M. Y. Shareef and Another vs The Hon'ble Judges of the High Court of Nagpur and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 72 of 1952

Decision Date: 15 October, 1954

Coram: Mehar Chand Mahajan, Ghulam Hasan, Natwarlal H. Bhagwati, B. Jagannadhadas

In the matter titled M. Y. Shareef and Another versus the Honorable Judges of the High Court of Nagpur and others, a judgment was delivered on 15 October 1954 by the Supreme Court of India. The opinion was authored by Justice Mehar Chand Mahajan, who sat as Chief Justice, and was joined by Justices Ghulam Hasan, Natwarlal H. Bhagwati and B. Jagannadhadas. The petitioners were identified as M. Y. Shareef and another individual, while the respondents comprised the Honorable Judges of the High Court of Nagpur together with additional parties. The judgment bears the citation 1955 AIR 19 and 1955 SCR (1) 757, and it has been referenced in subsequent reports as F 1962 SC1089 (9) and RF 1991 SC1834 (12). The case was assigned to criminal appellate jurisdiction and recorded as Criminal Appeal No. 72.

The headnote of the judgment focused on the professional duties of advocates when preparing applications or pleadings that contain material scandalising the court. It observed that a segment of the Bar appears to maintain the mistaken belief that an advocate, by merely acting in accordance with a client’s instructions, fulfills his professional duty even if he signs a document that disparages the Court. The Court emphasized that when an advocate’s obligations to the Court conflict with his duties to the client, the former duty must prevail. Consequently, an advocate who signs an application or pleading containing scandalous matter that is likely to obstruct or delay the administration of justice becomes guilty of contempt of Court unless he can reasonably convince himself that there exist prima facie grounds justifying such content. The judgment clarified that it is not the advocate’s duty to further a client’s interest by persisting in filing such allegations; rather, the advocate must counsel the client to refrain from making such accusations.

The Court further stated that in contempt proceedings the defenses of justification and apology are mutually exclusive. An apology does not function as a shield that absolves a guilty party, nor is it a universal remedy; rather, it serves as evidence of genuine contrition. In borderline situations where the rights of an advocate and his professional responsibilities must be adjudicated, an alternative plea may be examined. The Court noted that a judge may determine that no contempt has occurred, rendering a plea of unqualified apology irrelevant because it would otherwise imply admission of an offence. The Court observed that not every defence in a contempt case constitutes contumacy; the appropriate assessment depends on the facts of each case and on the prevailing ethical standards within the legal profession.

The judgment concluded with a note indicating the page references “97 758” and reaffirmed that the matter fell under the criminal appellate jurisdiction, specifically Criminal Appeal No. 72. The decision thereby set out clear principles concerning advocate conduct, the hierarchy of professional obligations, and the appropriate use of justification or apology in contempt of Court matters.

In 1952 an appeal by special leave was filed against the judgment and order dated 30 November 1950 of the High Court of Judicature at Nagpur, rendered by Justices Dev and Rao in contempt of court proceedings arising out of Miscellaneous Petition No. 16 of 1950. The appellant was represented by Dr Bakshi Tek Chand together with counsel Hardyal, Hardy, B. R. Mandlekar, B. D. Kathalay, Ganpat Rai and K. L. Arora. The first respondent was represented by the Solicitor-General for India, C. K. Daphtary, assisted by counsel T. P. Naik and I. N. Shroff. The second respondent, the State of Madhya Pradesh, was represented by the Advocate-General, T. L. Shevde, also assisted by T. P. Naik and I. N. Shroff. The third respondent was represented by B. Sen and I. N. Shroff. The judgment was delivered on 15 October 1954 by Chief Justice Mehr Chand Mahajan. The Court noted that the present appeal arose from contempt proceedings initiated against two senior members of the Nagpur Bar and one of their clients. One of the appellants, Shri Shareef, had previously served as Minister for Law and Justice in the State, while the second appellant, Dr Kathalay, possessed a doctorate in law and had authored several legal texts. The circumstances that led to the issuance of show-cause notices for contempt had become protracted and had generated considerable animosity. The factual backdrop was as follows: Shri Zikar, charged alongside the two appellants with contempt, filed an application under article 226(1) of the Constitution asserting that his fundamental right to citizenship of Bharat was being infringed. He contended that the Custodian of Evacuee Property and the police were mistakenly treating him as a citizen of Pakistan, a status he had never possessed, and he sought an interim order prohibiting the State from deporting him after the expiry of his permit. The High Court granted such an interim prohibition. At the hearing on 11 August 1950 the State raised a preliminary objection, arguing that Shri Zikar had omitted material facts in his petition and that, consequently, the petition should be dismissed without reaching the merits. Shri Shareef, acting as counsel for Shri Zikar, opposed this objection and maintained that the preliminary issue could not be resolved without examining the merits of the case. The State responded by filing an affidavit on 17 August 1950, setting out certain facts, and directed Shri Zikar to file a reply affidavit by 21 August 1950, which he did. The record of the proceedings on that date noted that Shri Shareef appeared for the petitioner and Shri Naik for the respondent; that an affidavit and copies of applications dated 25 February 1949 and 19 January 1950 were filed; that Shri Shareef submitted a statement and an affidavit; that attention was drawn to paragraph 4 of the affidavit and that he was questioned whether his client truly understood its contents.

During the hearing, the judges observed that the affidavit was drafted in English and suggested that the petitioner might later claim he had not understood its contents, possibly before the Supreme Court. Counsel for the petitioner, Shri Shareef, replied that he had already explained the affidavit’s contents to his client. The judges noted that paragraph 6 of the statement and affidavit appeared unnecessary because the petitioner intended to rely only on paragraph 10 of the non-applicant’s affidavit, as recorded in the order sheet dated 17 August 1950. One of the judges asked whether paragraph 6 had been inserted to create a basis for an argument before the Supreme Court. Shri Shareef responded that the paragraph merely set out facts. After this exchange, counsel for the respondent, Shri Naik, continued to argue the preliminary objection until the bench recessed for lunch. When the court reconvened, Shri Shareef requested additional time to apply for transfer of the case to another bench, citing the judges’ observations regarding paragraphs 4 and 6 of his affidavit. The matter was therefore adjourned to 25 August 1950 to permit Shri Shareef to file the transfer application. On 23 August 1950, an application was filed seeking transfer of the case from the bench hearing it to another bench of the High Court. The application pleaded two grounds: first, that observations and references to the Supreme Court by Rao and Deo JJ created a bona-fide belief in the applicant that the judges were prejudiced against him and had already decided that he must appeal to the Supreme Court; second, that those observations and references were unnecessary and left the applicant doubtful of receiving justice from the Hon’ble judges. The prayer sought, in the interest of impartial justice, that the case be transferred to another Civil Division Bench for disposal.

The transfer application bore the signatures of Zikar and also of the two counsel representing the applicant, and it was subsequently rejected. With the rejection, the court declared that it would no longer consider the matter. The preliminary objection raised by the State was upheld, and the petition under Article 226 was dismissed. Following this dismissal, the judges ordered that notices be issued to the applicant and his two counsel, requiring them to show cause why they should not be committed for contempt for scandalising the court and for attempting to pervert the due course of justice by making statements in the transfer application that impugned the judges’ impartiality. On 4 October 1950, Dr Kathalay filed a written statement in response to the show-cause notice. In his reply, he asserted that he could not honestly admit to scandalising the court or committing contempt, either in fact or in law. He further contended that during his forty-year career at the Bar, he had consistently observed the highest traditions of the legal profession, always upholding the dignity of the courts, and that he bore no animus against the Division Bench judges. Dr Kathalay maintained that merely signing the transfer application did not constitute contempt.

Dr. Kathalay submitted a written response to the show-cause notice on 4 October 1950 in which he declared that he could not honestly admit either that he had scandalised the Court or that he had committed contempt in fact or in law. He contended that, throughout his forty-year career at the Bar, he had consistently observed the highest traditions of the profession, always upheld the dignity of the Courts, and bore no animus toward the judges of the Division Bench. He further asserted that by signing the transfer application he neither scandalised nor intended to scandalise the Court and that, in good faith, he believed that an application could be made for transferring a case in the High Court from one Bench to another. He explained that the matter was not a private concern of his alone but a question affecting the Bench and the Bar generally, raising a principle of great importance: whether a counsel becomes guilty of contempt by signing such an application, or whether it is his professional duty to do so when his client holds a bona-fide impression that the transfer is permissible. In the final paragraph of his reply he wrote, “Whatever the circumstances, I do see how much this application for transfer dated the 23rd August, 1950, has hurt the feelings of the Hon’ble Judges and I very much regret that all this should have happened.”

Shri Shareef filed a comparable written statement, asserting that at the time the transfer application was made he neither knew nor believed that the law prohibited such an application, and that, rightly or wrongly, he had always been under the impression that a case could be transferred from one Bench to another in the High Court. He expressed a similar regret for the consequences that had followed. His further written statement was lodged on 16 October 1950, and in paragraph 7 he stated, “I was grieved to know that the accusation against me in these proceedings should be of malice and mala fides for my taking up Zikar’s brief in connection with his application for transfer, dated the 23rd August, 1950. If I am thus defending the proceedings, I am doing so for vindicating my professional honour and personal self-respect, and it would be a misfortune if this was all going to be construed as aggravating the contempt, as hinted by the Hon’ble Court during my counsel’s arguments, though remotely. But even as I am making my defence, it is, I admit, quite likely that I committed an error of judgment in acting as I did, causing pain to the Hon’ble Judges, which I deeply regret, as I have already done before and so has my counsel on my behalf in the course of his arguments.” The judges in the appealed judgment specifically took exception to the last sentence of that paragraph. Dr. Kathalay also submitted a similar reply. The High Court, after a very lengthy judgment that considered a large number of authorities, held that the transfer application constituted contempt because the judges were scandalised with a view to diverting the due course of justice. Consequently, the two advocates who signed and prosecuted the application were found guilty of contempt. Regarding the plea of error of judgment, the learned judges observed that the advocates had adopted a defiant, justificatory attitude despite an early indication by the Court that any mistake on their part would be considered, and that their belated reliance on the term “error of judgment” could not be treated as an apology or genuine contrition.

In its observation, the Court noted that the portion of the record concerning the late claim of an error of judgment made it difficult for the tribunal to accept such a belated plea. The Court observed that the phrase “error of judgment” had not been prominently featured in the arguments until the final day of the hearing. It further pointed out that paragraph 100 of the judgment demonstrated how the term was introduced only in two statements dated 16 October 1950, a timing that was contrary to the factual chronology. The Court explained that, had the two advocates truly believed they had committed an error of judgment, the appropriate course would have been to make an open and unequivocal admission and to offer a satisfactory apology that would have compensated for the injury caused. The Court rejected the notion that the statement “I very much regret that all this should have happened” could be considered an apology, noting that no request had ever been made to treat it as such. It questioned what exactly the two advocates regretted, observing that many events had occurred since 21 August 1950, and that any expression of regret worthy of consideration must reflect genuine contrition for the contemners’ conduct. Consequently, the learned Judges ordered that Shri M. Y. Shareef pay a fine of Rs 500, or, in default of payment, undergo simple imprisonment for two weeks, and that Dr. D. W. Kathalay pay a fine of Rs 1,000, or, in default, undergo simple imprisonment for one month. The Court expressed uncertainty as to whether the imposed sentences fully matched the seriousness of the offence, but chose, on this occasion, not to impose the maximum severity, mindful of prevailing misconceptions regarding the responsibilities of advocates within a segment of the Bar. An appeal to this Court was initially denied but was later permitted. On 12 May 1954, when the appeal was heard, the Court recorded that the appellants had tendered an unqualified apology to both this Court and the High Court and were prepared to purge the contempt for which they had been convicted. The Court deemed the apology a sincere expression of regret for the events that transpired in court at the time the transfer application was filed and for the allegations contained therein. Accordingly, the appeal was adjourned for two months, and the Court directed that the apology presented before it be also presented to the Division Bench before which the alleged contempt had occurred. The Court dispatched the apology to the High Court with confidence that the learned Judges would consider it in the spirit in which it was offered, issue appropriate orders, and communicate those orders back to this Court. When the matter returned to the High Court, the learned Judges framed the question, “Whether remission of the punishment awarded is called for in view of the statement now filed by the contemners?”

When the High Court considered the statement now filed by the contemners, it posed the question whether remission of the punishment was appropriate. The court answered that the spirit in which the apology was tendered in the present proceedings was not substantially different from the spirit shown earlier. It observed that the contemners seemed to assume that, because they had complied with the direction to file an apology, they were entitled to expect the court’s acceptance of that apology. The court noted that there was no specific prayer or request made by the contemners that could explain this expectation. Moreover, the court recorded that the manner in which the apology had been tendered offered little in the way of genuine contrition. Regarding the penalty, the court stated that it had not imposed the most severe punishment it might have imposed, nor had it imposed the maximum of the lesser punishments; indeed, except for the contemptuous attitude and justification presented, there might have been no fine at all. Having reached this conclusion, the learned judges referred to a large number of authorities that support the well-settled proposition that a sincere apology does not, as a matter of right, entitle a contemner to a reduction of the sentence. The judges further expressed concern that accepting the apology would create an invidious distinction between the two advocates in this case and the advocate Zikar. Consequently, the apology was not accepted. The report concluded with the observation that, if the apology were to be accepted in the present circumstances, it would encourage the notion that a contemner has a right to have his apology accepted whenever he chooses and in whatever manner he offers it, even when he has aggravated the original offence. Accepting it would unsettle established principles, set a bad precedent, and deliver a blow to the authority of the court, the consequences of which could not be viewed with equanimity.

When the appeal returned to this Court, counsel for the two advocates was asked whether his clients were truly remorseful for signing the transfer application and whether the expression of regret made in this Court reflected genuine feelings. The counsel responded affirmatively and emphatically, stating that the clients were indeed sorry. The question for this appeal, therefore, was whether the two appellants had purged the contempt by tendering an unqualified apology both in this Court and before the High Court, the sincerity of which had again been emphasized by their counsel, or whether the fine imposed by the High Court should be maintained in order to uphold the authority and dignity of the Court. The Court noted that it is a well-settled and self-evident proposition that justification and apology cannot coexist; the two concepts are incompatible. An apology is not a weapon of defence that can erase the guilt of an offence, nor is it a universal remedy; rather, it serves as evidence of real contriteness. The appellants having tendered an unqualified

The Court observed that, because the appellants had offered an unqualified apology, no exception could be made to the High Court’s finding that the transfer application amounted to contempt; the judges had been scandalised by an attempt to divert the proper course of justice, and by signing the application the two advocates had become guilty of contempt. Accordingly, the High Court’s decision was upheld. Nevertheless, the Court noted that the High Court had also found a substantial misconception prevailing among a segment of the Nagpur Bar at the time of the events concerning the responsibilities of advocates when signing transfer applications that contained such allegations. It was explained that certain members of the Bar erroneously believed that when a counsel acted in the client’s interests or followed the client’s instructions, he was merely fulfilling a legitimate duty to the client, even if the application or pleading contained scandalising material. These lawyers thought that, in case of a conflict between their obligations to the Court and their duty to the client, the client’s duty predominated. The Court said that this misconception must be eliminated by a clear and emphatic pronouncement, and it must be widely communicated that any counsel who signs an application or pleading containing scandalising matter, without first reasonably satisfying himself that there are prima facie adequate grounds for such allegations and with a view to preventing or delaying the administration of justice, is himself guilty of contempt of Court. The Court further clarified that it is not the duty of a counsel to take an interest in such applications; rather, his duty is to advise the client to refrain from making such allegations. Having recognised, as the High Court did, that members of the Bar had not fully understood the implications of signing such applications and were under the mistaken belief that their conduct complied with professional ethics, the Court held that the appellants’ actions were undertaken under a mistaken view of their rights and duties. In such circumstances, even a qualified apology may be considered by a Court. The Court added that in borderline cases where a principle concerning the rights and duties of counsel must be settled, an alternative plea of apology deserves consideration; it is possible for a judge to conclude that no contempt occurred, rendering an unqualified apology meaningless because it would amount to an admission of an offence. In the present case, the learned judges had to examine a large volume of English and Indian case law before concluding that the appellants’ conduct constituted contempt, and it could not be said that the matter was so manifest on its face that their act automatically amounted to contempt. Moreover, the proceedings indicated that

In this case the counsel genuinely believed that their professional responsibilities required them to accept the client’s brief and sign the transfer application when the client, on a sincere belief that the Court was biased against him, decided to seek a transfer. The Court observed that the judges’ reference to the Supreme Court during the hearing was unfortunate and reflected an unnecessary, indecorous sensitivity that could have been misunderstood by both the party and the advocates. Although the counsel sincerely thought that their actions were correct, the Court noted that a deeper study of the law would have shown them that the conduct was not justified. Consequently, the Court held that it could not be said that the counsel’s actions were willful or that raising the defence amounted to contumacy. The authorities relied upon by the High Court were found by the Court to be inapplicable to a matter of this nature. The Court explained that the validity of such a defence could only be determined by arguing that the counsel was entitled, in the interests of the client, to advise a transfer and to present grounds for transfer that were honestly believed by the client. The Court further explained that not every form of defence in a contempt proceeding constitutes contumacy; the determination depends on the specific circumstances of each case and on the prevailing perception of professional ethical rules among members of the Bar. The learned Judges had previously acknowledged that a long-standing impression of such ethical standards existed among a segment of the Bar in Nagpur. Accordingly, the Court found it necessary to settle the question, and it concluded that any effort by the two counsel to clarify the point could not be characterised as contumacious or as an aggravating factor for contempt. The Court thought that the alternative expression of regret, which appeared in the earliest written statement submitted by the counsel, should not have been ignored and ought to have received proper consideration. After the High Court adjudged the counsel guilty of contempt, the Court opined that the counsel should have promptly tendered an unqualified apology to that Court. However, the counsel appeared to remain under the mistaken belief that they were correct and that the Court erred, and they hoped that by approaching this Court they might settle the principle in question as they asserted. When the Court indicated to the counsel that they were mistaken, the counsel immediately offered an unqualified apology, which they reiterated in absolute terms at the second hearing. The Court could not understand why the High Court judges doubted the sincerity of that apology, and it affirmed that the doubt was unfounded.

The Court observed that the judges of the High Court could not have set out to humiliate senior counsel or to demand from them any conduct beyond what they had already offered before this Court. While the High Court had, without hesitation, censured very strongly the appellants for scandalising the Court by joining an unnecessary and untenable transfer application, the Court nevertheless felt that, once an unqualified apology had been tendered, the High Court ought to have adopted a different approach with respect to the quantum of punishment. The Court had no doubt that the actions of the High Court judges were undertaken in the firm belief that the dignity of the Court must be preserved and that members of the Bar, regardless of their stature or learning, could not be permitted to scandalise the judges or to divert the course of justice by seeking to shift a case from one bench to another whenever they perceived that a bench was expressing opinions seemingly adverse to their clients. The Court expressed a firm hope that such conduct would not be repeated by counsel in any High Court in the country and that no further test cases of this nature would have to be litigated. In the peculiar circumstances of the present matter, and considering that the learned judges themselves had expressed the view that no fine would have been imposed had there been no plea of justification and no contumacy, the Court concluded that the unqualified apology was sufficient to purge the contempt committed by the two appellants, thereby arriving at a conclusion contrary to that reached by the High Court, which had held that the plea of justification did not amount to contumacy. The Court also noted that a condemnation for contempt by a High Court of senior members of the Bar constitutes a severe punishment, because it tarnishes their professional reputation and leaves a lasting blemish on their careers. The lengthy judgment of the High Court made no reference to any prior instances in which these counsel had been disrespectful or discourteous to the Court throughout their long service at the Bar. Accordingly, the Court held that this single act of indiscretion in signing the application should not have been regarded in the extremely stringent manner adopted by the High Court on the first occasion and again after the matter was remitted. The Court further stressed that, in cases arising under special leave and when exercising its overriding powers, it does not normally interfere with matters that lie within the discretion of the High Court, except in truly exceptional situations. After careful consideration of the facts and circumstances, the Court decided that the dignity of the High Court would be adequately upheld if the unqualified apology tendered in this matter were accepted as sufficient to purge the contempt.

In this case, the Court noted that the apology offered by the two senior counsel had been accepted by the Court at the initial stage of the proceedings and had been reiterated in unequivocal terms by Dr. Tek Chand during the subsequent hearing. The Court regarded that unqualified apology as sufficient to remove the contempt that had arisen. Observing that the proceedings had become considerably delayed, the Court held that the interests of justice did not require the continuation of the monetary penalty imposed on the two senior counsel, who had acted on a mistaken understanding of their alleged rights and privileges. Accordingly, the Court set aside the fine that had been imposed on both appellants and formally accepted the unqualified apology that they had tendered to both the Supreme Court and the High Court. In addition, the Court issued a stern admonition and warning to the two counsel concerning their conduct, emphasizing that such behaviour must not be repeated. The Court further directed that no order as to costs would be made in these proceedings. In summary, the appeal was allowed, the fines were vacated, the apologies were accepted, and the counsel were cautioned, while the matter concluded without any costs order.