Judgment:
M.F. Saldanha, J.
1. We need to prefix this judgment with the observation that this proceeding presents a distressing state of affairs for more than one reason. The first of them is because the party against whom the proceeding has been instituted happens to be a lawyer and a lawyer being an Officer of the Court, it is always been looked upon as being his duty to ensure that standards of professional ethics and propriety are observed at all stages. In the recent past, there has been several blemishes in this regard and it is equally the bounded duty of the judiciary to ensure that in those of the cases where a member of the bar does unfortunately mis-conduct himself or where he is responsible for conduct that undermines the working of the Courts or the Judges, that it will be very necessary from the angles of principle and propriety to take adequate corrective action. The Courts will always adopt an understanding and helpful attitude while dealing with the members of the bar and as a reciprocation, there is an equal and legitimate expectation that the members of the bar will also observe the requisite decorum, propriety and ethics at all times in the conduct of their work and in their dealings with the Courts.
2. This is a case in which the respondent was facing a prosecution for an alleged offence under Section 420 I.P.C. and a petition being Criminal No. 175 of 1989 was filed before this Court under Section 438 Cr.P.C. praying for anticipatory bail. The only aspect of the case with which we are here concerned is that the office raised an objection to the effect that the details of the application made to the Court of Sessions prior to the filing of the bail petition should be furnished. The learned advocate who was then representing the petitioner insisted that the office should place the matter before the Court and that he would make the necessary submissions at that time. When the case was taken up for hearing the question of the office objection did arise and the learned advocate pointed out to the Court that an application had in fact been made to the Court of Sessions and that the application had been rejected. An oral statement was made to the effect that since the order had been passed very recently by the Sessions Court, that only an ordinary uncertified copy was with the learned Advocate, but a typed copy of the same was produced and tendered to the Court. This Court accepted the correctness of that statement and heard the matter and passed appropriate orders. Subsequently, it was brought to the notice of the Court that no such application had been filed before the Sessions Court and that the statement which had been made here to the effect that the earlier application for bail had been rejected by the Sessions Court was a false statement. Secondly, what is more serious is that it transpired that the copy of the so called order that had been tendered on the basis of which the Learned Judge of this Court was made to believe that the Court of Sessions had rejected the earlier bail application was a non-existent order in so far as no such order had been passed by the Sessions Court and consequently, it was obvious that what had been produced in the High Court was a fabrication.
3. As a result of this state of affairs, the present contempt proceedings came to be instituted, but apart from these proceedings, an enquiry was directed for purposes of ascertaining as to whether or hot this was a fit case in which the petitioner was required to be prosecuted in an appropriate Criminal Court. Since that enquiry was pending, the present contempt proceedings which date back to the year 1989 were kept pending. The enquiry in question was concluded and it was revealed that this was a case in which the respondent to this proceeding had prima face committed the acts that would justify a prosecution. Accordingly, the respondent has been prosecuted before the Criminal Court for the relevant offences, but we are not much concerned with that proceeding.
4. As far as the present proceeding is concerned, the short question that arises is as to whether by making the statement that has turned out to be false in the course of the judicial proceeding, the respondent is guilty of an act of criminal contempt. A charge was framed against him and the respondent has pleaded not guilty. The evidence was thereafter recorded and the defence that has essentially had been taken up proceeds on the footing that the matter in the High Court was not handled by the petitioner personally. His contention is that since he was the accused, that he had entrusted the matter to certain colleagues of his who in turn engaged the learned advocate who handled the matter in the High Court. The learned advocate who handled the mater in the High Court Sri Shivayogimath has been examined as a witness and he has stated, that the respondent along with the learned advocate had engaged him to appear in the matter, that it was they who briefed him and that everything done by him in the proceeding had been under their specific instructions. This aspect of the matter assumes some significance because the respondent had sought to contend that if something has gone wrong in the course of the filing and hearing of the petition in the High Court, that he was not responsible for it and that at the very highest, it would be the learned advocate who handled the matter here. Mr. Shivayogimath on the other hand has very clearly stated in his evidence that he had acted entirely on the basis of the instructions. Under normal circumstances we would have not totally exonerated the learned advocate who appeared in the proceeding in the High Court because this is a matter of considerable seriousness where a false statement had been made in the course of the judicial proceeding, but we do find in this case that Mr. Shivayogimath is perhaps justified in what has been pointed out by him. It is not a mere formal statement that has been made such as the usual averment which is required in many proceedings that no other application or petition is filed etc., but in this instance, the requirements were that the details of the petition filed before the lower Court had to be set out and this is not something that the Learned Advocate at this end could have fabricated on his own. The number of the proceeding had been indicated and in fact a copy of the so called order that is alleged to have been passed rejecting the bail application that again was never filed before the Sessions Court has been produced before this Court. We are more than satisfied about the fact that the Learned Advocate who handled that proceeding in the High Court could not have invented these details and fabricated the copy of the order on his own as there was among other things no occasion or justification for him to do that. On the other hand, we have taken special note of the fact that it was in some what similar circumstances that the respondent himself had been prosecuted before the lower Court and this is a significant fact of which we have taken due note. It is in this background that it is abundantly dear to us that Mr. Shivayogimath had obviously been completely misled by the persons who briefed him and that the copy of the documents produced by him before the High Court had been handed over to him by those persons. It is also dear that the respondent was personally present in Bangalore along with the learned advocate, that he had met Mr. Shivayogimath at the time when the petition was prepared and that he had also instructed him. The fact that he may or may not have been assisted by the advocate colleague makes very difference to the case.
5. The evidence in this case hinges essentially around this aspect of the matter. We are not really concerned with the initial proceeding that was pending before the Trial Court or that of the other extraneous issues that have been invariably referred to from time to time. The fact of the matter is that despite the charge having been framed, and the respondent having adduced whatever evidence he wants in his defence that he has not been able to satisfy this Court that the statement made viz., that an earlier application for bail had been filed before the Court of Sessions and that the copy of the order that was produced before the High Court which was supposed to be the rejection by the lower Court of that application are not false. This basically is the crux of the matter and the subsidiary issue is to whether the making of such a false statement both in writing and orally and the tendering of supportive material that is also established to have been taken place can come within the ambit of Criminal Contempt.
6. We need to briefly deal with one submission that Mr. Naik Learned Counsel who represents the respondent raised before us. He pointed out that the respondent is now facting a prosecution before the Criminal Court and that is a matter which entails penal consequences. Similarly he pointed out that as far as the present proceeding is concerned, it is an action under the Contempt of Courts Act wherein his client is equally faced with penal consequences if the verdict were to go against him. He has raised two submissions which we shall deal with in this background. Firstly, he has contended that his client is exposed to the risk of double jeopardy insofar as he is being prosecuted before the two different forums on the same set of charges. His submission therefore is that one of the proceedings alone is entitled to be taken up because it is a well settled canon of Criminal Jurisprudence that the accused cannot be tried more than once for the same offence. As far as this aspect of the matter goes, the learned SPP submitted that the argument has proceeded on a wrong footing because the charges in the two proceedings are very different and secondly, because the doctrine of double jeopardy will not be available to the respondent in this case. As far as this submission goes, we need to clarify that the doctrine of double jeopardy which is based on the Latin Maxim of autte for acquit pre supposes the fact that an accused has been tried in a competent Criminal Court and that the proceeding has ended in an order of acquittal or in other words, that he has been cleared of the charges by a competent Criminal Court. Once such a procedure is over, it is well settled law that he cannot put on trial once again on the same set of charges. The extension of this principle lays down that similarly where the accused has been tried and convicted by a Court of competent jurisdiction that there cannot be a further or second prosecution on the same charge. It is in this background that one will have to examine the objection that has been canvassed by the respondent's Learned Counsel. As far as the two proceedings that are referred to here are concerned, we need to clarify that the contempt proceedings with which we are concerned are in no way connected even remotely with the charges that the accused is facing before the Criminal Court. As far as this Court is concerned, the charge is confined to a question of impropriety viz., the fact that certain statements were made and certain documents were produced in the course of hearing of the anticipatory bail application before the High Court which statements turned out to be false and which documents turned out to be a fabrication. The short issue is as to whether by misleading the High Court, the respondent has interfered with the course of judicial proceeding or whether he has prejudiced the course of a judicial proceeding. It may be that the consequences of such an action are that the respondent if he is found guilty would be liable to a certain punishment but this would not in our considered view, in any way affect or conflict with or debar the continuation or maintainability of the criminal proceeding. The principle of double jeopardy therefore would not apply to the present situation and it is in this background that the submission canvassed in this regard will have to be discarded.
7. The subsidiary argument proceeded on the footing that two proceedings which in sum and substance center around the same charges ought not to be permitted to go on as one has a beating on the other. As far as this aspect, is concerned, we have already clarified that the proceedings are dissimilar both in that character and as far as the consequences are concerned and that they are in no way either over lapping or inter-connected. The law itself makes provision for situation of this type and we need to illustrate that under the Customs Act the law provides for penalties in adjudication proceedings and if the offences are sufficiently of a grave character for a complaint to be filed and a criminal prosecution to follow in respect of the same act. There are several other parallels in various Statutes which dearly embody the principle that different forms of proceedings may be prosecuted in respect of a series of acts that would qualify for more than one set of punishment. We are therefore unable to sustain the second objection that has been canvassed.
8. We do however consider that there is considerable justification in the third objection that has been raised by Mr. Naik, wherein he has conveyed a request to the Court that this proceeding should not precede the conclusion of the criminal trial. Learned Counsel points out to us that even if that proceeding is permissible in law and will have to be gone on with, that effectively the record in the two proceedings is more or less the same and that therefore once the higher of the two Courts viz., this Court comes to a conclusion on certain aspects of the case, that the same conclusion is inevitable as far as the Trial Court is concerned. Learned Counsel therefore submitted that in this background if this Court were to conclude the present proceeding and the verdict were to be adverse to the respondent that it would virtually render him defenceless before the Trial Court. He therefore submitted that it would infringe upon the rights of the accused as far as a fair trial defence is concerned. From this point of view the only application made by the Learned Counsel was that since this proceeding has virtually reached the final stages, since the evidence has been recorded and that since it is only the final orders that were to be passed, that this last stage be deferred until the criminal trial is concluded. As far as this aspect of the matter is concerned, we have taken note of the fact that this contempt proceeding is pending since the year 1989. The respondent himself has made a grievance of the fact that he has had to bear up with this proceeding for the last seven years and that he had to make as many as 40 trips to this Court during this period of time. It is in this background that we recently passed an order to the effect that it is unfair to the respondent himself if these proceedings were to be kept lingering and therefore must be disposed of. We do not propose to alter this order. But in the light of the submission that has been made, we propose to issue certain specific directions to the Trial Court before which the prosecution is pending.
9(a). The Trial Court will make a careful note of the fact that the charges in the present proceeding are confined only to issues of propriety within the framework of the Contempt of Courts Act and that therefore, any findings or observations that have been recorded by this Court shall neither bind nor be taken into consideration by the Trial Court in the prosecution that is pending before it against the accused.
(b) That the Trial Court shall comply with the basic principles of Criminal Law viz., that the charge is required to be proved beyond reasonable doubt before that Court by the prosecution will have to be adhered to and that not even a reference to the present proceeding shall be made as far as that Court is concerned insofar as no prejudice of even the slightest type shall be caused to the accused in the course of that proceeding. This in our considered view will more than adequately safeguard the respondent and will ensure that he receives absolutely fair treatment in the course of that prosecution.
10. Mr. Naik in the course of his submissions advanced the argument that this Court should take note of one important fact viz., that whatever transpired in the course of the hearing of the anticipatory bail application was merely procedural and not of any serious consequence. In this regard, he submitted that the power to grant anticipatory bail under Section 438 Cr.P.C. is a parallel power that can equally be exercised either by the Court of Sessions or by the High Court. Learned Counsel submitted that in a given case, the law equally permits an accused person to directly approach the High Court for anticipatory bail. It may be that if he were to go to the Sessions Court in the first instance that he would have a right to ask the High Court to review the order if he had been unsuccessful, but the Learned Counsel submits that this section itself entitles an accused to straightaway approach this Court without first approaching the Court of Sessions. He submits that in this background, the respondent was entitled to directly move the High Court if for any reason he was of the view that he may not have been successful had he approached the Court of Sessions at Raichur. If the office had therefore insisted on the details of the earlier petition or the order passed thereon being produced and assuming therefore some misunderstanding or a communication gap or for any other reason such a application not having been filed and in order to get over the office objection , some incorrect statements are made, the Learned Counsel submits that this would still not constitute any serious breach of propriety because it is not as though the High Court had no jurisdiction to hear the matter and that it was misled in doing so.
11. The learned SPP was quick to point out to us that New Code of Criminal Procedure came on to the Statute book more than 20 years ago and that the Courts themselves have imposed certain restrictions on a direct application for anticipatory bail application being made to the High Court. One of these is because the prosecuting authorities are invariably closer to the Sessions Court and because the Public Prosecutor in that Court can readily obtain instructions from the prosecuting authorities whereas there is a considerable degree of delay as far as the High Court is concerned if the prosecuting authorities in different parts of the State are required to be contacted. Apart from this, the High Courts have invariably insisted that the application must be made in the first instance to the Court of Sessions. Quite apart from the objection canvassed by the learned SPP, it is now well settled law that an application for anticipatory bail must in the first instance be presented to the Court of Sessions and if the party is unsuccessful, then it is perfectly permissible, thereafter to approach the High Court. There is considerable case law with regard to this aspect of the matter which we do not propose to refer to, but the fact remains that in this background, the petition for anticipatory bail failed by the respondent would have been straightaway rejected by this Court had it been pointed out or admitted to the Court that no such application had been earlier presented to the Sessions Court. In order to get over this obvious defect, an incorrect statement was put into the petition and an incorrect submission was made to the Court on behalf of the respondent and this was sought to be substantiated by producing typed copies of the so called order. It is in this background that we are constrained to hold that this Court was clearly and deliberately misled.
12. As indicated by us at the beginning of this judgment the rules of propriety and professional ethics require that no false statement be made or sharp practices be indulged in the course of judicial proceedings because that is an anti-thesis to the working of the entire system. All judicial proceedings heavily depend on a very high degree of trust as far as both the Courts and learned Advocates are concerned and it is equally necessary to enforce them because it is not possible for the judges to verify each and every statement made by the Learned Advocate or by parties in the course of pleadings. It is in this background if it is disclosed that a statement which is false and a statement which is incorrect and a document which is a fabrication is used in the course of a judicial proceedings and as a result thereof the Court passes an order which it would normally would not have done, that it constitutes a clear fraud on the system. It is in such a background that there cannot be two opinion about the fact that such a process would not only interfere with the working of the system but that it would prejudice the same. We have no hesitation in holding therefore that a party who commits acts of such a type would come squarely within the definition of Criminal Contempt as embodied under Section 2 of the Contempts of Courts Act.
13. Having regard to the aforesaid conclusion, the last question that arises is as to what in our considered view, would be a fair, proper and adequate punishment. The learned SPP fairly submitted that under normal circumstances having regard to the extreme seriousness of the case that he would have no option except to pray for the maximum sentence of six months simple imprisonment and fine of Rs. 2,000/- against the respondent. He further submitted that having regard to the length of the proceedings and the fact that the respondent is facing a criminal trial that he leaves the matter entirely to the discretion of the Court. The respondent's Learned Advocate pointed out to us that these contempt proceedings commenced in the year 1989 but that the incident is of the year 1987. He submits that since that time, apart from the present proceedings, the enquiry was going on and that it has thereafter culminated in a criminal prosecution. He also points out that this case being one under the Contempt of Courts Act, the respondent had to be remain personally present before this Court in the course of the last 7 years on virtually 40 dates of hearing in the earlier enquiry and this proceeding. In this background, he makes a strong plea to the Court that utmost leniency should be shown to the respondent. He also points out that even if this Court were to take the view that the incident in question is a very serious one, that the respondent will face the consequences of the same insofar as the criminal trial in the forum in which this issue will ultimately be decided. He submits that this Court should take due note of all these aspects of the case while determining what would be adequate punishment.
14. We have bestowed our anxious thought to the conflicting aspects of the case for a variety of reasons, the most important of which is the fact that the respondent happens to be an Advocate while it has always been the policy and principle of the Court to show utmost consideration to the learned members of the bar. We have as of necessity to be guided by the consistent observation of the Supreme Court in series of cases relating to professional misconduct and impropriety in the conduct of judicial proceedings. The Supreme Court had occasion to lay down very clearly a firm principle that where a serious indiscretion is committed by a member of the public that the Courts would perhaps be justified in showing greater leniency, but where the same or similar acts are committed by a lawyer that the Court would be doing injustice, and that it would be a miscarriage of justice if the Court were to adopt the same standard because the Court expects a higher standard of ethics and propriety from the members of the bar. It is in this background that the Supreme Court has come down heavily in all these cases and had occasion to review various orders passed even by the State Bar Councils and Bar Council of India in proceedings and to award what is the Supreme Court termed as proper and adequate punishment. We have also had occasion in our High Court to deal with the concept and adequacy of punishment and the entire theory and the Jurisprudence of the process of sentencing requires that the punishment imposed in all cases must be in consonance with the gravity of the misconduct of the crime that has been established, A Division Bench of this Court had frowned upon misplaced sympathy and leniency being shown in cases where serious offences are established and where the Court was persuaded to award abnormally, lenient punishment which the Division Bench categorised as 'flea-bite sentences'. It is in this background, that we have considered all relevant aspects of the case and the question as to whether having regard to the extreme seriousness of the present situation coupled with the fact that instances of this type where false statements are made with impunity in the course of the judicial proceeding should be dealt with firmly or whether, as often happens the entire proceedings should end as a damp squib. That ultimately is the issue that is involved in the last analysis.
15. It is true that there is a criminal proceeding pending and it is also true that if that proceeding were to end in an adverse verdict that the consequences may be harsh to the respondent. That however is in our considered view an entirely irrelevant aspect of the matter because the law itself provides for it. As far as this proceeding goes, we are of the view that having regard to the gravity of the case and the status of the accused that a sentence of six months simple imprisonment will meet the ends of justice. The Registrar of this Court shall accordingly draw up a warrant in keeping with the provisions of Rule 16 of the Rules framed under the Act.
16. The respondent being a learned advocate and a resident of Raichur, we have exempted his appearance as of today and his absence is therefore condoned. Mr. Naik on behalf of the respondent states that his client desires to prefer an appeal against our order which the respondent is entitled to do as a matter of right under the provisions of the contempt of Courts Act. The Act also provides that in the event of such an appeal being preferred, that the respondent is entitled to be released on bail. It is in these circumstances that we direct that pending the filing of the appeal and the obtaining of appropriate orders for which purpose we grant the respondent an outer limit of six months time, that he be released on bail in the sum of Rs. 1,000/- (rupees one thousand) on his executing a personal bond. The proceeding is accordingly disposed of.