SUO MOTU Vs. S B VAKIL

JUDGEMENT

(1.) The instant Suo motu proceedings are registered against the respondent in view of the following facts which emerge from the order dated February 17, 2006, passed by the learned Single Judge. When the learned Single Judge was hearing Company Application No. 239 of 2005. a mobile phone started ringing in the Court. The Court saw that keeping mobile phone in hand, the respondent was walking out of the Court. When the Court noticed this the Court called the respondent. According to the learned Single Judge instead of expressing any remorse or regrets, the respondent started saying that he was keeping his mobile phone on vibration mode but as he had to take some medicines, he had set the alarm which went off. The learned Judge noticed that the respondent did not express a word of regret upto that time and when the Court asked him that the Court was likely to issue a notice to him to show cause, he said that it was the choice of the Court. Thereupon, the learned Single Judge by an order dated February 17. 2006 directed to issue notice to the respondent calling upon him to show cause as to why he should not be punished under the provisions of the Contempt of Courts Act, 1971 ('the Act' for short) for ignoring the directions issued by this Court that nobody should bring his working mobile phone in the Court nor should allow his mobile to ring. After directing to issue notice, as staled above, the learned Judge directed to put up the matter on February 24,2006 and asked the respondent to remain in attendance. It was also directed that the copy of the order be served on the respondent and separate proceedings be registered. Further the Registry was directed to place the matter before the learned Judge himself as according to the learned Judge the contempt was on face of the Judge. Pursuant to the abovenoted order, the Registry registered suo motu contempt proceedings against the respondent as Misc.Civil Application No.27 of 2006.

(2.) On receipt of the notice dated February 17/20. 2006 and the order dated February 17,2006, the respondent filed affidavit-in-reply dated February 23,2006 stating inter alia that there were certain factual mistakes in order dated February 17,2006, which were either not there in the order dictated in the open Court or were not noticed by him. The respondent has mentioned in the reply that the Court had not called him on noticing that keeping mobile in hand he was walking out of the Court but according to the respondent, he was surprised and alarmed that the alarm of his mobile phone rung in the court-room and in order to prevent disturbance to the Court, he had rushed out of the Courtroom, simultaneously trying to switch off the alarm and before he had stepped out of the Court room, the alarm was switched off. The respondent has stated in the reply that within about three or four minutes his instructing advocate, who is his son, had come out of the Court and informed him that alter he had come out of the Court room. His Lordship had expressed displeasure on the alarm starting to sound in the court-room and though he had apologised on behalf of the respondent. His Lordship had called for the respondent. According to the respondent immediately he had returned back in the Court room and on getting opportunity explained apologetically to His Lordship that as he was required to take some medicines at about 12.30 p.m. he had, while in Chamber, set the alarm. The respondent has explained in the reply that he had received a message at about 12.00 noon that the matter was likely to reach shortly and, therefore, he had got dressed to come to the Court and that though he had set the mobile on vibration mode he had through oversight failed to switch off the alarm. The respondent has stressed in the reply that after he had switched off the alarm, as slated above, there was no further ringing thereof at any time. According to the respondent he had staled before the Court that he was sorry but His Lordship had remarked that the respondent should have first apologised and then given the explanation. The respondent has mentioned in the reply that in spite of his having expressed his regret. His Lordship had told him that it was proposed to issue a show cause notice for contempt of court and as he was helpless, he had told His Lordship that it was upto His Lordship. The respondent has stated that the order dated February 17.2006 needs to be recalled because summary trial of the charge of contempt of Court said to have been committed in presence or hearing of the Supreme Court or High Court by the Judge concerned is an exceplion to the general rule that a person should not appear to he both the prosecutor and the Judge. What is maintained by the respondent in his reply is that normally a Judge ought not to take action for in facie curiae contempt unless the Judge is impelled to do so. According to the respondent a Judge would be justified to act of his own motion only if (a) the coniempt is clear, (b) the contempt affects a trial in progress or about to start. (c) it is urgent and imperative to acl immediately in order to prevent justice being obstructed and undermined and to preserve the integrity of the trial, and (d) no other procedure will do if the ends of justice are to be met. After emphasising that the facts of the case do not justify resorting to suo motu proceedings under Section 14 of the Act, it is mentioned by the respondent in the reply that the direction contained in the order dated February 17,2006 that the matter must be placed before the very Court runs counter to the decision of this Court in Ajit D.Padiwal v. State of Gujarat and others, 39(2) GLR 1182. What is relevant to notice is that regretting and expressing his sorrow and regrets for the ringing albeit without his intention and through his oversight, of alarm of his mobile phone in the court-room, the respondent has staled that the same does not amount to any coniempt of Court. What is mentioned by the respondent in his reply is that the alarm going off in the court-room was not an intentional, willful or deliberate act of his or any wilful, intentional or deliberate disobedience on his part of any direction of the court. By filing the reply, the respondent has claimed that the notice issued to him should be discharged.

(3.) Mr.Percy Kavina, a practising lawyer of this Court, has filed affidavit on February 23,2006 staling inter alia that he was present in the court-room of the learned Single Judge on February 17.2006 and at or about 12.30 p.m. he had noticed that while the matter at item No. 12 was being argued, the cell phone of the respondent seemed to ring. According to Mr. Kavina, the respondent immediately rose from his seat and walked towards the exit, in the meanwhile taking out the cellphone and trying to silence it. Mr. Kavina has mentioned in the affidavit that after the respondent had left the court-room, the learned Single Judge had commented upon the fact that it was shocking and inappropriate that the phone of such a senior member of the Bar should have sounded in the midst of a hearing in court. What is mentioned by Mr.Kavina is that the son of the respondent, with whom the respondent was to appear in the matter in that Court, had immediately risen to his feel and apologised profusely to the learned single Judge for the disturbance, but the learned Judge had made a comment to the effect that the apology of son of the respondent was not necessary nor sufficient. It is further stated by Mr.Kavina in his affidavit that the son of the respondent had inquired of the learned Judge whether he should call the respondent back inside the Court and thereupon learned Judge had observed that "if you don't call him. I will". Mr. Kavina has further stated that the respondent was, thereafter, called inside the court-room and he had come in at once and gone up to the front row of the court-room and on the learned Judge looking to him had addressed the Court. What is mentioned by Mr.Kavina is that during the entire period of exchange between the learned Judge and the respondent till the conclusion of the dictation of the order by the learned Single Judge, the respondent had regretfully and respectfully explained in what circumstances the ring of the phone had gone off. Mr. Kavina has mentioned that the respondent had said that as a matter of course, his phone was always on vibration mode in a court-room but in the present instance he had put a reminder alarm for 12.30 p.m. to remind him to take medicine. Mr.Kavina has further stated that the respondent had regrelted the circumstances which had led to the alarm going off and that the explanation and manner of delivery of the same had shown the genuine regret and contrition on the part of the respondent. According to Mr.Kavina when the respondent was about to complete his explanation, which was in the nature of an apology, the learned Judge had asked the respondent as to why he had not apologised at the very beginning of his address and stated that it was proposed to issue notice to him for contempt of court. It is maintained by Mr.Kavina in his affidavit that the respondent had thereupon replied that it was upto His Lordship.