[Contempt case against lawyer dropped, Now Justice Dipankar Dutta is in trouble] Thousands of lawyers extended their support to Adv. Bijoy Adhikari to preserve independence of Bar.
[Contempt case against lawyer dropped, now Justice Dipankar Dutta is in trouble]
Thousands of lawyers have extended their support to Adv. Bijoy Adhikari to protect the independence of the Bar.
Division bench of the Calcutta High Court, headed by Chief Justice T. B. Radhakrishnan with Justice Sanjib Banerjee have dropped Contempt proceedings against Adv. Bijoy Adhikari, which were initiated by Single Judge.
Court has accepted the version of Advocate Bijoy Adhikari in his affidavit of apology which pointed out the facts of illegality on the part of Single Judge Dipankar Dutta, by not maintaining the social distancing in his court hall and putting the 68 year old lawyer's life in danger. It was contrary to the version of Single Judge Dipankar Dutta in the order issuing contempt notice. But Division Bench found the submission of lawyer acceptable and termed the incident as unfortunate.
Due to acceptance of version of lawyer, the version mentioned by the Single Judge is now proved to be not correct.
Several lawyers had prepared affidavits to point out the gross illegalities committed by Justice Dipankar Dutta.
Adv. Bijoy Adhikari is in discussion with members of the Bar for further course of action to be taken against Justice Dipankar Dutta for initiating frivolous contempt proceedings based on wrong facts.
The probable action may include the proceeding under section 211, 220,192, 167, 466, 474, 500,501 etc. of IPC along with the monetary compensation for the defamation and harassment caused to the lawyer.
Full Bench of Supreme Court in Hari Dass Vs. State AIR 1964 SC 1773 has clarified that the frivolous charge of Contempt is an offence under sec 211 of IPC.
The lawyer, in his preliminary submission had insisted to drop the proceedings or issue summons to Justice Dipankar Dutta (Chief Justice of Bombay High Court) as a witness. However the Division bench headed by Chief Justice T. B. Radhakrishnan with Justice Sanjib Banerjee had expressed their desire to drop the proceeding.
Counsels for Respondent lawyer had tried their best to protect the respect and independence of the Bar, without affecting the respect for the Court, as both are important and neither of these two could be compromised.
Advocate General Mr. Kishor Dutta had appeared as an Amicus to assist the Court.
The version of the lawyer Mr. Bijoy Adhikari which is accepted by the Division Bench reads thus;
“ ..That being the respectable member of the Bar and having long 41 years of standing, I am having highest respect for this Hon’ble Court. On 23.03.2020 there were some misunderstandings on unfortunate circumstances in the overcrowded court room of Dipankar Dutta J. and I mentioned that being a sick and weak senior member of the Bar alarming level of inaction had been experienced in his over crowded court room regarding social distancing. I tender therefore my unconditional apology before this Hon’ble Court and the contempt proceeding may kindly be dropped.”
The above version is against the version set out by Single Judge Dipankar Dutta in his order dated 23.03.2020. The said order reads thus;
“ While I was dictating the aforesaid order as to whether the writ petition involves such degree of urgency that it has to be taken up for consideration at this stage, Mr. Adhikary obstructed the course of administration of justice by not only interfering repeatedly in the course of dictation but also first thumped the addressing table and then banged the microphone on it, more than once. 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. Mr. Adhikary was curtly told that neither do I fear dooming of my future nor being infected by the virus; the majesty of the Court is what is paramount in my mind and to uphold that a rule for contempt could be issued against him. Mr. Adhikary seemed not to care and was found to be unrelenting in shouting at the top of his voice, not behoving a member of the noble profession and thereby undermining the dignity and prestige of this Court. It is indeed with difficulty that dictation of this order could be completed. ”
In fact when the matter came up for hearing on 21.09.2020, the Counsel Mr. Soumya Roy, Ms. Sukanya Bhattacharyya, Md. Kutubuddin, Mr. Asim Ghoshal and several members of the Bar appeared physically in the court hall and tendered the Affidavit of Mr. Bijoy Adhikari, wherein he has sought discharge of show cause notice and in the alternative has prayed to summon the witnesses including Justice Dipankar Dutta.
The Bench suggested to the Counsels appearing for Mr. Adhikari that the matter should be put to rest by simply submitting an apology instead of insisting on conducting the trial.
Then Mr. Adhikari had prepared an Affidavit of 95 pages and some significant points are reproduced below verbatim:
The role of Bar and Bench in achieving the ultimate goal of justice is brilliantly summed up by Hon’ble High Court in the case of High Court of Karnataka Vs. Jai Chaitanya Dasa 2015(3) AKR 627, it is ruled that;
“ ROLE OF BAR:
196. The first duty which the counsel owes to the Court is to maintain its honour and dignity. Respect and allegiance which the counsel owes is not to the person of the Judge but to his office. The duty of courtesy to the Court does not imply that he should not maintain his self-respect and independence as his client's advocate. Respect for the Court does not mean that the counsel should be servile. It is his duty, while respecting the dignity of Court, to stand firm in advocacy of the cause of his client and in maintaining the independence of the Bar. It is obviously in the interests of justice that an advocate should be secured in the enjoyment of considerable independence in performing his duties. An over subservient Bar would be one of the greatest misfortunes that could happen to the administration of justice.
200. There is the danger of a Judge placing over emphasis on the dignity of the Court in a manner which would be in conflict with the equally valuable principle of independence of the Bar in the advocacy of causes. An advocate in the conduct of his case is entitled to considerable latitude and the Courts should not be unduly sensitive about their dignity. Advocates like Judges are after all human beings and in the heat of argument occasional loss of temper is but natural. However, the advocate must not do anything which lowers public confidence in the administration of justice.
197. It is the duty of the Bar to support judges in their independence. In the integrity of judges lies the greatest safeguard of a nation's laws and liberties. Judicial independence is the only protection against tyranny and whims of the executive. Unless Judges are free from influence of the executive, and of outside persons, they cannot discharge their function to stand by the law and they cannot inspire public confidence. A free judiciary is the greatest bulwark of the independence of the Bar. In fact one cannot exist without the other. A strong Judge will always uphold the law, and that is also the aim of advocacy, even though the Judge and the advocate may differ in their point of view. The advocate must not do anything which is calculated to obstruct, divert or corrupt the stream of justice.
199. Advocates share with Judges the function that all controversies shall be settled in accordance with the law. They are partners in the common enterprise of the administration of justice. The difference in their roles is one of division of labour only; otherwise they are two branches of the same profession and neither is superior or inferior to other. This fact is now recognized in India by the autonomy given to the Bar by The Advocate Act, 1961. Judges cannot do without the help of advocates if justice is to be administered in accordance with law, and its administration is to command popular confidence. It is the function of an advocate not merely to speak for the client, whom he represents, but also to act as officer of justice and friend of the Court. The first duty which advocates and Judges owe to each other is mutual co-operation, that is a fundamental necessity. Without it there can be no orderly administration of justice. Nothing is more calculated to promote the smooth and satisfactory administration of justice than complete confidence and sympathy between Bench and the Bar. If the Advocate has lost confidence of the Bench he will soon lose that of his clients. A rebuke from the Bench may be fatal to his chances of securing a high standing at the Bar. Similarly if the Judge has lost confidence of the Bar he will soon lose confidence of the public.
195. Both the Bench and the Bar are equipments of the same machinery designed for the administration of justice. They are born and bred in the same nursery, and have common ideals and traditions. Both are equally necessary in a free country. A strong and impartial judiciary is the greatest bulwark against tyranny and wrong and impulsive action of the executive. This spirit of independence is also instinctive, in the advocate, for he is by habit a free thinker and tolerant of the views and criticisms of others.
198. The cardinal principle which determines the privileges and responsibilities of advocate in relation to the Court is that he is an officer of justice and friend of the Court. This is his primary position. A conduct, therefore, which is unworthy of him as an officer of justice cannot be justified by stating that he did it as the agent of his client. His status as an officer of justice does not mean that he is subordinate to the Judge. It only means that he is an integral part of the machinery for the administration of justice.
201. The casualness and indifference with which some members practice the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole.”
In Suo Moto (Court’s on it own Motion) Vs. T.G Bagul 2018 SCC OnLine Bom 4853, Division Bench of Bombay High Court headed by Hon’ble Justice Bhushan Gavai (now Judge of the Supreme Court ), while regretting for frivolous and wrong action of Contempt against Senior member of the Bar by Single Judge of the High Court and dropping the proceedings against the Lawyer had observed that “We cannot undo the damage which is caused to the Lawyers concerned and the agony with which they were required to go through for no reason. The only thing that we can do is to express regret for the same”
With this high tradition of most of upright and judicious Hon’ble Courts in India imparting justice between the parties based on the principle of “Don’t see who is right but see what is right” and protecting the ‘TRUTH’, I am availing this opportunity before this Hon’be Bench to whom I am having highest respect and highest expectation of Justice. In my submission I am going to point out my feelings and the feelings of the common members of the Bar and expect that this Hon’ble Bench will appreciate it for the betterment of Bench and Bar both so that neither members of the Bar is humiliated and also the dignity of the Hon’ble Court is not compromised. The ‘Independence of Bar’ and ‘Independence of Bench’ both are important and both should be protected.
With due respect it is submitted that if this Hon’ble Court did not go in to the truth and discharge me by just accepting the apology then it will be a ‘mere judgment’ and ‘not the complete Justice’ and I do not want to put this Hon’ble Bench in such trouble by requesting to discharge me without doing the enquiry about the actual truth.
Constitution Bench in Rupa Ashok Hurra Vs. Ashok Hurra (2001) 4 SCC 388, had ruled that Almighty alone is the dispenser of absolute justice however when the clear facts are brought to the notice of the Bench then it is obligatory duty of the Bench both legally and morally to rectify the error.”
The concluding para of the reply affidavit of Mr. Bijoy Adhikari which was returned by the Court 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: PrashantBhushan’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: PrashantBhushan 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 PallavSheth’sCase(2001)7SCC 349BalThackrey’s Case (2005)1 SCC 254, and Constitution Bench in Baradkanta Mishra Vs. The Registrar Of Orrisa (1974) 1 SCC 374,, SubramanyamSwamy (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)2SCC 673, ofOfficial Liquidator Vs.Dayanand(2008) 10 SCC 1, Sandeep Bafna’s case (2014) 16 SCC 623, this Hon’ble Court is bound to follow the law laid down in Pallavsheth’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. PrashantBhushan 2020 SCC Online SC 619 , as under;
“..3. In case we do not accept the explanation/apology, we will hear the matter. We reserve theorder.”
(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.SherawatVs.RajeevMalhotra(2018)10SCC574. ”
Mr. Adhikari in his affidavit has also pointed out that Mr. Nilesh Ojha would be appearing and acting as a Counsel for him and Adv. Asim Ghosal is Advocate on Record. But the Registry of the Court insisted on Vakalatnama of Adv. Nilesh Ojha and had refused to accept the vakalatnama of Adv. Asim Ghoshal. Therefore, the Counsel has sought an appropriate order in this context that the Registry may be directed to accept the Vakalatnama of Adv. Asim Ghosal.
After a long interaction with the senior members of the Bar, the Court has 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.”
Then on 25.09.2020, Mr. Bijoy Adhikari submitted his undconditional apology for pointing out the illegalities of Justice Dipankar Dutta and not for the allegations levelled in the order. Several advocates had prepared affidavit regarding the illegality committed by Justice Dipankar Dutta. But the matter was closed in a dignified manner. Therefore the order of Division Bench can now be used by the lawyer for initiating legal proceedings against Justice Dipankar Dutta.
The order of the Division Bench reads thus;
"In view of the unconditional apology in writing tendered by the alleged contemnor in his affidavit affirmed on September 25, 2020, the proceedings are dropped. It as an unfortunate incident which should never have happened. WPCRC 45 (W) of 2020 stands disposed of. Rule, if any, stands discharged."
Earlier the members of the Bar also shown their concern about undue haste
shown by the Court in posting the matter during lockdown.
When matter came for hearing on an 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 any accompanying 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.
“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 had prepared his Affidavit in which he has raised preliminary objections 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 Dipankar 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 section 14 of the Contempt of Courts Act has to be followed by serving the notice on the spot . The reply is permitted to be submitted after two weeks, but action on the spot is necessary. If procedure under section 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 – 2 is itself a ground to drop the proceeding.
Mr. Ojha stated;
“ My client is Lawyer with long standing of 41 years at the High Court and Supreme Court. He is a 68 year old and he is suffering from several health issues. He is continuously asserting 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 has a right to produce witness and also to call Justice Dipankar Dutta into the 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 SuoMotu 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 [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 was 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 (Para72,73), Murat Lal Vs. Emperor 1917 SCC OnLine Part 1."
The preliminary submission of Mr Bijoy Adhikari can be downloaded from;
The order of the Division Bench of Calcutta high Court can be downloaded from;