[Contempt case against a lawyer] Like Prashant Bhushan’s case, the Calcutta High Court asked lawyer to just tender the apology and the proceedings will be dropped.

      

[Contempt case against a lawyer] Like Prashant Bhushan’s case, the Calcutta High Court  asked lawyer to just tender the apology and the proceedings will be dropped.

Division bench headed by Chief Justice T. B. Radhakrishnan, with Justice Sanjib Banerjee granted one  weeks time to Adv. Bijoy Adhikri  to  file affidavit. Case fixed for 29^th September.

The Lawyer in his preliminary submission  insisted to drop the proceeding or issue summons to  Justice Dipankar Dutta (Chief Justice of Bombay High Court) as a witness.

Counsels for Respondent Lawyer said  that they will do their best to protect the respect and Independence of the Bar without affecting the respect for the Court as both are important and both cannot be compromised.

 Advocate General Mr. Kishor Dutta appeared as an Amicus to assist the Court.

 When matter came up for hearing, on 21.09.2020 the Counsel Mr. Soumya Roy, Ms. Sukanya Bhattacharyya , Md. Kutubuddin, Mr. Asim Ghoshal and many members of the Bar appeared physically in the Court Hall.

They tendered the Affidavit of Mr. Bijoy Adhikari where he sought discharge of show cause notice and in alternative to summon the witnesses including Justice Dipankar Dutta.

The Bench asked the Counsels appearing for Mr. Adhikari that the matter should be put to rest by just submitting the apology instead insisting trial.

The Concluding para of the reply affidavit of Mr. Adhikari reads thus;

 

     “ 28. CONCLUDING PARAGRAPH:

(i)  As per law laid down in K.T Chandy Vs. Mansa Ram Zade (1974) 1 SCC 414,  and in Re: Prashant Bhushan’s case 2020 SCC On Line  SC 663,  the stage of tendering unconditional apology comes only after the case against Alleged Contemnor is found to be correct and before the sentence is pronounced.

 (ii) The law laid down in Re: Vijay Kurle’s case and followed in  Re: Prashant Bhushan 2020 SCC On Line SC 646,  regarding non applicability of provisions of Contempt of Court’s Act, 1971 to the contempt proceedings is a per incuriam judgment as it is passed against the binding precedents of Full Bench in Pallav Sheth’s Case (2001) 7 SCC 349 Bal Thackrey’s Case (2005)1 SCC 254, and Constitution Bench in Baradkanta Mishra Vs.  The Registrar Of Orrisa (1974) 1 SCC 374,, Subramanyam Swamy (2014) 12 SCC 344, Re: C. S. Karnan(2017) 7 SCC 1, and therefore the law laid down by the Constitution Bench in Central Board of Dawoodi Bohra (2005) 2 SCC 673, of Official Liquidator Vs. Dayanand (2008) 10 SCC 1Sandeep Bafna’s case (2014) 16 SCC 623,  this Hon’ble Court is bound to follow the law laid down in Pallav sheth’s case (supra) and to decide the present proceedings as per said law.

(iii) The proceeding initiated against me is based on wrong and incorrect observations and also without jurisdiction as it is not as per Sec. 14 and other provisions of Contempt of Courts Act, and against the Rules framed by this Hon’ble Court and therefore it is vitiated as per law laid down by Division Bench of this Hon’ble Court in Manisha Mukherjee's Case 1985 Cri. L.J. 1224.  Therefore, the show cause notice served is liable to be discharged and the proceedings are liable to be dropped in view of various law laid down by this Hon’ble Court and Hon’ble Supreme Court as mentioned in the above paragraphs.

(iv) Before giving any finding against the Alleged Contemnor and before rejecting his stand taken in the Affidavit,  Hon’ble Court is required  to follow the mandatory procedure laid down by the Full Bench of Hon’ble Supreme Court in R.K. Anand (2009) 8 SCC 106 where it is ruled that;

 “ 208. ….In that situation it was only fair to give notice to the proceeded to substantiate the pleas taken in the reply affidavit by leading proper evidence. It must, therefore be held that the High Court rejected a material plea raised on behalf of the IU Khan without giving him any opportunity to substantiate it. ”

Also as has been followed by the three Judge Bench in Amicus Curiae Vs. Prashant Bhushan 2020 SCC Online SC 619 ,  as under;

“..3. In case we do not accept the explanation/apology, we will hear the matter. We reserve the order.”

  (v)  Thereafter if this Hon’ble didn’t accept my response/reply affidavit and didn’t discharge me from the charges then the  sufficient time needs to be given to challenge the said order  as the order not accepting discharge of Alleged Contemnor or order framing Charge  is appealable.[ R.N.Dey v. Bhagyabati Pramanik & Others (2000) 4 SCC 400, Anil Kumar Dubey Vs. Pradeep Kumar Shukla 2017 SCC Online Chh 95(FB)]

 

(v) And the proceedings be conducted after following the mandatory procedure of  recording  the plea of the Alleged Contemnor has been held in Court On Its On Motion Vs. Harmeet Singh 2020 SCC OnLine P&H 703, be pleased to allow me to disprove the case against me by examining the witnesses as has been ruled in R.S. Sherawat Vs. Rajeev Malhotra (2018) 10 SCC 574. ”

 Mr. Adhikari in his affidavit also pointed out that  Mr.  Nilesh Ojha will be appearing & acting as a counsel for him  and Adv. Asim Ghosal is advocate on record but the registry of the Court is insisting on Vakalatnama of Adv. Nilesh Ojha only and refused to accept the vakalatnama of Adv. Asim Ghoshal.  Therefore, he sought  appropriate order in this context and the registry may be directed to accept the Vakalatnama of and Adv. Asim Ghosal.

  After a long interaction with the senior members of the Bar and Advocate General Mr. Kishor Dutta  the Court passed the following order;

“At the request made on behalf of the alleged contemnor, who is said to be unwell, the matter is adjourned for a week.

Pursuant to the previous order of August 12, 2020, learned Advocate General has joined in.

In the event an unconditional apology is tendered by way of an affidavit when the matter appears next, the proceedings may be dropped.

The matter will appear on September 29, 2020.”

BACKGROUND OF THE CASE

In the order dated 23.03.2020 passed by a single judge of Calcutta High Court, Justice Dipankar Dutta (presently Chief Justice of Bombay High Court ) stated that while he was dictating the order declining an urgent hearing, the petitioner's lawyer, Advocate Bijoy Adhikary, repeatedly obstructed the course of administration of justice.

The order reads that,

"Mr. Adhikary was warned to behave but instead of heeding to such warning, he was heard to say that my future shall be doomed by him and for such purpose he cursed that I be infected by the Corona virus."

" The conduct of Mr. Adhikary, apart from being abominable, prima facie amounts to ‘criminal contempt’ within the meaning of section 2(c) of the Contempt of Court’s Act, 1971. Therefore, I have no other option but issue a suomotu Rule for contempt against Mr. Adhikary. Let the rule be drawn up in separate order sheet. Office is directed to serve the Rule on Mr. Adhikary as early as possible."

 

 However, the respondent Lawyer  Mr. Bijoy Adhikari, a 68 year old Lawyer having 40 years of standing at the Bar, denied to have been behaved in the manner mentioned in the order.

 When matter came for hearing on earlier date, Adv. Nilesh Ojha, Counsel from Mumbai a/w Adv. Shivam Mehra appeared on behalf of Mr. Bijoy Adhikari. While seeking adjournment for filing preliminary objection it was submitted by Mr. Ojha that the notice served upon his client is not in FORM –2 and without accompanying any order or documents.

The Division bench headed by Chief Justice T. B. Radhakrishnan, with Sanjib Banerjee while granting four weeks time to file reply appointed Advocate General as an Amicus Curiae to assist the Court.

“Mr. Nilesh Ojha, seeking to appear on behalf of the alleged contemnor, undertakes to file his Vakalatnama within a week from date. …….

The time to file reply is extended by four weeks from date. …. Let a copy of this order with the papers pertaining to the present proceeding be forwarded to the office of the Learned Advocate General for Learned Advocate General to be represented when the matter is taken up next. "

Then  Mr. Bijoy Adhikari prepared his Affidavit and raised preliminary objection about maintainability of the Contempt proceedings against him.

 

While speaking to reporters, it was pointed out by Mr. Ojha that if the contention of Justice Deepankar Dutta in his order dated 23.03.2020 were correct then it is a case of contempt on the face of the Court and the procedure as per sec 14 of the Contempt of Courts Act has to be followed by serving the notice on the spot . The reply may be asked to be submitted  after two weeks but action on the spot is necessary. If procedure under sec 14 is not followed then the subsequent notice as per sec 2( c) which is part of sec 15 of the Act is not permissible. Division Bench of Calcutta High Court in a similar case has dropped the contempt proceedings in the case of Smt. Manisha Mukherjee Vs. Asoke Chatterjee, reported in 1985 CRI.L.J. 1224.

Apart from the said illegality the notice not being in FORM – I is itself a ground to drop the proceeding.

Mr. Ojha said ,

“ My client is Lawyer with long standing of 40 years at the High Court and Suopreme Court. He is a 68 year old and it he is suffering with many health issues. He is continuously saying to not to have done any mischief.   Therefore Indian Bar Association took a decision to extend him support.The proceedings against him are liable to be dropped. If proceeding goes further then the respondent Lawyer is having right to produce witness and also to call Justice Dipankar Dutta in to witness box.”

 

 

 While speaking to the media Mr. Ojha said;

“ Since action under sec.14 of the Contempt of Court’s Act, 1971 was not taken on the spot and the Lawyer was allowed to leave the court hall, then subsequently  court is prohibited from taking cognizance and issuing show cause notice and proceedings are vitiated as per Calcutta High Court’s own Judgment in Manisha Mukharjee’s case. If proceeding goes further then the respondent Lawyer is having right to produce witnesses to prove his innocence and also to call Justice Dipankar Dutta in to witness box. In Suo Motu Vs. Santy George 2020 SCC OnLine Ker 563, the Division Bench of  High Court  issued summons to complaining Judge Kamal Pasha whose order was attacked and at whose instance the contempt proceedings were initiated.  

 In R. Vishwanathan Vs. Rukn AIR 1963 SC , the  sitting Chief Justice and other two sitting Judges of the High Court were cross examined to prove bias against the , 1 [Relevant para is para 110].

                         In the case of   Woodward Vs. Waterbury 155 A. 825 sitting Judge of the Supreme Court was summoned as a witness and was  cross examined for his observation in the order which were not supported by the material available on record.  Similar procedure is also followed in the case of Jawand Singh Hukam Singh 1959 Cri.L.J. 1469 (Para 72,73), Murat Lal Vs. Emperor 1917 SCC OnLine Pat 1. "