at the time of coming into force of the Rules;

.................

93. The Bar Council of India is directed to issue intimation to all the Law Universities recognised
by it, stating that in view of the judgment of the Honourable Apex Court in Annamalai University
represented by Registrar v. Secretary to Government, Information and Tourism Department and
others and in view of the Rules of Legal Education, 2008, no candidate from the Open University
having a degree contrary to the University Grants Commission Act and Regulations, and contrary
to the Rules of Legal Education, 2008, shall be admitted into a law course. The Law Universities
concerned which are recognised by the Bar Council of India will have to convey the said
communication of the Bar Council of India to all the Law Colleges affiliated to them. The Bar
Council of India is also directed to communicate the above said decisions, to all the State Bar
Councils in the country if such communications are not sent already. The Bar Council of Tamil
Nadu is directed to decide the pending applications and the future applications in the light of the
orders passed by this Court."

[21] Therefore, the Explanation to Rule 5 of the Rules of Legal Education 2008, cannot be
overcome by the petitioner on the specious plea that he had already completed the course.

[22] In Joseph Irudayaraj, the Division Bench was concerned with the case of a person, who was
appointed in a minority school as a B.T. Assistant in English. The Director of School Education
refused to approve the appointment. He challenged the decision of the Director of School
Education unsuccessfully before a learned single Judge. The Division Bench reversed the said
decision on the ground that though the candidate had obtained a degree only through Open
University, he had subsequently passed the Higher Secondary Examination and that therefore, he
could be considered eligible. But, the said decision of the Division Bench, was actually motivated
by the fact that the candidate was appointed prior to the decision of the Supreme Court in
Annamalai University. This is seen from para 11 of the judgment of the Division Bench.
[23] But, in the case on hand, the admission of the petitioner to the three year B.L. Degree
happened only after the decision of the Supreme Court in Annamalai University. Therefore, the
benefit granted by the Division Bench, out of charity, in Joseph Irudayaraj, to a case which related
to an appointment prior to Annamalai University case, cannot be invoked in the case on hand.

[24] In P.Raman, a learned Judge was concerned with the eligibility of persons to apply for the
posts included in the Combined Subordinate Services Examination-I, 2008, for posts included in
Group-II Services of the State of Tamil Nadu. But, it appears that the learned Judge was primarily
carried away by the fact that some of those candidates had passed entrance examination or
undergone some proprietary course before joining the degree course. Therefore, I do not think that
the said decision is of any assistance to the petitioner.

[25] The reliance placed upon the definition of the expression "degree" to mean a degree obtained
from a University recognized by the UGC Act, 1956, has lost its significance today. When the
expression "degree" was defined in the statutes, the law makers never imagined the kind of
inventions that could happen in the field of education, entitling people to acquire all qualifications
in the reverse or perverse order. At the time when the expression "degree" was defined in the
Statute, people would have honestly believed that a student would undertake a journey from the
first standard up to the school final in a sequence and thereafter undergo the entire duration of the
degree course. No one would have ever imagined even in the wildest of dreams at that time, that
people may acquire a Post Graduate Degree first, followed by an Under Graduate Degree and
thereafter complete the Higher Secondary Course, eventually to go to a Kindergarten. Even in the
matter of wearing costumes, we follow a particular order. The only exception to this is that of the
Superman. People who complete educational courses in the reverse order can only be compared
to Superman, the comic book hero.

[26] None of the decisions relied upon by the learned counsel for the petitioner may be of any
assistance to the petitioner for one important reason. The reason is this. Today there are two
streams of legal education. One is a three year degree in law and another is a five year Integrated
Course in Law. For admission to a five year Integrated Law Degree, a person should have passed
the Higher Secondary Course after 10 years of schooling. For admission to three year Law
Degree, a person must have a degree, after having gone through a 10+2 or 11+1 stream of
education.

[27] If the above position is kept in mind, the paradox in the argument of the petitioner would
become very clear. According to the petitioner, he became eligible for admission to the three year
law degree, in January 2010 when he was issued with a degree certificate by the Alagappa
University. But, he became eligible for admission to the 5 year Integrated Law Degree Course,
only after he passed the Higher Secondary Examination held in March 2010. In other words, on
the date of which the petitioner became eligible for admission to a three year degree course in
law, he was not eligible for admission to a five year degree course in law. There can be no answer
to this paradox.

[28] To say that at the time of admission in September 2010 the paradox got removed, may not
really be an answer. Therefore, I am of the view that the petitioner cannot be taken to have
fulfilled the requirement of Rule 5 of the Rules of Legal Education, 2008. Consequently, the
petitioner is not entitled to use the degree for enrolment as Advocate.
[29] However, a question arises as to whether the petitioner can never make use of the law degree
for any purpose and whether it is as good as a waste paper or not. Today, it is only the University
(and not the Bar Council), which has issued a notice to the petitioner for the purpose of cancelling
the law degree obtained by him. Since the petitioner has already undergone the course and passed
it and also since the petitioner has also passed the higher secondary course, I do not wish to make
that degree a waste paper. If a private employer is prepared to give employment to the petitioner
on the basis of the law degree, I do not wish to stand in the way. But, the same will not entitle the
petitioner to get enrolled as an Advocate in the light of the Rules of Legal Education, 2008 issued
by the Bar Council.

[30] Hence, the writ petition is partly allowed, setting aside the notice of the University, but
declaring that with the law degree conferred on him by the University, the petitioner cannot either
enrol as Advocate or enter into the Judicial Service. There will be no order as to costs.
Consequently, M.P.No.1 of 2014 is closed.

CASE-4

HIGH COURT OF MADRAS (D.B.)

P YASMIN BEGUM
V/S
CHAIRMAN BAR COUNCIL OF INDIA; SECRETARY BAR COUNCIL OF TAMIL NADU
AND PUDUCHERRY

Date of Decision: 07 September 2015

Citation: 2015 LawSuit(Mad) 2207

Hon'ble Judges: V Ramasubramanian, K Ravichandrabaabu

Case Type: Writ Petition

Case No: 25773 of 2015

Subject: Civil, Criminal

Acts Referred:
INDIAN PENAL CODE, 1860 SEC 324, SEC 149, SEC 147, SEC 452, SEC 427, SEC 323, SEC
506(II)
CODE OF CRIMINAL PROCEDURE, 1973 SEC 482
ADVOCATES ACT, 1961 SEC 24A
Final Decision: Petition allowed

Advocates: P Yasmin Begum, S R Rajagopal, S Y Masood

Judgement Text:-

V Ramasubramanian, J

[1] The petitioner, whose application for enrolment as an Advocate was directed by the Bar
Council of Tamil Nadu and Pondicherry to be kept pending till the disposal of two criminal cases
against her, has come up with the above writ petition challenging the decision of the Bar Council.

[2] Heard Mrs.P.Yasmin Begum, petitioner appearing in person, Mr.S.R.Rajagopal, learned

counsel for the first respondent and Mr.S.Y.Masood, learned counsel for the second respondent.

[3] The petitioner completed a Bachelor's Degree in Business Administration in First Class with
distinction in the year 2003. She later completed a Master's Degree in Business Administration in
the year 2007 and completed a 3 Year Law Degree in May 2013 from the Government Law
College, Madurai.

[4] It appears that the petitioner hails from a fairly orthodox Muslim family and had overcome
several obstacles to get her educated, even after her marriage and the birth of children. Therefore,
after completing Law Degree, she made an application on 19.8.2013 to the Bar Council for
enrolling her as an Advocate. But, the application was kept pending in view of the orders passed
by this Court in Crl.O.P.No.14573 of 2014.

[5] Therefore, the petitioner filed a writ petition in W.P.(MD)No.2508 of 2015 on the file of the
Madurai Bench of this Court. The said writ petition was disposed of by a Division Bench at
Madurai by an order dated 06.4.2015, holding that a writ of Mandamus cannot be issued in a
collateral proceedings, when the direction issued by a learned Judge of this Court not to enrol
candidates with criminal background was operating.

[6] After the disposal of the writ petition, the Bar Council sent a communication dated 14.8.2015
informing the petitioner that her application will be kept pending till the disposal of the criminal
cases or at least till the disposal of the petition for quashing the First Information Reports in both
the criminal cases. Challenging the said order, the petitioner is before us.

[7] Mr.S.Y.Masood, learned counsel for the second respondent opposes the very maintainability
of the writ petition on the ground that the first writ petition filed by the petitioner was already
dismissed. But, we do not think that the said objection is sustainable. The writ petition W.P.
(MD)No.2508 of 2015 filed by the petitioner was only for a writ of Mandamus. The said writ
petition was not actually dismissed, but was only closed. Paragraphs 12 to 15 of the order of the
Division Bench dated 06.4.2015 read as follows:
"12. Notwithstanding the views expressed and with due respect to the learned Judge, we only
wish to observe that reading of Section 24-A of the Advocate's Act, provides for disqualification,
in the case of conviction, for an offence, involving moral turpitude and for the offences stated in
Section 24-A of the Advocate's Act.

13. It is well settled that by issuance of a writ of Mandamus, a collateral proceedings, cannot be
interfered with, more so, when the subject matter, has already been, dealt with by a Co-ordinate
Bench of this Court.

14. While declining to issue a writ of Mandamus, as prayed for, liberty is given, to the petitioner,
to seek for appropriate modification of the order dated 11.8.2014.

15. With the above directions, the writ petition is closed. No costs. Consequently, M.P(MD)No.1
of 2015 is closed."

[8] After the first writ petition was so closed by an order dated 06.4.2015, the second respondent
issued a communication dated 14.8.2015, which is impugned in this writ petition. Therefore, apart
from the fact that the first writ petition was not dismissed, but was only closed, the cause of action
on which the petitioner has come up with the present writ petition has also arisen only after the
disposal of the first writ petition. Hence, the objections relating to maintainability are overruled.

[9] Coming to the core issue as to whether the two criminal cases pending against the petitioner,
would dis-entitle her to get enrolled as an Advocate, it is seen that both criminal cases are the
product of a family feud. The complainant in both the criminal cases is none other than the
brother-in-law of the writ petitioner. It appears that the petitioner's father by name U.M.K.Basha
was appointed as the Life Trustee of a family trust created by the petitioner's grandfather. The
petitioner's father, in turn appointed the petitioner's sister Faridha Begum as the Muthawalli. The
petitioner's sister, in turn gave a power of attorney in favour of her husband Mr.S.Ghouse Sardar
Hussain.

[10] For reasons which we are not inclined to enter into, the petitioner's father appears to have
cancelled the deed by which he appointed the petitioner's elder sister as the Muthawalli of the
Trust. After cancelling the appointment of the petitioner's sister, he appointed the petitioner herein
as the Muthawalli. Therefore, the petitioner's sister, claiming herself to be the Muthawalli of the
Trust, has already instituted a suit in O.S.No.283 of 2010 on the file of the Sub Court, Madurai.
The prayer in the said suit was for a declaration that the cancellation of her appointment as
Muthawalli was illegal and for a permanent injunction.

[11] During the pendency of the said suit, the petitioner's brother-in-law lodged two complaints,
one in Crime No.1446 of 2010 for alleged offences under Section 147, 452, 323, 506(ii), IPC,
read with Sections 427, 324 and 149, IPC and another in Crime No.558 of 2011 for similar
offences. After investigation, the Police have also filed final reports and charge sheets have been
filed in C.C.Nos.514 of 2010 and 140 of 2012 on the file of the Judicial Magistrate II, Madurai.
But, the petitioner filed quash petitions in Crl.O.P.(MD)Nos.13013 and 13597 of 2012 under
Section 482 of the Code of Criminal Procedure, on the file of the Madurai Bench of this Court.
This Court has granted a stay of further proceedings in those criminal complaints. It is in this
background of facts that we have to examine whether the order passed by this Court in Crl.O.P.
(MD)No.14573 of 2014 is an impediment for the enrolment of the petitioner.

[12] As we have pointed out in a few decisions rendered in the recent past, the aim and object of
the order passed in Crl.O.P.(MD)No.14573 of 2014 was only to prohibit the entry of persons with
criminal background into the legal profession. A lady, who is implicated along with her own
parents, in a criminal case, at the behest of her own brother-in-law on account of a dispute with
regard to a family wakf, cannot be termed, by any stretch of imagination to be a person with a
criminal background. The relationship between the defacto complainant and the writ petitioner are
not in dispute. The fact that both criminal cases are a product of a civil dispute, which is pending
in O.S.No.283 of 2010 on the file of the Sub Court, Madurai, is so obvious from a perusal of the
complaint. The fact that the petitioner's father and mother have also not been spared of the agony
of undergoing prosecution at the instance of the elder daughter of the family, is also borne out by
records. It must be noticed that the date of the alleged incident, in relation to C.C.No.514 of 2010
was 23.4.2010 and the date of the alleged incident in relation to C.C.No.140 of 2012 was
03.8.2010. The petitioner had actually delivered a male baby on 14.7.2010, as seen from the
hospital records. Therefore, the fact that both complaints are motivated, is very obvious.

[13] In the above circumstances, we are of the considered view that the prohibition imposed by
this Court in Crl.O.P.No.14573 of 2014 for the enrolment of persons with criminal background,
cannot be applied to the case of the writ petitioner. Hence, the writ petition is allowed, the
impugned order is set aside and a direction is issued to the second respondent to process the
application of the petitioner for enrolment and permit her for enrolment if the application is
otherwise in order. No costs. Consequently, M.P.No.1 of 2015 is closed.

COC CASE-1

HIGH COURT OF DELHI

RAMONA JIND V/S SOHNU MOHAN

Date of Decision: 18 December 2014

Citation: 2014 LawSuit(Del) 5512

Hon'ble Judges: V K Shali

Case Type: Contempt Case (Civil)

Case No: 170 of 2014

Subject: Civil, Contempt of Court

Acts Referred:
CONTEMPT OF COURTS ACT, 1971 SEC 2(B)

Final Decision: Petition dismissed

Advocates: Saurabh Chauhan, Varun Jain, Prag Chawla, Abhey Narula

Judgement Text:-

V K Shali, J

[1] The present contempt petition is premised on the fact that the respondent has

wilfully breached his undertaking purported to have been given to the court on

25.7.2013.

[2] The petitioner and the respondent apparently seem to be having a matrimonial

dispute which resulted in filing of Crl. M. (C) No.3731/2012. The parties have two

children from the wedlock, who are informed to be US citizens. The petitioner is also a

US citizen but presently she is in India and the respondent also happens to be a US

citizen, stationed in America.

[3] During the pendency of the aforesaid petition, on 25.7.2013, the learned senior

counsel appearing for the respondent, on instructions, stated that the respondent would

have no objection to prayer (a) of the application being Crl. M.A. No.10195/2013.

[4] I have been informed that the aforesaid application was filed by the present

petitioner seeking signatures of the respondent (father of the minor children) in order to

get the children's passports, visa and application for OCI card extended as the same

were expiring.

[5] On the basis of the aforesaid concession having been made by the learned senior

counsel appearing for the respondent, the learned judge of this court observed that the

respondent may sign and send the relevant documents for renewal of passports,

extension of visa and application for OCI card within a period of four weeks.

[6] Apparently the respondent did not oblige by adhering to the concession made by

him through his counsel.

[7] The learned counsel has pointed out that the aforesaid order was repeated in Crl.

Revision Petition No.591/2013 on 30.10.2013 filed by the respondent herein, where the

court had taken note of the fact that the respondent (petitioner in the said revision

petition) had not adhered to the terms contained in para 4 of the order dated 25.7.2013.

In the same revision petition, on 11.12.2013, the court again noted the fact that the

respondent was acting truant and accordingly, directed the respondent (petitioner in the

revision petition) to file an affidavit with respect to the renewal of the passports/visa and

the application for OCI card to be signed by him in terms of para 4 of the order dated

25.7.2013 within ten days.

[8] The contention of the learned counsel for the petitioner is that instead of filing this

affidavit, the respondent filed an affidavit dated 27.12.2013, duly notarized by the notary

in California, USA, wherein he had stated that he had received a legal opinion from an

attorney in USA and, therefore, he did not sign the documents as conceded by him. The

learned counsel has contended that by filing this affidavit, the respondent has breached

the undertaking and not complied with the order and thus, he is guilty of contempt.

[9] I have considered the submissions made by the learned counsel.

[10] Section 2 (b) of the Contempt of Courts Act, 1971, defines 'civil contempt' which

means wilful, disobedience of any order, direction, judgment or a decree passed by the

court or any undertaking given to a court. The learned counsel has construed the action

on the part of the respondent as a breach of an order passed by the court as well as the

breach of an undertaking given by him and thus, wants an action for contempt to be

initiated against him.

[11] So far as the undertaking is concerned, I am not in agreement with the contention

of the learned counsel for the petitioner that the respondent has given any undertaking

to the court to sign the documents for extension of visa, passports and OCI card

application.
[12] The learned counsel for the respondent had only conceded, on instructions, that his

client has no objection to the signing of these documents. Later on, the respondent, on

a second thought had resiled from the said concession and this is the reason why the

court had specifically passed an order directing the respondent to file an affidavit.

[13] This affidavit filed by the respondent was not at all in line with para 4 of the order

dated 25.7.2013 and, therefore, the affidavit filed by him on 27.12.2013, wherein he has

annexed the opinion of some counsel in USA stating that signing of the papers may be

construed against him, cannot be treated to be an undertaking to this court so as to

warrant any action on account of the alleged breach. Therefore, in the absence of any

specific commitment, assurance or undertaking having not been given to the court, I do

not think the question of breach of the same arises.

[14] The second component alleged is with regard to violation of the court order. The

refusal to sign the documents, as stated hereinabove, cannot be treated as a breach of

the order as the order was not a direction by the court, it was only an order which was

passed on the basis of the concession having been made by the learned senior counsel

for the respondent.

[15] The court was conscious of the fact that the respondent had resiled from his

concession and that is the reason why it passed an order directing him to file an affidavit

so that he could have been pinned down for violation of the undertaking. Therefore, the

order by virtue of which he was directed to file an affidavit with respect to signing the

documents for extension of visa or OCI card or the passports, cannot be treated as a

direction having been given by the court.

[16] Assuming, though not admitting, that the direction was given by the court, it is not

necessary that every disobedience results in violation/contempt. The violation of an

order of the court must be wilful, contemptuous, deliberate and gross, then only it will

warrant an action against the respondent.

[17] In the instant case, the respondent has tried to justify his noncompliance by relying

upon some opinion purported to have been furnished by some attorney in the USA.

Therefore, the respondent is well within his right to protect his rights by not signing, if he

has been advised to do so. I feel that no case for contempt is made out.

[18] Accordingly, the contempt petition is dismissed and the contempt notice is

discharged; however, the petitioner is free to take such recourse in law as may be

permissible to him to get his grievances redressed.

CASE-2

HIGH COURT OF BOMBAY (AURANGABAD BENCH) (D.B.)

DINESH WAGHMARE, SECRETARY, STATE OF MAHARASHTRA AND ORS

V/S
GULSHAN BAHU UDDESHIYA SEVA BHAVI SANSTHA AND ORS

Date of Decision: 13 January 2014

Citation: 2014 LawSuit(Bom) 40

Hon'ble Judges: S C Dharmadhikari, R V Ghuge

Case Type: Contempt Appeal

Case No: 2 of 2012

Subject: Civil, Contempt of Court

Acts Referred:
CONTEMPT OF COURTS ACT, 1971 SEC 19(1), SEC 2(B)

Eq. Citations: 2014 (2) BCR 588, 2014 (4) AllMR 812

Advocates: K G Patil, G V Mohekar

Reference Cases:
Cases Referred in (+): 2
Judgement Text:-

S C Dharmadhikari, J

[1] Admit.

[2] We have heard the learned Advocates appearing for the parties. With their consent, we dispose
of this appeal finally.

[3] The only submission made before us by the learned A.G.P. appearing for the appellants is that
in this case the Court was not required to hold that the appellants are guilty of civil contempt.
There was no deliberate or intentional act and mere delay in disposing of the matter, within the
time frame stipulated by this Court, does not necessarily mean civil contempt. Something more is
required to be established and proved and therefore held before such a finding is rendered.
Further, in criticizing the conduct of the appellants, the Court was not required to use harsh
language and observe that the attitude of the appellants was revengeful or in any way victimizing
the original petitioner before the Court.

[4] With the assistance of the learned Advocates appearing for the parties, we have perused the
impugned order and the directions in the main matter. We should be fair to the respondent's
Advocate in that he has raised the issue of maintainability of this appeal, but in the light of the
order that we propose to pass, we do not express any opinion on the question of maintainability of
this appeal and this issue can be decided in an appropriate case. His submission is that there is no
finding that the Appellants are guilty of civil contempt and therefore sentenced accordingly. So
long as there is no order of this nature an appeal u/s 19(1) of the Contempt of Courts Act, 1971
will not lie is the further argument.

[5] For the present, we find that the appellants did not dispute that there was a delay in disposing
of the matter pending before them and in terms of the directions and orders of this Court. The
appellants did not seek any extension of time for disposing of the case either. In these
circumstances, the learned Single Judge was justified in criticizing the conduct of the appellants
and holding them responsible for the delay and saddling them with a direction to pay costs
quantified at Rs.25,000/ We do not disturb that direction and that part of the order of the learned
Single Judge. However, we find that the learned Single Judge was not justified in holding that the
appellants are guilty of civil contempt. Equally he was not justified in observing that the conduct
of the appellants was revengeful. For rendering both findings, there was no material before the
learned Single Judge. It is well settled and by the definition of the term "Civil Contempt" as
appearing in Section 2(b) of the Contempt of Courts Act, 1971, that it means, "wilful
disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful
breach of an undertaking given to a Court." Therefore, unless the act comes within the definition
of the term "Civil Contempt", then, alone the Court can proceed in accordance with the Contempt
of Courts Act, 1971 and not otherwise. It has been held repeatedly by the Hon'ble Supreme Court
that mere disobedience of an order passed or a judgment, decree, direction, order, writ or other
process of a Court will not be civil contempt. The Court would be required to render a finding as
to whether the disobedience was wilful. In the circumstances, in which the matter was placed
before the learned Single Judge, there was no such material.

[6] Secondly, unless and until there is a material to hold that the conduct of a party is
blameworthy and has in some way or the other, interfered with the course of justice, use of harsh
and strong language should be avoided. In the circumstances, we find no material before the
learned Single Judge to criticize the conduct of the appellants in the terms used and to be found in
the impugned order. The Appellants attitude and conduct could not be, by any manner, said to be
revengeful.

[7] With the above clarification and maintaining the direction to pay costs and by holding the
appellants responsible for the delay in disposal of the matter, we allow this Contempt Appeal. It is
disposed of accordingly. Costs to be paid to the original petitioner/respondent No.1.

[8] We would expect the State not to force the Court into passing drastic orders but be receptive
and responsive to the directions of the Court and deal with the matters within the time frame
stipulated in this Court's order and in the event of any difficulties, the matter should be placed
before the Court again, seeking extension or further time period to dispose of the case. The
Application be ccompanied by an affidavit of the officer concerned. We would only remind the
parties before us and particularly the appellants about the following observations made in the case
of State of Bihar and others Vs. Subhash Singh, 1997 AIR(SC) 1390 in paragraph Nos. 4 and 5,
which reads thus :

"4. The constitutional Courts exercise their power of judicial review with constraint to ensure that
the authorities on whom the power is entrusted under the rule of law or confide, is discharged
truly, objectively, expeditiously for the purpose for which substantive acts/results are intended.
The petitioner being a member of the permanent executive, is enjoined to comply with the orders
of the Court passed in exercise of the judicial review. On an earlier occasion, while disposing of
the writ petition, the High Court had directed the respondent to consider the case of the writ
petitioner and to dispose it of with reasoned order within two months. Obviously, the high Court
expected that the authorities would discharge their duties expeditiously as enjoined under the
rules and as per the directions. Since they did not discharge the duty, necessarily, they were
required to give explanation to the Court as to the circumstances in which they could not comply
with the direction issued by the Court or if there was any unavoidable delay, they should have
sought further time for compliance. Unfortunately, neither of the steps have been taken by the
officer in that regard.

Therefore, the High Court was constrained to impose the costs personally against him for
noncompliance of the order.

5. It is true and we are alive to the fact that when the officer is to take steps as per the decision,
some delay may occasion and generally the Courts would be reluctant to impose costs personally
against the officers. But the officers are required to go to the Court, give the appropriate
explanation and satisfy the Court that they were prevented by circumstances for non compliance
within the time specified by the Court. It is equally salutary to note that if the High Court feels it
necessary to impose costs personally against the officers, the Court is required to enquire after
giving notice and reasonable opportunity to the officer who could not be impleaded earlier or was
not on record, to explain the reasons for noncompliance of the order or decision taken to file the
proceedings. Take for instance, delay in filing of an appeal or revision. It is known fact that in
transaction of the Government business, none would own personal responsibility and decisions
are leisurely taken at various levels. It is not uncommon that delay would be deliberately caused
to confer advantage to the opposite litigant; more so when stakes involved are high or persons are
well connected/influential or due to obvious considerations. The Courts, therefore, do not adopt
strict standard of proof of every day's delay. The imposition of costa on officers for filing appeals
causes public injustice and gives the manipulators an opportunity to compound the camouflage.
Secondly, the imposition of costs personally against the officers will be counter productive and
officers would desist to pursue genuine cases of public benefit or importance or of far reaching
effect on public administration or exchequer deflecting course of justice. The Court before
imposing costs personally against the officers should be circumspect and keep at the back of its
mind the facts and circumstances in each case. Otherwise, public justice will suffer irremediably.
Unfortunately, in this case the delay in compliance is of one year and five months and the officer
has not explained. The High Court was constrained to impose personal costs against the officer.
Under the circumstances, we do not think that it is a fit case for interference."

[9] Prior to the above, the Supreme Court in the case of Bigyan Kumar and others Vs. Union of
India and others, 1988 AIR(SC) 1025, observed as under :

"We would part with the matter by recording our serious concern and disapproval of the growing
conduct of parties and public officers in particular of ignoring the directions of the Courts and the
multiplying instances of confrontation. The Court, including the apex one, is a part of the State
and is a builtin mechanism of the Constitution to administer justice in accordance with law. For
discharging that duty, the Court has got to adopt an attitude of critical assessment of situations
connected with litigation brought before it for adjudication. The manner of functioning of the
Court in accord with the Rule of Law has to be dispassionate, objective and analytical. The judges
who preside over these courts do not act with a sense of superiority; nor do they look down upon
others in the community. In order that the system may efficiently work and the purpose for which
the courts are established is duly served, it is necessary that everyone within the framework of the
Rule of Law must accept the system, render due obedience to orders made and in the event of
failure of compliance, the rod of justice must descend down to punish. We hope and trust that
everyone within the system realises this situation and does not unnecessarily get into a
confrontation."

CASE-3

HIGH COURT OF GUJARAT

BHARATBHAI JIVRAJBHAI
V/S
CHAGANBHAI SAMABHAI AND ORS

Date of Decision: 14 December 2012

Citation: 2012 LawSuit(Guj) 1429

Hon'ble Judges: M R Shah

Case Type: Miscellaneous Civil Application; Appeal From Order

Case No: 1751 of 2011; 86 of 2009

Subject: Civil, Contempt of Court

Acts Referred:
CODE OF CIVIL PROCEDURE, 1908 OR 39R 2A
CONTEMPT OF COURTS ACT, 1971 SEC 20

Final Decision: Rule made absolute

Eq. Citations: 2013 (1) GLH 343, 2013 (1) GLR 343

Advocates: M B Gohil, Navin Pahwa, Yatin Oza, Zubin F Bharda

Reference Cases:
Cases Cited in (+): 1
Cases Referred in (+): 4

Judgement Text:-

M R Shah, J

[1] Present Miscellaneous Civil Application has been preferred by the applicant herein original
appellant original plaintiff under Order 39 Rule 2A of the Code of Civil Procedure, 1908
(hereinafter referred to as "CPC") complaining about the breach of injunction granted by this
Court vide judgment and order dated 29.06.2009 passed in Appeal From Order No.86/2009, by
respondent Nos.1 to 5 and 7 herein.

[2] Facts leading to the present Miscellaneous Civil Application in nut-shell are as follows:

[2.1] That the applicant herein original plaintiff instituted a suit against respondents for specific
performance of Agreement to Sell regarding suit land in question. That in the said suit the
applicant original plaintiff submitted the application for interim injunction below Exh.5
restraining the defendants, their agents, servants from transferring and/or alienating the suit land
in favour of any other person or to create any charge over the suit land pending the suit. That the
learned trial Court by order dated 31.12.2008 dismissed the said application Exh.5 and refused to
grant injunction as prayed for.
[2.2] That being aggrieved and dissatisfied with the order passed by the learned trial Court below
Exh.5 in dismissing the same and refusing to grant the injunction as prayed for, the applicant
herein original plaintiff preferred Appeal From Order No.86/2009 with Civil Application
No.2559/2009. That in the said Appeal From Order, respondent Nos.1 to 5 herein appeared
through their advocate Shri K.V. Shelat. That the said Appeal From Order was fully heard by this
Court and after making submissions, the learned advocates appearing on behalf of respective
parties, more particularly, the learned advocate appearing on behalf of the contesting respondent
Nos.1 to 5 original defendants stated at the bar that he does not invite any further reasoned order
in support of allowing the said Appeal From Order and directing the parties to maintain status-quo
i.e. restraining the original defendants from transferring/alienating the suit property in question in
any manner whatsoever till final disposal of the suit. Considering the above stand taken by the
learned advocate appearing on behalf of the contesting respondent Nos.1 to 5 original defendants
and considering the facts and circumstances of the case, more particularly, when the execution of
the Agreement to Sell was not disputed by the defendants original land owners and when they
themselves filed the suit for cancellation of Agreement to Sell, this Court was of the opinion that
it will be in the fitness of things that respondents herein- original defendants are restrained from
transferring/alienating the suit property in question till final disposal of the suit, otherwise the
third party rights will be created. In view of the statement of the learned advocates appearing on
behalf of the respective parties recorded hereinabove, this Court did not pass any further reasoned
order. Considering the above, this Court by judgment and order dated 29.06.2009 allowed the
aforesaid Appeal From Order No.86/2009 with Civil Application No.2559/2009 and quashed and
set aside the order dated 31.12.2008 passed by the learned trial Court below Exh.5 in Special
Civil Suit No.492/2007 and allowed the Exh.5 application submitted by the applicant herein
original plaintiff and consequently granted the injunction as prayed for below Exh.5 and
restrained the defendants from transferring/alienating the suit land in question in any manner
whatsoever till the final disposal of the suit.

[2.3] It appears that despite the above injunction granted by this Court vide judgment and order
dated 29.06.2009 passed in Appeal From Order No.86 of 2009 and allowing the application Exh.5
restraining the defendants, their servants, agents from transferring/alienating the suit land in
question in any manner whatsoever till the final disposal of the suit, respondents herein original
defendants executed the Agreement to Sell dated 08.10.2009 in favour of one Jayantibhai
Bhalabhai Patel and Jimiben Bhalabhai Patel by accepting a sum of Rs.30 lakhs, which is
absolutely in breach of the injunction granted by this Court. Hence, the applicant herein original
appellant plaintiff has preferred the present Miscellaneous Civil Application requesting to take
appropriate action against the concerned defendants for committing breach of injunction granted
by this Court.

[3] Shri Pahwa, learned advocate appearing on behalf of the applicant original plaintiff has
vehemently submitted that by judgment and order dated 29.06.2009 passed by this Court in
Appeal From Order No.86 of 2009 with Civil Application No.2559/2009 in Appeal From Order
No.86 of 2009, this Court has allowed the said Appeal From Order by allowing the application
Exh.5 and granting injunction as prayed for in Exh.5 application restraining the respondents
original defendants from transferring/ alienating in any manner whatsoever the suit land in
question till the final disposal of the suit. It is submitted that even the said order was passed by
this Court after hearing the learned advocates appearing for respective parties and even recording
the statement made by the learned advocate appearing on behalf of the respondents herein original
defendants that he does not invite any reasoned order in support of allowing the Appeal From
Order directing the parties to maintain status-quo i.e. restraining original defendants from
transferring/alienating the suit property in question in any manner whatsoever till final disposal of
the suit. It is submitted that despite the above, respondent Nos.1 to 5 and 7 herein original
defendant Nos.1 to 5 and 7 have executed the Agreement to Sell dated 08.10.2009 in favour of
one Jayantibhai Bhalabhai Patel and Jimiben Bhalabhai Patel by accepting a sum of Rs.30 lakhs,
which is absolutely in breach of the injunction granted by this Court. It is further submitted by
Shri Pahwa, learned advocate appearing on behalf of the applicant that even by notice dated
01.06.2010, the concerned respondents were informed with respect to the breach of the injunction
granted by this Court and infact were called upon to restore the position which was prevailing
prior to execution of the Agreement to Sell i.e. by cancelling the Agreement to Sell dated
08.10.2009 which is in breach of the injunction. However, still the Agreement to Sell is not
cancelled and the position which was prevailing prior to execution of the Agreement to Sell is not
restored and have continued breach of injunction. Therefore, it is requested to take appropriate
steps against the concerned respondents defendants for breach of injunction granted by this Court
in exercise of powers under Order 39 Rule 2A of the CPC.

[3.1] Shri Pahwa, learned advocate appearing on behalf of the applicant original plaintiff has
heavily relied upon the decision of the Hon'ble Supreme Court in the case of Patel Rajnikant
Dhulabhai and Anr. v. Patel Chandrakant Dhulabhai and Ors., 2008 14 SCC 561. It is submitted
by Shri Pahwa, learned advocate appearing on behalf of the applicant that as held by the Hon'ble
Supreme Court in the said decision, it is the duty of the Courts to maintain their dignity and
majesty of law and therefore, Court should not hesitate to exercise powers of punishment if it so
required in the interest of administration of justice and compliance with the Court's orders.

[3.2] Now, so far as the unconditional apology tendered by the concerned defendants now
tendered by separate affidavit-in-reply, it is submitted by Shri Pahwa, learned advocate appearing
on behalf of the applicant that as such the apology tendered by the concerned defendants lacks
bonafide and is lacking penitence or regret and therefore, it is requested not to accept the same. It
is submitted that on one hand though subsequently the concerned defendants have tendered
apology, however, on the other hand they do not want to restore the position which was prevailing
prior to execution of the Agreement to Sell by cancelling the said Agreement to Sell which is in
breach of injunction and thereby have persisted and/or continued the breach of injunction.
Therefore, relying upon the aforesaid decision of the Hon'ble Supreme Court in the case of Patel
Rajnikant Dhulabhai and Anr. (Para 77), it is requested to allow the present application and
punish the respondent Nos.1 to 5 and 7 herein.

[4] Present application is opposed by Shri Yatin Oza, learned Senior Advocate appearing on
behalf of respondent Nos.2, 4 and 5. An affidavit-in-reply is filed on behalf of respondent Nos.2,
4 and 5 affirmed by respondent No.4 Kamleshbhai Mithabhai. However, it appears that
subsequently respondent No.2 has appeared through one another advocate Shri Zubin Bharda and
a separate affidavit is filed by him which shall be dealt with and considered hereinafter.

[4.1] Shri Y.N. Oza, learned counsel appearing on behalf of the contesting respondent Nos.2, 4
and 5 (may not be for respondent No.2) has submitted that concerned respondents defendants
have tendered unconditional apology while submitting the affidavit-in-reply dated 10.02.2012 and
therefore, it is requested to accept the said unconditional apology. Shri Oza, learned counsel
appearing on behalf of respondent Nos.2, 4 and 5 has requested to permit him to delete para V of
the affidavit-in-reply dated 10.02.2012 and has stated at the Bar that he does not press the ground
mentioned in para V of the said affidavit-in-reply. Accordingly, the concerned respondent Nos.2, 4
and 5 are permitted to delete para V of the affidavit-in-reply dated 10.02.2012 and para V of the
affidavit-in-reply dated 10.02.2012 filed for and on behalf of respondent Nos.2, 4 and 5 and
affirmed by respondent No.4 stands deleted.

[4.2] Shri Y.N. Oza, learned counsel appearing on behalf of respondent Nos.2, 4 and 5 has
vehemently submitted that in the facts and circumstances of the case, Order 39 Rule 2A of the
CPC would not be applicable and/or available to the applicant, as final order has been passed by
this Court disposing of the Appeal From Order and it cannot be said to be interim order and/or
interim injunction pending Appeal From Order. It is further submitted by Shri Oza, learned
counsel that in any case when the application Exh.5 has been allowed by this Court granting
injunction, while finally disposing of the Appeal From Order as such it would be an injunction
granted by the learned trial Court and therefore, applicant has to approach the trial Court for
alleged breach of injunction for any action under Order 39 Rule 2A of the CPC.

[4.3] It is further submitted by Shri Oza, learned counsel appearing on behalf of the contesting
respondents defendants that as the applicant has an alternative remedy available by way of
initiating the contempt proceedings, the proceedings under Order 39 Rule 2A of the CPC cannot
be invoked and therefore, it is requested not to entertain the present application submitted for
action under Order 39 Rule 2A of the CPC.

[4.4] Shri Oza, learned counsel appearing on behalf of contesting respondent Nos.2, 4 and 5 has
also opposed the present application on the ground that same is barred by limitation. It is
submitted that as such the applicant was required to file and/or initiate proceedings under Order
39 Rule 2A of the CPC within a period of one year from the alleged breach of injunction and/or at
the most from the date of notice dated 01.06.2010 i.e. from the date of knowledge of breach of
injunction. It is submitted that present application has been preferred after a period of one year
which is barred by law of limitation. Shri Oza, learned counsel has heavily relied upon the
decision of the Hon'ble Supreme Court in the case of Pallav Sheth v. Custodian and Ors., 2001 7
SCC 549as well as the decision of the Division Bench of this Court in the case of Dineshbhai A.
Parikh v. Kripalu Co-operative Housing Society, Ahmedabad & Ors., 1981 GLR 165in support of
his above submissions.

[4.5] Shri Oza, learned counsel has further submitted that the proceedings under Order 39 Rule
2A of the CPC for breach of injunction are required to be considered akin to the proceedings
under the Contempt of Courts Act and therefore, the applicant was required to initiate the
proceedings for breach of injunction within a period of one year either from the date of breach of
injunction or from the date of knowledge of the breach of injunction i.e. 01.06.2010. In support of
his above submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of
Food Corporation of India v. Sukh Deo Prasad, 2009 5 SCC 665(Para 38).

[4.6] Shri Oza, learned counsel appearing on behalf of the contesting respondents has further
submitted that even on merits also the present application deserves to be dismissed as, as such
there is no breach of injunction. It is submitted that the concerned defendants have merely
executed an Agreement to Sell which cannot be said to be a transfer and/or alienation and
therefore, as such there is no breach of injunction. It is submitted that even there is no question of
creating any charge by executing Agreement to Sell as there is no transfer of ownership and/or
possession and there is no transfer in the eye of law. It is submitted that Agreement to Sell is
merely an intention to transfer the property by executing banakhat/Agreement to Sell and the
same cannot be said to be creating the "charge" and therefore, there is no breach of injunction
committed by the contesting respondents. In support of his above submission, he has relied upon
the definition of "charge" as mentioned in the Black's Law Dictionary.

[4.7] By making above submissions, it is requested to accept the unconditional apology tendered
by respondent Nos.2, 4 and 5 and if this Court is not inclined to accept unconditional apology, in
that case, making above submissions and relying upon above decisions, it is requested to dismiss
the present application.

[5] It is to be noted that during the course of hearing of the present application and after the
affidavit-in-reply dated 10.02.2012 which was filed for and on behalf of respondent Nos.2, 4 and
5 affirmed by respondent No.4 Kamlesh Mithabhai Parmar, respondent No.2 Motibhai Shamabhai
Parmar appeared through another advocate Shri Zubin Bharda and has filed a separate affidavit-
in-reply through him dated 29.02.2012 submitting that through oversight and without realizing the
implications of the order, he has signed the Agreement to Sell dated 08.10.2009. It is stated that
upon realizing that breach of injunction of order of this Court has been committed, he tenders
unconditional apology. He has also stated in the said affidavit-in-reply that he has also
simultaneously cancelled the said Agreement to Sell and has already addressed a letter to Shri
Jayantibhai Bhalabhai Patel and Smt. Jimiben Bhalabhai Patel informing them about the
cancellation of the Agreement to Sell. He has also produced on record the communication dated
29.02.2012 addressed by respondent No.2 to the aforesaid Shri Jayantibhai Bhalabhai Patel and
Smt. Jimiben Bhalabhai Patel.

[5.1] To the aforesaid affidavit-in-reply filed by respondent No.2 affirmed by respondent No.2
himself, Shri Oza, learned counsel appearing with Shri M.B. Gohil, learned advocate, who had
already appeared on behalf of respondent No.2, has stated that still he appears on behalf of said
respondent No.2.

[5.2] Be that as it may, learned advocates might have inter-se dispute, it is to be noted that
affidavit-in-reply filed by respondent No.2 still is on record and holds the field therefore, the
affidavit-in-reply is required to be considered by this Court while considering the present
application.

[6] Heard the learned advocates appearing on behalf of respective parties at length. At the outset it
is required to be noted that by judgment and order dated 29.06.2009 passed in Appeal From Order
No.86 of 2009 with Civil Application No.2559 of 2009, this Court allowed the said Appeal From
Order and quashed and set aside the order dated 31.12.2008 passed by the learned trial Court
below Exh.5 in Special Suit No.492 of 2007 by which the learned trial Court dismissed the said
interim injunction application below Exh.5 and consequently this Court allowed the application
Exh.5 submitted by the applicant herein original plaintiff and consequently restrained the
respondents herein original defendants from transferring and/or alienating the suit land in
question in any manner whatsoever till final disposal of the suit. It is required to be noted that as
such in the application Exh.5, the original plaintiff prayed for interim injunction during the
pendency of the suit restraining the respondent Nos.1 to 5 herein from transferring the suit land in
favour of any other person or to create any charge over the suit land which was refused by the
learned trial Court and in an Appeal From Order against the order below Exh.5, this Court by
judgment and order dated 29.06.2009 allowed the said Appeal From Order and granted the
injunction as prayed for by specifically restraining the respondents herein original defendants
from transferring and/or alienating the suit land in question in any manner whatsoever till final
disposal of the suit. It is required to be noted that in the said AFO, the respondent Nos.1 to 5
herein original defendant Nos.1 to 5 appeared through their advocate and they submitted that they
do not invite any reasoned order in support of allowing the said Appeal From Order and directing
the parties to maintain status-quo i.e. restraining the original defendants from transferring and/or
alienating the suit property in question in any manner whatsoever till the final disposal of the suit.
It is an admitted position that despite the aforesaid interim injunction and in breach of the interim
injunction passed by this Court, respondent Nos.1 to 5 herein original defendant Nos.1 to 5 have
executed an Agreement to Sell in favour of one Jayantibhai Bhalabhai Patel and Jimi Jayantibhai
Patel for a sale consideration of Rs.30 lakhs on 08.10.2009, in respect of the suit land for which
there is an interim injunction, by accepting Rs.30 lakhs and therefore, the present application is
preferred by the applicant herein original plaintiff for an appropriate order under the provisions of
Order 39 Rule 2A of the CPC for the willful and deliberate disobedience of order dated
29.06.2009 passed by this Court in Appeal From Order No.86 of 2009.

[6.1] The present application is opposed by Shri Oza, learned Counsel appearing on behalf of the
contesting respondent Nos.2, 4 and 5 (it is reported that during the pendency of the present
proceedings, the original defendant Nos.1 and 3 have expired) mainly on the ground that the
present application for breach of injunction is beyond the period of limitation as the same has
been filed after a period of one year from the date of the alleged breach of injunction and/or
atleast from the date of the notice issued by the original plaintiff alleging the alleged breach of
injunction and also on the ground that by executing the Agreement to Sell alone there is no breach
of injunction as the title has not been passed and it cannot be said that any charge' has been
created on the property by executing the Agreement to Sell. It is the case on behalf of the
contesting respondents that as observed by the Hon'ble Supreme Court in the case of Pallav Seth ,
the proceedings under Order 39 Rule 2A of the CPC breach of injunction are akin to the
proceedings under the Contempt of Court's Act, the period of limitation as prescribed under the
Contempt of Court's Act would be applicable. In support of his above submission, he has also
relied upon the decision of the Division Bench of this Court in the case of Dinesh A. Parikh . The
aforesaid has no substance and cannot be accepted. Merely because the proceedings under Order
39 Rule 2A of the CPC for breach of injunction are considered to be akin to the proceedings under
the Contempt of Court's Act, the period of limitation as prescribed under Section 20 of the
Contempt of Court's Act would not be applicable. The Hon'ble Supreme Court in the case of
Pallav Seth has not held that the period of limitation prescribed under Section 20 of the Contempt
of Court's Act would be applicable in a proceeding for breach of injunction under Order 39 Rule
2A of the CPC.

Similarly, even no such view has been expressed by the Division Bench of this Court in the case
of Dinesh A. Parikh . Under the circumstances, the contention on behalf of the contesting
respondents that the present application is barred by law of limitation i.e. beyond the period of
one year either from the date of alleged breach of injunction i.e. execution of the Agreement to
Sell or even from the date of knowledge i.e. from the date of issuance of the notice upon the
defendants alleging breach of injunction cannot be accepted. No such period of limitation is
prescribed for initiation of the proceedings for breach of injunction under Order 39 Rule 2A of the
CPC which is provided under Section 20 of the Contempt of Court's Act. Under the
circumstances, the contention on behalf of the contesting respondent Nos.2, 4 and 5 that even for
initiating the proceedings for breach of injunction under Order 39 Rule 2A of the CPC, the
application is to be submitted within a period of one year as provided under Section 20 of the
Contempt of Court's Act cannot be accepted. So long as the breach of injunction continues the
aggrieved party in whose favour there is an injunction can initiate the proceedings for breach of
injunction under Order 39 Rule 2A of the CPC.

[6.2] Now, so far as the contention on behalf of the contesting respondents that as such there is no
breach of injunction as the contesting respondents defendants executed only an Agreement to Sell,
which cannot be said to be transfer and/or alienating the suit property and/or creating a charge, the
aforesaid has no substance. As such by executing the Agreement to Sell in favour of Jayantibhai
Patel and Jimiben Patel, the original defendants against whom there was an injunction not to
transfer and/or alienate the suit property in any manner whatsoever, created the right in favour of
those persons to pray for specific performance of the same and even created interest in their
favour by accepting the huge sum of Rs.30 lakhs. In the case of Patel Rajnikant Dhulabhai and
Anr., the Hon'ble Supreme Court has specifically held that entering into an Agreement to Sell
with respect to disputed property for which part of the consideration was also accepted, is creation
of third party right.

[6.3] Even considering the definition of the word "charge" as per the Black's Law Dictionary,
"charge" means any encumbrance, lien or claim; a burden or duty; a liability.

As stated hereinabove, this Court by judgment and order dated 29.06.2009 passed in Appeal From
Order No.86 of 2009 allowed the application Exh.5 submitted by the applicant herein original
plaintiff and restrained the original defendants from transferring and/or alienating the suit land in
question in any manner whatsoever till the final disposal of the suit and despite the same and in
breach of the injunction, the original defendants have entered into an Agreement to Sell with
respect to the suit land for which there is an injunction by accepting a huge sum of Rs.30 lakhs.
Under the circumstances, it cannot be said that by executing an Agreement to Sell in favour of
Jayantibhai Patel and Jimiben Patel, there is no breach of injunction as sought to be contended on
behalf of the contesting respondents original defendants. Under the circumstances, it is to be held
and accordingly it is held that the original defendants have committed breach of injunction
granted by this Court for which they are liable for appropriate order/action for breach of
injunction under Order 39 Rule 2A of the CPC. At this stage it is required to be noted that original
defendant Nos.1 and 3 have expired during the pendency of the present proceedings and Civil
Application No.10250 of 2011 has been filed by the applicant herein to bring the heirs of the
respondent Nos.1 and 3 on record. However, it is required to be noted that at the relevant time
neither heirs of original defendant Nos.1 and 3 respondent Nos.1 and 3 herein were party to the
suit or even the Appeal From Order nor they are party to the Agreement to Sell and therefore, no
action can be taken against the heirs of original defendant Nos.1 and 3. Under the circumstances,
no order is required to be passed against the heirs of respondent Nos.1 and 3 herein original
defendant Nos.1 and 3 for breach of the injunction granted by this Court.
[6.4] Now, so far as the request made by Shri Oza, learned Counsel appearing on behalf of the
remaining contesting respondents i.e. the defendants who have executed the Agreement to Sell in
breach of the injunction to accept the apology/unconditional apology is concerned, the same is
half-hearted and only with a view to get out of any order/action for breach of injunction. It
appears to the Court that the original defendants have taken the court proceedings and the interim
injunction against them very lightly. It is also required to be noted that even when the applicant
herein original plaintiff served a legal notice upon them alleging breach of injunction and
requesting them to restore the position prevailing prior to the execution of the Agreement to Sell
and to cancel the Agreement to Sell, still the defendants did not take any action to salvage the
situation and restore the position which was prevailing prior to execution of Agreement to Sell
and even no efforts were made by them to cancel the said Agreement to Sell. It is also required to
be noted that even the contesting surviving respondents defendants did not tender unconditional
apology at the earliest and even they contested the application on merits even without filing the
affidavit-in-reply and by making oral submissions and that too raising the technical defence that
the application is barred by law of limitation and this Court prima facie negatived the same by
passing a reasoned order dated 27.01.2012 and overruling the objections raised by the contesting
respondents and having prima facie satisfied that the concerned respondents have committed the
breach of injunction, issued show-cause notice upon respondent Nos.2, 4, 5 and 7 to show cause
whey they should not be detained in civil prison for disobedience for non-compliance of order
dated 29.06.2009 passed in Appeal From Order No.86 of 2009 and the said notice was made
returnable on 03.02.2012. At that stage also, the contesting respondents did not thought it fit to
tender unconditional apology. On the contrary they challenged the issuance of the show-cause
notice for breach of the injunction by which they were called upon to show-cause why they
should not be detained in civil prison and they approached the Hon'ble Supreme Court by way of
Special Leave to Appeal (Civil) No.4186 of 2012 and the Hon'ble Supreme Court by order dated
02.02.2012 disposed of the said Special Leave to Appeal by observing that they must file proper
reply to the show-cause notice and thereafter the contempt petition be decided expeditiously. Only
thereafter by filing the affidavit-in-reply, they have stated that they tender unconditional apology
for entering into Agreement to Sell dated 08.10.2009. It is also required to be noted at this stage
that infact initially respondent No.2 herein original defendant No.2 appeared through another
advocate Shri Zubin Bharda who stated that upon realizing that breach of injunction order of this
Court has been committed, he tendered unconditional apology and also simultaneously cancelled
the Agreement to Sell. He also further stated that he has already addressed a letter informing
about cancellation of Agreement to Sell to Shri Jayantibhai Patel and Jimiben Patel. That despite
the above, learned advocate Shri Gohil stated at the Bar that he has instruction to appear on behalf
of respondent No.2 also and Shri Oza, learned Counsel appearing on behalf of the said
respondents has stated at the Bar that original respondent No.2 now disowns the said affidavit
dated 29.02.2012 and he wants to withdraw the same. Therefore, the respondent No.2 was called
in person and he stated at the Bar that he does not know what is stated in the affidavit. He has also
stated at the Bar that whoever pays the more amount he will file affidavit in his favour. This is
how the court proceedings are treated by the respondents. As stated herein above, the contesting
respondents have treated and considered the injunction granted by this Court as well as the Court
proceedings very lightly and therefore, this Court is of the opinion that unconditional apology
now tendered lacks bonafide and has been tendered only with a view to get out of any order that
may be passed by this Court in the present proceedings for breach of injunction.
[6.5] Identical question came to be considered by the Hon'ble Supreme Court in the case of Patel
Rajnikant Dhulabhai and Anr. . It is observed and held by the Hon'ble Supreme Court in the said
decision that apology is neither a weapon of defence to purge guilty of their offence, nor is it
intended to operate as a universal panacea, it is intended to be evident of real contriteness. In
paras 75 to 77, the Hon'ble Supreme Court has held as under:

"75. It is well settled that an apology is neither a weapon of defence to purge the guilty of their
offence, nor it is intended to operate as a universal panacea, it is intended to be evidence of real
contriteness (vide M.Y. Shareef v. Hon'ble Judges of the High Court of Nagpur; M.B. Sanghi v.
High Court of Punjab & Haryana).

76. In T.N. Godavarman Thirumulpad (102) v. Ashok Khot, a three-Judge Bench of this Court had
an occasion to consider the question in the light of an "apology" as a weapon of defence by the
contemnor with a prayer to drop the proceedings. The Court took note of the following
observations of this Court in L.D. Jaikwal v. State of U.P. : (Ashok Khot case, SCC p.17, para 32)

"32. ...We are sorry to say we cannot subscribe to the 'slap say sorry and forget' school of thought
in administration of contempt jurisprudence. Saying 'sorry' does not make the slapper taken the
slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology
and expression of sorrow should come from the heart and not from the pen. For it is one thing to
'say' sorry it is another to 'feel' sorry."

The Court, therefore, rejected the prayer and stated: (SCC p.17, para 31)

"31. Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in
good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is
offered at the time when the contemnor finds that the court is going to impose punishment it
ceases to be an apology and becomes an act of a cringing coward."

Similar view was taken in other cases also by this Court.

"77. We are also satisfied that the so-called apology is not an act of penitence, contrition or regret.
It has been tendered as a "tactful move" when the contemnors are in the tight corner and with a
view to ward off the Court. Acceptance of such apology in the case on hand would be allowing
the contemnors to go away with impunity after committing gross contempt of Court. In our
considered opinion, on the facts and in the circumstances of the case, imposition of fine in lieu of
imprisonment will not meet the ends of justice.

[6.6] Considering the aforesaid decision of the Hon'ble Supreme Court as well as the facts and
circumstances of the case narrated herein above and as unconditional apology has not be tendered
at the earliest and the manner in which the court proceedings and the injunction are considered
lightly, it appears to the Court that the so-called apology has been tendered as a "tactful move" to
get out of any order that may be passed by this Court in the present proceedings for breach of
injunction.
[6.7] Now, the next question which is posed for consideration of this Court is what punishment
should be imposed upon the respondents for breach of the injunction under Order 39 Rule 2A of
the CPC?

In the case of Patel Rajnikant Dhulabhai and Anr. , the Hon'ble Supreme Court has observed that
punishing a person for contempt of Court is indeed a drastic step and normally such action should
not be taken. However, at the same time, however, it is not only the power but the duty of the
Court to uphold and maintain the dignity of Courts and majesty of law which may call for such
extreme step. It is further observed that if for proper administration of justice and to ensure due
compliance with the orders passed by a Court, it is required to take strict view under the Act, it
should not hesitate in wielding the potent weapon of contempt.

[7] In view of the above and for the reasons stated above, present application succeeds. It is held
that respondent Nos.2, 4, 5 and 7 (surviving respondents defendants) have deliberately and
willfully committed the breach of injunction granted by this Court by order dated 29.06.2009
passed in Appeal From Order No.86 of 2009 and therefore, are directed to undergo simple
imprisonment for a term of one week i.e. seven days and are also directed to pay fine which is
quantified at Rs.1 lakh each to be deposited with the Registry of this Court within a period of
eight weeks from today. The concerned respondents are also directed to restore position which
was prevailing prior to execution of the Agreement to Sell dated 08.10.2009. Rule is made
absolute accordingly.

With this, present application for breach of injunction under Order 39 Rule 2A of the CPC is
disposed of.

CIVIL APPLICATION NO.10250 OF 2011

No order in Civil Application No.10250 of 2011 and the same stands disposed of.

CASE-4

This Software is Licensed to: K C LAW COLLEGE

HIGH COURT OF MADRAS
M V MAHESH KUMAR
V/S
T SARAVANAN
Date of Decision: 01 April 2014
Citation: 2014 LawSuit(Mad) 517
Hon'ble Judges: P Devadass
Case Type: Contempt Petition
Case No: 541 of 2014
Subject: Civil, Constitution, Contempt of Court, Criminal
Acts Referred:
CONSTITUTION OF INDIA ART 226
CODE OF CRIMINAL PROCEDURE, 1973 SEC 190, SEC 482, SEC 204, SEC 156,
SEC 173, SEC 200, SEC 156(1), SEC 154, SEC 157
CONTEMPT OF COURTS ACT, 1971 SEC 11
Eq. Citations: 2014 (2) MadLJ(Cri) 431, 2014 (1) LW(Cri) 692
Advocates: P M Duraiswamy, S Shanmugavelayutham
Reference Cases:
Cases Referred in (+): 5
Judgement Text:-
P Devadass, J[1] This petition has been filed by the petitioner under section 11 of the Contempt of
Courts Act, as against the Inspector of Police, Anti-Land Grabbing Special Cell,
Krishnagiri for disobeying this court's order, dated 7.10.2013.
[2] Petitioner filed the petition in Crl.O.P.No.24604 of 2013 under section 482 Cr.P.C.
seeking a direction to the respondent to register a case based on his complaint, dated
5.7.2013 and investigate.
[3] On 7.10.2013 upon hearing both, this court passed the following order:
"Mahesh Kumar, the petitioner seeks direction to register a case based on
his complaint dated 05.07.2013 and investigate the same in accordance with
law.
2.Heard both sides.
3.Perused the allegations in the complaint and the averments in the petition.
4.There was sale agreement between the petitioner, namely, Mahesh Kumar
and Susaiammal alongwith others with regard to an immovable property.
With regard to that the petitioner filed a suit in O.S.No.27 of 2007 for specific
performance and the same was decreed in his favour.
5.Now, the learned counsel for the petitioner would submit that neither in the
written statement nor any part of the pleadings, there is nothing as to a prior
sale agreement. Petitioner came to know that a document was brought into
existence subsequently on practising forgery.
6.In the circumstances, the first respondent, namely, the Inspector of Police,
Anti-Land Grabbing Special Cell, Office of the District Superintendent of
Police, Krishnagiri District, is directed to enquire the complaint of the
petitioner dated 05.07.2013. If any cognizable offence is there, he shall
register the case and proceed further in accordance with law.
7.With the above directions, the criminal original petition is disposed of."[4] According to the learned counsel
for the petitioner, actually no enquiry has been
conducted. In such circumstances, Court can question as to whether the order of the
court is complied with or not. In this connection, the learned counsel for the petitioner
cited NIAZ MOHAMMAD Vs. STATE OF HARYANA, 1995 AIR(SC) 308).
[5] On the other hand, the learned Public Prosecutor submitted that in the order of this
court, dated 7.10.2013, there was no positive direction to police to register a case.
Actually, direction was to enquire the complaint and if there is any cognizable offence,
then, register a case and proceed further in accordance with law.
[6] The learned Public Prosecutor further submitted that the Investigation Officer
enquired the matter and found that it is only a civil matter. Accordingly, he has drawn up
a report. A copy of the same also has been given to the complainant. There is no
contumacious conduct on the part of the respondent. No violation of the court order
much less deliberate or wilful disobedience to Court order.
[7] As early as in 1945 in KING EMPEROR Vs. KHWAJA NAZIR AHAMED, 1945
AIR(PC) 18 Lord Justice Porter held that in India, the process of investigation is the
province of police. Court can interfere if the police proceeds in a matter which does not
disclose any cognizable offence or exercise power in breach of any statutory rules and
regulations. This has also been reiterated by the Hon'ble Supreme Court in STATE OF
HARYANA AND OTHERS Vs. BHAJAN LAL AND OTHERS, 1992 LW(Cri) 257 . This
also has been recently reiterated by a Constitutional Bench of the Hon'ble Apex Court in
LALITA KUMARI Vs. STATE OF U.P AND OTHERS, 2014 1 LW(Cri) 1 .
[8] Under the Code of Criminal Procedure, a procedure to investigate a criminal case
has been chalked out in Sec.156 and 157 Cr.P.C. Investigation Officer gets the power of
investigation under section 156 and 157 Cr.P.C. On completion of investigation, namely,
collection of evidence (See section 2(h), the investigation officer files his (final) report
with his opinion thereon as to the commission of offence/s. (See section 173 Cr.P.C.)
Thereafter, investigation comes to an end. Thereafter, the work of the Court begins,
namely, taking cognizance thereon (See section 190 Cr.P.C.). The area between
section 154 Cr.P.C. and Section 173 Cr.P.C. is available to the Investigation officer.
[9] Under section 482 Cr.P.C., no new power is given to the High Courts. It reiterates its
power 'to do justice and undo injustice'. It is 'Ex debitio justicio'.
[10] Section 482 Cr.P.C. has three dimensions. They are; (i) to implement orderspassed under the Code of
Criminal Procedure, (ii) to prevent abuse of process of any
court and (iii) otherwise to secure the ends of justice.
[11] In exercise of the inherent power, on 7.10.2013 this court directed to the
investigation officer to enquire the matter, if it discloses any cognizable offence then
proceed further in accordance with law, that is to say, register a case and investigate.
[12] As regards a negative police report, what the court has to do has been laid down
long back in ABHINANDAN JHA & OTHERS. Vs. DINESH MISHRA, 1968 AIR(SC) 117 .
[13] A Police officer has power to investigate a cognizable case either based on the
complaint lodged under section 154 Cr.P.C. or on source information under section
156(1) Cr.P.C. or on a direction issued by this Court under section 482 of Cr.P.C. or
under Article 226 Constitution of India. When a Police officer fails to discharge his duty,
this Court can direct him to register a case if there is cognizable offence. If there is
'mistake of fact' or 'accidental fire' or 'civil matter', 'no cognizable offence', he is bound to
report accordingly to the court.
[14] 'Enquiry' is intended to find out whether 'the complaint/petition disclose any
cognizable offence. If it is, then F.I.R. has to be registered under Sec.154 of Cr.P.C.,
and thereafter investigation comes. This enquiry is called preliminary enquiry. (P.E.).
[15] Recently, in LALITA KUMARI Vs. STATE OF U.P AND OTHERS , the Hon'ble
Constitutional Bench advocated conducting of such preliminary enquiries in certain
cases, namely, civil matters, matrimonial matters, commercial matters and vigilance
cases.
[16] In this case, on 7.10.2013, this court while exercising its inherent jurisdiction
thought it fit to direct the respondent to enquire the matter and find out if there is any
cognizable offence.
[17] In obedience to the order of this court, the Investigation Officer enquired the matter
and it revealed only a civil dispute. Court cannot take the role of an Investigation Officer.
If the defacto complainant is not satisfied with the way, the method of enquiry and the
conclusion arrived at by the police, it is not that he has no remedy. The report given by
the Police officer will not be a biblical verse. The complainant can ignore the report and
file a complaint under section 200 Cr.P.C. After enquiry, if there is a prima facie case,
the learned Magistrate is bound to issue summons to the accused under section 204
Cr.P.C.[18] So far as this case is concerned, only a limited role has been given to the
Investigation Officer namely, enquire whether it discloses a cognizable offence or not.
According to the investigation officer, it disclosed only a civil matter. It is a negative
report. Thereafter, it is left to the complainant to pursue the remedy available to him in
law.
[19] In this view of the matter, I do not find any contumacious conduct on the part of the
respondent.
[20] In the result, this petition is closed.
CASE-5

HIGH COURT OF DELHI

DOLLY KAPOOR & ANR

V/S
SHER SINGH YADAV & ORS

Date of Decision: 28 February 2012

Citation: 2012 LawSuit(Del) 894

Hon'ble Judges: Rajiv Sahai Endlaw

Case Type: Letters Patent Appeal

Case No: 164 of 2012

Subject: Civil, Constitution, Contempt of Court

Acts Referred:
CONSTITUTION OF INDIA ART 136, ART 227
CONTEMPT OF COURTS ACT, 1971 SEC 19

Final Decision: Appeal dismissed

Eq. Citations: 2012 (3) ILR(Del) 151

Advocates: K C Mittal, R K Jain

Reference Cases:
Cases Referred in (+): 6

Judgement Text:-

Rajiv Sahai Endlaw, J

[1] This Intra-Court appeal impugns the order dated 23 rd August, 2011 of the Learned Single
Judge refusing to issue notice of and dismissing Cont. Cas(C) No.219/2011 (filed by the
appellants) arising out of order dated 5 th September, 2008 of this Court in CM(M) No.958/2008
under Article 227 of the Constitution of India preferred by the appellants. Since Section 19 of the
Contempt of Courts Act, 1971 provides for an appeal to this Bench only when the decision of the
Single Judge is to punish for contempt and not when the decision is to dismiss the contempt
petition, we have at the outset enquired from the counsel for the appellant as to how the present
appeal is maintainable.

[2] The counsel for the appellant has contended that this appeal is preferred not under Section 19
of the Contempt of Courts Act but under the Letters Patent of this Court. Our attention has been
invited to Midnapore Peoples Coop. Bank Ltd. v. Chunilal Nanda, 2006 5 SCC 399.

[3] We are however unable to agree. It has been held in Fuerst Day Lawson Vs. Jindal Exports
Ltd., 2011 7 JT 469 that where a special self contained statute, as the Arbitration Act in that case,
does not provide for Intra-Court appeal, the provision of Letters Patent cannot be invoked to
negate the statute to maintain such appeal. It was further held that a right of an appeal under the
Letters Patent can be taken away by an express provision in an appropriate legislation the express
provision need not refer to Letters Patent; but if on a reading of the provision it is clear that all
further appeals are barred, then even Letters Patent would be barred. We are of the view that the
Contempt of Courts Act, 1971 promulgated to "define and limit the powers of certain Courts in
punishing contempts of Court and to regulate their procedure in relation thereto" is a self
contained Code and the same having provided for appeal only against order of punishment for
contempt and not against the order refusing to issue notice of contempt has taken away the right if
any of appeal under the Letters Patent.

[4] As far as the order in the instant case is concerned, it is not of dismissal of contempt petition,
after having initiated contempt proceedings, but of refusal to exercise contempt jurisdiction. The
Supreme Court in Baradakanta Mishra v. Justice Gatikrushna Misra, Chief Justice of the Orissa
High Court, 1975 3 SCC 535 held that the exercise of contempt jurisdiction being a matter
entirely between the Court and the alleged contemnor, the Court, though moved by motion or
reference, may in its discretion, decline to exercise its jurisdiction for contempt, it is only when
the Court decides to take action and initiates a proceeding for contempt that it assumes
jurisdiction to punish for contempt; the exercise of the jurisdiction to punish for contempt
commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or
a reference. It was further held that where the Court rejects a motion or a reference and declines
to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for
contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to
punish for contempt. The same view was reiterated in Purshotam Dass Goel v. Hon ble Mr. B.S.
Dhillon, 1978 2 SCC 370. Again in D. N. Taneja v. Bhajan Lal, 1988 3 SCC 26 it was held that
when the High Court acquits a contemnor, the High Court does not exercises its jurisdiction for
contempt.

[5] We are of the view that an order refusing to entertain a contempt petition and / or to issue
notice thereof is not a judgment for the same to be appealable under Letters Patent or under
Section 10 of the Act. We are also of the view that the policy enshrined in Section 19 of the Act of
limiting appeals only to cases where punishment for contempt is made out is in public interest. It
intends to curtail vexatious litigation. If a party to a litigation could pursue applications in Courts
of appeal to commit his opponents to contempt of Courts, when the trial Court whose process, it
was alleged to have disobeyed was of the opinion that no vindication of its own order was
necessary, would amount to encouraging vexatious litigation. Refusal to exercise contempt
jurisdiction does not determine any right and hence is not a judgment. As aforesaid, such refusal
is in the exercise of discretionary powers and refusal of such exercise does not constitute a
judgment as defined in Shah Babulal Khimji v. Jayaben D. Kania, 1981 4 SCC 8. A complainant
or a relator in a contempt proceeding, who moves the machinery of the Court for punishing an
alleged contemnor, only brings to the notice of the Court certain facts which, in his opinion,
constitute a contempt. He has no other role. The proceedings thereafter are between the Court and
the alleged contemnor and if the Single Judge, of whose order contempt is alleged, is of the
opinion that no case for entertaining contempt is made out, the Single Judge does not determine
any right of the complainant / relator. We are supported in this view by the Full Bench of the
Bombay High Court in The Collector of Bombay v. Issac Penhas (followed recently in The
Bombay Diocesan Trust Association Pvt. Ltd. v. The Pastorate Committee of the Saint Andrews
Church) as also by the Division Bench of the Madras High Court in Shantha V. Pai v. Vasanth
Builders, Madras. We may notice that a Division Bench of this Court in Inderjeet Singh (Since
Deceased) v. R.K. Singh also, after noticing Midnapore Peoples' Co-op. Bank Ltd. held the Intra-
Court appeal against the order discharging the contempt notice to be not maintainable. The High
Court of Punjab & Haryana also, in Sh. A.S. Chatha v. Malook Singh has held the order in a
contempt petition, taking a lenient view and giving another chance to comply with the order, to be
not a judgment? and appeal under letters patent to be not maintainable thereagainst. To the same
effect is the view of the High Court of Himachal Pradesh in Kundan Ram v. Darshan.

[6] The Restatement of Indian Law Contempt of Court published by the Supreme Court Project
Committee Indian Law Institute in this regard in the year 2011 has however in para 9.6 stated that
there is lack of clarity on whether an order not appealable under Section 19 may still be
appealable under Letters Patent. It has further been observed that most of the High Courts have
taken the position that in view of the appeal provided in Section 19, the letters patent will not be
applicable.

[7] As far as the judgment cited by the counsel for the appellant is concerned, we are unable to
cull out any such proposition therefrom rather the Apex Court in the said judgment framed the
following questions as arising for consideration therein:-

"(i) Where the High Court, in a contempt proceedings, renders a decision on the merits of a
dispute between the parties, either by an interlocutory order or final judgment, whether it is
appealable under section 19 of the Contempt of Courts Act, 1971 ? If not, what is the remedy of
the person aggrieved?

(ii) Where such a decision on merits, is rendered by an interlocutory order of a learned Single
Judge, whether an intra-court appeal is available under clause 15 of the Letters Patent?

(iii) In a contempt proceeding initiated by a delinquent employee (against the Enquiry Officer as
also the Chairman and Secretary in-charge of the employer-Bank), complaining of disobedience
of an order directing completion of the enquiry in a time bound schedule, whether the court can
direct

(a) that the employer shall reinstate the employee forthwith;

(b) that the employee shall not be prevented from discharging his duties in any manner;

(c) that the employee shall be paid all arrears of salary;

(d) that the Enquiry Officer shall cease to be the Enquiry Officer and the employer shall appoint a
fresh Enquiry Officer; and

(e) that the suspension shall be deemed to have been revoked ?"

and answered the same as under:-

"I. An appeal under section 19 is maintainable only against an order or decision of the High Court
passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment
for contempt.

II. Neither an order declining to initiate proceedings for contempt, nor an order initiating
proceedings for contempt nor an order dropping the proceedings for contempt nor an order
acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special
circumstances, they may be open to challenge under Article 136 of the Constitution.

III. In a proceeding for contempt, the High Court can decide whether any contempt of court has
been committed, and if so, what should be the punishment and matters incidental thereto. In such
a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the
dispute between the parties.

IV. Any direction issued or decision made by the High Court on the merits of a dispute between
the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not
appealable under section 19 of CC Act. The only exception is where such direction or decision is
incidental to or inextricably connected with the order punishing for contempt, in which event the
appeal under section 19 of the Act, can also encompass the incidental or inextricably connected
directions.

V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to
the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is
not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was
of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special
leave to appeal under Article 136 of the Constitution of India (in other cases)."

[8] It would thus be seen that it was categorically held that appeal to a Division Bench from an
order of the Single Judge lies only when the order is of punishing for contempt and not when the
order is of declining to initiate proceedings for contempt or dropping the proceedings for
contempt or of acquitting or exonerating the contemnor. It was further held by the Apex Court
that the appeal under the Letters Patent as distinct from under Section 19 of the Contempt of
Courts Act may lie also against orders incidental to or connected with the contempt proceedings.
However in the instant case the order declining to initiate contempt proceedings cannot be said to
be incidental or connected to the contempt proceedings and cannot thus be held to be appealable.
It may also be noted that the proceedings, of order wherein contempt is averred, were under
Article 227 of the Constitution of India; no appeal under letters patent lies against the order in
such proceedings.

[9] The appeal is therefore not maintainable and is dismissed as such. No order as to costs.

Glanville Williams
Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty
Scholarship 1980 Book Review: Learning the Law, Tenth Edition, by Glanville Williams; Introduction to the
Study of Law, by S. M. Waddams Allan C. Hutchinson Osgoode Hall Law School of York University,
ahutchinson@osgoode.yorku.ca Follow this and additional works at:
http://digitalcommons.osgoode.yorku.ca/scholarly_works This work is licensed under a Creative Commons
Attribution-Noncommercial-No Derivative Works 4.0 License. This Book Review is brought to you for free
and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion
in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. Recommended
Citation Hutchinson, Allan C. "Book Review: Learning the Law, Tenth Edition, by Glanville Williams;
Introduction to the Study of Law, by S. M. Waddams." Canadian Bar Review 58.1 (1980): 246-248. 246 LA
REVUE DU BARREAU CANADIEN [VOL. LVIII wealth or Empire, had the right to immigrate into the
United Kingdom. By virtue of a series of restrictive statutes, and as illustrated by Lord Denning's judgment in
Ex p . Thakur, 4 this is far from being the case any longer . Anyone possessing formal British nationality
must now pay particular attention to the latest manifestations of English immigration law, while anyone
residing in the member countries of the European Community may find his freedom of movement radically
affected by the provisions of the Treaty of Rome and particularly by the public policy reservation governed by
Van Duyn . Such persons and their legal advisers will be grateful to Professor Evans of Osgoode Hall Law
School for the very short and comparatively uncomplicated account he has provided of Immigration Law in
Britain and Europe . Perhaps some time he may do the same for Canada, for what he describes as the basis of
immigration control applies equally here as to the areas of his examination: "As with other restrictions
imposed by the state upon personal freedom, legal powers that interfere with an individual's freedom to enter
or remain in the country raise two issues . First, justification must be found for the substance of the power by
striking an acceptable balance between the pursuit of a legitimate state interest and the interest of the
individual in his freedom. Secondly, the form of the power should limit the exercise of the protection of
legitimate state interests and provide as clear an indication of the scope as practicable; this latter point is
closely connected with the questions of procedure and the appropriate means of reviewing its exercise""-a
matter which constantly arises in applying or appealing against the application of Canadian immigration law.
Be that as it may, this comment with but little amendment could easily have been embodied by Sir Zelman
Cowen in his Tagore Lectures on Individual Liberty and the Law. L. C. GREEN* Learning the Law. Tenth
Edition . By GLANVILLE WILLIAMS. London: Stevens & Sons. 1978. Pp. 209. ($10.60) Introduction to the
Study of Law. By S.M. WADDAMS. Toronto. Carswell Co . Ltd. 1979. Pp. 270 . ($7 .95) Many books aimed
at the beginning law student come and go, but Professor Williams' slim volume has remained a creditable and
constant feature of legal publishers' lists for over a quarter of a century. Distilled from over forty years of
experience as a teacher 40 [19741 2 W.L .R . 593 . " P. 11 . * L. C. Green, University Professor, University of
Alberta, Edmonton . 19801 Revue des livres 247 and writer,' it provides the fresher with a treasure-trove of
advice and wisdom which will stand him'in good stead throughout his legal career . f more immediate
interest, it provides a discrete and eminently readable source of information and answers to all those nagging
questions which the student does not feel sufficiently confident to ask for fear of being prematurely labelled a
dull student . Being the tenth edition in thirty-three years, the law teacher can rest assured that in
recommending this publication, the material has been selected and written by a proven master of his craft. Yet,
aside from this deserved praise, there lingers a feeling that if this book is to retain its pre-eminent position as a
model of relevance and readability, it will have to try just that little bit harder to maintain the high standards it
has set for itself . Although the author has been well advised to delete the short section on "Women" which
struck an unduly dated note, the up-dating is largely restricted to a few footnotes and points of substantive law
in the text . Basically, the alterations are of an entirely cosmetic nature . Based, as it is, on a very traditional
process of legal education, there is a real danger, therefore, that, if some sensitive attempt is not made to
amend its overall style and approach to meet and reflect the changing face and structure of modern legal
education, its sterling qualities of universal appeal and reliability will be seriously undermined . Fortunately,
these incipient signs of weakness are unlikely to have as serious consequences as might first be predicted for
the potential readership for Professor Waddams has published monograph that makes good any signs of out-
datedness in Glanville Williams' book and stands as a genuine contender, certainly in Canadian terms, to
Glanville Williams' previously unchallenged and leading position in the market . Professor Waddams has put
together a book that is thoroughly contemporary in scope and content. Writing in an uncluttered and incisive
style that befits his chosen topic, he presents various foundational issues in a balanced and stimulating
manner. Always at pains to illustrate and explain concepts, like judicial precedent, by reference to extracts
from modern cases, he manages to be decisive without appearing partisan : 2 Judicial reasoning is always
result orientated . . . . Some law students are distressed to find that judicial reasons generally conceal
conclusions . It seems perhaps that the judges are guilty of some kind of fraud. In my own view, result
orientated reasoning is inevitable, and indeed desirable. Judges cannot become mere automata drawing in
facts and dispensing inevitable conclusions. For the same reason they cannot be replaced by computers. The
settlement of human ' See Reshaping the Criminal Law: Essays in Honour of Glanville Williams (1978) . '
Introduction to the Study of Law (1979), pp. 107-108. 248 THE CANADIAN BAR REVIEW [VOL. LVIII
disputes is a human process, and it is fortunate that it cannot be automated . The fact that the reasoning of
judges is open to critical analysis does not imply that their decisions are perverse or arbitrary . It is no easy
task to explain a decision, as anyone knows who has tried to do it . Moreover, critical analysis of past
decisions is as often a technique of arguing for future development of the law as a genuine assessment of the
decision . Criticism of former decisions is essential to the flexibility of the common law. Furthermore, his
treatment of many fundamental, yet potentially volatile matters, such as the role of the judges and public
policy, is carried out with confidence and delicacy . In his introduction to Canadian legal education, he
sketches its history and present structure so as to enable the reader to get a feel for the contextual framework
in which lawyers are moulded and conditioned. Similarly, in his account of the modern legal profession, he
draws a basic picture, while, at the same time, pinpointing those matters that are of a more topical and
controversial concern. Also, Professor Waddams has exceeded his modest aim of writing for students
beginning or seriously contemplating the study of law and offers sound advice in the chapter on "Analyzing
Legal Problems" that bears repeating to those who have long since completed their education. With a sure
touch, he takes the reader through the basic analytical skills and techniques that any good lawyer should
possess in abundance. Finally, the book contains a number of useful appendices on common latin phrases,
abbreviations and law reports . The legal community has good reason to be grateful to Professors Williams
and Waddams for finding the time and energy to publish their monographs . It provides further evidence that
Glanville Williams and Stephen Waddams are not only great lawyers but also great men. It is only rarely that
figures of their reputation and stature remain so sincerely mindful of the needs and wants of the young student
and are willing to make an active contribution to easing and overcoming those harrowing first few months. 3
Although both publications would repay the close attention of any fledgling law student, Professor Waddams'
"little book" seems destined, by virtue of its contemporaneity and Canadian flavour, to take over as the
recommended text for Canadian students. ALLAN C. HUTCHINSON* a Further evidence of such concern is
found in the recent publication of Professor Williams' book on criminal law which is specifically aimed at and
designed for the first-year law student ; see Textbook of Criminal Law (1978) . Allan C. Hutchinson, of
Osgoode Hall Law School, York University, Toronto.
JAIL VISIT

As part of my doctoral dissertation, I am studying a cadet program designed by the Kerala Police for
school children. My field work, thus, takes me into police stations for interviews with police officers.
After one such interview the police woman I had been speaking to offered to take me to visit a sub-
jail adjacent to the police station. Just as we were about to go to the jail, we met an advocate, the
parent of a student at the school I am conducting my fieldwork. He too was going into the jail to
meet with the prisoners as part of the services offered by the Kerala State Legal Services Authority
(KELSA). He offered to take me into the jail with him.

We knocked at the large gate of the Sub-Jail. An officer opened the small opening in the gate and
peered at us. He knew the advocate (whom I shall call Mr. Venkat henceforth). Mr. Venkat
introduced me as someone who is studying the cadet program and wanted to visit the jail. The
officer closed the opening and came back after a few seconds to let us in. I am unable to describe
what I felt as I stooped low and entered the jail through the small gate/wicket that is located within
the larger gate. It was something I had seen so many times in movies!

I stepped on to a very clean tiled parking space. Adjacent to it was a small but well-maintained
garden. It was lunch time and the enticing smell of chicken curry wafted towards us. We walked up
to the officer-in-charge and Mr. Venkat once again introduced me and explained the purpose of my
visit. The officer, however, told us that it will not be possible for me to visit the jail without the
permission of the higher authorities. But he and the officers standing around were willing to answer
any questions I had for them.

Mr. Venkat sat close by and got ready to meet the prisoners who wanted to consult him. I started
chatting with the officers. I had not come prepared to ask questions as I had thought I was going on
a walking tour of the jail! But suddenly I remembered a news item I had heard on TV recently about
the excessive number of prisoners in Indian jails, numbers that far exceed the capacity of individual
jails. So I asked the officer how many inmates were currently present in the jail. He said 88 (7
women who occupied a separate building and 81 men). When I asked next about the actual capacity
of the jail, the officer became slightly suspicious. You wont write this anywhere, will you? he
asked. No, I said (and that is why I am not disclosing the actual location of the jail here). He said the
jail had a capacity for only 27 people!

But he and his colleagues waxed eloquent on the changes that had come about in the jails. They
particularly highlighted the improvements in the quantity of food given to the inmates. For example,
where they were given 70 milligram of mutton previously, they now received 100 milligram. The
quantity of milk that went into the tea had also been increased. One officer joked, Once they come
in they forget why they are in, in the first place.

Before serving food to the prisoners, the officer-in-charge tasted the food, something I got to see
myself. Due to safety concerns, prisoners were not allowed to accept food given by visitors. The
prisoners cooked the food and cleaned the jail and its premises. Being a sub-jail located in a small
area, they did not have much space for too many activities. The prisoners received a nominal salary
for their services. The jail had a TV and a library.

While talking to the officer, I noticed that their shoulder badges read KJ (Kerala Jail) rather than KP
(Kerala Police) as I had expected. They said that while they came under the Home Department,
Kerala Prisons is a different department and its officers were purely in charge of jails. This was
indeed new information for me.

After talking to the officers, I joined Mr. Venkat who was in conversation with a prisoner. He was a
young man of twenty-three, who had been caught for 27 cases of theft. Items valuing up to crores of
rupees had been confiscated from him and his accomplice. The latest was a theft of rubber sheets
and pepper. The officers explained that the first time he had been caught, his mother had done the
needful to get him out of jail and had got him married in the hope that he will turn a new leaf. But he
had been caught soon after for more cases of theft. If convicted, he would get a total of 5 years in jail
for different cases. Once convicted, prisoners are removed from the Sub-Jails and taken to District
or Central Jails depending on the duration of their sentence.
Then the officers announced another prisoner and told the lawyer, Here is the right person for you;
he and his team arrived here yesterday. Soon a handsome young man walked towards us. He
looked desperate and utterly dejected. The officer who brought him in told us that he spoke no
Malayalam. We found that he spoke only Hindi, a language Mr. Venkat was not well-versed in. So
that gave me the unique opportunity to serve as translator between this prisoner and the lawyer.

This young man was a native of Uttar Pradesh. He and a team of 10 guys had come to Kerala to sell
cloth. Usually they go to Chhattisgarh but because of the cold weather, they decided to come to
Kerala instead. However, before boarding the train from Delhi, they felt greedy [his words] for
some quick money and so bought 16 GB memory cards for 100 rupees each. These memory cards, he
assured us, were sealed and had Made in China etched on them. Upon reaching this town, they sold
the memory cards to different shopkeepers all of whom, according to him, bought the cards only
after testing them. They sold the memory cards for Rs.250 each. But the cards had stopped working
once they reached the customers. The shopkeepers had then lodged a complaint with the police and
the men had been caught. He, along with other team members, has been imprisoned under Section
420 of the Indian Penal Code which dealt with offences involving cheating and dishonestly inducing
delivery of property.

In a voice heavy with desperation, the man narrated to us, This is my first time in Kerala, first time
I am buying memory cards, and first time I am in jail. Back home they have not eaten anything since
knowing what happened to us. I am going to write my higher secondary exam this February. If I am
put in jail, it will destroy my future. He informed that all except one of the shopkeepers were ready
to accept balance and withdraw the case. By balance he meant money. But one shopkeeper was
adamant and wanted to see him go to jail.

The advocate explained his options to the young man, told him what he needed to get bail, and
answered all his concerns very patiently. The young man asked if his case was a normal one or a
grievous one and the advocate assured him that it was normal. He told the young man that first
he should do the needful to get out on bail and then worry about the settlement. The man said that
his dad and relatives were on their way to Kerala. They had someone they knew in the town, since
the presence of a local person was essential to get bail.

During this and the conversations with the other prisoners, I was closely observing Mr. Venkat.
There were many a time when I felt irritated by the prisoners statements. For instance, the one who
was in jail for 27 cases of theft said that there were no witnesses! I thought the guy has some gall!
But through it all Mr. Venkat never lost his cool. He was friendly and concerned throughout, telling
them of all the options before them, advising them not to repeat the offences in some cases, and
making numerous phone calls from his personal phone for the prisoners. He told me, They are
already broken. We cannot imagine the misery of imprisonment. Our freedom is completely taken
away from us. We must not add to their misery. On my side I had never felt as useful as I did when
I was translating the prisoners anxieties and concerns to the lawyer.

I was grateful for an organization like KELSA (Kerala State Legal Services Authority) which, among
other things, conducted legal literacy classes for students, offered legal advice to those in jail, and
helped needy prisoners file and defend cases. Growing up in Kerala, I remember the lawyers were a
butt of ridicule and were often referred to derogatorily as kesilla vakkil (a lawyer who has no
cases). This, in itself, I believe, can possibly put off someone from pursuing that profession. But as I
watched this lawyer, I felt an immense respect and regard for the profession, so much so that I
thought if I were not a teacher, I would have been a lawyer

POLICE STATION VISIT

Sub-Inspector J. Lalitha was stumped for a moment when a packed room of school students
hurled questions at her, and a boy among them asked, Can I give a complaint against my
headmaster who hits me?.

The police woman, who was explaining the F.I.R. and the functioning of a station, replied
complaints against anyone can be brought to the notice of the police.

Monday was an eventful day for select students from over 200 schools in the city. They received a
red carpet welcome at nearly 84 police stations, where they spent nearly a period in the police
station closest to their school to learn about its functioning as well as clarify pertinent questions
that they always had.

The interaction was organised by Chennai City Police and non-governmental organisation Tulir -
Centre for the Prevention and Healing of Child Sexual Abuse, to commemorate World Day for the
Prevention of Child Abuse that falls on November 19.

For a majority of the children, it was their first visit to a police station. A few students of
R.B.A.N.C Higher Secondary School, Pudupet, said they were thrilled as they sat on the Sub-
Inspector's chair.

From serious to naughty to informative, children fielded questions on the police officials to have
them all answered patiently.

In between a few questions on how soon a case is cleared or a kidnapped child rescued, C.
Damodaran, class XI student of Dr. Ambedkar Government Higher Secondary School, Egmore,
squeezed in his question. I lost my bicycle five years back and I also lodged a complaint, but I
haven't found it. Will I find it?, he asked, to which even Inspector P. Subramani, Egmore Police
Station, smiled. Do policemen take a bribe? Who are goondas?, How is an encounter planned?,
When children go missing within how many days do you trace them and how do find them?
were some of the questions.

To add to the outing, students were treated to ice-creams, chocolates and biscuits at the stations.

Police officials explained to the visiting school students what they see in films is not true and that
this activity was to dispel notion among children that police are inapproachable.

According to Vidya Reddy, founder, Tulir, who is conceptualising the programmes, on Friday two
students from every school who visited the police station will participate in a quiz on child rights
and civil responsibility.
The shortlisted students among them would dine with the Commissioner of Police.