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AP HC: Family Court cannot initiate proceedings for criminal contempt

Equivalent citations: 1997 (6) ALT 420
Bench: S P Rao, R B Reddy

S. Suryaprakash Rao And Anr. vs Presiding Officer, Family Court And Ors. on 3/11/1997

JUDGMENT

S. Parvatha Rao, J.

1. The petitioners are Advocates. The 1st petitioner appeared for the 2nd respondent i.e., the petitioner in O.P.No.104 of 1996 on the file of the Family Court, Secunderabad preferred against the 3rd respondent i.e., the respondent therein (wife of the petitioner in the O.P.) for divorce; and the 2nd petitioner appeared for the respondent in the O.P. They questioned the validity and propriety of notice in Dis. No. 229/97, dated 26-7-1997, issued by the 1st respondent herein i.e., the Presiding Officer, Family Court, Secunderabad, directing them “to appear before the Court (Family Court, Secunderabad) on 4-8-97 at 10-30 a.m. without fail to show cause why Contempt of Court proceedings should not be initiated in view of the contents in joint memo dated 3-7-97″.

2. The joint memo referred to in the impugned notice was filed by the petitioner and respondent in the said O.P.No.104 of 1996. The contents of that memo speak by themselves and they are as follows:

“It is submitted that the above Divorce petition was coming up for Trial. Witnesses on behalf of petitioner were examined and it was posted for evidence of Respondent. The respondent was partly examined on 12-5-1997. At that stage the Presiding Officer of this Hon’ble Court suggested compromise and asked Advocates on both sides to persuade the parties. Both parties agreed to compromise and petitioner intended to withdraw the O.P.

The Presiding Officer was on leave on 19-6-1997, and it was posted on 3-7-1997. The parties requested the Presiding Officer to take up the case after lunch as both Advocates would come after lunch. It was also requested to the Hon’ble Court that the Advocates would report compromise.

In spite of this representation this Hon’ble Court posted the case for Orders on 10-7-1997.

Both the Advocates requested the Presiding Officer to meet in Chambers so that O.P. can be disposed of on the basis of compromise. However the presiding Officer refused to meet the Advocates, who are senior Advocates. The staff told the Advocates that if the parties want, they have to file reopening petition. She also seemed to have commented that let the Advocates represent before the Bench. But the Presiding Officer, did not sit on the bench after lunch on 3-7-97.

Hence under the circumstances the parties are filing joint memo informing this Hon’ble Court their intention to resume cohabitation with effect from 3-7-1997.

Both parties pray that this Hon’ble Court may be pleased to close the O.P.No.104 of 1996, by recording compromise. The parties also pray to dispense with the presence of Advocates, on 10-7-1997 as they declined to appear for discourtesy shown by Presiding Officer to them.”

The facts narrated in the joint memo are affirmed in the affidavit filed in support of the present writ petition by the first petitioner herein. He further states that on 3-7-1997 they all waited in the Family Court to make a mention after lunch, in view of the observation the Presiding Officer seems to have made that, if the advocates wanted to make representation, they should do so in the Court; but that the Presiding Officer did not sit after lunch on that day and remained in her chambers. The 1st petitioner states that it was under those circumstances the joint memo was filed. He further states that the O.P. was dismissed on 26-7-1997. The petitioners contend that the impugned notice is without any jurisdiction or authority and that the joint memo did not give rise to any contempt. They also contend that the Family Court has no inherent power to initiate contempt proceedings, except in case of civil contempt, and that the facts of the case did not give rise to any civil contempt as there was no order of the Court which was violated by the petitioners.

3. The writ petition was presented on 31-7-1997 and when it came up on 18-8-1997, notice before admission returnable in two weeks was ordered and the 1st respondent was directed to send a report on the matter by 1-9-1997 and, pending further consideration of the matter by this Court, she was directed not to proceed further on the impugned notice dated 26-7-1997 and not to require the petitioners herein to appear pursuant to the notice.

4. The first respondent sent the report dated 1-9-1997. The Registrar (Judicial) stated that there was no covering letter accompanying the report. We find that the report was not addressed to any one and that it starts abruptly with the sentence “I want to submit the following few facts….” As to what actually happened on 3-7-1997, the 1st respondent states as follows:

“……when the matter came up for hearing both the parties filed a joint memo to the effect that they are prepared to live together. Parties were heard on the memo filed by them to ascertain whether they had voluntarily and willingly signed and presented the memo. Thereafter the matter was posted for Judgment. As both the parties filed joint memo, agreeing to live together and seeking closure of the case, the same was posted for orders on 10-7-1997. There was nothing to be heard from the Counsels as the parties did not stipulate any terms or conditions in their joint memo. The joint memo was filed by the parties directly without their Counsels. At that juncture there was nothing remaining to be heard, and the Counsels had nothing to do further in the matter. It is incorrect to say that the Presiding Officer refused to give audience to the Advocates, because in that particular case the Advocates filed 13(2) Petition before the Family Court and it was allowed. In Family Court the presence of Advocate is only an amicus curiae. Further more any representation by Counsels regarding cases are not being entertained in the Chambers…… In fact I mooted the settlement and suggested the parties it is better for their future to live together instead of breaking their marital tie. One whole day I spent with the parties and reconciled the matter between them. The allegations made by the Advocates is that the Court staff advised if further hearing is required an application for reopening the case has to be filed. It is a procedure prescribed under the C.P.C., because in this matter I heard the parties who filed the joint memo and who agreed before me that they are going to live together, on that basis I closed the matter and posted the matter for Judgment to 10-7-1997. The Counsels find fault with the Presiding Officer as well as with the staff. On 3-7-1997 the work is over and after that I am attending to the work in my Chambers. The allegation that the Presiding Officer did not come on to the bench in the afternoon is also making a statement against the Officer because I am attending the work in my Chambers by dictating the steno the orders to be pronounced on that date. The Counsels cannot make irresponsible allegations, such as discourtesy by the Presiding Officer etc.

It may be a fact that Counsels represented that the matter may be taken up after lunch. However, parties themselves personally presented the memo in the morning session they were also heard, hence there was no point in keeping the matter aside for further hearing till the Counsels come in the afternoon. It is not correct that despite representation the matter was posted for orders to 10-7-1997. It was posted for orders only on account of the joint memo and representation that they want to join and live together made by the parties.”

She also states that it is her principle not to allow Advocates into chambers. She further states:

“Mere saying that I am not allowing the Advocates who are representing contesting matter before me into my Chambers amounts to discourtesy in the view of the Counsels I am helpless to say anything in the matter….

On the other hand, the Counsels themselves made allegations against the bench that I am showing discourtesy towards them…..

Chapter VI of the Law of Contempt of Court deals with Contempt against Judges, their Officers and Subordinates, redicule the Judge, or his subordinates in any manner while they act in the discharge of their duties is to belittle the seat of Justice and lower its esteem in the eyes of the General Public.

Protection to the Courts by the operation of the General and Statutory Law of Contempt is more in the interest of the General Public.

Protection to the Courts by the operation of General and Statutory Law of Contempt is more in the interest of the public in whose eyes the seat of justice is sacrosanct than in the interest of Judge. The Law of Contempt can be invoked by any Judicial Officer or any person with Judicial Power. It was held by the Supreme Court in (Asharfi Lal v. The State) = 1954 Cr.L.J. 621 in

which their Lordships held that “Pronouncement of Judgment is a state of Judicial proceedings.

……

xxxx xxxx xxxx

In the present case the petitioners represented that as their Counsel were not allowed they feel ashamed to be present in the Court this amounts to Contempt of Court.

…….In the memo they clearly stated that their Advocates did not wish to attend before the Court. This statement may create doubt in the minds of the litigant public about the Court itself….

Thus in the light of facts of the case and position of Law, I was justified in issuing the impugned notice. It is pertinent to mention that the parties have submitted letter of apology for what they wrote and what transpired in the matter.”

5. The Advocate General, like the Attorney General, being “a friend of the Court, and in some respects acts as the friend, philosopher and guide of the Court.” (P.N. Duda v. P. Shiv Shanker, , and in view of the fact that considerable statutory discretion vests in him under the Contempt of Courts Act, 1971, we requested him to assist the Court in the matter.

6. When in the course of arguments on 22-10-1997 we noticed divergence between the versions of the petitioners and the 1st respondent as regards the time of presentation of joint memo on 3-7-1997, we directed the entire records in O.P.No.104 of 1996 including docket notes and the final order passed to be produced in Court. Pursuant to that direction records in that O.P. were produced in the Court along with those in O.P.S.R. No. 1250 of 1997 being the contempt of Court proceedings arising in that O.P. The docket of the O.P. discloses that it was originally presented on 21-6-1994 and was numbered as O.P.No.241/94 on the file of the V Additional Judge, City Civil Court, Hyderabad. It was transferred to the Family Court, Hyderabad and was renumbered as O.P.No.1100/95. Thereafter, it was again transferred to Family Court, Secunderabad and once again renumbered as O.P. No. 104/96.

7. The 1st petitioner also filed an additional affidavit dated 23-10-1997. He clarified the position as follows:

“O.P. 104 of 96 was posted to 3-7-97. When the matter was called in the call work, the petitioner and the respondent in the O.P. were present and both of them jointly represented that their Advocates could not be present and that there was a compromise between the parties and the same would be reported by their Counsel and on that count the parties requested the Family Court to get the matter passed over to facilitate their Counsel to appear and report compromise. By that time, no compromise memo was prepared. Myself and the second petitioner arrived in the Court by about 1 p.m. on 3-7-97 and the parties were present and the Presiding Officer of the Family Court retired into the chambers by that time. We informed the Bench Clerk to keep the Presiding Officer of the Court informed that the parties desired to have their case closed on that day itself as they intend to resume cohabitation according to their compromise with effect from 3-7-1997. The Bench Clerk and the parties informed us that the matter was already adjourned to 10-7-97 and if necessary, for reporting the same, an appropriate application may be made and the Bench Clerk told us that the Presiding Officer was not willing to permit us to her chambers and at the same time, we were informed that if we want we have to make a representation in the open Court while the Presiding Officer of the Court comes to the Bench. It is for the purpose of making a representation, we have waited upto 4 p.m. in the evening and the Presiding Officer did not come to the Bench after Lunch though she was in the chamber. At about 4 p.m.. we have prepared a joint memo and we have given the same to the parties duly signed and the parties were requested to submit the same in the section or present the same on 10-7-97 whichever is convenient to them. Accordingly, we got the joint memo prepared and the parties have signed in our presence and thereafter we have also signed the joint memo and the same was handed over to our clients to present it in the section and the same was presented on the same day in the section.

In the report submitted by the Family Court, the Presiding Officer of the Family Court explained what had happened on 3-7-97 in para 2. According to the report, when the matter came up for hearing, both the parties filed a joint memo intimating that they were prepared to live together. Parties were stated to have been heard on the memo filed by them and the matter was thereafter posted for judgment to 10-7-97. In fact no such Memo was filed other than the one mentioned above and this is also evident from the reply given by them to the show-cause notice furnished to them. A copy of it is also enclosed to this additional affidavit for better appreciation.

After receipt of the impugned notice, we did not appear before the Family Court so far in view of the orders passed by this Hon’ble Court in the above matter, but the parties have appeared on 4-8-97 and also on 18-8-97 and the Presiding Officer appeared to have ascertained from the parties why their Counsel have not appeared and on 18-8-97 a memo was served through an Advocate by myself and the second petitioner a copy of which is also filed along with this affidavit.”

8. In the reply dated 18-8-1997 to the show cause notice dated 26-7-1997 issued by the 1st respondent, it was stated that when the O.P. was taken up on 3-7-1997 they submitted that they would be filing joint memo of compromise and requested the Family Court to pass over the matter as their Advocates were engaged in another Court and that they were coming shortly, and that the matter was then adjourned to 10-7-1997. It was further stated that their Advocates advised them to file the compromise memo in the office and accordingly they filed the joint memo in the office. They appeared on 10-7-1997 but the matter was not taken up till the evening and it was posted to 26-7-1997, and on that day it was dismissed. It was further stated in the reply that they appeared on 4-8-1997 pursuant to the show cause notice and that they were called in the evening, and that they were asked to appear on 18-8-1997. They submitted that their conduct did not interfere with the course of justice and did not have the effect of lowering the prestige of the Court and, if any such impression was created by the joint memo, they apologised and assured the Court that they had high regard for the Courts.

9. Thus it is clear from what the petitioners and respondents 2 and 3 state that the joint memo was not submitted in Court in the Forenoon of 3-7-1997 and that it was only filed in the office some time after 4 p.m. on that day. It is also clear that, according to respondents 2 and 3, when the O.P. was called in the Forenoon of 3-7-1997 during call work they represented that they had compromised the matter and that their Advocates would be filing a compromise memo, and on that basis they sought pass over of the matter. The Advocates in fact came at 1 p.m. on that day, but the first respondent already retired to her chambers as there was no work to be taken up. On the other hand, the report of the 1st respondent indicates that respondents 2 and 3 filed a joint memo into Court on 3-7-1997, and that they were heard “to ascertain whether they had voluntarily and willingly signed and presented the memo”, and thereafter the O.P. was closed and was posted for judgment or orders on 10-7-1997 as both the parties filed joint memo agreeing to live together and seeking closure of the case.

10. However, the docket of O.P.No.104 of 1996 does not disclose that on 3-7-1997 any joint memo was filed. It only shows that the matter was posted for orders on 10-7-1997. The docket also shows that on 10-7-1997 the O.P. was posted to 26-7-1997, on which date it shows that order was pronounced and the petition was dismissed, and that there should be no order as to costs. The record of the O.P. also contains memorandum filed by the respondent therein (3rd respondent herein) on 3-7-1997 bearing SR No. 1251 /97 stating as follows:

“In the interest of the future of both the parties, the respondent addressed a letter to the Inspector, Malkajgiri, requesting him to close the case in Cr. No. 181 /94, wherein the respondent herein is the defacto complainant and file a final report in the matter. The respondent herein also enclosed her notarised affidavit along with the said letter. Since the police refused to receive the same, the respondent herein sent the same by registered post acknowledgment due. The copies of the said letter, notarised affidavit and the postal receipt are filed herewith.

The respondent herein further undertakes that in the event of the police filing a charge-sheet in the matter, the respondent shall take all necessary steps to have the matter closed.”

The list of three documents filed on 3-7-1997 also bears SR. No. 1251/97. The documents are: a xerox copy of the letter dated 21-6-1997 addressed by the 3rd respondent herein to the Sub-Inspector (L & O-I) of Malkajgiri stating that she and her husband (2nd respondent herein) decided to live together and that there were no differences between them and that she was withdrawing her complaint No. 181/94, dated 24-10-1994 and requested the Sub-Inspector to close the case; the second document is a notarised affidavit given by the 3rd respondent herein to the same effect stating that Crime No. 181 /94 should be closed and final report filed accordingly; and the third document is letter dated 1-7-1997 of the 2nd petitioner herein i.e., the Counsel for the 3rd respondent herein, addressed to the Inspector, P.S. Malkajgiri to the same effect.

11. The order in the O.P. dated 26-7-1997 narrated the averments of the petition and of the counter and summarised the evidence of P.Ws.1 to 4 examined in the O.P. and in the end observed as follows:

“There is no evidence on behalf of the respondent that both parties filed a joint memo. They are going to compromise and live together. When examined both agreed to live together. Hence the petition dismissed. There shall be no order to costs.”

There is no mention of the memo filed by the respondent therein (3rd respondent herein) on 3-7-1997 (S.R.No.1250/97) in the order dated 26-7-1997 even though the record of the O.P. contains that memo along with the list of three documents referred to above filed along with that memo. On the other hand, there is an express mention in the order dated 26-7-1997 in the O.P. that there was “no evidence on behalf of the respondent that both parties filed a joint memo”.

12. In the record of O.P.S.R.No.l250/97, we find the joint memo filed by the petitioner and respondent dated 3-7-1997bearing SR No. 1250/97. On the docket of that joint memo there is an undated endorsement with the initials of the Presiding Officer as follows:

“Issue notice to both the parties and Advocates for contempt of Court. Call on 4-8-97.”

This joint memo is the original of the joint memo dated 3-7-1997 filed along with the present Writ Petition. The fact that the SR number of this joint memo is 1250/97 and bears the stamp of the Sheristadar with the date 3-74997 establishes that this was filed along with or earlier to memo filed by the 3rd respondent on 3-7-1997 which bears SR No. 1251/97 with the stamp of the Sheristadar noting the same date. As already stated by us earlier, no memo was mentioned in the docket of O.P. No. 104/96 under the date 3-7-1997, 10-7-1997 or 26-7-1997. It was also not noted that the petitioner and respondent in the O.P. were examined on any memo.

13. It is obvious that the joint memo signed by the petitioners as well as the respondents 2 and 3 herein could not have been before the 1st respondent when the O.P. was called on 3-7-1997 and adjourned to 10-7-1997 because it narrated the subsequent events. The only other memo found in the record is that of the respondent in the O.P. (3rd respondent herein) and that is not a joint memo. This establishes that the 1st respondent was not able to recapitulate correctly what happened on 3-7-1997, and that she did not refresh her memory from the record before sending the report to this Court. Otherwise she would not have expressly stated in her report as she did i.e., “Parties were heard on the memo filed by them to ascertain whether they had voluntarily and willingly signed and presented the memo”, and that “As both the parties filed joint memo, agreeing to live together and seeking closure of the case, the same was posted for orders on 10-7-1997″. She also went further and stated that “The joint memo was filed by the parties directly without their Counsels”, and that “At that juncture there was nothing remaining to be heard, and the Counsels had nothing to do further in the matter”. But, in any event, she will have to explain the observation in the order dated 26-7-1997 in O.P. No. 104/96 that “there was no evidence on behalf of the respondents that both parties filed a joint memo”. There can be no dispute that joint memo signed by the petitioners and respondents 2 and 3 herein was in fact filed on 3-7-1997 as it was given S.R.No.1250/97 earlier to S.R.No.1251/97 given to the memo filed by the 3rd respondent herein. Equally it cannot be disputed that this joint memo was filed in the office after the O.P. was already adjourned on 3-7-1997 to 10-7-1997. The joint memo was taken note of and O.P.SR No. 1250/97 was opened and notices were directed to be issued for contempt of Court to the petitioners herein – though this order is undated, notices in fact were issued on 26-7-1997 under Dis. No. 229/97. On the same day order in the O.P. was also pronounced. If the joint memo could be taken note of for the purpose of O.P.SR. No. 1250/97, it will be very difficult to find a convincing explanation for not taking note of and ignoring the joint memo dated 3-7-1997 altogether in making the order in the O.P.

14. We only venture to observe that the 1st respondent ought to have been very careful in sending the report pursuant to the directions of this Court considering the seriousness of the matter and the consequences flowing from making incorrect and unverified statements. It is not necessary for us to go further as it is not wholly relevant for the purposes of disposal of the present writ petition. We find it apt to observe here what the Supreme Court held in Afzal v. State of Haryana, that “a false or a misleading or a wrong statement deliberately and wilfully made by a party to the proceedings to obtain a favourable order would prejudice or interfere with the due course of judicial proceedings”: in other words, it would amount to contempt.

15. With that factual backdrop, we now come to the meat of the matter. The learned Counsel for the petitioners contends firstly that the mere mention in the joint memo that the petitioners “declined to appear for discourtesy shown by Presiding Officer to them” does not amount to contempt of Court, and secondly that the Family Court is not competent to initiate or take up contempt proceedings against the petitioners on the facts of the case. On the first question the learned Counsel for the petitioners contends that no disrespect was meant to the Presiding Officer of the Family Court, and that the manner in which the Presiding Officer of the Family Court treated them by making them wait from 1 p.m. on 3-7-1997 refusing to meet them and not coming on to the Bench upset them and they cannot be faulted for taking umbrage, and that they could express the same in polite language as they did. He points out that after all Advocates are Officers of Court. He also points out to Section 13 of the Family Courts Act, 1984 which provides as follows:

“13. Right to legal representation:- Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:

Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.”

Rule 9 of the Andhra Pradesh Family Courts Rules, 1995 also provides that proceedings before the Court shall be taken up in the presence of the parties, and a legal practitioner shall be allowed to appear only as amicus curiae, if the Court finds it necessary in the interests of Justice. The learned Counsel also points to Section 9 of that Act, sub-section (1) of which, provides that “in every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case to assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.” He submits that the Family Court is not hide-bound by any particular procedure, and that when the petitioners and respondents 2 and 3 represented that a compromise was being effected between the parties and that they agreed to live together and were desirous of having the O.P. closed, the Presiding Officer of the Family Court ought to have made herself available to dispose of the matter without making the parties come again to the Court when she was informed that the parties and their Counsel were waiting in the Court well within the Court hours. In fact Rule 3(d) of the Rules referred to above provides that “the Family Court may hold its sittings outside normal working hours and on holidays if the Judge of the said Court considers it necessary to do so in the circumstances of the case, with the prior notice to parties, and to such other person or persons as the Judge may consider it necessary.” The learned Counsel submits that all these provisions are to facilitate early disposal of matters; more so, when the parties have arrived at a settlement. On the second question, the learned Counsel submits that the contempt involved, even on the reckoning of the 1st respondent, was not civil contempt; if at all, it was a criminal contempt because what is alleged in the report of the 1st respondent is that the Counsel made allegations against the Bench that she was showing discourtesy towards them, and that “they (petitioners herein) feel ashamed to be present in the Court this amounts to Contempt of Court”. The learned Counsel submits that the stand taken by the Presiding Officer that “any person discharging judicial duties or any Tribunal which is entrusted with judicial functions having the power to initiate contempt of proceedings” is not sustainable in law.

16. The learned Advocate General supports the learned Counsel for the petitioners. He drew our attention to Section 2(c) of the Contempt of Courts Act, 1971 (‘the Act’ for short), which defines criminal contempt, and submits that the mere mention by the petitioners in the joint memo that “they declined to appear for discourtesy shown by Presiding Officer to them” did not amount to criminal contempt as defined under that provision. It did not scandalise or lower the authority of the Court or prejudice or interfere with the due course of any judicial proceeding or interfere or obstruct the administration of justice in any manner or tend to do any of those. He also drew our attention to Section 13 of the Act which is as follows:

“13. Contempts not punishable in certain cases:- Notwithstanding anything contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.”

17. It has been observed by the Supreme Court in Jasivant Singh v. Virender Singh, 1995 Supp. (1) SCC 384 that an Advocate has no wider protection than a layman when he commits an act which amounts to contempt of Court, and that Judges cannot be intimidated to seek favourable orders, and that an Advocate cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary, and that “these safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the Courts and for upholding the majesty of law”. Having said so, the Supreme Court further observed as follows:

“Judges and Courts are not unduly sensitive or touchy to fair and reasonable criticism of their judgments. Fair comments, even if, outspoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of Court. However, when from the criticism a deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the Courts must bestir themselves to uphold their dignity and the majesty of law.”

In K.A. Mohammed Ali v. C.N. Prasannan, 1994 Supp. (3) SCC 509 the facts were that the Advocate (appellant before the Supreme Court) “had at a certain juncture raised the pitch of his voice unusually high to the annoyance of the learned Magistrate, and besides, he had used derogatory language against him”, and that after the incident he got certain posters published and circulated and caused a demonstration staged which got reported to the High Court whereupon contempt proceedings were initiated against him. The Supreme Court observed:

“We are of the view that when the appellant was warned of his unruly behaviour, he should have stopped and gone in tune with the learned Magistrate and not retained a defiant and aggressive posture. It should be borne in mind by one and all that lawyers were created for the Courts, not Courts for the lawyers. The happy combination, whenever an aberration occurs, should in immediacy be restored and put to an even keel.”

Sawant, J., speaking for the three Judges Bench in Vinay Chandra Mishra’s case, observed:

“Normally, no Judge takes action for in facie curiae contempt against the lawyer unless he is impelled to do so. It is not the heat generated in the arguments but the language used, the tone and the manner in which it is expressed and the intention behind using it which determine whether it was calculated to insult, show disrespect, to overbear and overawe the Court and to threaten and obstruct the course of justice.”

The learned Judge further observed:

“When the Court exercises this power (of punishing for contempt), it does not do so to vindicate the dignity and honour of the individual Judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the Court by creating distrust in its working, the edifice of the judicial system gets eroded.”

18. In the light of these observations of the Supreme Court, we find that what was stated in the joint memo filed by the petitioner and respondent in the O.P. dated 3-7-1997, which was also signed by the petitioners herein, expressing that discourtesy was shown to the petitioners by the Presiding Officer, is not such a statement as would warrant initiation of contempt proceedings. There is no doubt that it could have been simply stated in the joint memo that as the parties were compromising and decided to live together it was no longer necessary for Advocates to appear. But considering that the Advocates appearing in a Family Court are to be treated as amicus curiae (Section 13), and that Advocates truly are also officers of Court, it would have been in the fitness of things if the 1st respondent herein i.e., the Presiding Officer of the Family Court, informed the petitioners that it was inconvenient or not possible for her to spare time as she was engaged in some pressing and urgent work, if it was so; if that was not so, she could have sat in the Court and disposed of the matter on the basis of the compromise or settlement arrived at – this would not have taken much time and this would have been in tune with the object and intendment of Section 9 of that Act. As observed by the Supreme Court in T.V. Choudary’s case, , “the majesty of law and the dignity of Courts cannot be maintained unless there is mutual respect between the Bench and the Bar……” The Bar plays a very important role in the justice delivery system. For the even functioning of the Court there should be harmony between the Bench and the Bar because both are partners in the quest for justice. For the maintenance of this harmony, Judges should nip in the bud avoidable discord between the Bench and the Bar. A pre-requisite for this is that the Bar also is required to conduct itself in a responsible manner. A member of the Bar must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute (Lalit Mohan Das v. Advocate General, Orissa, . In Vinay Chandra Mishra’s case (supra), Sawant, J., said:

“Brazenness is not outspokenness and arrogance is not fearlessness. Use of intemperate language is not assertion of right nor is a threat an argument. Humility is not servility and courtesy and politeness are not lack of dignity. Self-restraint and respectful attitude towards the Court, presentation of correct facts and law with a balanced mind and without overstatement, suppression, distortion or embellishment are requisites of good advocacy. A lawyer has to be a gentleman first. His most valuable asset is the respect and goodwill he enjoys among his colleagues and in the Court.”

We have also to note the caution expressed by Chief Justice Gajendragadkar, speaking for six (including himself) of the seven learned Judges, in Special Reference No. 1 of 1964 under Article 143, :

“Before we part with this topic, we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt. So far as the Courts are concerned, Judges always keep in mind the warning addressed to them by Lord Atkin in Andre Paul v. Attorney-General of Trinidad, AIR 1936 PC 141. Said Lord Atkin, “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out-spoken comments of ordinary men.” We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court, but may sometimes affect it adversely. “Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”

The fifth normative guideline for the Judges to observe in this jurisdiction mentioned by Krishna Iyer, J., in S. Mirtgaokar’s case, AIR 1978 SC 727 at 737 (Para 32) “is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude.”

19. In the present case, we do not find that the mention in the joint memo of the discourtesy shown by the Presiding Officer to the petitioners is such a statement as should lead to initiation of contempt proceedings.

20. But the core question in the present Writ Petition is whether the 1st respondent can initiate contempt proceedings on her own. Section 15 of the Act is a clear answer in the negative. It deals with cognizance of criminal contempt in cases other than those covered by Section 14 i.e., in facie curiae contempt of the Supreme Court and a High Court. Sub-section (2) of Section 15 of the Act provides as follows:

“In the case of any criminal contempt of a Subordinate Court, the High Court may take action on a reference made to it by the Subordinate Court or on a motion made by the Advocate-General or, in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.”

Rule 5(d) of the Contempt of Court Rules, 1980 provides that the High Court may take cognizance of contempt and take action “on a reference made to it by a Court subordinate to it in the case of any contempt of such Subordinate Court or on a motion made by the Advocate General of the State of Andhra Pradesh in that behalf.” The High Court may also do so suo motn or on a petition made by the Advocate General of the State of Andhra Pradesh. The High Court may also do so on a petition made by any person subject to that, in the case of criminal contempt, it should be with the consent in writing of the Advocate General of the State of Andhra Pradesh. Rule 9 of these Rules is important and it provides as follows:

“9. (1) All references made by the Subordinate Courts under Rule 5(d) shall contain the particulars as mentioned in Rule 7(l)(a) and (b) so far applicable.

(2) The Subordinate Courts shall transmit all relevant documents or true copies thereof duly attested along with the letter of reference.

(3) All references made under Rule 5(d) by the Subordinate Courts other than the Courts of District and Sessions Judges shall be forwarded through the respective District and Sessions Judges for onward transmission of the same to the High Court expeditiously with their report.

(4) Before making reference, the Subordinate Courts shall hold a preliminary enquiry by issuing a show cause notice to the Contemner and after hearing him, the said Court shall write a concise reasoned order of reference about the alleged contempt.”

From these provisions it is clear that Subordinate Courts can only make a reference to the High Court in the case of criminal contempt after issuing a show cause notice to the contemner and after hearing him by holding a preliminary enquiry; after the enquiry, the Subordinate Court making the reference is required to make a reasoned order of reference about the alleged contempt. The question as to when contempt proceedings commence when a reference is made by a Subordinate Court is answered by the Supreme Court inBaradakanta v. Misra C.J., Orissa H.C., as follows:

“But what happens when a motion is made by the Advocate General or any other person with the consent in writing of the Advocate General or a reference is made by a Subordinate Court. Does the Court enter upon the jurisdiction to punish for contempt and act in exercise of it when it considers such motion or reference for the purpose of deciding whether it should initiate a proceeding for contempt? We do not think so. The motion or reference is only for the purpose of drawing the attention of the Court to the contempt alleged to have been committed and it is for the Court, on a consideration of such motion or reference, to decide, in exercise of its discretion, whether or not to initiate a proceeding for contempt. The Court may decline to take cognizance and to initiate a proceeding for contempt either because in its opinion no contempt prima facie appears to have been committed or because, even if there is prima facie contempt, it is not a fit case in which action should be taken against the alleged contemner. The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, 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.”

21. We have, therefore, no doubt in our minds that the impugned notice issued to the petitioners is without jurisdiction because the Family Court cannot initiate proceedings for criminal contempt. It can only issue show cause notice under sub-rule (4) of Rule 9 referred to above for the purpose of holding a preliminary enquiry for making an order of reference under sub-section (2) of Section 15 of the Act. A Subordinate Court cannot by itself initiate contempt proceedings.

22. This should have sufficed for allowing the Writ Petition. We have also considered whether any contempt is made out on the facts of the present case because this Court has the power to initiate contempt proceedings suo motu in exercise of its inherent power by virtue of Article 215 of the Constitution of India (Delhi Judicial Service Association v. State of Gujarat, , and also on a

motion made by the Advocate General. We do not find any such.

The Writ Petition is, therefore, allowed. No costs.

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