H B JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal filed by the appellant an Advocate practising in the City Magistrates Court. Ahmedabad against the order of conviction passed against him by the learned City Magistrate 10 Court Ahmedabad in Summary Case No. 884 of 1671. He is convicted of an offence under sec. 228 of the Indian Penal Code and an order of admonition has been passed against him.

(2.) The facts leading rise to this appeal briefly stated are as under :-The State had filed prosecution against one Vinodbhai for an offence punishable under sec. 324 of the Indian Penal Code. The informant in that case was one Purshottam Lallubhai one of the two injured persons. Another injured person was his wife Bai Manjula. The case was registered as Criminal Case No. 337 of 1971. Purshottam Lallubhai was examined as a witness in the Court of City Magistrate 10 Court Ahmedabad on 20-4-1971. His evidence is recorded at Ex. 8. First Information Report given by him is Ex. 9. Bai Manjula who according to the prosecution was the legally wedded wife of Purshottam was examined on the same day. Her evidence is recorded at Ex. 10. A few other witnesses were examined earlier. Their examination is not material for our purposes. The case came to be adjourned to 26-5-1971. Evidence of Sakarben wife of one Chhotalal and sister of Purshottam the informant was partly recorded. Her examination in chief was over. The appellant was appearing as the advocate for accused Vinod in that case. He started the cross examination of witness Sakarben. After putting certain questions when the stage of putting the following question came this unhappy incident took place at the close of the day at 5-40 p.m. The question was put to that witness on behalf of the accused by the appellant as to whether there was marriage of Bai Manjula with the complainant Purshottam meaning thereby that the factum and the validity of the marriage were under challenge. The learned Magistrate the presiding officer of the court ruled out this question on the ground that it was irrelevant. The advocate appearing for the accused Vinod feeling that this question was relevant repeated the question and gave an application stating therein the question put by him which is on the record of that particular case in Miscellaneous file at Ex 9. The learned Magistrate finding that this question was being repeated in spite of his giving a ruling that the question was irrelevant felt that this was an unruly conduct on the part of the advocate and it was interruption with his discharge of duty in the administration of justice. He therefore took cognizance of the offence under sec. 228 of the Indian Penal Code and oral show cause notice was given to the appellant as to why he should not be convicted of the offence in question. The appellants examination was made. He was asked whether he was ready to tender apology. The appellant said that he had not committed any contempt of the court. He was putting this question in the interest of the party so even though the court disallowed the question he had asked it again. His further explanation is that this question was not on record so to bring it on record he had asked this question. At that stage the learned Magistrate asked him whether he wants to tender apology about behaving in such an unruly. manner he declined it. The learned Magistrate thereupon recorded the order of conviction and the order of admonition which are under challenge before me in this appeal.

(3.) Mr. H. K. Thakore learned advocate appearing for the appellant urged that on perusing the complaint Ex 9 of the particular case it appears that the incident of assault took place according to the prosecution as Vinod the brother of Bai Manjula and parents of Bai Manjula did not approve of the so called marriage of Bai Manjula with Purshottam the informant. According to the prosecution itself that was the motive for the crime in question. It was therefore contended that the appellant advocate who was defending accused Vinod in that case was justified in putting this question with a view to bring on record the material question whether there was any such marriage and whether that marriage was valid in law meaning thereby whether necessary ceremonies were performed to constitute a valid marriage between the parties. It was further contended by him that such a question was put to witness Manjulaben who was examined earlier and the answer to that question has come on the record. It was submitted by Mr. Thakore that in the courts subordinate as well as this court day in and day out it happens that the Presiding Officer of the court expresses a particular opinion on the question arising before him and the advocate concerned is told about it. In spite of it the advocate persists in arguing the question posed and tries to persuade the court that the opinion expressed was not correct. If in such circumstances on account of such persistence the Presiding Officer of the court becomes hyper sensitive and becomes more touchy it will result in the meek submission at the Bar. Members of the Bar have to discharge their duties independently and fearlessly for helping the cause of administration of justice. Mr. Thakore submits that no doubt a member of the Bar is equally expected to be respectful to the court and has to courteously try to persuade the court and to bring it round to his view if he feels that his view is correct. Mr. Thakore submits that the advocates are the officers of the court. They owe duty to the court as well as to their clients. Members of the Bench and the Members of the Bar have to develop a mutual regard and respect for each other if the interest of the administration of justice is to be furthered. If there is development of mutual antagonism this noble cause would suffer. It is urged by him that even if all the facts stated by the Presiding Officer viz. respondent No. 2 in his judgment are held to be true the offence in question is not established. Mr. Joshi (appellant) never intended to offer any insult or to cause any interruption in the work of the court within the meaning of sec. 228 of the Indian Penal Code. He was under a belief that the question that he intended to put and which he repeated in spite of the ruling given by the learned Magistrate to the contrary was a material question for the decision of the case He had not made any remark which would justify the court to come to the conclusion that the decorum of the court was not being maintained and an attempt was made to insult the court or to cause any interruption to the court within the meaning of sec. 228 of the Indian Penal Code. On such persistence even if it may have annoyed the Presiding Officer of the court in the heat of moment he should not have taken such a drastic action against the practising advocate. If such a drastic action is taken against a practising advocate in these circumstances it would adversely affect the cause of administration of justice. It will result in a meek submission of the advocates to the Presiding Officer of the court. They will not be able to discharge their duties efficiently and the necessary consequence would be that the noble cause of administration of justice would suffer. It was not at all a case of any dis respect shown by the advocate to the court by making any remark or any gesture. It was therefore contended that this order of conviction and the order of admonition should be set aside.