Nagpur Bar and one of their clients. Shri Shareef, one of & Anr. v. Tht Han'•le ]udxu of thz liith CoUrl of NalJJUr. Mnho.jtin C. J & Anr.

MEHR CHAND MAHAJAN C.J.-This appeal by special leave arises out of contempt proceedings taken against two very senior members of the Nagpur Bar and one of their clients. Shri Shareef, one of the appellants, at one time was Minister for Law and Justice in the State. Dr. Kathalay, second appellant, 1s a Doctor of Laws and an author of legal works. The matter which resulted in the issue of the show cause notices for con to a certain tempt took a protracted in embittered feelings. What happened extent resulted was this: course and has Shri Zikar who was charged along with the two appellants for contempt made an application under article 226 ( 1) of the Constitution for enforcement of his fundamental right, alleging that he was a citizen of Bharat, and that the Custodian of Evacuee Property and the police were taking wrongful .~ction against him and treating ·him as a national of Pakistan which he never was. He prayed for an interim order of prohibi tion against the State from deporting him after expiry of the permit. The High Court granted action com interim order of prohibition against the plained. At the hearing of the case on 11th August, - ,,. ,. ' 1954 M. r. Shareef and Another v. The Hon'ble Judgu of the High Court of Nagpur. Mahajan C. ]. - - S.C.R. SUPREME COURT REPORTS 759 filed bv him and 1950, a preliminary objection was raised on behalf of the State that Zikar had suppressed material facts in that the petition was the petition therefore liable to be dismissed without going into merits. Shri Shareef. who was counsel for Zikar, ·combated . this contention and the preliminary objection could not be adequately dealt the merits of the case. On with without going into behalf of the State another affidavit was filed on 17th August, 1950, stating certain facts, and Zikar was also directed to file an affidavit in reply by the 21st August, 1950, and this he did by that date. The relevant pro •ceedings of that date are recorded in these terms :- submitted further "Shri Shareef for the petitioner. Shri Naik for copies of 19th the respondent. He files an affidavit :applications dated 25th January, 1950. February, 1949 and Shri Shareef files a statement and an affidavit. His attention was drawn to paragraph 4 of the affidavit and he was asked whether his client has reallv under stood the contents which arc in English adding ·that he might change in the Supreme Court and say that he had not understood that he has explained the contents to his clients. them. Shri Shareef then said the appellant only desired Paragraph 6 of the statement and the affidavit uncalled for as file an ::lffidavit with reference to paragraph 10 of the affidavit d the non-applicant : Vide order sheet dated 17th August, 1950. A remark was made by one of us "Whe ther paragraph 6 was inserted for founding an argument .before the Supreme Court." Shri Shareef replied he has ~tated facts ......... . • Thereafter Shri Naik continued his arguments on the preliminary point till we rose for lunch . When we reassembled Shri Shareef informed us that he wants time to apply for transfer of this case to another Bench because of the observations made . by us regarding paragraphs 4 and 6 of his affidavit. Case is therefore adjourned to 25th August, 1950 to enable Shri Shareef to make an application in the meanwhile." On the 23rd Al!gust, 1950, an application for the the Bench hearing it the case from transfer of 1954 M. r. Sharu ond Anolhd v. Tiu. Hon'ble Jud:u eftM HithC(llJrt of Nagpur. Ma!.ajan C.]. 760 SUPREME COURT REPORTS [1955J another Bench of the High Court was made on the following grounds :- references "1. The observations Supreme Court by Rao and Deo JJ. created a bona fide belief that they were prejudiced against him and had made up their minds and indicated that he shall have to go in appeal to the Supreme Court. in the applicant's mind

#2. The observations Supreme Court were absolutely unnecessary and left no doubt in the applicant's mind that he would not receive justice at the hands of the Hon'ble Judges. references Prayer : In the tial justice, the case Division Bench for disposal." interest of dispensation of impar transferred to another Civil This application was not only signed by Zikar but also by the two appellants as counsel for the applicant and was rejected in due course and with that matter we are no longer concerned. The preliminary objection raised by the State was upheld and the petition under article 226 was dismissed. The learned Judges ordered notices to issue· to the applicant and his two should not all be counsel committed the Court, for contempt . for scandalizing with a view to perverting the due course of justice by making statements in the transfer application impeach ing the impartiality of the Judges. to show cause why they forty years he observed Dr_ Kathalay filed his written statement in reply to cause notice, on the 4th October, 1950. He the show averred that he that he could not honestly scandalized the Court and committed contempt either in fact or in law and contended tliat in his whole career at the Bar for the highest traditions of this learned profession, upholding always the dignity of the Courts and that he had no animus against the Judges of the Division Bench. He asserted that by signing the application he did not scandalize or intend to scandalize the Court and that he bona fide thought that an application could be made for transfer ring a case in the High Court from one Bench to another and that tl1e question did not concern him alone but • 1 • ' • - • - - 1954 M. r. SfUJ~eef a11d Anethtr v. The Hon'ble Judges of the High Court of Nagpur. Maliajan C. J. S.C:R. SUPREME COURT REPORTS 761 the Bench and Bar generally and a question of great principle emerged, viz., whether a counsel was guilty of contempt in signing such an application, or whether to do so if his client was it was his professional duty under that bona fide impression. In the last paragraph of the reply it was stated- that when "Whatever the circumstances, I do see how much transfer dated the 23rd August, this application for 1950, has hurt the feelings of the Hon'ble Judges and I very much regret that all this should have happened." Shri Shareef also put in a similar written statement. transfer application was He asserted made he did not know or believe the law to be that it could not be made, and rightly or wrongly he was always under the impression that an application could be made for transferring a case in the High Court from one Bench to another. He also expressed similar regret for what had happened. Further written state filed by Shri Shareef on 16th October, ment was 1950. follows:- In paragraph 7 of that statement he application transfer, dated these proceedings "I was grieved to know that the accusation against should be of malice and mala fides for my taking up Zikar's brief in connection the 23rd with his If I am thus defending the proceedings, August, 1950. I am doing so for vindicating my professional honour and personal self-respect, and it would' be a misfortune if this was all going to be construed as aggravating the contempt, as hinted by the Hon'ble Court during my counsel's arguments, though remotely. But even as I am making my defence, it is, I admit, quite likely .that I did, I wmmitted an error of judgment in acting as I deeply causing pain to the Hon'ble Judges, which regret, as so has my I have already done before and coumel on my behalf in the course of his arguments." (The Judges in the Judgment under appeal have taken exception to the last sentence of this paragraph.) Dr. Kathalay also put in a similar reply. The High Court in a very lengthy judgment in which very large number of authorities were considered and 1!)54' M. 1". Sliarref •nJ .A.notlur v. Tht Han'•le ]udxu of thz liith CoUrl of NalJJUr. Mnho.jtin C. J. 762 SUPREME COURT REPORTS 119551 . . . application transfer the Judges were scanda- · discussed, held constituted contempt because lized with a view to diverting the due course of justice. The two adrncates who application were found guilty of contempt. As reganis is what the learned the plea of error of judgment, this Judges said :- and prosecuted signed Even adopted their part proceedings the expression . 'error of that we would be prepared "The attitude of defiant justification them in spite of our pointing our at a very early stage in these consider any mistake on renders it difficult for the court to accept the belated plea of an error of judgment" judgment. was not so much mentioned in the argument until last day of the argument. We have already shown in two state para. 100 how it was introduced in fact. ments . on 16th October, 1950, quite contrary to If the felt that there was an error of judgment on it would have been more to make a candid and clear admission of appropriate rn1ury done by an that and make reparation adequate apology. We cannot treat 'I very much regret that all this should have happened' to treat as an apology at all. Nor were we ever asked regret ? it as such. What is it that the two advocates things have happened since 21st August, So many 1950. Any e:pression of regret to merit consideration must be genuine contriteness for what the contemners have clone." advocates their part, the expression for the In the result the learned Judges passed the following order:- to pay a fine of Rs. 1000 or in default "We accordingly sentence Shri M. Y. Shareef to pay a fine of Rs. 500 or in default to undergo simple imprisonment for two weeks and we sentence Dr. D. \V. Katthalay undergo simple imprisonment for one month. \Ve are not sure if the sentences we have awarded are adequate to the gravity of the offence, but on this occasion we refrain from being stern and bringing the full power of the court into play considering the misconceptions about the advocates' responsibility that seem to have so far pre vailed at any rate in a section of the Bar." ' ' • - ' r 1 - - S.C.R. SUPREME COURT REPORTS 763 Leave to appeal to this Court was refused but was 1954 M. r.·Sl=eif and Another -.'f. T/., Hon' hie Judges of the High Court of ·Nagpur. Mahajan C. J. granted here. On the 12th May, this Court, heard by orJer :- 1954, when the recorded appeal was following tendered "The appellants have contempt for which In our opinion, the apoiogy an unqualified apology to this court and to the High Court, and they are prepared to purge the have been convicted. is a sincere expression of their regret for what happened in application was made time the court at the transfer therein. We therefore allegations made and for the two months and direct that the adjourn this appeal for apology the Division Emch before which the contempt is said to have been committed. We are sending it to the High Court with the full confidence that the learned Judges will consider the apology in the spirit in which it has been tendered they will pass appropriate orders and send an intimation to to what orders they pass." the case went back to the High Court, it \Vhen turn. The learned Judges to consider in this took an unfortunate tendered here be this court as they had tendered posed the question form:- "The question 1s whether ment awarded is called for now filed by the contemners," and it was answered thus : remission of the punish in view of the statement "We are constrained to observe that the spmt in tendered here is not much The idea of the the apology the acceptance absence of any be explained ? there was hardly anything apologetic which the apology was different from that originally shown. contemners is that because as directed, they have a right to expect of it by the court. How else can prayer or what the contemners desire \Ve record the way the apology was tendered ............. . they have filed We neither gave the extreme penalty which we might well have given, nor did we give the maximum for the manner of justifica of the lesser penalty. But there might not have been a tion and the contumacy, sentence of fine at all." J954 M.•r. Shareef and Another ,. Tiu Hon'ble Judges of tlu lf.igh Court of Nagpur. -.- Mnhajan C. J. 764 SUPREME COURT REPORTS [1955] Having approached the matter thus, learned referred to a large number of cases Judges admitted proposition of that a "sincere apology does not entitle a contemner as of right to a remission of the sentence." that accept ance . of apology would lead to an invidious distinction two advocates and Zikar. being made in the case of the apology was not accepted and In the result report concluded with the following observations :- thought further It was .. j "If in the circumstances of this case, the apology were to be accepted, we would be encouraging notion that it is the contemners's get his accepted when he chooses and in whatever apology manner he tenders even in a case where he has aggra original offence. We will be unsettling vated the established principles, and setting precedent. Above all, we would be dealing a blow to the authority of the court, the consequence of which cannot be viewed with equanimity." a When the appeal came back to us, we asked Dr. Tek Chand who appeared for the two advocates whetl1cr his clients were even now genuinely sorry for signing the transfer the expression of and whether regret made in this Court was a genuine expression of their feelings, Dr. Tek Chand replied in the affirmative and emphatically said "Absolutely". application is whether In this situation, the question for consideration in two appellants have the appeal now the contempt by tendering an unqualified purged apology in this Court as well as to the High Court, the genuineness of which has been again emphasized their counsel before us, or whether the sentence of fine awarded to them by the High Court should necessarily be maintained for upholding the authority and dignity of the Court. - ... ' . The proposition is well settled and self-evident that there cannot be both justification and an apology. The two things are incompatible. Again an apology is not the guilty of their a weapon of defence to operate as a universal offence ; nor is be evidence of real panacea, but tendered an contriteness. intended to appellants it intended to purge it is The having 1954 M. r. Sharuj Another v. The Hon'bl• Judges of the High Court of Nagpur. Mahaian C.J. • S.C.R. SUPREME COURT REPORTS 765 did constitute to the the judges the due this application two advocates were guilty of contempt. That unqualified apology, no exception can be taken decision of the High Court that the application transfer were scandalized with a view to diverting course of justice, and that in signing decision therefore stands. contempt because signing responsibilities to the client, to be The fact however remains, as found by the High Court, that there was at the time these events happened considerable misconception amongst a section of Nagpur Bar about advocates' in matters transfer applications containing allegations It cannot be denied that a section of this character. of the Bar is under an erroneous impression that when a counsel is acting in the interests of his client, or in is discharging his accordance with his instructions he legitimate duty to his client even when he signs an contains matter application or a pleading which scandalizing the Court. They think that when is conflict between their obligations to the Court and their duty the latter prevails. This mis rooted out by a clear and conception has emphatic pronouncement, and we it should be widely made known that counsel who sign applications or pleadings containing matter scandalizing the Court themselves about without satisfying f acie existence of adequate grounds therefor, with a view to prevent or delay the course of justice, are themselves guilty of contempt of Court, and that take any it is no duty of a counsel to his client interest in such applications ; on the other hand, his duty is to advise his client for refraining from making this nature in such applications. Once allegations of the fact is recognized as was done by the High Court here, that the members of the Bar have not realized the implications of their signing such applica tions and are firmly under the belief that their conduct in doing so is in accordance with professional ethics, it has to be held that this case was done under a mistaken view of their in such cases even a qualified rights and duties, and In border apology may well be considered by a Court. two appellants the act of reasonably - - 1954 M. r. Sharee and Another Y. The Hon'ble Judges of the High Court of ·Nagpur. Mahajan C. J. 766 SUPREME COURT REPORTS [ 19551 judges in which the learned they could hold that line cases where a question of principle about the rights to be settled, an alter of counsel anJ their duties has native plea of apology merits consideration ; for it the case to hold that possible for a judge who hears contempt there is no case a defence of apology is meaningless, because that would unqualified the commission of an the admission of amount to themselves this case Jn offence. haJ to wade through a large volume of English the act of JnJian case-law before it could the appellants constituted contempt and that on the not be said that the matter was so patent face of it their act amounted to contempt. Moreover, it appears from the proceedings that the counsel were genuinely under the belief that their professional duties demanded that, when their client was under a bona fide belief that the Court was prejudiced against him and apply for transfer, they were bound to take decided to his brief and sign the application. We cannot help observing that the admitted reference by the judges to the Supreme Court in their remarks during the course of the hearing was unfortunate and seems to indicate sensitiveness which may well have been misunderstood by the party and the advocates. The counsel seem to have genuinely believed that they were right in what they did, though as a matter of fact if thev had studied the law more In these circum deeply, stances it cannot be said that what they did was wilful and their in this matter by they_ did was ra1s111g upon by contumacious. The authorities relied cases of High Court have no application to is the validitv of a defence of this character. How else kind to be settled, except by an· argument the· interests of his client to counsel was entitled in transfer advise a transfer and give grounds for that which were bona fide believed by the client. Every form of defence in a contempt case cannot be regarded the circum as an act of contumacy. impression stances of each case and on about a particular rule of ethics amongst the members they would not h~ve done so. conduct in getting the It depends on the defence the general unnecessary law settled indecorous ., ~ •· ' - - .~ 195+ M. r. Shareef and Another v. The Hon'ble Judges of the High Court of Natpur. MahqjanC.J• t 1 - - S.C.R. SUPREME COURT REPORTS 767 \Ve regret alternative themselves that such an aggravates the contempt. two learned counsel to have any effort on they contended. As soon as we indicated of the profession. The learned Judges, as already said, impression was prevalent since a long time amongst a section of the It was thus necessary to have that Bar in Nagpur. the part of question settled point settled cannot be regarded as contumacy or a circumstance the expression of should not have been ignored but should have It was made in the been given due consideration. by the counsel earliest written statement submitted and_ cited above. Once however the High Court found that they were guilty of contempt, they would have to tender an unqualified apology to been well advised that Court forthwith. But perhaps they were still they were right and the Court under the delusion was in error, and that by coming to this Court they might be able to have the question of principle settled to the they and their learned counsel that they were in error, tendered an unqualified apology counsel immediately indicated, was which, as already absolute the second hearing. We have not terms at been able to appreciate why the learned Judges of the High Court should have doubted the genuineness of It certainly was not the object and could this apology. not be the object of the learned Judges of the High Court to humiliate senior counsel and to expect some thing more from them already done in this Court. While unhesitatingly deprecating very strongly the conduct of the appellants in scandalis ing the Court by becoming parties to an unnecessary transfer application, we still feel that in and untenable the matter of measure of punishment the High Court should have after an unqualified apology was tendered taken a different view. We have no doubt that what ever the learned Judges of the High Court did in case, they did in the firm belief that the dignity of the the members of the Court had to be maintained and Bar, howsoever big or learned, cannot be allowed scandalize the judges or to divert the course of justice than what they had repeated again 11-88 S. C. India/59 1954 M. r. Shareef and Another v. The Hon'blt Judges of the HighCaurtof Nazpur. Maht/jan C. J. 768 SUPREME COURT REPORTS [1955] in view of to be fought out. seemingly adverse itself a heavy punishment It has also to be kept 111 view by attempting to take a case out from one Bench to find that the another Bench of the Court when they Bench 1s expressing opinions their clients. We have firm hope that this kind of con duct will not be repeated by counsel in any High Court test cases of this kind in this country, and no more would have In the peculiar circum the circumstance stances of this case and that the learned Judges themselves were of the op11110n that there would not have been a sentence of fine at all if there was no plea of justification and there was no contumacy, we are of the opinion that the unqualified apology was sufficient to purge the contempt committed by the two appellants as we have reached the conclu sion contrary to that arrived at by the High Court that the plea of justification in this case did not amount to contumacy. condemnation for contempt by a High Court of senior members of the Bar is them, as it affects them in their professional career and is a great blot on them. There has been nothing said in the lengthy judgment of the High Court that these counsel in their long career at the Bar have ever been disrespectful or discourteous to the Court in the past. This one act of indiscretion on their part in signing the application should not have been viewed m the very stringent manner in whi.ch the High Court viewed it in the first instance and viewed it again after we had sent the case back to it. It is not the practice of this Court in special leave cases and in exercise of our over riding powers to interfere with a matter which rests in the discretion of the High Court except in very exceptional cases. After a careful consideration of the situation that arises in this case we have reached the .decision that the dignity of the High Court would be sufficiently upheld if the unqualified apology tendered in this Court in the first instance and reiterated m absolute terms by Dr. Tek Chand agam at the next hearing is regarded as sufficient to purge contempt. The matter has become very stale and the ends of justice do not call for maintaining the punishment of fine on two senior is accepted and that apology - 1954 M. r. Shareef and Another v. The Hon'bie Judges of the High Court of Nagpur, 1954 October 21 S.C.R. SUPREME COURT REPORTS 769 counsel for acting wrongly under an erroneous impres sion of their rights and privileges. aside, and For the reasons given above we allow this appeal to the extent that the sentence of fine passed on both the appellants is set the unqualified apology given by them to this Court .and the High Court is accepted. We also desire to issue a strong admonition and warning to their conduct. There will be no order as to costs in these proceedings throughout. two counsel for Appeal allowed. LAXMANAPPA HANUMANTAPPA JAMKHANDI (I. 'I'HE UNION OF INDIA AND ANOTHER. ;MEHR CHAND MAHAJAN C.J., s. R. DAS, GHULAM HASAN, IlHAGWATI and VENKATARAMA AYYAR JJ.] Constitution of India, Arts. 31(1), 32, 265-Deprivation of pro ·t>erty-Otherwise than by imposition or collection of tax-Right con ferred by Art. 265-Whether can be enjorced by Art. 32. Held, that as there is a special provision that no tax shall be Constitution levied or collected except by authority of law, clause ( 1) of Art. 31 must be regarded as con cerned with deprivation of property otherwise than by the imposi tion or collection of tax and as the right conferred by Art. 265 is !l-Ot a fundamental right conferred by Part III of the Constitution, it cannot be enforced under Art. 32. in Art. 265 of Ramjilal v. Income-tax Officer, Mohindcrgarh ([1951] S.C.R t , 127) followed. Suraj Mal Mohta and Co. v. A. V. Visvanatha Sastri (A.LR 1954 S.C. 545) referred to. OmcJNAL JuRrsmcTioN : Petition No. 492 of 1954. Petition under article 32 of the Constitution the e,nforcement of Fundamental Rights. B. Sen, l. N. Shroff and B. P. Singh for petitione1 . - .._ M. C. Setalvad, Attorney-General India, and C. K. Daphtary, Solicitor-General for India (G' N. foshi.