Chief Justice of Bombay High Court Dipankar Dutta can be summoned as a witness in a contempt case initiated by him against a Lawyer.
Division bench headed by Chief Justice T. B. Radhakrishnan, with Justice Sanjib Banerjee while granting four weeks time to file reply appointed Advocate General as an Amicus to assist the Court.
Counsel for Respondent Lawyer informed the Court that they want to file preliminary objection about maintainability of the contempt proceedings.
“ 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 Suo Motu 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. "
The order states:
“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. "
BACKGROUND OF THE CASE
In the order dated 23.03.2020 passed by a single judge, Justice Dipankar Dutta states that while he was dictating the order declining an urgent hearing, the petitioner's lawyer, Advocate Bijoy Adhikary, repeatedly obstructed the course of administration of justice.
The order reads that,
"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."
" The conduct of Mr. Adhikary, apart from being abominable, prima facie amounts to ‘criminal contempt’ within the meaning of section 2(c) of the Contempt of Court’s Act, 1971. Therefore, I have no other option but issue a suomotu Rule for contempt against Mr. Adhikary. Let the rule be drawn up in separate order sheet. Office is directed to serve the Rule on Mr. Adhikary as early as possible."
However, the respondent Mr. Bijoy Adhikari, a 68 year old Lawyer having 40 years of standing at the Bar , denied to have been behaved in the manner mentioned in the order.
When matter came was listed today, Adv. Nilesh Ojha 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 –I and without accompanying any order or documents.
While speaking to reporters, it was pointed out by Mr. Ojha that if the contention of Justice Deepankar 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 sec 14 of the Contempt of Courts Act has to be followed by serving the notice on the spot . The time to file reply to the show cause notice may be after two weeks but a serving notice on the spot is necessary. If procedure under sec 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 – I is itself a ground to drop the proceeding.
Mr. Ojha said ,
“ My client is Lawyer with long standing of 40 years at the High Court and Supreme Court. He is a 68 year old and he is suffering with many health issues. He is continuously saying that he has not 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 is having right to produce witness and also to call Justice Dipankar Dutta in to witness box.”
The matter is likely to be listed on first Monday after Four weeks.