WWW.LIVELAW.IN sng/skn
1
smcp-3.15nwp-6093.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL SUO MOTU CONTEMPT PETITION NO.3 OF 2015
The Hon'ble High Court, Mumbai, On its Own Motion. .. Petitioner Vs State of Maharashtra. .. Respondent – Dr.F.R.Shaikh, APP for the State. Shri Sachin Suryakant Punde for the Respondent No.3. Shri Sandeep Shripad Koregave for the Respondent Nos.4 to 6. Shri Tejpal Shrikant Ingale along with Shri Shailesh Dhanjay Chavan for Satara District Bar Association, Vaduj Taluka Bar Association, Dahiwadi Taluka Bar Association, Jaoli Taluka Bar Association, Koregaon Taluka Bar Association and Medha Taluka Bar Association. Shri Harshad Bhadbhade along with Shri Saurabh Butala for Lanja Bar Association, Guhagar Bar Association, and Ratnagiri Bar Association. Shri Umesh R. Mankapure along with Shri Vinod Sangvikar for Sangli Bar Association. Shri Rajshekhar S. Alange for Solapur Bar Association. Shri Bushan Walimbe for Sindhudurg Bar Association. Shri Prashant Bhavake for Dapoli Bar Association. Shri Nilesh Wable for Pune Bar Association. – ALONG WITH CIVIL WRIT PETITION NO.6093 OF 2015 Manoj Oswal. .. Petitioner Vs State of Maharashtra and Others. .. Respondents Shri Kushal Mor along with Ms Juhi Mehrotra for Petitioner. Shri Manish Pabale, AGP for Respondent No.1/State. Shri S.R.Shinde for Respondent No.2. Shri Sudam Kale along with Shri Makarand Bakre for Respondent No.4. –
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
2
CORAM :
smcp-3.15nwp-6093.15
A.S. OKA & SMT.ANUJA PRABHUDESSAI, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD :
27TH FEBRUARY 2017
DATE ON WHICH JUDGMENT IS PRONOUNCED:
15th September 2017
JUDGMENT ( PER A.S. OKA, J ) ISSUE INVOLVED: 1.
The issue involved in these Petitions is “whether the
decision and/or the action of members of various Bar Associations of abstaining from the Court work and the acts of office bearers of the Bar Associations/Action Committee of the Advocates calling upon the members of the Bar to abstain from the Court work or boycott the Court proceedings in support of their demand for establishment of a bench of this Court at Pune/Kolhapur amount to a criminal contempt ?”
ORDERS PASSED ON THE ADMINISTRATIVE SIDE:
2.
On 30th June 2015, the Registrar (JudicialI) submitted a
note before the Hon’ble the Chief Justice on the administrative side seeking following prayer: “(A)
::: Uploaded on - 15/09/2017
To initiate suomotu Criminal Contempt proceeding against the Chairman, office bearers and members of the Pune Bar
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
3
smcp-3.15nwp-6093.15
Association who have resorted to the weapon of strike and paralyzed administration of justice system by giving call of indefinite strike.”
3.
The Hon’ble the Chief Justice granted the said prayer and
directed by an administrative order dated 2 nd July 2015 that a Suo Moto Criminal Contempt proceeding should be initiated which should be placed before a Bench presided over by one of us (A.S.Oka, J).
4.
Writ Petition is filed by a litigant for bringing to the notice
of this Court the situation created by the members of the Pune Bar Association by abstaining from the Court work.
REFERENCE TO THE ORDERS PASSED BY THE COURT FROM TIME TO TIME: 5.
Thereafter, various orders were passed by a Bench presided
over by one of us (A.S.Oka, J). First few orders concern abstention from the Court work by the members of the Bar in the Courts in Pune District in support of their demand for establishing a bench of this Court at Pune. In Paragraph 3 of the order dated 3 rd July 2015 passed in the present Petitions, this Court observed thus:
“3. In Writ Petition No.6093 of 2015, the Third Respondent Shri Girish Shedge, the President of Pune Bar Association is represented by Shri Dhakephalkar,
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
4
smcp-3.15nwp-6093.15
the learned senior counsel. On a query being made by the Court, on instructions, he states that on the basis of a Resolution passed by the Pune Bar Association, from 19th June 2015 onwards, the lawyers are abstaining from work in all the Civil and Criminal Courts as well as Tribunals in Pune District. On instructions, he states that the lawyers are protesting against the failure of the State Government to recommend establishment of a Bench of this Court at Pune. Thus, the admitted position is that for such a long period from 19 th June 2015, the lawyers at Pune are boycotting all Civil and Criminal Courts as well as Tribunals in Pune District. As a result of this, a large number of litigants are forced to approach this Court especially on the Criminal Side for seeking urgent reliefs.” 6.
Paragraphs 1 and 2 of the order dated 6th July 2015 passed
in these Petitions read thus: “1.
Learned Senior Counsel representing the Pune Bar Association states that on Saturday, 4th July, 2015, a Resolution has been passed by the Pune Bar Association withdrawing the earlier Resolution, by which the members of the Pune Bar were called upon to abstain from Court work. We accept the said statement. We direct the President of the Pune Bar Association to place on record a copy of the said Resolution along with an affidavit.
2.
In view of the prima facie findings recorded in the order dated 3rd July, 2015, before we consider of taking further action, the issue is whether the office bearers of the Pune Bar Association are willing to tender an apology for committing the breach of the law laid down by the Apex Court. The other issue is whether the office bearers are willing to give an undertaking on oath that in future, they themselves will not indulge in any such activities and they will not encourage any one else to engage in such activities.”
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
7.
5
smcp-3.15nwp-6093.15
Under the order dated 20th July 2015, a notice was issued
of criminal contempt to the office bearers of Pune Family Court Bar Association. Paragraph 4 of the said order reads thus: “4. Therefore, even the members of the Pune Family Court Bar Association appear to have indulged in illegal activity of abstaining from Court work. We, accordingly, issue notice to the President, Vice President and Secretary of the Pune Family Court Bar Association calling upon them to show cause as to why the action under the Contempt of Courts Act, 1971 for committing criminal contempt should not be initiated against them. Notice is made returnable on 6.8.2015. Notices be dispatched to be Principal Judge of the Family Court at Pune through a special messenger. The Principal Judge shall ensure that service is effected before the returnable date.”
8.
Further order dated 6th August 2015 notes that the office
bearers of the Pune Family Court Lawyers’ Association tendered affidavits containing unconditional apology and assurance not to repeat the offending act. The apology was accepted by the Court under the said order. The order dated 6th August 2015 notes that the President, two Vice Presidents, Treasurer, Secretary and Joint Secretary of the Pune Bar Association have filed the affidavits tendering unconditional apology and containing assurances that they will not indulge in any such illegal activities and will not personally encourage any one else to indulge in such activities. Under the said order, the assurances contained in the said affidavits were accepted as the undertakings given by them to the Court and apology tendered was accepted. The order
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
6
smcp-3.15nwp-6093.15
dated 6th August 2015 notes that the seven members out of ten members of the Managing Committee filed similar affidavits tendering unconditional apology and containing similar assurances. The apology was accepted under the said order and even assurances were accepted as the undertakings. By the said order, notices of contempt were issued to three members of the Managing Committee Shri Omkar R. Pawar, Shri Omkar A. Arte and Shri Pravin S. Gore.
9.
On the basis of further administrative order passed by the
Hon'ble the Acting Chief Justice on 10th September 2015, the office note dated 10th September 2015 and reports received from the Principal District Judge, Kolhapur and the learned Principal District Judge, Sindhudurg along with newspaper cuttings were ordered to be placed before a bench presided over by one of us (A.S.Oka, J). Accordingly, on 16th September 2015, the office note and the newspaper cuttings along with present suo motu contempt petition were placed before a bench of this Court. The paragraphs 3 to 7 of the said order read thus:
“3.
We have perused the report dated 9 th September 2015 submitted by the learned Principal District Judge at Kolhapur. The report records that the members of the Kolhapur Bar Association took out a mock funeral procession of the Hon'ble the Chief Justice of this Court and, thereafter, his effigy was burnt in the court premises. Press cuttings of the news published in various local news papers have been annexed by the
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
7
smcp-3.15nwp-6093.15
Principal District Judge to the said report. The said press cuttings of the news papers dated 9th September 2015 indicate that the said incident took place in the evening of 8th September 2015 in the precincts of the Kolhapur Court. There are few more reports submitted by the Principal District Judge of Kolhapur on 10th,11th and 14th September 2014. The reports record that slogans were shouted by the members of the Kolhapur District Bar Association against the Hon'ble the Chief Justice. Not only that the aforesaid objectionable acts were committed, but the Kolhapur District Bar Association gave a call for abstaining from the Court work for three days. He has further reported that on 9 th September 2015, in the morning, the members of the Kolhapur Bar Association assembled near the entrance of the District Court and shouted slogans against the Hon'ble the Chief Justice. There was an agitation near the gate in which not only the Advocates but political leaders participated. The members of the Bar abstained from the Court work for three days in all the Courts in District Kolhapur on the basis of an appeal made by the Kolhapur Bar Association. 4. The report submitted by the Principal District Judge, Sindhudurg dated 9th September 2015 records that the Sindhudurg District Bar Association made an appeal to the members of the bar to abstain from the Court work for three days on 9th, 10th and 11th September 2015 in protest against the failure of this Court to abide by the assurance given to establish a Bench of this Court at Kolhapur. 5. The report dated 10th September 2015 submitted by the learned Principal District Judge, Ratnagiri records that on 10th September 2015, the members of the Bar Associations of Ratnagiri, Lanja, Dapoli and Guhagar abstained from the Court work. It is reported that even the members of the Dapoli Bar Association abstained from the Court work on 10th September 2015. However, it is stated that the
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
8
smcp-3.15nwp-6093.15
members of the Bar worked on that day in the Court at Khed. The report records that the members of the Bar at the aforesaid places abstained from the Court work on the basis of an appeal made by the Kolhapur Bench Action Committee. 6. The report dated 10 th September 2015 submitted by the learned Principal District Judge of Satara records that the Vice President of the Satara District Bar Association, Satara informed him that on the basis of the appeal made by the Kolhapur Bench Action Committee, the members of the Bar have decided to abstain from the Court work from 9th to 11th September 2015. The report records that the Taluka Bar Associations at Medha, Dahiwadi, Waduj and Koregaon passed resolutions appealing to the Advocates to abstain from the Court work from 9th to 11th September 2015. 7.
10.
Reports of the Principal District Judges show that due to abstention on the part of the members of the Bar, the work in the Courts in the said Districts was completely standstill.”
In Paragraph 9, this Court considered the decisions of the
Apex Court in the cases of Ex.Capt. Harish Uppal v. Union of India and others1 and Common Cause, a Registered Society v. Union of India and others2. After quoting the relevant portions of the said order dated 16th September 2015, in Paragraph 9, this Court observed thus:
“.....Thus, the action of the members of the Bar to abstain from the Court work amounts to criminal contempt as it directly interferes with the 1 2
(2003)2 SCC 45 (2006)9 SCC 304
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
9
smcp-3.15nwp-6093.15
administration of justice. Such action lowers the dignity of the Court. As far as the members of the Kolhapur Bar Association are concerned, prima facie, their conduct of taking mock of funeral procession of the Hon'ble the Chief Justice in the Court premises and burning the effigy in the Court premises aggravates the contempt. This amounts to lowering the dignity of this Court. Not only that this conduct lowers the dignity of the Court of law but we are constrained to observe that the said conduct has lowered the dignity of the noble legal profession. From the reports of the Principal District Judges, it appears that the members of the Bar in Kolhapur District Court abstained from the work on the basis of the appeal made by the Kolhapur Bar Association. As far as District Sindhudurg is concerned, the Advocates abstained from the Court work on the basis of the appeal made by the Sindhudurg District Bar Association. The learned Principal District Judge, Ratnagiri records that the Bar Associations of Dapoli, Ratnagiri, Lanja and Guhagar made an appeal to the members of the Bar to abstain from the Court work. As far as District Satara is concerned, the members of the Bar abstained from the Court work on the basis of the appeal made by the Satara District Bar Association as well as the Bar Associations of Medha, Dahiwadi, Waduj and Koregaon. The office bearers of all the aforesaid Associations are prima facie guilty of Criminal Contempt. Moreover, the office bearers of the Kolhapur Bench Action Committee are prima facie guilty of Criminal Contempt as it is reported that the Bar Associations acted on the basis of the appeal made by the said Committee.”
11.
In paragraphs 10 to 12 of the said order, this Court
observed thus: “10. According to us, if what is stated by the Principal District Judge of Kolhapur and what is stated in the news items in the news papers is correct, prima facie, this is a case of aggravated criminal contempt by the office bearers of the Kolhapur Bar Association.
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
10
smcp-3.15nwp-6093.15
11. Even assuming that the members of the Bar have a right to demand establishment of a Bench of this Court at a particular place, they cannot take law into their own hands and hold the legal system at ransom. This is the second occasion on which this Court is required to issue notice of contempt to the members of the Bar on the same ground. 12.
12.
Our attention is also invited to the Rules 7, 8 and 9 of the Bar Associations (Constitution, Registration and Control) Rules, 2005 framed by the Bar Council of Maharashtra and Goa. Rules confer power on the Bar Council of Maharashtra and Goa to cancel the certificate of registration granted to a Bar Association if such Bar Association commits misconduct by giving a call for strike etc. Apart from the Rules, prima facie, it appears to us that the conduct of the office bearers of the Bar Association of calling upon the members of the Bar to abstain from the Court work may amount to professional misconduct. If the members of the Bar have taken out a mock of funeral procession of the Hon'ble the Chief Justice and burnt his effigy in the Court premises, surely this is a grave misconduct. Therefore, the State Bar Council should immediately step in and initiate action. If there is inaction on the part of the Bar Council, appropriate inference will have to be drawn.” (emphasis added)
In Paragraphs 14 and 15 of the said order, the following
directions were issued. “14.
::: Uploaded on - 15/09/2017
In this petition, we are not concerned with the demand for establishment of a circuit Bench at particular places. The law confers authority on the appropriate authority to take a decision regarding establishment of a circuit Bench or a Bench of this Court. Prima facie, we are of the view that even assuming that the members of the Bar feel that the demand for establishment
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
11
smcp-3.15nwp-6093.15
of a Bench at a particular place is very legitimate, they cannot act against the well settled law as laid down by the Apex Court. They cannot force or compel a Constitutional Authority to act in a particular manner by exerting pressure by such illegal methods and by taking help of the political parties. What is material to note is that apart from lowering the dignity of the entire institution, the real sufferers were the common litigants as the functioning of the Courts on the relevant dates came to a complete standstill in major parts of the aforesaid Districts. Therefore, for the time being, we propose to issue a notice of Criminal Contempt to the Office Bearers of the concerned Bar Associations as well as the Action Committee on the basis of whose appeal the Advocates abstained from the Court work. 15.
::: Uploaded on - 15/09/2017
Hence, we direct that notices of criminal Contempt be issued in accordance with Rule 9(1) of Contempt of Court (Bombay High Court) Rules, 1994 to all the office bearers (Presidents, VicePresidents, Secretaries, Treasurers and the members of the Managing Committee) of the Kolhapur Bar Association, Sindhudurg District Bar Association, Dapoli, Ratnagiri, Lanja and Guhagar Bar Associations, Satara District Bar Association as well as Medha, Dahiwadi, Waduj and Koregaon Bar Associations. We direct that similar notices be issued to the office bearers of the Kolhapur Bench Action Committee. True copies of this order be forwarded along with the notices. As the names of the Office Bearers are not available on record, we direct that the notices be issued through the Principal District Judges of the District Courts at Kolhapur, Sindhudurg, Ratnagiri and Satara. The Notices are made returnable on 9th October 2015. The Registrar (JudicialI) shall ensure that the notices are prepared immediately after getting all the particulars from concerned Principal District Judges and the same are dispatched to the concerned Principal District Judges to ensure
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
12
smcp-3.15nwp-6093.15
completion of service on or before 9 th October 2015.”
13.
Thereafter, on 9th October 2015, when the Contempt
Petition was placed before this Court, in Paragraph 3, this Court observed thus: “3. The contemnors representing various Bar Associations who are present today assure the Court that till the Contempt Petition is heard, they will not take recourse to the objectionable activity of boycotting the Courts or abstaining from the Court work in support of a demand for establishing a Bench or a Circuit Bench at any place. They assured that they will not indulge in boycotting or abstaining from the Court work as a mark of protest against the failure of the Hon'ble the Chief Justice of this Court to take a decision to establish a Bench or a circuit Bench at a particular place. We must note that the learned senior counsel for the Kolhapur Bench Action Committee has also given the said assurance on behalf of the office bearers of the Action Committee. We accept the assurances given as aforesaid as the Undertakings. Only in view of the undertakings that we are granting a longer time to file a reply and that we are dispensing with the presence of majority of contemnors.” (emphasis added) 14.
Thereafter, several orders were passed from time to time.
On 28th October 2015, a Criminal Application was tendered across the bar by the President of Kolhapur Bar Association in which reliance was placed on the Special General Body meeting of Kolhapur District Bar Association held on 21st October 2015. On that date, a Resolution was
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
13
smcp-3.15nwp-6093.15
passed resolving that an Application should be made by the Bar Association for modification of the order dated 9 th October 2015 and for claiming exemption from filing the undertakings as aforesaid before this Court. This Court in the order passed on 28 th October 2015 observed that the act of passing the Resolution on 21 st October 2015 and the act of filing a Criminal Application amount to an aggravated contempt.
15.
The order dated 9th December 2015 notes that certain
District Courts Bar Association had taken a decision to abstain from the work of Lok Adalat on account of the failure of the Hon'ble Chief Justice to establish a bench of this Court at Kolhapur. This Court passed an order directing the Contemnors to reconsider the decision of boycotting the work of Lok Adalats. The order dated 29 th January 2016 records the statements of learned counsel representing various Bar Associations except Satara and Kolhapur Bar Associations that the members of the Bar have been participating in Lok Adalats and they will continue to do so. The order dated 11th March 2016 records that the Kolhapur District Bar Association passed a Resolution dated 10 th March 2016 recording a decision of the members of the Bar Association not to abstain from the work of Lok Adalats. The order dated 23 rd June 2016 is very material. Clause 1 of the said order reads thus: “Except for three members of the Manging Committee of the District Bar Association of Pune and office bearers of the Satara District Bar Association, all other Contemnors seem to have filed reply to the contempt
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
14
smcp-3.15nwp-6093.15
notices. The learned counsel representing the office bearers of Satara Bar Association to whom contempt notices have been issued states that now new office bearers and Managing Committee of the said District Bar Association has been elected. Nevertheless, the hearing of the contempt notices will have to be proceeded with as there is already a finding recorded by this Court that a prima facie case of contempt is made out against the contemnors who have been served with the contempt notices. We may, however, hasten to add here that undertakings which have been given by the office bearers of the Bar Associations who are contemnors have been filed on their behalf as well as on behalf of the concerned Bar Associations.” (emphasis added ) WRIT PETITION NO.6093 OF 2015
16.
As far as Writ Petition No.6093 of 2015 is concerned, the
said Writ Petition has been filed for inviting attention of the Court to the fact that the Pune Bar Association has taken a recourse to illegal and unlawful strike. It is pointed out that the members of the Bar Association and some of its office bearers are preventing some members of the Bar who are willing to carry on the Court work.
LEGAL POSITION
17.
Before adverting to the affidavits and submissions made
across the bar, the settled legal position will have to be highlighted. In the order dated 16th September 2015, this Court has already made a
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
15
smcp-3.15nwp-6093.15
reference to Paragraphs 20, 22 and 25 of the decision of the Apex Court in the case of Ex.Capt. Harish Uppal. The Paragraphs 20, 22 and 25 of the decision of the Apex Court in the case of Ex.Capt. Harish Uppal read thus: “20.
::: Uploaded on - 15/09/2017
Thus the law is already well settled. It is the duty of every advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that courts are under an obligation to hear and decide cases brought before them and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers, it would amount to scandalising the courts to undermine its authority and thereby the advocates will have committed contempt of court. Lawyers have known, at least since Mahabir Singh case [(1999) 1 SCC 37] that if they participate in a boycott or a strike, their action is ex facie bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of court/s. Lawyers have also known, at least since Ramon Services case [(2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152] that the advocates would be answerable for the consequences suffered by their clients if the nonappearance was solely on grounds of a strike call.”
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
16
smcp-3.15nwp-6093.15
21. It was expected that having known the well settled law and having seen that repeated strikes and boycotts have shaken the confidence of the public in the legal profession and affected administration of justice, there would be self regulation. The abovementioned interim order was passed in the hope that with selfrestraint and selfregulation the lawyers would retrieve their profession from lost social respect. The hope has not fructified. Unfortunately strikes and boycott calls are becoming a frequent spectacle. Strikes, boycott calls and even unruly and unbecoming conduct are becoming a frequent spectacle. On the slightest pretence strikes and/or boycott calls are resorted to. The judicial system is being held to ransom. Administration of law and justice is threatened. The rule of law is undermined. 22.
It was expected that having known the well settled law and having seen that repeated strikes and boycotts have shaken the confidence of the public in the legal profession and affected administration of justice, there would be self regulation. The above mentioned interim order was passed in the hope that with selfrestraint and selfregulation the lawyers would retrieve their profession from lost social respect. The hope has not fructified.”
“25.
Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of the Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and even Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott. Such requisitions should be
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
17
smcp-3.15nwp-6093.15
consigned to the place where they belong viz. the wastepaper basket. In case any Association calls for a strike or a call for boycott the State Bar Council concerned and on their failure the Bar Council of India must immediately take disciplinary action against the advocates who give a call for strike and if the Committee members permit calling of a meeting for such purpose, against the Committee members. Further, it is the duty of every advocate to boldly ignore a call for strike or boycott.” (emphasis added)
18.
Earlier orders of this Court make a reference to the decision
of the Apex Court in the case of Common Cause, a Registered Society v. Union of India and others. In the case of Roman Services Pvt. Ltd. v. Subhash Kapoor3, the Apex Court dealt with the consequences suffered by the litigants on account of non appearance of the Advocates on the ground of a call given for strike by Bar Associations. The Apex Court held that the members of the Bar will be responsible for the consequences suffered by the litigants.
19.
The Courts of Law are established for common man. A
litigant who comes to the Court of law is a consumer of justice. The functions and duties of the members of the Bar and Judges are complementary to each other. The ultimate object of members of the Bar and Judges is to ensure that justice is done to a common man. Their duty is to ensure that speedy justice is provided to the citizens. If 3
(2001)1 SCC 118
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
18
smcp-3.15nwp-6093.15
members of the Bar give a call for strike or for abstaining from the Court work, it completely paralyzes the administration of justice in the concerned Courts as it had happened in the Districts of Pune, Satara, Sangli, Kolhapur, Sindhudurg and Ratnagiri on account of call for strike given in support of the demand for establishing a bench of this Court. Though the decision of the Apex Court lays down that the members of the Bar should ignore such illegal call, very few lawyers showed the courage of defying the call. The reasons for not defying the call are obvious.
20.
In the State of Maharashtra, there is a huge pendency of
cases in all the Courts. Abstention by the members of the Bar leads to further delay in disposal of the proceedings. In many cases, the accused could not get bail though they deserved the grant of bail on merits, on account of boycott and/or strike by the members of the Bar. In many civil cases, the litigants must have been deprived of an opportunity to get an urgent adinterim relief. Such a call given for strike or to abstain from the Court work directly interferes with the administration of justice. It tends to interfere with due course of legal proceedings. In fact, it tends to obstruct the entire functioning of justice delivery system and, therefore, such conduct amounts to a criminal contempt within the meaning of Section 2(c) of the Contempt of Courts Act, 1971. Moreover, participating in such boycott or strike may
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
19
smcp-3.15nwp-6093.15
amount to infamous conduct on the part of the members of the Bar thereby attracting disciplinary proceedings under Section 35 of the Advocates Act, 1961. Moreover, such conduct will also amount to a civil contempt as it will amount to committing the breach of various directions of the Apex Court in the case of Harish Uppal (supra) and others.
21. The Lok Adalats constituted under the Legal Services Authorities Act, 1987 have trappings of a Civil Court. It can pass executable decrees by consent of the parties. The provisions of the Legal Services Authorities Act, 1987 will have to be considered in the light of the Section 89 of the Code of Civil Procedure, 1908. Therefore, the act of boycotting LokAdalats in support of a demand for establishing a bench of this Court will also attract the aforesaid consequences.
22.
The members of the Bar constitute a special class in our
society. They belong to an elite profession and therefore, a conduct of higher standards is expected of them. Under the guise of supporting the purported cause of litigants for establishing an additional bench of this Court, a prolonged abstention of the Advocates from the Court work has caused enormous damage to the cause of the litigants. It is unfortunate that the members of the Bar and especially some members
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
20
smcp-3.15nwp-6093.15
of the Bar at Kolhapur indulged in shouting of slogans against the then Hon’ble the Chief Justice of this Court and went to the extent of taking a mock funeral procession of the then Hon’ble the Chief Justice of this Court in the precincts of the Court. The justification offered is that the tempers were very high as an assurance given by Hon'ble the Chief Justice was not abided by. This explanation is completely devoid of merits. This has caused all the damage to the prestige and the dignity of the institution of the judiciary.
23.
In the light of the legal position, now the question is
whether any action deserves to be taken under the Contempt of Courts Act, 1971 for committing criminal contempt against the Contemnors against whom notices of contempt have been issued. In the light of the affidavits placed on record, the case of the Contemnors will have to be examined. Apart from the Solapur Bar Association and some of the Taluka Bar Associations in Ratnagiri District, none of the Bar Associations have disputed that the calls were given by the Bar Associations to boycott the Court proceedings. It is in the light of the admitted position that the conduct of the Respondents will have to be deprecated.
24.
The contempt notices have been issued initially basically on
the basis of the two letters written by the two members of the Pune Bar.
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
21
smcp-3.15nwp-6093.15
The two members of the Bar were restrained from appearing in Court by the President and the office bearers of the Pune Bar Association by using force. It is on the basis of these two letters, the Hon’ble the Chief Justice passed an order on 2nd July 2015 directing initiation of suo moto criminal contempt proceedings. Before the said order was passed, a report of the learned Principal District Judge, Pune was called for. The report records that the Pune Bar Association has given a call to abstain from the Court work for their demand for establishing a Bench of this Court at Pune. The report was placed along with the note put up by the Registry before the Hon’ble the Chief Justice. The learned Principal District Judge in his report noted that due to call given by the Pune Bar Association, the work of the Court has been paralyzed. The Pune Bar Association passed a Resolution calling upon the members of the Bar to abstain from the Court work in all the Civil and Criminal Courts as well as the Tribunals in Pune District with effect from 19 th June 2015. The order dated 3rd July 2015 makes a note of the fact that from 19 th June 2015, the members of the Bar have abstained from the Court work as a mark of protest due to the failure to establish a Bench of this Court at Pune. This Court in the order dated 3rd July 2015 noted that as the lawyers are abstaining from the Court work, a large number of litigants are being forced to approach this Court especially on the Criminal Side for seeking urgent reliefs. Therefore, a suo moto criminal contempt notice was issued to the office bearers of Pune Bar Association. After
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
22
smcp-3.15nwp-6093.15
aforesaid order was passed, on 4th July 2015, an urgent General Body Meeting of the Pune Bar Association was convened and earlier call given for abstaining from the Court work was withdrawn. On 28 th July 2015, Shri Girish C.Shedge, the then President of the Pune Bar Association and six others filed affidavits accepting their mistake of abstaining from the Court work in support of their demand for establishing a bench at Pune. Their affidavits refer to the aforesaid order dated 4th July 2015. In the said affidavits, the office bearers in their personal capacity have tendered an unconditional apology and they have given personal undertaking not to indulge in any such activities and not to encourage any one to indulge in such activities. On 6th August 2015, other 15 office bearers/Managing Committee Members filed similar affidavits.
25.
In the order dated 3rd July 2015, this Court referred to the
decision of the Apex Court in the case of Ex.Capt. Harish Uppal. This Court noted that a prima facie case is made out to initiate action for committing a criminal contempt against the office bearers of the Pune Bar Association. In the same order, this Court noted the statement of the learned senior counsel appearing for the Pune Bar Association that on the next day, a meeting of the Bar Association will be convened to reconsider the earlier decision. It is true that on the very next day, a Resolution was passed by the Pune Bar Association recalling its earlier
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
23
smcp-3.15nwp-6093.15
decision to boycott the Court proceedings. In the order dated 3 rd July 2015, this Court noted that the Pune Bar Association gave a call to abstain from the Court work from 19th June 2015. This Court noted as to how the litigants suffered enormous inconvenience and prejudice. Only after the intervention of the Court that perhaps wiser counsel prevailed over the members of the Pune Bar and on 4 th July 2015, the call earlier given to abstain from the Court work was withdrawn. But the fact remains that for a period of 16 days, the entire judiciary in the Pune District was paralyzed and hardly any judicial work could be done by the Judicial Officers. This happened in a District which is one of the largest judicial Districts in our country which is perhaps having highest pendency in the State. The members of the Bar took up the issue of establishing a bench at Pune presumably for the sake of litigants. In the bargain, they have done enormous prejudice and harm to the interests of litigants by abstaining from the Court work for such a long time. There are instances brought on record in Writ Petition No.6093 of 2015 and by way of letters addressed by the two members of the Bar as to how the members of the Bar adopted illegal and violent methods for preventing those members of the Bar who were willing to work in the Court.
26.
In the teeth of the law laid down by the Apex Court in its
decision in the case of Ex.Capt. Harish Uppal, the members of the Bar
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
24
smcp-3.15nwp-6093.15
indulged in gross illegalities which brought the institution of the judiciary in disrepute. Considering the Resolution passed on 4 th July 2015 and apology tendered by the office bearers and undertakings given by the office bearers, we propose to show leniency by granting pardon.
AFFIDAVIT FILED BY THE SOLAPUR BAR ASSOCIATION:
27.
Now, we turn to the stand taken by the Bar Associations.
We are referring to some of the affidavits filed on record. As far as Solapur Bar Association is concerned, the stand taken on oath is that the said Bar Association did not support the call given by the Action Committee at Kolhapur for boycotting the Courts on 9 th, 10th and 11th September 2015. Shri Shivshankar L. Ghodke, the President of Solapur Bar Association has stated that on 8 th, 9th & 10th September 2015, the members of Solapur Bar Association were working in Court at Solapur and they did not abstain from the Court work. He stated that so far the Solapur Bar Association is not a part of Kolhapur Bench Action Committee, Kolhapur. Therefore, he has sought discharge of the contempt notice. In Paragraph 5 of this affidavit, he has given an undertaking on behalf of the members of Solapur Bar Association that they will not indulge and commit any such act in future that will cause impediment in the functioning of the judiciary and stalling the work of
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
25
smcp-3.15nwp-6093.15
judicial system. He has stated that the members of Solapur Bar Association will see that the functioning of the Court and the judicial system would run in smooth and proper manner without there being any strike or boycott in the Court. He has stated that the members of the Bar were regularly attending Lok Adalats. We have no hesitation in accepting the statements made in the affidavit and undertaking given by Shri Ghodke as the undertaking given by the members of the Solapur Bar Association. There is no material placed on record to show that the members of the said Association have indulged in illegal activity of boycotting the Courts. Therefore, the contempt notice will have to be discharged as far as the members of the said Association are concerned.
AFFIDAVITS FILED BY THE PUNE FAMILY COURT LAWYERS' ASSOCIATION: 28.
As far as Pune Family Court Lawyers' Association is
concerned, there are affidavits filed by its office bearers. In the affidavit, it is accepted that there was a call given for abstaining from the Court work and which was withdrawn on 4 th July 2015. They have given an unconditional apology and have stated that they will not indulge in any illegal activities and will not encourage anybody else to indulge in any such activities. The Advocates practicing before the Family Court have more onerous responsibility. Their abstention directly affects several families.
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
26
smcp-3.15nwp-6093.15
AFFIDAVITS OF ADVOCATES' BAR ASSOCIATION OF DAHIWADI, DISTRICT – SATARA AND SATARA DISTRICT BAR ASSOCIATION: 29.
Shri Rajendrakumar Ramhari Jadhav, the President of
Dahiwadi Advocates' Bar Association, TalukaMan, District Satara, and the President and officer bearers of another Bar Association at Taluka Vaduj, District Satara as well as the President of Satara District Bar Association have filed affidavits and undertaken not to take recourse to such strikes during the pendency of the Petitions. The office bearers of various Taluka Bar Associations in Satara District have filed affidavits tendering apology and undertakings.
30.
Shri Rajendrakumar Ramhari Jadhav, the President of
Dahiwadi Taluka Bar Association, Shri Dhiraj Dattatray Kshirsagar, Vice President of Dahiwadi Taluka Bar Association and Shri Sagar Kundalik Bhosale, Secretary of Dahiwadi Taluka Bar Association have also filed affidavits tendering apology. They have given their personal undertakings not to go on strike or abstain from Court work or boycott the Court proceedings on the issue of formation of Bench of this Court at Kolhapur.
31.
Shri Mahesh N. Kulkarni, ExOfficio Vice President of
Satara District Bar Association, who is the District Government Pleader
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
27
smcp-3.15nwp-6093.15
of Satara, has given an undertaking stating that he has worked in the Court on 9th, 10th and 11th September 2015. Considering the statements on oath and documents annexed to the affidavit, there is no room to disbelieve the said statements.
AFFIDAVITS OF THE BAR ASSOCIATION OF SANGLI:
32.
Shri Harish Gokuldas Pratap and Shri Ravikant Rangarao
Patil, the Presidents of Sangli Bar Association for the years 201617 and 20152016 respectively, apart from tendering apology, have given undertakings not to boycott the Courts and the Lok Adalats.
AFFIDAVITS OF KOLHAPUR DISTRICT BAR ASSOCIATION:
33.
Shri Rajendra Lalasaheb Chavan, the President of both the
Kolhapur District Bar Association and Kolhapur Bench Action Committee has filed an affidavit dated 29 th January 2016. His contention is that the then Hon'ble the Chief Justice of Bombay High Court had assured the members of the Association that on 8 th September 2015, i.e. on the day of his retirement, he would take a final decision about the establishment of a Bench at Kolhapur. He stated that when in the evening of 8th September 2015, it was learnt that no decision has been taken, the public at large could not control their
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
28
smcp-3.15nwp-6093.15
feelings which led to protests and agitation in the evening of 8 th September 2015. Thereafter, at the instance of members of the Bar, a call for protest by the lawyers for three days in six Districts was given. He has accepted that there was an incident of a burning of effigy of the retired Chief Justice of Bombay High Court. He has stated that the act was unfortunate but was out of a sheer frustration. He claims that the Bar Association never supported such act. Thus, it is an admitted position that unpleasant events occurred in the Court and near the precincts of the Court at Kolhapur on the evening of 8 th September 2015. Involvement of the members of the Bar in the said incident is not disputed.
AFFIDAVIT OF LANJA BAR ASSOCIATION:
34.
Shri Rahul Madhusudan Desai, the Secretary of Lanja Bar
Association, has filed an affidavit stating therein that the said Bar Association supported the demand made by the Action Committee for the bench at Kolhapur and, therefore, a Resolution was passed on 9 th September 2015 for abstaining from the Court work. There are affidavits filed by the members of Lanja Bar Association giving assurances/ undertakings that pending the hearing of the Contempt Petition, they would not take recourse to such activities.
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
29
smcp-3.15nwp-6093.15
AFFIDAVITS OF DAPOLI BAR ASSOCIATION, GUHAGAR BAR ASSOCIATION AND RATNAGIRI BAR ASSOCIATION: 35.
There is an affidavit filed by Shri Vijay Chandrakant Pawar,
the Chairman of Dapoli Bar Association stating that the said Bar Association used to follow the instructions of Kolhapur High Court Action Committee and accordingly, a Resolution dated 9 th September 2015 was passed for abstaining from the Court work. In Paragraph 6, there is an undertaking given that the members of the Bar will not take any action in contravention of the order that this Court may pass in the Contempt Petition. There are similar affidavits filed by other office bearers of Dapoli Bar Association. Shri Girish Gopal Shembekar, who is a practising Advocate, has filed an affidavit stating that he was not an office bearer of the Bar Association and that he never boycotted the Court proceedings. His statements made in the affidavit deserve to be accepted. Shri Sanket A. Salvi and other office bearers of Guhagar Bar Association have filed affidavits tendering apology and accepting that on 9th September 2015, a meeting of Association was held in which it was decided to support the cause taken by the Kolhapur Bench Action Committee. However, they have categorically stated that on 9 th to 11th September 2015, the members of the Bar did not boycott the Court proceedings. We accept the said statements made by the members of the Managing Committee of Guhagar Bar Association.
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
36.
30
smcp-3.15nwp-6093.15
Shri Fazal Musa Dingankar, the President of Ratnagiri
District Bar Association, while tendering an apology has contended that though the cause propagated by Kolhapur Bench Action Committee was supported by the said Bar Association, it did not support the call given by the said Action Committee for boycotting the Courts and, therefore, during the period between 9th September 2015 to 11 th September 2015, the members of the Bar did not abstain from the Court work. There are similar affidavits filed by other office bearers of Ratnagiri Bar Association. Shri Fazal Musa Dingankar, the President of Ratnagiri Bar Association has filed another affidavit dated 22 nd December 2016 in which he has stated that he was the President of Ratnagiri Bar Association for the term 20142017. He has given undertaking not to take recourse to the strike or abstaining from the Court work as well as Lok Adalats. Similar undertakings have been given by other office bearers of Ratnagiri Bar Association. Another affidavit has been filed on 6th January 2017 by Shri Fazal Musa Dingankar, the President of Ratnagiri Bar Association stating that a Resolution has been passed by Ratnagiri Bar Association that the members of the Bar will not indulge in illegal act or will not go on strike or abstain from the Court work. He has also filed a separate affidavit reiterating his statement and stating that the members of the Bar Association will participate in Lok Adalats.
37.
Shri Nitin S. Sawant, a resident of Kherdi, Taluka –
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
31
smcp-3.15nwp-6093.15
Chiplun, District – Ratnagiri has stated in the affidavit that he has no concern with any Bar Association as its members. Nevertheless, he has tendered an apology. There are undertakings given by the office bearers of Guhagar Taluka Bar Association stating that they will not take recourse to strike till disposal of the Writ Petitions. There is another affidavit filed by Shri Nitin S. Sawant, residing at Kherdi, Taluka Chiplun, District – Ratnagiri to which he has annexed several documents showing that he has appeared in the Court on 9 th, 10th & 11th September 2015. The office bearers of Dapoli Bar Association, Ratnagiri, filed an affidavit stating that as per the Resolution of Dapoli Bar Association dated 6th January 2017, the Dapoli Bar Association resolved not to boycott the Court proceedings in future.
AFFIDAVIT OF LANJA BAR ASSOCIATION:
38.
Shri Sadanand Dhondu Gangan, who was the President of
Lanja Bar Association, has given an undertaking not to take recourse to strike or to abstain from the Court work. There are similar affidavits filed by the office bearers of Lanja Bar Association.
AFFIDAVIT OF DISTRICT BAR ASSOCIATION OF SINDHUDURG: 39.
Shri Veeresh Ramchandra Naik, the Secretary of
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
32
smcp-3.15nwp-6093.15
Sindhudurg District Bar Association has filed an affidavit dated 11 th April 2016 for himself and on behalf of the Bar Association. He has stated that the office bearers of Sindhudurg District Bar Association will not pass any Resolution for calling bandh or boycotting the Court or abstaining from the Court work as a mark of protest or in support of a demand for establishing a bench or a circuit bench of this Court in any part of Maharashtra and Goa.
40.
There are affidavits filed by the office bearers of
Sindhudurg District Bar Association tendering apology and assuring that till the Contempt Petition is disposed of, the office bearers of Sindhudurg District Bar Association will not pass any Resolution calling strike.
AFFIDAVIT OF BAR COUNCIL OF MAHARASHTRA AND GOA: 41.
Shri Pravin Y. Ranpise, the Secretary of Bar Council of
Maharashtra and Goa has filed an affidavit placing on record a Circular issued on 14th February 2014 to all Taluka and District Court Bar Associations forwarding therewith Resolutions passed by the Bar Council of Maharashtra and Goa on 27 th June 2015. By another affidavit dated 19th November 2015, he has placed on record Resolutions passed by the Bar Council of Maharashtra and Goa. A
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
33
smcp-3.15nwp-6093.15
Resolution dated 25th October 2015 records that the concerned office bearers of various Bar Associations as mentioned in the Resolution dated 4th October 2015 should not indulge in any such activity which paralyzes the functioning of the Court. It is stated that if they act contrary to the orders, it will be an act of gross misconduct.
CONCLUDING PART 42.
All the Contemnors who have filed the affidavits have
tendered apology. No one has disputed the legal position that the Bar Associations or the members of the bar have no right to abstain from the Court work or to boycott the Court proceedings or Lok Adalats in support of their demand for establishing a Bench or Circuit Bench of this Court at a particular place. Some of them, as stated above, have given undertakings not to indulge in such illegal acts till disposal of the Contempt Petition.
43.
The legal position is crystal clear. Such acts of the
Advocates of boycotting the Courts or abstaining from the Court work including the work of LokAdalats or making an appeal to the members of the Bar to do so in support of a demand for establishing a bench of this Court is not only illegal but the same amounts to committing both a civil and criminal contempt.
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
44.
34
smcp-3.15nwp-6093.15
It is unfortunate that some members of the Kolhapur Bar
Associations participated in the agitation on 8 th September 2015 which included an act of taking a mock funeral procession of the then Hon'ble the Chief Justice of this Court and thereafter, an act of burning the effigy of the then Chief Justice. A Chief Justice of this Court on his last working day ought not to have been attacked in this fashion.
45.
The Kolhapur Bar Association and the Kolhapur Bench
Action Committee had given a call for abstaining from Court work on 9th to 11th September 2015. The members of the Bar in Districts of Kolhapur, Sangli and Satara as well as members of the Bar at few places in Ratnagiri and Sindhudurg Districts abstained from the Court work accordingly. Therefore, the members of the said Associations are guilty of committing criminal contempt. Only in the light of the apologies tendered and undertakings on oath that we are showing mercy though they deserve no sympathy. If hereafter the members of the Bar take recourse to strike or boycott in support of their demand for establishing a bench or circuit Bench, it will be an act of aggravated criminal contempt which will be dealt with strictly and firmly. No member of the Bar can openly and blatantly defy the decisions of the Apex Court. The act of causing enormous harm to the interests of litigants and reputation of the institution will not be tolerated in future.
::: Uploaded on - 15/09/2017
::: Downloaded on - 15/09/2017 19:24:51 :::
WWW.LIVELAW.IN sng/skn
46.
35
smcp-3.15nwp-6093.15
Accordingly, we dispose of the Petitions by passing the
following order: ORDER : (a)
The apologies tendered by the Contemnors and the undertakings given by them to this Court are accepted;
(b)
The Contempt notices are discharged;
(c)
The Criminal Suo Moto Contempt Petition and the Civil Writ Petition are disposed of on above terms;
(d)
Criminal Application No.1 of 2016 is disposed of accordingly.
(ANUJA PRABHUDESSAI, J )
::: Uploaded on - 15/09/2017
(A.S.OKA, J)
::: Downloaded on - 15/09/2017 19:24:51 :::
