P L D 1963 Dacca 39 (PLP)

The application contained various other objectionable passages, which we need not quote here. The application, as a whole, leaves no manner of doubt that the said passage referred to the Court itself, namely, the Magistrate who was trying the case. Undoubtedly, there was an imputation of corruption against the Court itself. The allegations made in the application could not be substantiated and it was rejected by the learned Additional Deputy Commissioner. Thereafter the learned Magis trate made a report to this Court, setting out the facts which have been very briefly summarized above.

3. Upon receipt of the said report, this Court issued a Rule suo motu, calling upon Abdul Gaffur Bhuiya and Ali Ahmed to show cause as to why proceedings in contempt should not be drawn against them. At the hearing of the Rule, which was thus issued by us, it appeared that the lawyer who had actually drafted the application was one Azizur Rahman, a Pleader practising in Comilla. We, therefore, also issued a Rule calling upon him to show cause why contempt proceedings should not be drawn against him as well. In these circumstances the aforesaid Rules come up before us for hearing.

4. At the hearing of the Rules three separate affidavits were filed on behalf of each of the opposite‑parties before us. It is the case of Abdul Gaffur Bhuiya that he did not himself draft the application that was filed before the learned Additional Deputy Commissioner and that he was not responsible for the averments contained therein. He, however, moved the applica tion before the learned Additional Deputy Commissioner and in that sense he cannot absolve himself from the responsibility of presenting his client's case on the allegations that were made in the application that was actually moved before the Additional Deputy Commissioner. He has published in open Court a libellous attack on the said Magistrate who constituted a Court of first instance. He, however, tendered an unqualified apology before this Court. From his affidavit it appears that he sincerely regrets that he moved an application which con tained a scurrilous attack upon the Court without even verifying its truth. We shall hereafter indicate as to how we propose to deal with him.

5. In the affidavit that was filed on behalf of Azizur Rahman, it is stated that he had made a rough draft of the said application under section 528 of the Code of Criminal Procedure, but, inasmuch as it contained serious allegations against the Court itself, he wanted to be satisfied whether there was any basis for making them. He says that he had asked his client to produce the persons who gave him the information which was embodied in the said petition. According to him, there was an understanding between him and his client that the application would not be moved in Court without his personal satisfaction as to the basis for making the allegations contained in it. His case is that his client never contacted him again and he did not know what happened as to the draft prepared by him. According to him, he never received any further light with regard to the case and he was himself surprised that the application, in fact, was moved by some other lawyer. This opposite‑party, Azizur Rahman, has also offered an unqualified apology for having drafted an application, which, according to him, was misused by his client. We shall also deal with him hereafter.

6. The affidavit filed on behalf of opposite‑party, Ali Ahmed is in the form of a petition addressed to this Court. In this petition he gives the names of two persons, who are alleged to have given the information, which became the basis of the said application. It is patent that each of the opposite‑parties before us has shifted the responsibility for the objectionable statements in the said application on somebody other than himself. We refrained from taking further steps in the matter and from chasing a phantom, which, to our mind, does not probably exist. No useful purpose will be served by prolong ing these proceedings in pursuit of the ghostly informants of Ali Ahmed.

7. It is regrettable that even in the petition filed by opposite‑party, Ali Ahmed in this Court, there were objection able statements some of which were rather detailed repetitions of the impugned passages in the application filed before the Additional Deputy Commissioner. The most unfortunate thing about the petition filed in this Court by Ali Ahmed is that the learned lawyer, who drafted his petition is an Advocate of this Court. We are constrained to remark that the petition, as drafted by him, shows a lack of consciousness about the responsibility of a lawyer in drafting a petition on behalf of his client. In the petition that has been filed in this Court and drafted by an Advocate of this Court, there are statements which can involve the learned Advocate before us in pro ceedings for contempt of Court. The learned Advocate, who drafted the petition before us, has also tendered an unqualified apology to this Court for having drafted the said petition in an irresponsible manner. We accept his apology and, having severely reprimanded him, we hope that such conduct would not be repeated in future.

8. We have been of late noticing that in applications made under section 526 of the Code of Criminal Procedure to this Court, occasionally irresponsible attacks are made upon the integrity of the Court below. It seems that amongst the members of the legal profession quite a substantial section has only a perfunctory acquaintance with the law of contempt of Court and also with the responsibility of lawyers towards the Court.

9. In these circumstances, we feel that we should restate the law on the subject, which has already been well‑settled by long series of judicial decisions. We would confine ourselves to pleadings and conduct of cases by lawyers.

10. It would be enough for our purpose if we refer to two Full Bench decisions, one of the Allahabad High Court and another of the Patna High Court. In the matter of Dwarka Prasad Mithal (I L R 46 Al1. 121) a Full Bench of the Allahabad High Court lad occasioned to deal with a matter which was probably less serious than the present one before us. In the aforesaid case a lawyer had drafted an application which contained some allegations of unfairness against the trying Magistrate. The lawyer did not take the responsibility for the statements made herein and, in fact, made strenuous efforts to withdraw hem and, furthermore, he offered an unqualified apology for laving drafted a petition of such a nature. The Full Bench constituted by Sir Grimwood Mears, C. J., and Walsh and Sulaiman, JJ., observed as follows: " . . . . We have invited him (the Pleader concerned) and he has confessed himself unable to point to any single fact which justified him in alleging, that Mr. Darling was or would be unfair. Having secured an adjournment, he took no steps to apply for the transfer. After a delay which has not been explained and after being soundly advised by a Barrister of this Court that no reasonable application could be made to the High Court for transfer, he became a party to a totally different application and abandoned his intention of applying for a transfer. It was not too late then to go to the Magistrate and admit that he had acted improperly, and that no grounds for the application really existed. If he had a shred of honour or sense of responsibility, it would have been the first thing, which he would have done. He was either unwilling, or as he suggested to us, ashamed to do it. The result was that an adjournment having been obtained for the purpose of a transfer, it was deliberately utilized for a totally different purpose. In a half‑hearted way Dwarka Prasad, in the course of his answers to the questions put by the Court, endeavored to shift responsibility on to his clients, though he was even unable to remember the particular individual who for this purpose instructed him. This attitude and the painful frequency with which discreditable means are used in the Courts below to obstruct and delay the true course of justice by obtaining adjournments and making futile and childish applications, sometimes offensive applications, to this Court for transfer, renders it necessary that we should make an example of Dwarka Prasad, and that we should issue a serious warning to the members of the profession with the hope that this kind of proceeding will cease. Members of the legal profession are under no duty to their clients to make grave and scandalous charges either against Judges or the opposite‑parties on the mere wish of their clients. They are not puppets compelled to obey the dictates of their clients where matters of good faith and honour-able conduct are concerned. They are responsible to the Court for the fair and honest conduct of a case. They are not mere agents of the man who pays them, but are acting in the administration of justice, and in matters of this kind they are bound to exercise an independent judgment, and to conduct themselves with a personal responsibility. If they fail to act with reasonable care and caution, they are unfit to enjoy the privileges conferred upon them by law, and serious) breaches must be visited with punishment. "We have unfortunately noticed for some time that there is‑ a growing practice in these Provinces to make, if not sometimes statements deliberately untrue to the knowledge of the person making them, at any rate reckless and disgraceful charges of impropriety and partiality against the Tribunal when the real ground merely is that the Advocate considers himself in danger of losing his case." In the above‑mentioned case the Court passed an order suspending the offending lawyer from practice for a period of six months from the date of the order that was passed. We have quoted in extenso the aforesaid observations because they fully represent our views with regard to the matter before us as, unfortunately, our own experiences are similar to those of the members of that Bench.

11. In this context it would also be relevant to cite a decision of a Full Bench of the Patna High Court In the matter of Shiva Kumar Mukhtar (I L R 8 Pat. 575), in which the judgment of the Court was delivered by Courtney Terrel, C. J. It is unnecessary to set out the facts of the case which are more or less similar to those of the cases that we have set out above and we would content ourselves by quoting the following observations: "It is said on behalf of the Mukhtar that he took the instructions of his client and was bound to act upon those instructions. It is perfectly true in one sense that a legal adviser must accept statements of fact from his client. But that privilege of the legal adviser has a tendency and a very grave tendency to be very much abused and nowhere is the abuse so manifest as in applications for transfer. It has become notorious that applications for transfer based upon the alleged prejudice and unfairness of the Magistrate have developed to an extent which is a scandal and it would be well that professional advisers and more particularly young profes sional advisers should bear in mind that there are certain kinds of duties which they have to perform in setting forth the cases of their clients in relation to which they cannot take shelter, as they are in the habit of doing, behind the instruc tions of the client. One sees this plea of legal professional privileges taken up not only in applications of this sort but also in pleadings. Nothing is more conspicuous in pleadings than allegations of fraud, forgery and so on, made against the other side which when the case comes up for hearing are never substantiated in the slightest degree. It is well, there fore, that members of the profession, and particularly those practicing before Magistrates are liable to have the duty cast upon them of making an application for transfer, should feel the weight of their responsibility. Statements imputing prejudice or unfairness or corruption to Magistrates should not be made unless the statements of the client as tested by the adviser are found sustainable, unless they are found to be corroborated and unless the adviser has taken some steps not necessarily to pledge himself for his client's veracity butt such as to give him as a reasonable man ground for belief that the statements at any rate are such as should be properly investigated. The duty of tile legal profession is a very serious one both with regard to applications of the kind I have mentioned and also in respect of pleadings." In the aforesaid case, having regard to the youth of the Mukhtar, the Court did not award any punishment on him.

12. Coming back to the Rules before us it will be seen, from the facts and circumstances which we have already set out, that all the opposite‑parties are guilty of having committed contempt of Court for making or being responsible for a scurrilous and unjustifiable attack on the learned Magistrate.

13. To the observations quoted above, we would like to add that lawyers should exercise great care and caution in drafting and pleading in Court an application which contains allegations reflecting upon the integrity of the Court. They owe a duty not merely to their clients but also to the Court of which they are trusted officers. They enjoy a good deal of privilege, and also not an inconsiderable latitude from the Court, in the exercise of their professional duties. Whereas they should boldly and fearlessly advocate the cause of their clients, they should remember that it is their paramount duty to maintain the dignity and integrity of the Court itself. It has, therefore, B been the time‑honoured tradition of the Bar that it constitutes itself as the staunchest defender against an unjustified attack upon the Court which they are called upon to assist in the administration of justice. It should also be realised that the generality of those engaged in dispensing justice, by the very nature of their calling, live in comparative aloofness and are, therefore, in a disadvantageous position in defending themselves, in their cloistered seclusion, from irresponsible and extraneous onslaughts on their integrity. This is where the law of contempt of Courts comes in aid and it is designed, in the words of Lord Harduricks, L. C., "to keep the streams of justice clear and pure". Besides, the tendency of such attacks is to shake the confidence of the litigant public in the administration of justice having found that the opposite‑parties before us are guilty of having committed the offence of contempt of Court, the question before us is, what punishment we should award to them ?

14. We have given our most anxious consideration to this matter. Two of the opposite‑parties are respectable and experienced members of the Bar and their position demanded of them that they should have shown a far greater sense of responsibility than those who are young and inexperienced. normally, we would have imposed an exemplary punishment on them, but we have refrained from doing so because of circumstances set out hereafter. We had both these lawyers before us and we have felt that they are sincerely repentant of their conduct. They regret the unfortunate application which they have either drafted or pressed before the Additional Deputy Commissioner. We are impressed by the sincerity of their repentance, and having regard to the wisdom of experience that punishment is often not necessarily the most effective deterrent and, also in view of the fact that the offending lawyers have, through us, tendered unqualified apology to the Court concerned, we feel that it is unnecessary to impose any penalty or punishment on them. Having administered a sound admonition to them with regard to their professional conduct, we have left them, in a chastened mood, to suffer the more biting pangs of their own conscience. We have delivered this judgment in open Court before a crowded gathering of a respectful and attentive Bar. It is hoped that the Bar would be fully alive to the high responsibility of their calling.

15. With regard to opposite‑party, Ali Ahmed, it is also evident that he has appeared before us as a sincerely repentant man; but his repentance is somewhat belated. Moreover, he is primarily responsible for the allegations that have found place in the draft application that was made on his behalf and also in the application which was actually filed before the Additional Deputy Commissioner. Although we would not let him go unpunished, we do not, however, propose to inflict a very heavy punishment on him and we direct him to pay a fine of Rs. 50 (rupees fifty) only for having committed the offence of contempt of Court of which we have found him guilty. The fine shall be paid in this Court by Tuesday, the 13th of June 1961, failing which he shall be committed to prison to undergo simple imprisonment for three weeks. The Rules are made absolute and it is directed that a copy of this judgment be sent to the Magistrate concerned. SALAHUDDIN AHMED, J.‑I agree. S. B./A. H. Rules made absolute.