` A3 in the Supreme Court of India Inherent Jurisdiction

` A3

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

WRIT PETITION (Crl.) NO_____/2020 (Writ petition under Article 32 r/w 129 & 142 of the Constitution of India)

IN THE MATTER OF:

Adv. Nilesh S/o Chandrabhushan Ojha …. Petitioner (Original Alleged

Contemnor No. 3)

Versus

Supreme Court of India through, Secretary General & Others ….Respondents

PAPER BOOK

(FOR INDEX KINDLY SEE INSIDE)

THE PETITIONER IN PERSON – NILESH C. OJHA

A4 INDEX

RECORD OF PROCEEDINGS

Sr.No. Date of Proceedings Page Nos.

INDEX OF PAPERS

Sl. Particulars of Documents Page No. of part to Re- No. which it belongs marks Part I Part II (Contents (Contents of of Paper- file alone) Book) (i) (ii) (iii) (iv) (v)

Court fees

1. Office report A A

2. Listing Proforma A1 A2

3. Cover page of Paper Book A3

4. Index of Record of A4 Proceedings 5. Limitation Report prepared by the Registry 6. Defect List

7. Note Sheet NS.1 to ...

8. Synopsis and List of Dates B-T

9. Writ Petition with affidavit

10. ANNEXURE:- P- 1 Copy of order dated 27.04.2020 passed by the Bench of Hon’ble Justices Deepak Gupta and Aniruddha Bose in SMCP 02/2019. 11. ANNEXURE:- P-2 Copy of order dated 04.05.2020 passed by the Bench of Hon’ble Justices Deepak Gupta and Aniruddha Bose in SMCP 02/2019. ANNEXURE:- P-3 Copy of order dated 09.12.2020 passed by the Bench of Hon’ble Justices Deepak Gupta and Aniruddha Bose in SMCP 02/2019. ANNEXURE:- P-4 Copy of order dated 02.09.2020 passed by the Bench of Hon’ble Justices Deepak Gupta and Aniruddha Bose in SMCP 02/2019. 12. Filling Memo

13. Vakalatnama and memo of appearance

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION WRIT PETITION (Crl.) NO_____/2020 (Writ petition under Article 32 r/w 129 & 142 of the Constitution of India)

IN THE MATTER OF:

Adv. Nilesh Ojha …. Petitioner (Original Alleged

Contemnor No. 3)

Versus

Supreme Court of India through, Secretary General & Others ….Respondents

OFFICE REPORT ON LIMITATION

1. The petition is / are within time.

2. The petition is barred by time and there is delay of _____ days in filing the same against order dated _____ and petition for condonation of ____ days delay has been filed.

3. There is delay of ____ days in refilling the petition and petition for condonation of ____ days delay in refilling has been filed.

BRANCH OFFICER

NEW DELHI

DATED: 21.07.2020

A1 LISTING PROFORMA SECTION: WRIT The case pertains to (Please tick/check the correct box):

 Central Act : Constitution of India  Section : Articles 32 and 129, 142  Central Rule : N.A.  Rule No (s) : N.A.  State Act : N.A.  Section : N.A.  State Rule : N.A.  Rule No (s) : N.A.  Impugned Interim Order : N.A.  Impugned Final Order/Decree : YES  High Court : N.A.  Names of Judges : N.A.  Tribunal/Authority : (Name) N.A.  Nature of matter : Criminal

 (a) Petitioner/Appellant No.1 : Adv. Nilesh C. Ojha E-Mail ID: nileshojha79@ gmail.com

(b) Mobile phone number: + 91- 9892915093

 (a) Respondent No.1: Supreme Court of India through, Secretary General & Others

(b) E-Mail ID: N.A.. (c) Mobile Phone Number: N.A.  (a) Main category classification: 18, Ordinary Criminal matters (b) Sub classification: 1807, others A2  Note to be listed before: N.A. 6(a). Similar disposed of matter with citation, if any & case details: No similar matter is disposed of

(b). Similar pending matter with case details: No similar matter is pending 7. Criminal Matters: (a) Whether accused/convict has surrendered: Yes ☑ No. (b)FIR No. N.A. Date : N.A. (c) Police Station: N.A. (d)Sentenced Awarded: YES (e) Sentenced Under gone: N.A. 8. Land Acquisition Matters: N.A.

(a) Date of Section 4 notification: N.A.

(b) Date of Section 6 notification: N.A.

9. Tax Matters: State the tax effect: N.A.

10. Special Category (first Petitioner/Appellant only): N.A.

65 years SC/ST Disabled

11. Vehicle Number (in case of Motor Accident Claim matters): N.A.

Date: 21.07.200 PETITIONER- IN- PERSON

SYNOPSIS

1. The petitioner is filing this Writ Petition under Article 32 r/w 129, 142 of the Constitution of India for setting aside the conviction and sentence under contempt passed against him by the Ld. 2- Judge Bench [CORAM: Shri. Justice Deepak Gupta and Shri. Justice Aniruddha Bose] of this Hon’ble Court [hereinafter called as Trial Court] vide order 27.04.2020 and 04.05.2020

in SMCP (Cri.) 02 of 2019, in the matter between Re: Vijay Kurle and Others, where the Petitioner is sentenced to 3 months imprisonment with fine of Rs. 2000/- and is directed to surrender before the Respondent No.1 i.e. Secretary General of the Supreme Court on or before 25th August, 2020.

2. The petitioner is constrained to file this Writ Petition before the Hon’ble Supreme Court of India as the order of conviction is passed by the 2-Judge Bench by exercising power under Article 129 of the Constitution. Therefore, as per law laid down in M. S. Ahlawat Vs. State (2000) 1 SCC 27 and further clarified by Constitution Bench in Rupa Ashok Hurra Vs. Ashok Hurra (2001) 4 SCC 388 in para 42 to 47, the only remedy is to file writ petition before this Hon’ble Court. There is no other alternate and efficacious remedy.

3. The impugned order is challenged on following main grounds;

I) The order is vitiated as it is passed in wilful disregard of the binding precedent of the Hon’ble Court in P.N.Duda’s case (1988) 3 SCC 167, taking a view that, it as an obiter and not a binding precedent. In fact, the said judgment is made a binding precedent by the Full Bench in Bal Thackeray’s case (2005) 1 SCC 254, and therefore order is without jurisdiction and void.

II) The order taking cognizance by the Judge in his own case is against the law laid down by Constitution Bench in the case of Supreme Court Advocate On Record Association (2016) 5 SCC 808, Re: C.S. Karnan (2017) 7 SCC 1, and therefore, the proceedings are without jurisdiction

and cannot be validated by any subsequent orders and hence, nullity, void ab-initio and vitiated as passed by the Coram-Non-Judice as ruled in Devinder Pal Singh Bhullar (2011) 14 SCC 770, Deepak Kumar Prahladka Vs. Chief Justice Prabha Shanker Mishra (2004) 5 SCC 217.

III) Conviction is vitiated as the conviction is for a charge which is contrary and against the Court’s own order dated 02.09.2019 and 09.12.2019 and therefore, it is vitiated in view of law laid down in Lalu Prasad Yadav’s case (2017) 8 SCC 1, R.S. Sherawat Vs. Rajeev Malhotra (2018) 10 SCC 574 and Bhupesh Deb Gupta Vs. State (1979) 1 SCC 87.

IV) The order punishing the petitioner for a charge of conspiring with alleged contemnor No.4 Mathews Nedumpara, which was already dropped by the order dated 02.09.2019 and 09.12.2019, is violative of doctrine of Double Jeopardy and Article 20 (2) of the Constitution and section 300 of Cr.P.C. and also against the law laid down in Sudhir Vasudera (2014) 3 SCC 373, Lalu Prasad Yadav (2017) 8 SCC 1 and therefore vitiates the entire conviction and sentence and makes the petitioner entitled for compensation.

V) The Conviction is vitiated as it is based on per-incuriam findings in para 82 of the impugned judgment that, if Judge commits any blatant wrong, illegality or irregularity in passing a judgment then the only remedy is to challenge such order and not to seek action by filing a complaint. Such observation is against the law laid down by full bench in K.K. Dhawan’s case (1993) 2 SCC 56 and Bramha Prakash Sharma AIR 1954 SC 10.

VI) The conviction is vitiated as it is based on per-incuriam findings in para 48 and para 86 of the impugned judgment that, no party can attribute motive to a Judge or question the bonafides of the Judge or to raise question with regard to the competence of the Judge. Such observations

are against the binding precedent of Constitution Bench in Re: C. S. Karnan (2017) 7 SCC 1, Subramanian Swamy vs. Arun Shourie (2014) 12 SCC 344, Addl. District & Sessions Judge ‘X’ (2015) 1 SCC 799, Baradkanta Mishra(1974)1 SCC 374, K. Veeraswamy’s case (1991) 3 SCC 655.

VII) The Conviction is vitiated as it is based on per-incuriam findings in para 67 of the judgment and order that, the lawyer cannot claim right to file complaint against a Judge. This observation is against the law laid down in i] Bramha Prakash Sharma, AIR 1954 SC 10, ii] Arun Shourie (2014) 12 SCC 344,iii] R.K.Jain (2010) 8 SCC 281, iv] R. Muthukrishnan AIR 2019 SC 849.

VIII) The Conviction is vitiated as it is based on per-incuriam findings in para 66 of the impugned judgment that, even if the Judge of Superior Court acts in wilful disregard and defiance of binding precedents of the higher benches, he will not be subject to contempt proceedings at the behest of an individual/lawyer. This finding is against the law laid down by Constitution Bench judgment in Re: C.S. Karnan (2017)7 SCC 1.

IX) Order is vitiated in view of law laid down by the Constitution Bench judgment in Central Board of Dawoodi Bohra (2005) 2 SCC 673, for highly illegal observations by placing reliance on the editorial note of an author of a book and treating the same as a statute in order to reject the law and ratio laid down by the binding precedents of Full Bench and Constitution Benches of the Supreme Court and placing reliance on overruled judgments of smaller benches.

X) Proceedings are vitiated since these were conducted without mentioning and framing specific charge in the order taking cognizance which is against section 15 (3) of the Contempt Of Courts Act, 1971 read with Rule 6 of ‘The Rules To Regulate Proceedings For Contempt of the Supreme

Court, 1975’ as mandated in J.R. Parashar (2001) 6 SCC 735, R.S. Sherawat (2018) 10 SCC 574. The contrary view in the impugned judgment dated 27.04.2020 by quoting the irrelevant para of the overruled judgement is vitiated.

XI) Proceedings are vitiated as the show cause notice issued to alleged

contemnors was not in Form-I and was without mentioning specific charge, as mandated by the Rule 6 of ‘The Rules to Regulate Proceedings for Contempt of Supreme Court, 1975’, and the said notice was not issued by placing it before the bench and getting the endorsement of the bench as per law laid down in R.S. Sujatha v. State of Karnataka, (2011) 5 SCC 689,Nandlal Thakkar 2013 Cri.L.J. 3391, Mc.Ilraith Vs.Grady[1968] 1 QB 468.

XII) Proceeding are vitiated for not recording the plea of the alleged contemnors on the alleged delineated charge dated 09.12.2019 as per basic rules of contempt law followed in the case of Court On Its On Motion Vs. Harmeet Singh 2020 SCC OnLine P& H.

XIII) Conviction is vitiated for conducting the proceedings against the law laid down by the Full Bench in R.K. Anand Vs. Delhi High Court (2009) 8 SCC 106, where it is ruled that if the court is of the view that, the defence of the alleged contemnor is not admissible then, as a rule, the court has to give notice to the alleged contemnor to produce evidence to prove defence. The court is not permitted to reject the defence in reply affidavit without giving opportunity to to prove the said defence. But Hon’ble Bench rejected the defence version without following the above binding precedent of Full bench and therefore conviction is vitiated.

XIV) Judgment dated 27.04.2020 and Order dated 04.05.2020 are perverse and vitiated for acting against binding precedent and giving finding by ignoring evidence/proofs available on record i.e. the written

communication by Dy. registrar and written submission available on record stating that, the said letter dated 23.03.2019 was not assigned by the Hon’ble CJI to the bench of Ld. Justice Rohinton Nariman and on 27.03.2019, i.e. on the date of passing order issuing the show cause notice, the complaints sent by alleged contemnor No.1 and 2 were not

available on record. But the Hon’ble Bench by ignoring the proofs, gave findings on illogical and irregular presumption, contrary to the clear proofs and decided the case on surmises, suspicion, probability and conjectures, which is prohibited by the Hon’ble Supreme Court, in the case of Union Of India Vs. Ibrahim Uddin (2012) 8 SCC 148, National Fertilizer Limited Vs. Tuncky (2013) 9 SCC 600, Vijay Shekhar (2004) 4 SCC 666, Prem Kaur Vs. State (2013) 14 SCC 653.

XV) Conviction is vitiated due to reliance placed by Ld. Trial Court on affidavit of disputed and unverified testimony of Adv. Rohini Amin, which is against the law laid down in the case of Three Cheers Entertainment Private Limited Vs. Cesc Limited (2008) 16 SCC 592, which mandates that no reliance on any affidavit can be placed without allowing the alleged contemnor to cross-examine it.

XVI) The proceedings are conducted against the procedure of Contempt proceeding laid down by Full Bench in National Fertilizers Limited Vs. Tuncay Alankus (2013) 9 SCC 600, which mandates that, the parties (Mr. Milind Sathe and Mr. Kaiwan Kalyaniwalla ) who asserted against the Petitioner have to be directed to lead their evidence first, regarding their allegations of conspiracy/ consent between all the Alleged Contemnors. Unless sound proofs are given by the informant, the person charged (alleged contemnor) is not bound to prove otherwise. The findings and conviction in violation of this rule are vitiated as per law laid down in National Fertilizers Limited Vs. Tuncay Alankus (2013) 9SCC 600, Rajeev Dawar (2018) 12 SCC 437, Hukum Chand 2020

SCC OnLine SC 438, R.K. Anand (2009) 8 SCC 106 and Prof. Rameshchandra Kapse’s Case (1996) 1 SCC 206.

XVII) Findings are based on incorrect observations and against material on record about proofs/ evidence and request to summon witnesses as per

Rule 12 of ‘The Rules to Regulate Proceedings for Contempt of Supreme Court, 1975’, to bring evidence in support of the allegations made by alleged contemnor against Shri Justice Rohinton Fali Nariman and therefore the conviction and sentence is vitiated in view of law laid down in Coward V. Stapleton, (1953) 90 CLR 573, Rajeev Dawar (2018) 12 SCC 437.

XVIII) Findings in para 95 that ‘other than saying that the Judges had misinterpreted the judgments of this Court or had ignored them or that Justice R.F. Nariman was biased, there is no material placed on record to support this defence, are not only against the material on record but also are against the law laid down in R.R. Parekh’s case (2016) 14 SCC 1, where it is ruled that, when any Judge passes an order in wanton breach of the mandatory procedure then such order itself is a proof that, the said Judge acted with an ulterior motive. No further proofs are required.

XIX) Conviction and sentence is vitiated as trial was conducted by appointing private Counsel Mr. Siddharth Luthra to assist the Court which is against the ‘Rule 10’ of ‘The Rules to Regulate Proceedings for Contempt of Supreme Court, 1975’, which permits only Attorney–General or Solicitor-General to appear and assist the Court and this has been followed by Constitution Bench in Subramanian Swamy Vs. Arun Shourie (2014)12 SCC 344, Re: C.S. Karnan (2017) 2 SCC 757 (1) Dr. L.P. Mishra Vs. State (1998) 7 SCC 379 (Full Bench).

XX) Findings in para 90 and 46 that, only select class of people can file complaint against Judge or criticize the judgment is against basic law of

criminal jurisprudence and binding president in Baradkanta Mishra(1974)1 SCC 374 , N. Natrajan AIR 2003 SC 541, Addl. Sessions Judge ‘X’ 2015 1 SCC (LS) 799, A.R. Antuley's case (1988) 2 SCC 602, K. Veeraswami v. Union of India, (1991) 3 SCC 655 which

mandates that, anyone can set the criminal law in motion even if it is against Judges. Further any ordinary citizen is permitted to comment on the performance of the judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law and justice.

XXI) Cognizance is vitiated as it is passed by ignoring the law that when the complaint is addressed to Hon’ble CJI and Hon’ble CJI himself do not think it to be contemptuous then, the judge against whom such complaint is made is precluded from taking cognizance of the Contempt in view of the law laid down in Court on its Own Motion Vs. DSP Jayant Kashmiri 2017 SCC OnLine Del 7387, and therefore, proceedings and conviction are against judicial propriety void-ab-initio and therefore, stand vitiated.

XXII) Proceedings and Conviction were without jurisdiction for not disclosing the fact that, Hon’ble Justice Deepak Gupta himself is co-accused alongwith Justice Rohinton Nariman in a connected case and therefore, disqualified to hear the case. Therefore, whole proceeding vitiated as coram-non-judice as per law laid down in Supreme Court Advocate - on- Record (2016) 5 SCC 808, and Davinder Pal Singh Bhullar's case (2011) 14 SCC 770.

XXIII) The judgment is vitiated for conscious disregard of ‘Restatement Of Judicial Values 1999’ adopted by the full court of the Supreme Court and constitution Bench judgment in Supreme Court Advocate - on- Record (2016) 5 SCC 808, and Davinder Pal Singh Bhullar's case (2011) 14 SCC 770 which mandates that the Judge cannot hear a case

related to his family member(s) or where he is indirectly concerned.

But Ld. Trial Court, in para 51 of the judgment dated 27.04.2020 has taken a view that, Shri Justice Rohinton Fali Nariman can hear the case related to his father Adv. Fali Nariman as both are different entities.

XXIV) Order vitiated in view of law laid down by Constitution Bench in Secretary Jaipur Development Authority vs. Daulat Mal Jain (1997) 1 SCC 35 for violation of Article 14 of the Constitution by giving unequal treatment to the Alleged Contemnors by giving only 3 days’ time for hearing on sentence for contempt in contrast to a similar case in which 90 days were granted to Sameer Gahlot in the case of Vinay Singh Vs. Sameer Gahlot 2019 SCC OnLine SC 1480.

XXV) Findings of the judgment are vitiated as based on incorrect and wrong observation that, the alleged contemnors till the pronouncement of the judgment on 27. 04. 2020 have not raised any grievance that, they were not given fair opportunity of hearing which is against the specific objection in written submissionof alleged contemnors dated 16.03.2020 and therefore, this finding is perverse and vitiated as per law laid down in Prem Kaur Vs. State (2013) 14 SCC 653

XXVI) Judgment vitiated as based on incorrect finding that, the alleged contemnor No. 4. Adv. Mathews Nedumpara admitted that, he had committed contempt. The incorrectness is ex-facie proved from record and therefore, the findings based on wrong premise are proved to be null and void as per law laid down in National Fertilizer Limited Vs. Tuncky (2013) 9 SCC 600, Walchand Vs. State 1996 CR. L. J. 1102

XXVII) The order is vitiated being per-incuriam as the observations and ratio in the judgment and order that, the challenge to order which is without jurisdiction and based on incorrect submission and resulting from fraud played by Adv. Siddharth Luthra are not the grounds for recall

of order. This is violative of law laid down by the Full Bench in New India Assurance 2019 SCC Online SC 1786.

XXVIII) Judgment and Order are vitiated for not deciding the preliminary objection of maintainability first and instead clubbing together the

hearing on preliminary objection and main matter. And thereafter passing the order by ignoring various preliminary objections. This is violative of Full Bench judgment in Samar Ghosh Case (2004) 13 SCC 52, Ashok Agarwal (2014) 3 SCC 602, ii) Bhagabhai Dhanabhai Barad 2019 SCC OnLine Guj 1535, and is a perverse order resulting from Legal Malice.

XXIX) A] Judgment and Order are in disregard of binding precedent of Full Bench in Biyani Dash (2005) 9 SCC 194, where it is ruled that, the order taking cognizance on any information by any private person without consent of Attorney General must mention that the court is taking suo motu cognizance. But the order dated 27.03.2019 passed by the bench of Ld. Justice Rohinton Fali Nariman directing issuance of Show-Cause- Notice nowhere mention that the court is acting suo motu. Therefore the cognizance is bad and vitiated in view of abovesaid law laid down by the Full Bench.

cognizance of the letter either under contempt law as per Art. 129 or under any jurisdiction. At the stage of cognizance of letter the provisions of Article 129 have no role. It come into play only after proceedings are initiated. Therefore the contrary view taken by the smaller Bench of Ld. Justice Deepak Gupta in

para 39 of the judgment dated 27.04.2020 is a per - incuriam, null & void finding which vitiates the entire contempt proceeding based on the legal principle sublato fundamento cadit opus meaning thereby that when foundation is removed structure collapse as ruled in a contempt case in Prof. Y.C. Simhadri, V.C., B.H.U., Varanasi Vs. Deen Bandhu Pathak, 2001 SCC OnLine All 57, Kawar Singh Saini (2012) 4 SCC 307.

XXX) Judgment and Order are vitiated for pronouncing the sentence against the law laid down by the Full Bench in Sukh Das (1986) 2 SCC 401, by deciding the case without granting time to the alleged contemnors for making arrangement of a lawyer of his choice and thereby violating the constitutional right to be defended by a Lawyer of his choice.

XXXI) The conviction of Petitioner is vitiated because one of the grounds for conviction in para 92 of the judgment is that he supported the stand taken by the Alleged Contemnors No. 1 and 2 during the course of the proceeding, is violative of the basic principles of criminal jurisprudence as ruled in J.R.Parashar (2001) 6 SCC 735, which mandates that, there cannot be vicarious liability in Contempt and the charge of supporting the stand of other contemnors during the proceeding can be tried by a separate proceeding by issuing a fresh contempt notice if a case is made out on the basis of reply affidavit.

XXXII) The cognizance of letter dated 23.03.2019 was taken for issuing show cause notice for contempt without disclosing the source of the said letter in the order as to how it reached the Bench. This is against the law laid down by Constitution Bench in Subramanyam Swami’s Case

(2014) 12 SCC 344, which mandates that, in contempt proceedings no document can be taken on record without following the procedure given in the law of pleadings.

XXXIII) Order is against the basic law of contempt proceedings as ruled in

Tamilnad Mercantile Bank Shareholders Welfare Association Vs. S.C. Sekar (2009) 2 SCC 784, Re: S. Mulgaonkar AIR 1978 SC 727,where it is ruled that, if two views are possible then the view favorable to the alleged contemnor should be accepted and benefit of doubt, if any, should be generously given against the Judge and in favour of the alleged Contemnor. Here the view favourable to the petitioner supported by proofs and courts own order is rejected on the basis of probabilities, and therefore, conviction and sentence is null and void.

XXXIV) Sentence is vitiated as the application for recusal of Justice Deepak Gupta moved by the Petitioner was rejected by cryptic order without mentitioning reasons. This is against the law laid down by Constitution Bench in Supreme Court Advocate On Record Association (2016) 5 SCC 808, where it is ruled that, the necessity of passing a reasoned order on recusal by the Ld. Justice Deepak Gupta was necessary.

XXXV) A] Sentence vitiated for incorrect and wrong observation/findings in the order rejecting Recusal Application moved by Petitioner . The order states that there is only one ground raised for seeking recusal whereas there are 23 grounds mentioned in the said Application. The refusal to recuse on incorrect and wrong premise makes the order perverse and the subsequent sentence becomes non-est as passed by the coram-non-judice as per law laid down in P.K. Ghosh (1995) 6 SCC 744.

B] Order on recusal application is passed jointly by the Bench and not by that Judge (Justice Gupta ) whose recusal was sought. This is violation of law laid down by Hon’ble Supreme Court in Supreme Court Advocates- On-

Record Association Vs. Union Of India (2016) 5 SCC 808, thereby vitiating the order.

XXXVI) Order includes an observation that writ jurisdiction is not available in a case of conviction under contempt by the Supreme Court in its

original jurisdiction. This observation is against the law laid down by Constitution Bench in Roopa Hoora’s Case (2001) 4 SCC 388,A. R. Antuley's (1988) 2 SCC 602, Madhav Hayawadanrao Hoskot vs. State (1978) 3 SCC 552.

XXXVII) Judgment and Order both are passed against the ‘law of per- incuriam’ as laid down in Sandeep Bafna’s Case (2014) 16 SCC 623, Central Board of Dawoodi Bohra (2005) 2 SCC 673 ,which mandates to follow the earlier view of Constitution Benches in Bathina Reddy AIR 1952 SC 149 and to ignore subsequent judgment of co-ordinate Bench in C.K. Daphtari’s case (1971) 1 SCC 626, and also to follow earlier Constitution Bench judgment in Baradkanta Mishra (1974) 1 SCC 374 about applicability of Contempt of Courts Act,1971 and to ignore subsequent contrary findings if any, by a Bench of co-equal strength in Supreme Court Bar Association Vs. Union of India(1998) 4 SCC 409.

XXXVIII) Imposing substantial sentence is not permissible where a complaint was by Bar Association against a Judge regarding his incapacity alongwith other allegations. This can at the most be called as ‘Technical Contempt’ as ruled by the Constitution Bench in Brahma Prakash Sharma’s case AIR 1954 SC 10 and also as per the provisions of section 13 of the Contempt of Courts Act, 1971 as mandated by the Constitution Bench in Baradkanta Mishra’s case (1974) 1 SCC 374.

XXXIX) Judgment is vitiated for disregard of the Constitution Bench judgment in Baradakanta Mishra case [(1975) 3 SCC 535, T. B.

Hawkins 1948 SCC OnLine MP 36 which mandate that, when court is not aware of the said complaint and it is brought to the notice of the court by an informant, then it does not come under the category of interfering in the administration of justice. Further, no sentence under contempt can

lie without proving the harm caused. This restriction is also included in the statute in section 13 of the Contempt of Courts Act,1971

XL) Sentence is vitiated in view of law laid down in Shanti Devi’s case (2008) 14 SCC 220, as it was passed with undue haste and without granting adjournment and allowing the respondents to avail the legal remedies of Recall, Review, Writ etc.

XLI) Incorrect observation in Para 39 of the judgment that, the bench of Ld. Justice Rohinton Nariman acted in deference/line with the rule of Chief Justice of India is Master of Roster and directed the registry to place the matter before CJI. In fact in the order dated 27.03.2019 it is mentioned by the Justice Rohinton Nariman and Justice Vineet Saran that they are recusing from the case as allegations are against them only.

XLII) The observation in the judgment and order that, when judgment is per- incuriam then it cannot be set-aside in recall application is against the mandate of the law laid down by constitution bench in para 48 of A.R. Antuley’s Case (1988) 2 SCC 602.

XLIII) The judgment is vitiated for disregard of Full Bench of the Supreme Court in Re: Mulgaonkar (1978) 3 SCC 339 for not considering the circumstances under which the complaint was made and also for not considering the the contents of full complaint. The complainant was made for preventing disregard of binding precedents and upholding the rule of law. But it was stamped as false and illegal by quoting select paras divorced from the actual facts and the reasons for making said allegations. Therefore the findings are perverse and vitiated.

XLIV) Other illegalities in the judgment dated 27.04.2020 and order 04.05.2020. A. Incorrect observation in para 63. B. Misinterpretation in para 40.

C. Presumption on wrong premise in para 42 that, alleged contemnor No.1 had sent the copy of complaint to Justice Rohinton Nariman. D. Misinterpretation and twisting of the actual issue in para 43. E. Wrong observation in para 12 about submission of alleged contemnors. F. Wrong observation in para 35.

XLV) The sentence is vitiated for passing order against law laid down in Ram Phal (2009) 3 SCC 258, and for violation of Article 14 and Article 21 of the Constitution for rejecting the application for adjournment without mentioning the grounds taken in the application and without assigning any reason for rejecting the application which amounts to gross violation of principles of natural justice.

XLVI) Cognizance in contempt and notice issued against the procedure laid down by binding precedents of Hon’ble Supreme Court is nullity. [M/S Prominent Hotels Limited 2015 SCC Online Del 11910 (Para 22.2), In Re: Chief Secretary Govt. Of West Bengal 2003 SCC Online Cal 490 (Para 19)]

XLVII) Fraud On Court, serious criminal offences against administration of justice and gross contempt by Adv. Siddharth Luthra who was appointed as an Amicus Curiae, and who misguided the court by giving wrong legal position and relied on overruled and per-incuriam judgments, suppressed the important documents/communication from court, created false evidences and used it to be genuine one in order to frustrate the legal rights of the petitioner and the complainants i.e. Alleged contemnor No. 1 and 2 before Ld. Trial Court.

XLVIII) Adv. Milind Sathe and Mr. Kaiwan Kalyaniwalla are guilty of contempt and other offences against administration of Justice for giving the letter dated 23.03.2019 privately to Ld. Justice Rohinton Fali Nariman.

XLIX) As per the law laid down in Kamlakar Bhavsar 2002 ALL MR CRI. 2640 , Govind Mehta AIR 1971 SC 1708, it requires investigation through CBI as to how the letter dated 23.03.2019 reached the bench of Justice Rohinton Fali Nariman, because, the record shows that it was neither forwarded by the CJI not it was forwarded by the Registrar by any order as mandatorily required as per ‘Annexure -I’ at Page No. 268 of the Supreme Court Rules as published in 'Handbook on Practice and Office Procedure’ and also due to the fact that the source of said letter as to how it reached to the Bench is not mentioned in the order taking cognizance on 27.03.2019.

L) Conviction against Petitioner is vitiated in view of law and ratio laid down in M/S. Chetak Construction Ltd. Vs. Om Prakash & Ors. AIR 1998 SC 1855, where it is ruled that, if the allegations against the Judge are not denied by the parties before the Judge then the reference of Contempt by the Judge based on remarks which are not based on objective considerations and only contain general observations and irrelevant matters are conjectural in nature. Such allegations need to be disapproved and in such case no case for contempt made out by the said Judge. Therefore, suggestion for initiating contempt proceedings by Supreme Court on reference to it by the Judge, involved in the controversy needs to be rejected.

4. Hence, the present writ petition is filed with the prayers for setting aside the conviction, granting compensation to the Petitioner, investigation and action against Adv. Milind

Sathe and others for offences against administration of justice according to the legal parameters set down in the binding precedents of this Hon’ble Court, which may kindly be allowed.

LIST OF DATES/EVENTS

27th Mar’ 2019 Order passed by Justices RF Nariman & Vineet Saran in Suo Motu Cri. Contempt Petition 1/2019 to issue notice of Contempt to the instant petitioner & three others to explain why they should not be punished for Criminal Contempt.

29th Mar’ 2019 Issue of show-cause notice by the Registry

10th Apr’ 2019 Date of appearance of the allegd contemnors.

2nd Sept’ 2019 Order passed, discharging Adv. Mathews Nedumpara. Registry was directed to provide Annexures P1 to P15 to the Petitioner.

17th Sept’ 2019 The Assistant Registrar gave written confirmation that the said Annexures P1 to P15 were not available in case records

30th Sept’ 2019 Registry now directed to supply annexures with the complaint copies from the office of Hon'ble the Chief Justice of India to the instant petitioners & Amicus Curiae (Sr. Adv. Siddharth Luthra appointed as Amicus Curiae).

5th Oct’ 2019 The Registry acknowledged receipt of Petitioner’s email dated _____ regarding confirmation that the Annexures P1 to P15 alongwith the copies of complaint by Alleged contemnors 1 and 2 were not the part of court records and that they had procured these documents from the officeo of Hon’ble Chief Justice. This was also confirmed through a letter from the Deputy Registrar bearing acknowledgment number 11742/2019/SEC-XVII.

9th Dec’ 2019 Hon’ble Bench noted that only after going through the contents of the complaint of the petitioner, the bench will decide whether contempt has been committed or not.

13th Dec’ 2019 Petitioner filed Additional Affidavit as per the direction of Court

17th Dec’ 2019 Written Statements/Submissions filed by Amicus Curiae.

10th Jan’ 2020 Written Arguments regarding preliminary objections submitted by Petitioner and alleged contemnor No. 1. Case adjourned to 3rd Feb’ 2020.

3rd Feb’ 2020 Written Arguments submitted by alleged contemnor No. 2. Case listed to 7th Feb’ 2020 only for the purpose of fixing a date for further hearing.

7th Feb’ 2020 Case listed for hearing on 2nd Mar’ 2020

2nd Mar’ 2020 Additional written submissions by Amicus Curiae. The matter was reserved for orders; parties granted liberty to file written arguments (not exceeding 10 pages).

16th Mar’ 2020 Additional written submissions filed by the instant petitioner.

27th April’ 2020 Judgement passed convicting the petitioner & two others and matter listed for hearing on sentence on 1st May’ 2020.

1st May’ 2020 Application for Adjournment (IA No. 48483/2020) filed by Petitioner.

Application for Recall ((IA No. 48482/2020) filed by Petitioner.

Registry directed to place recall application (IA No. 48482/2020) filed by the instant petitioner before the Bench. Matter listed for

hearing on both on the applications for recall and sentencing on 4th May’ 2020.

3rd May’ 2020 Application for Recusal of Justice Deepak Gupta (IA No. 48502/2020) filed by Petitioner.

4th May’ 2020 IA No. 48482/20, IA No. 48502/2020 and IA No. 48483/2020 were rejected, observing that no recall application can lie on the grounds stated in the IA; and the remedy is to file review petition.

Applications for Recusal and Adjournment were rejected without assigning any reason. Instant petitioner alongwith Rashid Khan Pathan & Adv. Vijay Kurle sentenced to simple imprisonment for a period of 3 months & a fine of Rs. 2000/-.

Drawn by the Petitioner

Place: Mumbai

Date: 21.07.2020

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

WRIT PETITION (Crl.) NO______/2020 (Writ petition under Article 32 r/w 129 & 142 of the Constitution of India)

IN THE MATTER OF:

Adv. Nilesh s/o Chandrabhushan Ojha

R/o ………………………………

…………………………………… …. Petitioner (Original Alleged

Contemnor No.3)

VERSUS

1. Supreme Court of India through, Secretary General, Supreme Court of India, Bhagwan Dass Road, Supreme Court, New Delhi- 110001

2. Union of India, through Secretary,

Law and Justice Department,

Shashtri Bhavan, New Delhi-110001 ….Respondents

TO, THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA.

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED:

MOST RESPECTFULLY SHOWETH: 1. The petitioner is filling this writ petition under Article 32 r/w 129, 142 of the Constitution of India for setting aside the conviction and sentence under contempt passed against him by the 2- Judge Bench[CORAM: Shri. Justice Deepak Gupta and Shri. Justice Aniruddha Bose] of this

Hon’ble Court [hereinafter called as Trial Court] vide order 27.04.2020 and 04.05.2020 in SMCP (Cri.) 02 of 2019, in the matter between Re:Vijay Kurle and Others, where the Petitioner was sentenced to 3 months imprisonment with fine of Rs. 2000/- and was directed to surrender before the Respondent No.1 i.e. Secretary General of the Supreme Court on or before 25th August, 2020.

3. The present Writ petition is divided in to following parts :

I. Brief facts of the case [PAGE NO. - ]

II. Grounds for filing this petition [PAGE NO. - ]

III. Prayer [PAGE NO. - ]

4. The Nature of Fundamental Right infringed: Article 14,19,20 & 21 of the Constitution of India which are briefly described in the following table as grounds for filing the present writ petition are briefly summarized as under; GROUNDS PARA PAGE NOS. NOS.

4.2:- The order is vitiated as it is passed in 4.2.1. wilful disregard of the binding precedent of TO the Hon’ble Court in P.N.Duda’s case (1988) 4.2.6. 3 SCC 167, taking a view that, it as an obiter and not a binding precedent. In fact, the said judgment is made a binding precedent by the Full Bench in Bal Thackeray case (2005) 1 SCC 254, and therefore order is without jurisdiction and void. 4.3. The order taking cognizance by the Judge 4.3.1. in his own case is against the law laid down To by Constitution Bench in the case of 4.3.16. Supreme Court Advocate On Record Association (2016) 5 SCC 808, Re: C.S. Karnan (2017) 7 SCC 1, and therefore, the proceedings are without jurisdiction and cannot be validated by any subsequent orders and hence, nullity, void ab-initio and vitiated as passed by the Coram-Non-Judice as ruled in Devinder Pal Singh Bhullar (2011) 14 SCC 770, Deepak Kumar Prahladka Vs. Chief Justice Prabha Shanker Mishra (2004) 5 SCC 217. 4.4. Conviction is vitiated as the conviction is 4.4.1. for a charge which is contrary and against the To court’s own order dated 02.09.2019 and 4.4.15. 09.12.2019 and therefore, it is vitiated in view of law laid down in Lalu Prasad Yadav’s

case (2017) 8 SCC 1, R.S. Sherawat Vs. Rajeev Malhotra (2018) 10 SCC 574 and Bhupesh Deb Gupta Vs. State (1979) 1 SCC 87. 4.5. The order punishing the petitioner for a 4.5.1. charge of conspiring with alleged contemnor To No.4 Mathews Nedumpara, which was 4.5.15. already dropped by the order dated 02.09.2019 and 09.12.2019, is violative of doctrine of Double Jeopardy and Article 20 (2) of the Constitution and section 300 of Cr.P.C. and also against the law laid down in Sudhir Vasudera (2014) 3 SCC 373, Lalu Prasad Yadav (2017) 8 SCC 1 and therefore vitiates the entire conviction and sentence and make the petitioner entitle for compensation. 4.6. The Conviction is vitiated as it is based 4.6.1. on per-incuriam findings in para 82 of the To impugned judgment that, if Judge commits 4.6.9. any blatant wrong, illegality or irregularity in passing a judgment then the only remedy is to challenge such order and not to seek action by filing a complaint. Such observation is against the law laid down by full bench in K.K. Dhawan’s case (1993) 2 SCC 56, Bramha Prakash Sharma AIR 1954 SC 10. 4.7.- The Conviction is vitiated as it is based 4.7.1. on per-incuriam findings in para 48 and para To

86 of the impugned judgment that, no party 4.7.14 can attribute motive to a Judge or question the bonafides of the Judge or to raise question with regard to the competence of the Judge. Such observations are against the binding precedent of Constitution Bench in Re: C. S. Karnan (2017) 7 SCC 1, Subramanian Swamy vs. Arun Shourie (2014) 12 SCC 344, Addl. District & Sessions Judge ‘X’ (2015) 1 SCC 799, Baradkanta Mishra(1974)1 SCC 374, K. Veeraswamy’s case (1991) 3 SCC 655. 4.8. The Conviction is vitiated as it is based on 4.8.1. per-incuriam findings in para 67 of the To judgment and order that, the lawyer cannot 4.8.7. claim right to file complaint against a Judge. This observation is against the law laid down in :- i] Bramha Prakash Sharma, AIR 1954 SC 10 ii] Arun Shourie (2014) 12 SCC 344 iii] R.K.Jain (2010) 8 SCC 281 iv] R. Muthukrishnan AIR 2019 SC 849 4.9. The Conviction is vitiated as it is based 4.9.1. on per-incuriam findings in para 66 of the To impugned judgment that, even if the Judge of 4.9.2. Superior Court acts in wilful disregard and defiance of binding precedents of the higher

benches, he will not be subject to contempt proceedings at the behest of an individual/lawyer. This finding is against the law laid down by Constitution Bench judgment in Re: C.S. Karnan (2017)7 SCC 1. 4.10. Order is vitiated in view of law laid 4.10.1. down by the Constitution Bench judgment in To Central Board of Dawoodi Bohra (2005) 2 4.10.43. SCC 673, for highly illegal observations by placing reliance on the editorial note of an author of a book and treating the same as a statute in order to reject the law and ratio laid down by the binding precedents of Full Bench and Constitution Benches of the Supreme Court and putting reliance on overruled judgments of smaller benches. 4.11. Proceedings are vitiated since these were 4.11.1. conducted without mentioning and framing To specific charge in the order taking cognizance 4.11.25. which is against section 15 (3) of the Contempt Of Courts Act, 1971 read with Rule 6 of ‘The Rules To Regulate Proceedings For Contempt of the Supreme Court, 1975’ as mandated in J.R. Parashar (2001) 6 SCC 735, R.S. Sherawat (2018) 10 SCC 574. The contrary view in the impugned judgment

dated 27.04.2020 by misquoting the irrelevant para of the overruled judgement is vitiated. 4.12. Proceedings are vitiated as the show 4.12.1. cause notice issued to alleged contemnors was To not in Form-I and was without mentioning 4.12.8. specific charge, as mandated by the Rule 6 of ‘The Rules to Regulate Proceedings for Contempt of Supreme Court, 1975’, and the said notice was not issued by placing it before the bench and getting the endorsement of the bench as per law laid down in R.S. Sujatha v. State of Karnataka, (2011) 5 SCC 689,Nandlal Thakkar 2013 Cri.L.J. 3391, Mc.Ilraith Vs.Grady[1968] 1 QB 468. 4.13. Proceeding are vitiated for not recording 4.13.1. the plea of the alleged contemnors on the To alleged delineated charge dated 09.12.2019 as 4.13.6. per basic rules of contempt law followed in the case of Court On Its On Motion Vs. Harmeet Singh 2020 SCC OnLine P& H 4.14. Conviction is vitiated for conducting the 4.14.1. proceedings against the law laid down by the To Full Bench in R.K. Anand Vs. Delhi High 4.14.14. Court (2009) 8 SCC 106, where it is ruled that if the court is of the view that, the defence of the alleged contemnor is not admissible then, as a rule, the court has to give notice to the alleged contemnor to produce evidence to

prove defence. The court is not permitted to reject the defence in reply affidavit without giving opportunity to to prove the said defence. But Hon’ble Bench rejected the defence version without following the above binding precedent of Full bench and therefore conviction is vitiated. 4.15. Judgment dated 27.04.2020 and Order 4.15.1. dated 04.05.2020 are perverse and vitiated for To acting against binding precedent and giving 4.15.3 finding by ignoring evidence/proofs available on record i.e. the written communication by Dy. registrar and written submission available on record stating that, the said letter dated 23.03.2019 was not assigned by the Hon’ble CJI to the bench of Ld. Justice Rohinton Nariman and on 27.03.2019, i.e. on the date of passing order issuing the show cause notice, the complaints sent by alleged contemnor No.1 and 2 were not available on record. But the Hon’ble Bench by ignoring the proofs, gave findings on illogical and irregular presumption, contrary to the clear proofs and decided the case on surmises, suspicion, probability and conjectures, which is prohibited by the Hon’ble Supreme Court, in the case of Union Of India Vs. Ibrahim Uddin (2012) 8 SCC 148, National

Fertilizer Limited Vs. Tuncky (2013) 9 SCC 600, Vijay Shekhar (2004) 4 SCC 666, Prem Kaur Vs. State (2013) 14 SCC 653. 4.16. Conviction is vitiated due to reliance 4.16.1. placed by Ld. Trial Court on affidavit of To disputed and unverified testimony of Adv. 4.16.5 Rohini Amin, which is against the law laid down in the case of Three Cheers Entertainment Private Limited Vs. Cesc Limited (2008) 16 SCC 592, which mandates that no reliance on any affidavit can be placed without allowing the alleged contemnor to cross-examine it. 4.17. The proceedings are conducted against 4.17.1. the procedure of Contempt proceeding laid To down by Full Bench in National Fertilizers 4.17.8. Limited Vs. Tuncay Alankus (2013) 9 SCC 600, which mandates that, the parties (Mr. Milind Sathe and Mr. Kaiwan Kalyaniwalla ) who asserted against the Petitioner have to be directed to lead their evidence first, regarding their allegations of conspiracy/ consent between all the Alleged Contemnors. Unless sound proofs are given by the informant, the person charged (alleged contemnor) is not bound to prove otherwise. The findings and conviction in violation of this rule are vitiated as per law laid down in National Fertilizers

Limited Vs. Tuncay Alankus (2013) 9SCC 600, Rajeev Dawar (2018) 12 SCC 437, Hukum Chand 2020 SCC OnLine SC 438, R.K. Anand (2009) 8 SCC 106 and Prof. Rameshchandra Kapse’s Case (1996) 1 SCC 206. 4.18. Findings are based on incorrect 4.18.1. observations and against material on record To about proofs/ evidence and request to summon 4.18.10. witnesses as per Rule 12 of ‘The Rules to Regulate Proceedings for Contempt of Supreme Court, 1975’, to bring evidence in support of the allegations made by alleged contemnor against Shri Justice Rohinton Fali Nariman and therefore the conviction and sentence is vitiated in view of law laid down in Coward V. Stapleton, (1953) 90 CLR 573, Rajeev Dawar (2018) 12 SCC 437. 4.19. Findings in para 95 that ‘other than 4.19.1. saying that the Judges had misinterpreted the judgments of this Court or had ignored them or that Justice R.F. Nariman was biased, there is no material placed on record to support this defence, are not only against the material on record but also are against the law laid down in R.R. Parekh’s case (2016) 14 SCC 1, where it is ruled that, when any Judge passes an order in wanton breach of the mandatory

procedure then such order itself is a proof that, the said Judge acted with an ulterior motive. No further proofs are required. 4.20. Conviction and sentence is vitiated as 4.20.1. trial was conducted by appointing private To Counsel Mr. Siddharth Luthra to assist the 4.20.9. Court which is against the ‘Rule 10’ of ‘The Rules to Regulate Proceedings for Contempt of Supreme Court, 1975’, which permits only Attorney–General or Solicitor- General to appear and assist the Court and this has been followed by Constitution Bench in Subramanian Swamy Vs. Arun Shourie (2014)12 SCC 344, Re: C.S. Karnan (2017) 2 SCC 757 (1) Dr. L.P. Mishra Vs. State (1998) 7 SCC 379 (Full Bench). 4.21. Findings in para 90 and 46 that, only 4.21.1. select class of people can file complaint To against Judge or criticize the judgment is 4.21.6. against basic law of criminal jurisprudence and binding president in Baradkanta Mishra(1974)1 SCC 374 , N. Natrajan AIR 2003 SC 541, Addl. Sessions Judge ‘X’ 2015 1 SCC (LS) 799, A.R. Antuley's case (1988) 2 SCC 602, K. Veeraswami v. Union of India, (1991) 3 SCC 655 which mandates that, anyone can set the criminal law in motion even if it is against Judges. Further

any ordinary citizen is permitted to comment on the performance of the judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law and justice. 4.22. Cognizance is vitiated as it is passed by 4.22.1. ignoring the law that when the complaint is To addressed to Hon’ble CJI and Hon’ble CJI 4.22.2 himself do not think it to be contemptuous then, the judge against whom such complaint is made is precluded from taking cognizance of the Contempt in view of the law laid down in Court on its Own Motion Vs. DSP Jayant Kashmiri 2017 SCC OnLine Del 7387, and therefore, proceedings and conviction are against judicial propriety void-ab-initio and therefore, stand vitiated. 4.23. Proceedings and Conviction were 4.23.1. without jurisdiction for not disclosing the fact To that, Hon’ble Justice Deepak Gupta himself is 4.23.3. co-accused alongwith Justice Rohinton Nariman in a connected case and therefore, disqualified to hear the case. Therefore, whole proceeding vitiated as coram-non-judice as per law laid down in Supreme Court Advocate - on- Record (2016) 5 SCC 808, and Davinder Pal Singh Bhullar's case (2011) 14 SCC 770.

4.24. The judgment is vitiated for conscious 4.24.1. disregard of ‘Restatement Of Judicial To Values 1999’ adopted by the full court of the 4.24.7 Supreme Court and constitution Bench judgment in Supreme Court Advocate - on- Record (2016) 5 SCC 808, and Davinder Pal Singh Bhullar's case (2011) 14 SCC 770 which mandates that the Judge cannot hear a case related to his family member(s) or where he is indirectly concerned. But Ld. Trial Court, in para 51 of the judgment dated 27.04.2020 has taken a view that, Shri Justice Rohinton Fali Nariman can hear the case related to his father Adv. Fali Nariman as both are different entities. 4.25. Order vitiated in view of law laid down 4.25.1. by Constitution Bench in Secretary Jaipur To Development Authority vs. Daulat Mal 4.25.12. Jain (1997) 1 SCC 35 for violation of Article 14 of the Constitution by giving unequal treatment to the Alleged Contemnors by giving only 3 days’ time for hearing on sentence for contempt in contrast to a similar case in which 90 days were granted to Sameer Gahlot in the case of Vinay Singh Vs. Sameer Gahlot 2019 SCC OnLine SC 1480.

4.26. Findings of the judgment are vitiated as 4.26.1. based on incorrect and wrong observation To that, the alleged contemnors till the 4.26.5.` pronouncement of the judgment on 27. 04. 2020 have not raised any grievance that, they were not given fair opportunity of hearing which is against the specific objection in written submissionof alleged contemnors dated 16.03.2020 and therefore, this finding is perverse and vitiated as per law laid down in Prem Kaur Vs. State (2013) 14 SCC 653 4.27. Judgment vitiated as based on incorrect 4.27.1. finding that, the alleged contemnor No. 4. Adv. Mathews Nedumpara admitted that, he had committed contempt. The incorrectness is ex-facie proved from record and therefore, the findings based on wrong premise are proved to be null and void as per law laid down in National Fertilizer Limited Vs. Tuncky (2013) 9 SCC 600, Walchand Vs. State 1996 CR. L. J. 1102 4.28. The order is vitiated being per-incuriam 4.28.1. as the observations and ratio in the judgment To and order that, the challenge to order which is 4.28.3. without jurisdiction and based on incorrect submission and resulting from fraud played by Adv. Siddharth Luthra are not the ground for recall of order. This is violative of law laid

down by the Full Bench in New India Assurance 2019 SCC Online SC 1786. 4.29. Judgment and Order are vitiated for not 4.29.1. deciding the preliminary objection of To maintainability first and instead clubbing 4.29.19. together the hearing on preliminary objection and main matter. And thereafter passing the order by ignoring various preliminary objections. This is violative of Full Bench judgment in Samar Ghosh Case (2004) 13 SCC 52, Ashok Agarwal (2014) 3 SCC 602, ii) Bhagabhai Dhanabhai Barad 2019 SCC OnLine Guj 1535, and is a perverse order resulting from Legal Malice. 4.30. A] Judgment and Order are in disregard 4.30.1. of binding precedent of Full Bench in Biyani To Dash (2005) 9 SCC 194, where it is ruled that, 4.30.15. the order taking cognizance on any information by any private person without consent of Attorney General must mention that the court is taking suo motu cognizance. But the order dated 27.03.2019 passed by the bench of Ld. Justice Rohinton Fali Nariman directing issuance of Show-Cause-Notice nowhere mention that the court is acting suo motu. Therefore the cognizance is bad and vitiated in view of abovesaid law laid down by the Full Bench.

B] The cognizance of a letter privately received by the Bench of Ld. Justice Rohinton Fali Nariman is illegal and vitiate entire proceedings in view of law laid down by the Constitution Bench & Full Bench in Compaigne for Judicial Reforms (2018) 1 SCC 196, Bal Thackeray (2005) 1 SCC 254, High Court of Judicature at Allahabad v. Raj Kishore Yadav1997 (3) SCC 11, Divine Retreat (2008) 3 SCC 542, which mandates that, the Judge/Bench of the Supreme Court who receives any letter is bound to place the letter before CJI for appropriate decision. The individual Judges/ Bench are not permitted to take cognizance of the letter either under contempt law as per Art. 129 or under any jurisdiction. At the stage of cognizance of letter the provisions of Article 129 have no role. It come in to play only after proceedings are initiated. Therefore the contrary view taken by the smaller Bench of Ld. Justice Deepak Gupta in para 39 of the judgment dated 27.04.2020 is a per - incuriam, null & void finding which vitiates the entire contempt preceding based on the legal principle sublato fundamento cadit opus meaning thereby that when foundation is removed structure collapse as ruled in a contempt case in Prof.

Y.C. Simhadri, V.C., B.H.U., Varanasi Vs. Deen Bandhu Pathak, 2001 SCC OnLine All 572 ,Kawar Singh Saini (2012) 4 SCC 307. 4.31. Judgment and Order are vitiated for 4.31.1. pronouncing the sentence against the law laid To down by the Full Bench in Sukh Das (1986) 4.31.4. 2 SCC 401 by deciding the case without granting time to the alleged contemnors for making arrangement of a lawyer of his choice and thereby violating the constitutional right to be defended by a Lawyer of his choice. 4.32. The conviction of Petitioner is vitiated 4.32.1. because one of the ground for conviction in To para 92 of the judgment is that he supported 4.32.8. the stand taken by the Alleged Contemnors No. 1 and 2 during the course of the proceeding is violative of the basic principles of criminal jurisprudence as ruled in J.R.Parashar (2001) 6 SCC 735, which mandates that, there cannot be vicarious liability in Contempt and the charge of supporting the stand of other contemnors during the proceeding can be tried by a separate proceeding by issuing a fresh contempt notice if a case is made out on the basis of reply affidavit.

4.33. The cognizance of letter dated 4.33.1. 23.03.2019 was taken for issuing show cause To notice for contempt without disclosing the 4.33.12. source of the said letter in the order as to how it reached the Bench. This is against the law laid down by Constitution Bench in Subramanyam Swami’s Case (2014) 12 SCC 344, which mandates that, in contempt proceedings no document can be taken on record without following the procedure given in the law of pleadings. 4.34. Order is against the basic law of 4.34.1 contempt proceedings as ruled in Tamilnad To Mercantile Bank Shareholders Welfare 4.34.11 Association Vs. S.C. Sekar (2009) 2 SCC 784, Re: S. Mulgaonkar AIR 1978 SC 727,where it is ruled that, if two views are possible then the view favorable to the alleged contemnor should be accepted and benefit of doubt, if any, should be generously given against the Judge and in favour of the alleged Contemnor. Here the view favourable to the petitioner supported by proofs and courts own order is rejected on the basis of probabilities, and therefore, conviction and sentence is null and void. 4.35. Sentence is vitiated as the application 4.35.1. for recusal of Justice Deepak Gupta moved by To

the Petitioner was rejected by cryptic order 4.35.2. without mentitioning reasons. This is against the law laid down by Constitution Bench in Supreme Court Advocate On Record Association (2016) 5 SCC 808, where it is ruled that, the necessity of passing a reasoned order on recusal by the Ld. Justice Deepak Gupta was necessary. 4.36. A] Sentence vitiated for incorrect and 4.36.1. wrong observation/findings in the order To rejecting Recusal Application moved by 4.36.9. Petitioner. The order states that thaere is only one ground raised for seeking recusal when in fact there are 23 grounds. The refusal to recuse on incorrect and wrong premise makes the order as perverse and the subsequent sentence becomes non-est as passed by the coram-non- judice as per law laid down in P.K. Ghosh (1995) 6 SCC 744. B] Order on recusal application is passed jointly by the Bench and not by the that Judge (Justice Gupta) whose recusal was sought. This violation of law laid down by Hon’ble Supreme Court in Supreme Court Advocates- On-Record Association Vs. Union Of India (2016) 5 SCC 808 thereby vitiating the order. 4.37. Order includes an observation that writ 4.37.1. jurisdiction is not available in a case of To

conviction under contempt by the Supreme 4.37.8. Court in its original jurisdiction. This observation is against the law laid down by Constitution Bench in Roopa Hoora’s Case (2001) 4 SCC 388,A. R. Antuley's (1988) 2 SCC 602, Madhav Hayawadanrao Hoskot vs. State (1978) 3 SCC 552. 4.38. Judgment and Order both are passed 4.38.1. against the ‘law of per-incuriam’ as laid To down in Sandeep Bafna’s Case (2014) 16 4.38.3. SCC 623, Central Board of Dawoodi Bohra (2005) 2 SCC 673 ,which mandates to follow the earlier view of Constitution Benches in Bathina Reddy AIR 1952 SC 149 and to ignore subsequent judgment of co-ordinate Bench in C.K. Daphtari’s case (1971) 1 SCC 626, and also to follow earlier Constitution Bench judgment in Baradkanta Mishra (1974) 1 SCC 374 about applicability of Contempt of Courts Act,1971 and to ignore subsequent contrary findings if any, by a Bench of co-equal strength in Supreme Court Bar Association Vs. Union of India(1998) 4 SCC 409. 4.39. Imposing substantial sentence is not 4.39.1. permissible where a complaint was by Bar To Association against a Judge regarding his 4.39.3 incapacity alongwith other allegation. This

can at the most be called as ‘Technical Contempt’ as ruled by the Constitution Bench in Brahma Prakash Sharma’s case AIR 1954 SC 10 and also as per the provisions of section 13 of the Contempt of Courts Act, 1971 as mandated by the Constitution Bench in Baradkanta Mishra’s case (1974) 1 SCC 374. 4.40. Judgment vitiated for disregard of the 4.40.1. Constitution Bench judgment in To Baradakanta Mishra case [(1975) 3 SCC 4.40.4. 535, T. B. Hawkins 1948 SCC OnLine MP 36 which mandate that, when court is not aware of the said complaint and it is brought to the notice of the court by an informant, then it does not come under the category of interfering in the administration of justice. Further, no sentence under contempt can lie without proving the harm caused. This restriction is also there in the statute in section 13 of the Contempt of Courts Act,1971 4.41. Sentence is vitiated in view of law laid 4.41.1. down in Shanti Devi’s case (2008) 14 SCC To 220, as it was passed with undue haste and 4.41.3. without granting adjournment and allowing the respondents to avail the legal remedies of Recall, Review, Writ etc.

4.42. Incorrect observation in Para 39 of the 4.42.1. judgment that, the bench of Ld. Justice To Rohinton Nariman acted in deference/line 4.42.2. with the rule of Chief Justice of India is Master of Roaster and directed the registry to place the matter before CJI. In fact in the order dated 27.032019 it is mentioned by the Justice Rohinton Nariman and Justice Vineet Saran that they are recusing from the case as allegations are against them only. 4.43. The observation in the judgment and 4.43.1. order that, when judgment is per-incuriam To then it cannot be set-aside in recall application 4.43.11. is against the mandate of the law laid down by constitution bench in para 48 of A.R. Antuley’s Case (1988) 2 SCC 602. 4.44. The judgment is vitiated for disregard of 4.44.1. Full Bench of the Supreme Court in Re: To Mulgaonkar (1978) 3 SCC 339 for not 4.44.2 considering the circumstances under which the complaint was made and also for not considering the the contents of full complaint. The complainant was made for preventing disregard of binding precedents and upholding the rule of law. But it was stamped as false and illegal by quoting select paras divorced from the actual facts and the reasons

for making said allegations. Therefore the findings are perverse and vitiated. 4.45. Other illegalities in the judgment dated 4.45.1. 27.04.2020 and order 04.05.2020. To A. Incorrect observation in para 63. 4.45.7 B. Misinterpretation in para 40. C. Presumption on wrong premise in para 42 that, alleged contemnor No.1 had sent the copy of complaint to Justice Rohinton Nariman. D. Misinterpretation and twisting of the actual issue in para 43. E. Wrong observation in para 12 about alleged contemnors submission. F. Wrong observation in para 35. 4.46. The sentence is vitiated for passing 4.46.1. order against law laid down in Ram Phal To (2009) 3 SCC 258, and for violation of 4.46.7. Article 14 and Article 21 of the Constitution for rejecting the application for adjournment without mentioning the grounds taken in the application and without assigning any reason for rejecting the application which amounts to gross violation of principles of natural justice.

4.47. Cognizance in contempt and notice 4.47.1. issued against the procedure laid down by To binding precedents of Hon’ble Supreme Court 4.47.4. is nullity. [M/S Prominent Hotels Limited 2015 SCC Online Del 11910 (Para 22.2), In Re: Chief Secretary Govt. Of West Bengal 2003 SCC Online Cal 490 (Para 19)]

4.48. Fraud On Court, serious criminal 4.48.1. offences against administration of justice and To gross contempt by Adv. Siddharth Luthra 4.48.11. who was appointed as an Amicus Curiae, and who misguided the court by giving wrong legal position and relied on overruled and per-incuriam judgments, suppressed the important documents/communication from court, created false evidences and used it to be genuine one to frustrate the legal rights of the petitioner and the complainants i.e. Alleged contemnor No. 1 and 2 before Ld. Trial Court. 4.49. Adv. Milind Sathe and Mr. Kaiwan 4.49.1. Kalyaniwalla are guilty of contempt and other To offences against administration of Justice for 4.49.2. giving the letter dated 23.03.2019 privately to Ld. Justice Rohinton Fali Nariman.

4.50. As per the law laid down in Kamlakar Bhavsar 2002 ALL MR CRI. 2640 , Govind Mehta AIR 1971 SC 1708, it is requires investigation through CBI as to how the letter

dated 23.03.2019 reached the bench of Justice Rohinton Fali Nariman, because, the record shows that it was neither forwarded by the CJI not it was forwarded by the Registrar by any order as mandatorily required as per ‘Annexure -I’ at Page No. 268 of the Supreme Court Rules as published in 'Handbook on Practice and Office Procedure’ and also due to the fact that the source of said letter as to how it reached to the Bench is not mentioned in the order taking cognizance on 27.03.2019. 4.51. Conviction against Petitioner is vitiated 4.51.1. in view of law and ratio laid down in M/S. Chetak Construction Ltd. Vs. Om Prakash & Ors. AIR 1998 SC 1855, where it is ruled that, if the allegations against the Judge are not denied by the parties before the Judge then the reference of Contempt by the Judge based on remarks which are not based on objective considerations and only contain general observations and irrelevant matters are conjectural in nature. Such allegations need to be disapproved and in such case no case for contempt made out by the said Judge. Therefore, suggestion for initiating contempt proceedings by Supreme Court on reference to

it by the Judge, involved in the controversy needs to be rejected.

3. [I] BRIEF FACTS OF THE CASE:-

3.1. Two Ld. Judges Shri. Justice Rohinton Fali Nariman and Shri. Justice Vineet Saran vide order dated 12th March, 2019 invoked the provisions of section 14 of the Contempt of Court’s Act, 1971 and declared Adv. Mathews Nedumpara (Since he is Respondent No. 4 in SMCP[Cri.] No. 02/2019 therefore, hereinafter he is termed as Respondent No. 4) guilty of Contempt of Court for his alleged arguments on previous date. The conviction was without any trial and without framing any charge for alleged inappropriate argument during the hearing of the case. This was against the mandates of law as guaranteed under Constitution of India and also against law laid down by Full Bench of Hon’ble Supreme Court in Sukhdev Singh Sodhi Vs. Chief Justice S. Teja Singh, 1954 SCR 454 (Full Bench), Dr. L.P. Mishra Vs. State (1998) 7 SCC 379 (Full Bench), Pallav Seth Vs. Custodian (2001) 7 SCC 549, Re: Pollard LR 2 PC 106 ,Vinay Chandra Mishra (1995) 2 SCC 584 (Full Bench) which was followed with approval by Constitution Bench of this Hon’ble Court.

3.2. This caused surprise and shock in legal fraternity. Indian Bar Associations’ Maharashtra and Goa State President, Adv. Vijay Kurle (as in SMCP[Cri.] 02 of 2019, hereinafter called as alleged Contemnor No.1), on 20.03.2019 filed complaint before Hon’ble President of India on 20th March, 2019 being case No. PRSEC/E/2019/05351. A copy of the said complaint was also sent to Hon’ble Chief Justice of India. It was specifically mentioned in the said complaint that, the alleged contemnor No.1 is performing his duty under Article 51 (A) (h) of the Indian

Constitution and as per Bar Council of India Rules to make complaint against a Judge as guided by judgment of this Hon’ble Court judgment in R. Muthukrishnan Vs. The Registrar General of the High Court of Judicature at Madras AIR 2019 SC 849, Indirect Tax Practitioners Association Vs. R.K. Jain,(2010) 8 SCC 281, and with an intention to stop further contempt of Hon’ble Supreme Court’s binding precedent and to preserve dignity and majesty of the Hon’ble Supreme Court.

3.3. In another unrelated issue Shri. Rashid Khan Pathan, National Secretary of Human Rights Security Council (NGO) (alleged contemnor No. 2) on 19th March, 2019, lodged a complaint before Hon’ble President of India against Shri. Justice Rohinton Nariman and Shri. Justice Vineet Saran for acting against Full Bench judgment of Hon’ble Supreme Court in P.C. Reddiar’s case (1972) 1 SCC 9, R. Karuppan’s case (2001) 5 SCC 289, and Constitution Bench judgment in Iqbal Singh Marwah (2005) 4 SCC 370.

3.4. Regarding these two complaints one Adv. Milind Sathe, President of Bombay Bar Association, along with Mr. Kaiwan Kalyaniwalla of ‘Bombay Incorporated Law Society’ had written one Joint Letter dated 23rd March 2019 to Hon’ble President of India & Hon’ble Chief Justice of India without any legal precedents and only based on their own assumptions and presumptions and made request for dismissing the said complaints of Respondent 1 & 2. They, (Adv. Milind Sathe) also made false & misleading allegations against Mr. Rashid Khan Pathan (alleged contemnor No. 2) of ‘Human Rights Security Council’ for filing complaint dated 19th March, 2019. The Petitioner Adv. Nilesh C. Ojha & Respondent No. 4 Mr. Mathews Nedumpara were also roped in the said letter based on false, misleading and distorted version to frame a case that the abovesaid 2 complaints by alleged contemnor No. 1 & 2 are with a

view to help alleged contemnor No.4 Mathews Nedumpara in conspiracy with Petitioner Adv. Nilesh Ojha.

3.5. Ld. Two-Judges Shri. Justice Rohinton Nariman and Shri. Justice Vineet Saran vide order dated 27th March, 2019, took the cognizance of the letter dated 23.03.2019 though the said letter was not addressed to them. The source of said letter as to how it reached the bench of Ld. Justice Rohinton Fali Nariman is also not mentioned in the order. The bench of Ld. Justice Rohinton F. Nariman & Ld. Justice Vineet Saran by taking cognizance of the said letter issued “Show Cause Notice” under Contempt vide order dated 27th March, 2019.

3.6. That, the relevant para of order dated 27th March 2019 are reproduced under;

“A letter dated 23.03.2019, received by the office of the Judges of this Bench on 25.03.2019, is a letter that is sent to the President of India, the Chief Justice of India and the Chief Justice of the High Court of Bombay by the President of the Bombay Bar Association and the President of the Bombay Incorporated law Society. The aforesaid letter states:

“We have come across, in the social media, copies of the following complaints purportedly made against Hon’ble Mr. Justice R.F. Nariman and Hon’ble Mr. Justice Vineet Saran, Judges, Supreme Court of India.”

“...... Given the two complaints filed, it is clear that scandalous allegations have been made against the members of this Bench. We, therefore, issue notice of contempt to (1) Shri Vijay Kurle; (2) Shri Rashid Khan Pathan, (3) Shri Nilesh Ojha and (4) Shri Mathews Nedumpara to explain as to why they

should not be punished for criminal contempt of the Supreme Court of India, returnable within two weeks from today.

Given the serious nature of the allegations levelled against this Bench, the Chief Justice of India to constitute an appropriate Bench to hear and decide this contempt case.”

3.7. That, the source of said letter dated 23.03.2019 as to whether said letter was received through Registered Post or given by Mr. Milind Sathe privately is not mentioned in the order dated 27th March 2019. The said letter was not addressed to the Bench of Ld. Justice Rohinton Fali Nariman then also how that, letter reached to their bench is not mentioned in the order dated 27th March, 2019.

3.8. The Registry of this Hon’ble Court as per order dated 27th March, 2019 passed by the Bench headed by Ld. Justice Rohinton Nariman, issued notice dated 29.03.2019 which was served upon the Prtitioner and he came to the Hon’ble Supreme Court on 10th April 2019 i.e. the date fixed for hearing of the case, but on that day, the matter was not on board.

3.9. Lastly, after five months, the matter has got listed on 2nd September, 2019 before the Bench of Hon’ble Justices Shri. Aniruddha Bose and Shri. Deepak Gupta [Trial Court]

3.10. On 2nd September, 2019 this Hon’ble Court discharged alleged contemnor No. 4 Mr. Mathews Nedumpara by observing that, there is no material available against alleged contemnor No.4. The order dated 2nd September, 2019 reads as under;

“4. An application has been moved by respondent No. 4 Mr. Mathews Nedumpara for discharge. This contempt was registered basically on the joint complaint filed by the President of the Bombay Bar Association and the President of the Bombay Incorporated Law

Society. In this complaint reference has been made to a communication (sent by respondents no. 1 and 2) and the allegation against respondents no. 3 and 4 is that they have acted in tandem with respondents no. 1 and 2. Other than this allegation, there is no other material to show that respondent no. 4 connived with respondents no. 1 and 2.

5. Respondent No. 4, in his discharge application, has stated that he barely knows respondents no. 1 and 2 and has no concern with the communication sent by them. According to him, he is neither the author of this communication nor has he encouraged respondents no. 1 and 2 to send the same. At this stage there is no direct material to connect respondent no. 4 with the said communication.”

We, therefore, discharge Shri. Mathews Nedumpara at this stage.”

3.11. That, in the said letter dated 23rd March, 2019 there was a reference of total 15 Annexures. Since those annexures were not provided, therefore, Petitioner requested this Hon’ble Court to direct the registry to provide it to him. This Hon’ble Court [Trial Court] vide its order dated 2nd September, 2019 directed the Registry to provide all the Annexures. The Asst. Registrar of Supreme Court on 17th September, 2019 after verifying their record of both the cases i.e. of Suo Moto Contempt Petition (Cri) No.02 of 2019 and Suo Moto Contempt Petition (Cri) No. 01 of 2019 intimated in his own handwriting as under ;

“Annexures as mentioned in letter dated 23/03/2019 given by Bombay Bar Association is not available with letter dated 23/03/2019”

sd/-

Asst.Registrar XVII

Supreme Court of India”

3.12. That, on 30th September, 2019, the Counsel for alleged contemnor No.1 & 2 and present petitioner submitted that, though said communication are not available on the record of the present case, but said documents are necessary for the effective defence of alleged contemnor No. 1 & 2 therefore the said annexures can be taken from the office of Hon’ble CJI as the said letter dated 23.03.2019 was also sent to Hon’ble CJI. Considering the submission in reply affidavit about necessity to provide those documents, this Hon’ble Court on 30.03.2019, gave specific direction to Registry as under;

“We direct the Registry to supply three sets of Annexures P1 to P15 attached with the complaint sent to the Hon'ble the Chief Justice of India, to Mr. Jai Ram Yadav, who receive the same on behalf of respondents no.1 and 2 as well as respondent no.3 in-person on 04.10.2019 at 2 p.m from the office of the concerned Registrar.”

3.13. Thereafter, as per directions of this Hon’ble Court the registrygot the copy of said Annexures from the office of Hon’ble Chief Justice of India as those Annexures were not available on the record of the present case. Communication of Petitioner with the Dy. Registrar Shri. Vinod Kulvi is reproduced as under;

“To, Shri Vinod Kulvi Dy. Registrar Supreme Court of India

Sub: Postponement of date for receiving Annexures P-1 to P-15 as directed by Hon’ble Supreme Court vide order dated 30.09.2019

Ref: Suo Moto Contempt Petition (Cri.) No. 2 of 2019 ,In Re: Vijay Kurle & Ors.

Respected Sir,

As per my telephonic conversation today with your staff Shri. Puneet, and then with you on your Cell No. 9818309354, I am sending this mail to you as under;

1. That, today myself or my representative Adv. Jairam Yadav are unable to come to your office to receive the subject mentioned documents, due to personal difficulty , as we are at Bombay High Court for an urgent hearing.

2. As informed by you, the Supreme Court's office is closed upto October 14, 2019. Therefore, we will receive said documents soon thereafter.

3. That Hon’ble Justice Deepak Gupta &Hon’ble Justice Aniruddha Bose vide order dated 2nd September, 2019 have discharged Respondent No. 4 observing that, there is no material available on the record except the said letter dated 23.03.2019. It is observed by Hon’ble Court as under;

“An application has been moved by respondent No.4 Mr. Mathews Nedumpara for discharge. This contempt was registered basically on the joint complaint filed by

the President of the Bombay Bar Association and the President of the Bombay Incorporated Law Society. In this complaint reference has been made to a communication (sent by respondents no.1 and 2) and the allegation against respondents no.3 and 4 is that they have acted in tandem with respondents no.1 and 2. Other than this allegation, there is no other material to show that respondent no.4 connived with respondents no.1 and 2. Respondent No.4, in his discharge application, has stated that he barely knows respondents no.1 and 2 and has no concern with the communication sent by them. According to him, he is neither the author of this communication nor has he encouraged respondents no.1 and 2 to send the same. At this stage there is no direct material to connect respondent no.4 with the said communication.

We, therefore, discharge Shri. Mathews Nedumpara at this stage.”

4. That, Hon'ble Justice Deepak Gupta and Hon'ble Justice Aniruddha Bose vide their order dated 02.09.2019 had directed to Registry to handover all annexures to Respondent No.3 (myself). But those annexures were not provided. Then myself personally met and had requested to registry to provide me the said annexures. Then the Ld. Asst. Registrar on 17.09.2019 after verifying the case file of Suo Moto Contempt Petition (Cri.) No. 2 of 2019 and also of Suo Moto Contempt petition (Cri.) No. 1 of 2019 in presence of

myself, your officer Shri. Puneet and my Advocate Shri. Ishwarlal Agarwal had given the written note as under:

“Annexures as mentioned in letter dated 23/03/2019 given by Bombay

Bar Association is not available with letter dated 23/03/2019”

sd/-

Asst. Registrar XVII Supreme Court of India

A copy of which is annexed herewith.

5. That today at around 12.47 p.m. Shri. Puneet in telephonic communication with me from telephone no. 9810391729 of my clerk Shri. Sanjay had informed that the said Annexures were brought from the office of Hon’ble Chief Justice Of India from their original file and were not available on the record of the present proceedings.

6. These facts are mentioned only for the purpose of bringing the true facts on record to avoid any confusion or to avoid the possibility of tampering of the proceedings and that no innocent officers be harassed.

7. If you are pleased to provide me the copy of inward and outward record of the said documents i.e. 'P-1 to P-15' then I will remain grateful.a

Thanking you.

Yours faithfully Adv. Nilesh C. Ojha Respondent No.3 Encl.

1. As above.”

3.14. The abovesaid email is acknowledged by the Assistant Registrar of Hon’ble Supreme Court without any dispute or objection vide letter dated

5th October, 2019 being No.11742/2019/SEC-XVII.

3.15. That, thereafter alleged contemnor No. 1 and 2 and petitioner filed their short affidavit raising preliminary objection about maintainability of the said contempt proceedings as the main charge itself failed and second proceedings on same facts is impermissible.

3.16. Alleged contemnor No. 2 filed Additional Affidavit (428 Pages) on…… The prayer in said Affidavit reads as under;

“(A) After going through the communication with Dy. Registrar & Asst. Registrar of Hon’ble Supreme Court pleased to record a finding that;

(i) In view of the material available on record there is nothing to show that how the letter dated 23.03.2019 reached to the he Bench of Ld. Justice Rohinton Fali Nairman & Ld. Justice Vineet Saran on 25.03.2019 even though it was not addressed to the said Bench, and since the source of letter is not disclosed in the order dated 27.03.2019 the reliance on said letter by Ld. Judges is illegal and inconsistent with the recognized form of pleadings and against the binding

precedent of Constitution Bench in contempt proceeding in the case between Subramanian SwamyVs.Arun Shourie (2014) 12 SCC 344,also it is objectionable and not permissible as per law & ratio laid down in Shrirang Yadavrao Waghmare Vs. State 2019 SCC OnLine SC 1237, Murat Lal Vs. Emperor MANU/BH/ 0305/1917

(ii) The letter Dated 23.03.2019, which was alleged to be reached the Bench of Ld. Justice Rohinton Fali Nariman &Ld. Justice Vineet Saran on 25.03.2019 was not with the said Annexures P-1 to P-15 as can be seen from the communication with Dy. Registrar on 4th October, 2019 and also from the fact that those annexures were not with the order uploadedby Court master on the website of Supreme Court.

(iii) The copy of the annexures provided to the Respondent No. 1, 2 & 3 after direction in the order dated 30th September,2019 were brought by the Registry from the office of Hon’ble C.J.I. where the main communication i.e. letter dated 23.03.2019 was pending.

(iv) Though the Annexure P-1 to P-15 were not on the records of the case on 27.03.2019 then also the prayers of Annexure P-1 & P-2 i.e. the prayers of Complaint by Respondent No. 1 & 2 were reproduced in the order dated 27.03.2019 without disclosing the source of the said annexures P-1 & P-2 which is illegal.

vii) Any proceeding is a journey to the truth and every judge is duty bound to investigate the truth and no stone should be left unturned to find where the truth is lies, as ruled by three Judge Bench in Maria Margarida (2012) 5 SCC 370, Kishore Samrite (2013) 2 SCC 398, and to bring the truth to the surface and to verify the crucial aspect of the case that from which source the letter dated 23.03.2019 reached to the Bench of Ld. Justice Rohinton Fali Nariman on 25.03.2019, and also to give fair opportunity to Respondent to prove his defence of judicial bias, it is necessary that the Ld. Justice Rohinton Fali Nariman, Ld. Justice Vineet Saran be summoned as a witness and the respondent be allowed to cross-examine them as per law laid down by this Hon’ble Court in catena of decisions and more particularly by a 3- Judge Bench in R.K. Anand (2009) 8 SCC 106, R. S. Sherawat 2018 SCC OnLine SC 1347, Rajiv Dawar Vs. High Court of Delhi (2018) 12 SCC 487, Murat Lal Vs. Emperor 1917 SCC OnLine Pat 1, Woodward Vs. Waterbury 155 A. 825, The ratio laid down in Vinay Chandra Mishra’s case (1995) 2 SCC 584 (Full Bench) which prohibits summoning of a Judge in Contempt cases tried under section 14 of the Contempt of Courts Act,1971 is not applicable to the present case because the present proceedings are under section 15 of the Contempt of Court’s Act and not under section 14 of the said Act. vii) The examination of the Court Master is also necessary to ascertain the facts regarding;

(i) Source of letter date 23.03.2019 reaching Bench of Ld. Justice Rohinton Nariman on 25.03.2019 when the said letter was not addressed to them.

(ii) Reproduction of prayers of annexure P. 1 &

P. 2 when those annexures were not available on the record. viii) The examination of both signatories of joint letter dated 23.03.2019 i.e. Adv. Milind Sathe & Mr. Kaiwan Kalyaniwalla is necessary as the letter is not supported by any affidavit as mandated by Hon’ble Supreme Court Rules and the legal procedure under contempt mandates that ‘the one who asserts must prove’ and the contempt proceeding cannot be based on the reply of the respondents but on the legally admissible evidence of the informant.

ix) The examination of Adv. Fali Nariman to prove the link between informant & him.

B) To direct C.B.I to submit the report by investigating all the issues raised by the Respondent in their affidavits including the phone call details of Adv. Milind Sathe, Mr. Kaiwan Kalyaniwalla, Adv. Fali Nariman regarding the allegations by Respondents that the reason behind sending the letter dated 23.03.2019 was out of personal rivalry and actuated with ulterior motive and malafide intention and therefore enquiry by C.B.I. is necessary to ascertain the veracity of the case, in view of law laid down in;

(i) Dr. Sarvapalli Radhakrishnan Vs. Union of India 2019 SCC OnLine SC 51 (Full Bench)

(ii) Kishore Samrite vs State (2013) 2 SCC 398

(iii) Sanjeev Mittal Vs State 2010 SCC OnLine Del 4006

(iv) Uma Shankar Sitani Vs Commissioner of Police (1996) 11 SCC 714

(v) Noida Entrepreneur Association Vs. Noida (2011) 6 SCC 508

C) After getting the report from C.B.I. & after examination of witnessesthis Hon’ble Court may pleased to decide the prayers of discharging and granting compensation to the Respondents with further action under contempt and under section 192,211,469,471,474,500,501 r/w 120 (B) & 34 of IPC against Adv.MilindSathe, Mr.Kaiwan Kalyaniwalla & Ors.

D) To appropriate the points (a) to (ggg) in para (59).”

3.17. The Petitioner and alleged contemnor 1 and 2, also filed Interim Applications on 25.11.2019, 26.11.2019 and 29.11.2019 respectively for dropping the proceedings and granting them compensation.

3.18. The Trial Court vide their order dated 09.12.2019 without looking in to objections and legal position delineated the charges as under:

“We want to make it clear that in view of the original order and the documents placed on record, the charge against Mr. Vijay Kurle- alleged Contemnor No.1 is only in respect of the scandalous allegations as against two Judges of this Court in letter dated 20.3.2019 sent by him as State President, Maharashtra & Goa (Indian Bar Association).

As far as alleged Contemnor No.2-Sh. Rashid Khan Pathan is concerned, only letter dated 19.3.2019 is relevant and he has sent this letter in his capacity as National Secretary of the Human Rights Security Council (N.G.O.). We again make it clear that as far as Sh. Rashid Khan Pathan is concerned, the scandalous allegations as against two Judges of this Court in the letter sent by him will be taken into consideration against him.

We also make it clear that the only document which this Court has relied upon against Mr. Nilesh Ojha (alleged Contemnor No.3) is the letter dated 20.03.2019. We are not going into the allegations raised by the alleged contemnors or against them with regard to the cases or issues pending before the Bombay High Court or related to it. This case will be limited to the alleged contempt of this Court.

As far as Mr. Nilesh Ojha is concerned, this Court grants him an opportunity to file an affidavit, if he so chooses before the next date of hearing, with regard to the letter sent by Mr. Vijay Kurle-alleged Contemnor No.1 as State President, Maharashtra & Goa (Indian Bar Association). However, being President of the Association, he will clearly have to explain his position, whether the letter dated 20.03.2019 was sent with his consent or under his consent.”

3.19. As per the liberty granted by the Court the petitioner filed his short affidavit on 13.12.2019 and had taken specific objection to decide preliminary objection first by following the guidelines and ratio laid down by Full Bench judgment in Samar Ghosh’s Case (2004) 13 SCC 52.

3.20. That, on 17.12.2019 Amicus Adv. Siddharth Luthra argued the case and submitted his written arguments.

The order dated 17.12.2019 reads as under;

“We have heard learned amicus and learned counsel for respondent no. 1. Learned counsel for alleged contemnor no.1 states that in view of the documents and the written statements filed by the amicus, he is not in a position to argue the matter today. It was stated that counsel for respondent no.2 is unable to come since his wife is suffering from a serious medical problem. Therefore, list the matter on 7th January, 2020. It is made clear that the arguments will continue day-to-day.”

3.21 That, on 10.01.2020 petitioner submitted his written arguments (292 pages). The order dated 10.01.2020 reads as under;

“Written arguments have been filed by the respondent No.3 which are running in 292 pages. Such lengthy notes cannot be gone into in Court. We also make it clear that we will not permit any more written arguments to be filed in Court.

Sh. Nilesh Ojha - Respondent No.3 submits that oral arguments shall be submitted in two hours.

Learned counsel for the respondent no.1 has also submitted written arguments in Court and submits that he will not take more than one hour for oral submissions.

Learned counsel for the respondent No.2 states that Advocate on Record could not come today since his wife is unwell. We are adjourning the case but make it clear that on the next day the matter will be heard and if necessary, the respondent No.2 may make alternative arrangements on the next date.

List on 3.2.2020.”

3.22. Then matter was fixed on 03.2.2020. The orders reads as under;

‘‘List on Friday, the 7th February, 2020 only for the purpose of fixing a date for further hearing. The personal appearance of the contemnors is dispensed with for that day only.’’

Order dated 07.02.2020 reads as under;

‘‘Contemnor Nos. 1 and 2 are present in Court. List the matter for hearing on 2.3.2020 on which date all the three contemnors shall remain present in Court.

It is made clear that if the matter is not concluded on that day it will continue for hearing on 3.3.2020.

The Registry is directed to inform the contemnor No.3 by email also about this order’’

3.23. That on 2nd March, 2020 Amicus Adv. Siddharth Luthra at the end of his oral argument submitted around 93 Pages Additional Written Argument.

The request to permit Counsel for alleged contemnors No.1 and 2 and by Petitioner in person, to argue, the case by oral hearing to counter the arguments of Mr. Siddharth Luthra was rejected, Counsel for alleged contemnor No.1 was threatened and the liberty was granted only to submit the arguments not exceeding 10 Pages. The order dated 02.03.2020 reads as under;

“Arguments heard. Hearing concluded. Judgment reserved. The parties are at liberty to file their written arguments (not exceeding ten pages) by 16.3.2020.’’

3.24. The Petitioner and alleged contemnor No. 1 and 2 on 16.03.2020 submitted their written arguments by pointing out the threats, humiliation, and discrimination by Ld. Justice Deepak Gupta.

3.25. Alleged contemnor No.1 to 3 (including Petitioner) requested for fresh and fair hearing. The relevant para 23 from submission by alleged contemnor No. 1 reads as under;

“23. That, after the said threats my Counsel compelled to wind up his arguments. Ld. Amicus Mr. Siddharth Luthra at around 4.15 P.M. gave additional written submission (52+41=93 pages). Permission sought by my advocate to oral arguments to counter said argument was not accepted. It is settled law that written argument is not substitute to argument and denial of oral hearing is violative of rule ‘Audi-Alteram partem’ and violates the principles of natural justice. Automotive Tyre Manufacturers Assn. (2011) 2 SCC 258.

Therefore, I request that, a fresh hearing be given and it be conducted in a video recording/live telecast as ruled by Constitution Bench in the case of Swapnil Tripathi (2018) 10 SCC 639.”

3.26. It was around this time i.e. 16.03.2020 that the news of corona pandemic started doing rounds and the Central Government announced nationwide lockdown soon after. The entire country including working of all the courts came to an halt. Though Supreme Court began hearing only urgent matter vis video conferencing vide its circulars dated 23.03.2020 and 26.03.2020, the present matter, all of a sudden was listed on

27.04.2020 for pronouncement of judgment via video conferencing.

3.27. On 27.04.2020, the Ld. Trial Court [Coram- Shri. Justice Deepak Gupta and Shri. Justice Aniruddha Bose] pronounced a judgment (91 Pages) and declared Petitioner and alleged contemnor No. 1 and 2 as guilty of Contempt. This judgment was passed by ignoring binding precedents, relying on overruled judgments, relying on incorrect, false and misleading submissions of Adv. Siddharth Luthra by ignoring the oral and written submissions by the Petitioner and alleged contemnor No. 1 and 2.

3.28. That, during this period when the anxiety caused due to corona pandemic was at peak and with enforcement of strict lockdown, the situation was extraordinarily adverse. Inspite of this challenging scenario, the Petitioner was granted only 3 days time to file his say on sentence. The petitioner, who was at his native place at Yavatmal district in interiors of Maharashtra, away from his office and library with minimal access to internet, was compelled to file an Interim Application for recall of order dated 27.04.2020 in these trying circumstances.

3.29. The petitioner has also filed an application for recusal of Ld. Justice Shri. Justice Deepak Gupta. [I.A. No. 48502 of 2020]

3.30. Petitioner also filed an application for adjournment for around two weeks. [I.A. No. 48483 of 2020]

3.31. On 04.05.2020 Ld. Justice Deepak Gupta realising the fact of recusal application being filed, got irritated and without allowing the Petitioner to argue the case on his application for recusal, straightway rejected the recusal application without any reason and mentioning incorrect fact that, there was only one ground in the recusal application.

But in fact there were 23 grounds on which the recusal of Justice Deepak Gupta was sought. The main grounds of threats given by Ld. Justice Deepak Gupta and discrimination etc. were not mentioned in the order.

3.32. The Adjournment Application I.A. No. 48483/2020 was also rejected by passing a one line order, without considering the grounds mentioned in the application and without giving any reason for rejection of the application.

3.33. The Recall Applications being I.A.No.48480, 48482, 48484 of 2020 were also rejected by mentioning false, incorrect and wrong facts in the order and also against the binding precedents of larger benches of this Hon’ble Court.

3.34. The Bench of Ld. Justice Deepak Gupta and Ld. Justice Aniruddha Bose observed that, the grounds taken in the application for recall of order are grounds for review. Without permitting the petitioner and alleged contemnor No.1 and 2, to avail their legal remedies and without considering the guidelines of various bindng precedents of Larger Benches of this Hon’ble Court, the Ld. Trial Court, straightaway pronounced the sentence of 3 months imprisonment and fine of 2000/- Rupees.

4. [II] GROUNDS FOR FILING THIS PETITION:-

That, being aggrieved by the said judgments of conviction and sentence, this petition is preferred without prejudice to each other inter alia on the following grounds;

4.1. Because there is violation of Petitioner’s fundamental rights guaranteed under Article 14, 20, 21 of Constitution of India.

4.2. THE ORDER IS VITIATED AS IT IS PASSED IN WILFUL DISREGARD OF THE BINDING PRECEDENT OF THE HON’BLE COURT IN P.N.DUDA’S CASE (1988) 3 SCC 167, TAKING A VIEW THAT, IT AS AN OBITER AND NOT A BINDING PRECEDENT. IN FACT, THE SAID JUDGMENT IS MADE A BINDING PRECEDENT BY THE FULL BENCH IN BAL THACKERAY CASE (2005) 1 SCC 254, AND THEREFORE ORDER IS WITHOUT JURISDICTION AND VOID:-

4.2.1. That, in Para 15, 16 of the judgment dated 27.04.2020 it is observed by the trial court as under;

15. The alleged contemnors rely on certain observations in the concurring judgment of Justice Ranganathan in the same judgment wherein he has approved the following passage from a judgment of the Delhi High Court in Anil Kumar Gupta v. K. Subba Rao.5:— “The office is to take note that in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice for orders in Chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the Court whether to take any cognizance of the information. The office is directed to strike off the information as “Criminal Original No. 51 of 1973” and to file it.”

Thereafter Justice Ranganathan made the following

observation:— “54….I think that the direction given by the Delhi High Court sets out the proper procedure in such cases and may be adopted, at least in future, as a practice direction or as a rule, by this Court and other High Courts….” 16. Relying upon the aforesaid observations in the judgment delivered by Justice Ranganathan it is submitted that the petition could not have been placed for admission on the judicial side but should have been placed before the Chief Justice and not before any other Bench. We are not at all in agreement with the submission. What Justice Ranganathan observed is an obiter and not the finding of the Bench and this is not the procedure prescribed under the Rules of this Court.”

4.2.2. That, the abovesaid observations by both the Ld. Judges are against the law laid down by Larger Benches. In fact, the abovesaid guidelines in P.N. Duda’s Case (1988) 3 SCC 167 are again made mandatory by Full Bench in Bal Thackrey’s case (2005) 1 SCC 254, it is ruled as under;

‘‘5. Challenging the conviction of the appellant for offence under Section 15 of the Contempt of Courts Act, 1971 (for short “the Act”) it was, inter alia, contended that the directions in P.N. Duda case [(1988) 3 SCC 167 : 1988 SCC (Cri) 589] were not followed by the High Court inasmuch as the informative papers styled as contempt petitions were not placed before the Chief Justice of the High Court for suo motu action and, therefore, the exercise was uncalled for and beyond legal sanctity. This aspect assumed significant importance because admittedly the contempt petitions were filed in the High Court without the consent of the Advocate General and, therefore, not competent except when the court

finds that the contempt action was taken by the court on its own motion. The two-Judge Bench hearing the appeals expressed the view that the aforesaid directions approved by this Court in P.N. Duda case [(1988) 3 SCC 167 : 1988 SCC (Cri) 589] are of far-reaching consequences. The Bench observed that the power under Section 15 of the Act to punish contemnors for contempt rests with the court and in Duda case [(1988) 3 SCC 167 : 1988 SCC (Cri) 589] they seem to have been denuded to rest with the Chief Justice on the administrative side. Expressing doubts about the correctness of the observations made in Duda case [(1988) 3 SCC 167 : 1988 SCC (Cri) 589] and observing that the same require reconsideration, these appeals were directed to be referred for decision by a larger Bench. Under this background, these matters have been placed before us.

17. In the light of the aforesaid, the procedure laid and directions issued in Duda's case are required to be appreciated also keeping in view the additional factor of the Chief Justice being the master of the roster. In State of Rajasthan v. Prakash Chand and Ors. MANU/SC/0807/1998: 1998 Cri LJ 2012, it was held that it is the prerogative of the Chief Justice of the High Court to distribute business of the High Court both judicial and administrative. He alone has the right and power to decide how the Benches of the High Court are to be constituted; which Judge is to sit alone and which cases he can and is required to hear as also to which Judges shall constitute a Division Bench and what work those Benches shall do.

18. The directions in Duda's case when seen and appreciated in the light of what we have noticed hereinbefore in respect of contempt action and the powers of the Chief Justice, it would be clear that the same prescribe the procedure to be followed by High Courts to ensure smooth working and streamlining of such contempt actions which are intended to be taken up by the court suo motu on its own motion. These directions have no effect of curtailing or denuding the power of the High Court. It is also to be borne in mind that the frequent use of suo motu power on the basis of information furnished in a contempt petition otherwise incompetent under Section 15 of the Act may render the procedural safeguards of Advocate-General's consent nugatory. We are of the view that the directions given in Duda's case are legal and valid.

4.2.3. Constitution Bench in Campaign for Judicial Accountability and Reforms vs. Union of India (2018) 1 SCC 196 (5-Judge Bench) ruled as under;

‘‘10. The rules have been framed in that regard. True, the rules deal with reference, but the law laid down in Prakash Chand [State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1] has to apply to the Supreme Court so that there will be smooth functioning of the Court and there is no chaos in the administration of justice dispensation system. If any such order has been passed by any Bench, that cannot hold the field as that will be running counter to the order passed by the Constitution Bench. Needless to say, no Judge can take

up the matter on his own, unless allocated by the Chief Justice of India, as he is the Master of the Roster.’’

4.2.4. That, all these legal position were brought to the notice of both the Ld. Judges but they had taken a contrary view and refused to follow the binding precedents.

4.2.5. Even otherwise the law regarding binding precedential value of a concurring view of the individual Judge is no more res-integra. It is already settled by Queen’s Bench in the year 1889 and recently followed by the Supreme Court in Kaikhosrou Kavasji Framji Vs. Union of India 2019 SCC OnLine SC 394 where it is ruled as under;

“53. The question arose before the Queens Bench in The Guardians case (supra) as to how the Court should House read a decision to find out the ratio decidendi laid down in the decision when such decision is delivered by the Bench of more than one Judge (as in that case by four Judges of the of Lords) and especially when all the Judges have authored their individual opinions on the subject.” 54. Lord Esher M.R. in his distinctive style of writing succinctly explained this question in the following words:

“The question is, what is the true construction of the 35th section of the Act of Parliament which is before us, and, when we have got at the true construction, what is the application of it to this case ?………………..………………

The House of Lords heard the cases, and did not give judgment at once, but considered the matter carefully, and

four of the learned judges in the House of Lords gave judgment. Now we know that each of them considers the matter separately, and they then consider the matter jointly, interchanging their judgments, so that every one of them has seen the judgments of the others. If they mean to differ in their view, they so openly when they come to deliver their judgments, and if they do not do this, it must be taken that each of them agrees with the judgments of the others.

We have then four judgments. The most elaborate of these is, no doubt, that of Lord Watson; but Lord Watson's judgment must have been read by the Lord Chancellor, and the Lord Chancellor must have discussed with Lord Watson whether he agreed with or not, and he must have agreed with it. Lord FitzGerald in terms, says, “I have read the judgment of Lord Watson, and I agree with it;” that is, he agrees not only with the result but with the mode in which the result is arrived at. Lord Macnaghten had read Lord Watson's judgment, and he does not attempt to express the smallest difference of opinion about it; he adopts the reasoning of Lord Watson and agrees with it, but he adds another reason of his own.

What is import to-day is what is the view taken by the House of Lords of the interpretation of the third part of the 35th section. It is plain that Lord Watson has taken a distinct and clear view, and has stated it clearly, of what is the effect, to a certain extent at all events, of the third clause…………………………………………………….. I am clear that they decided the point which is before us: that

Lord Watson's judgment deals with it most specifically, that the judgment is really agreed with by the Lord Chancellor and by Lord FitzGerals, and by Lord Macnaghten, but that Lord Macnaghten has also given another reason for coming to the same conclusion.”

56. Keeping in view the reasoning of Lord Esher M.R., when we examine the statement of law laid down in Express Newspaper decision (supra), we are of the considered view that the reasoning of A.P. Sen J. contained in Paraa 86-87 is the law laid down on behalf of all the three Judges. It is a law by majority and is thus a law laid down by the Court under Article 141 of the Constitution.

57. It is for the reason that first, though the lead judgment was authored by A.P. Sen J., the other two Judges concurred with the view and the reasoning of A.P. Sen J. Second, both the concurring Judges also expressed their individual views on the question on the same lines on which A.P. Sen J. expressed his view and the Third, there is no dissent inter se Lordships on any issue much less on the issue with which we are concerned in this appeal.

58. It is for these reasons, we are of the considered view that law laid down in the lead judgment in Express Newspaper (supra) is the law by three Hon'ble Judges who constituted the Bench and thus binds all the Courts in the country under Article 141 of the Constitution. It satisfies the test laid down by Lord Esher M.R. in the case of The Guardian (supra)…’’

4.2.6. It is worthwhile to mention that, the directions given in P.N. Duda’s

case are followed by around 238 benches of Hon’ble Supreme Court and High Courts in the country.

4.3. THE ORDER TAKING COGNIZANCE BY THE JUDGE IN HIS OWN CASE IS AGAINST THE LAW LAID DOWN BY CONSTITUTION BENCH IN THE CASE OF SUPREME COURT ADVOCATE ON RECORD ASSOCIATION (2016) 5 SCC 808, RE: C.S. KARNAN (2017) 7 SCC 1, AND THEREFORE, THE PROCEEDINGS ARE WITHOUT JURISDICTION AND CANNOT BE VALIDATED BY ANY SUBSEQUENT ORDERS AND HENCE, NULLITY, VOID AB-INITIO AND VITIATED AS PASSED BY THE CORAM-NON-JUDICE AS RULED IN DEVINDER PAL SINGH BHULLAR (2011) 14 SCC 770, DEEPAK KUMAR PRAHLADKA VS. CHIEF JUSTICE PRABHA SHANKER MISHRA (2004) 5 SCC 217.

4.3.1. That, both the Ld. Judges [Trial Court] in their judgment dated 27.04.2020 in para 39 & 40 had observed that, the earlier Bench of Judges Shri. Rohinton Nariman & Shri. Vineet Saran can take cognizance of complaint in which they themselves, are named as party accused and they can issue notice under Contempt and then can place the matter before Chief Justice for constituting appropriate Bench and it does not amount to acting as a Judge in their own case. It was observed as under; “40...... After issuing notice the bench directed that the matter be placed before Hon'ble the Chief Justice for placing before the appropriate bench. This is valid and proper procedure and the bench did not act as judge in their own cause. Only notice was issued and thereafter the matter was assigned to this bench.’’

4.3.2. That, the above observations are gross contempt of Constitution Bench & Full Bench judgments. Because Ld. Justice Rohinton Nariman was disqualified to hear and sign any order of issuing notice as he himself was accused in the said complaint.

4.3.3. Constitution Bench in Supreme Court Advocate- On-Record Association vs. Union of India (2016) 5 SCC 808, had ruled that, the Judge who is a party in the case is automatically disqualified to hear the case.

4.3.4. In Davinder Pal Bhullar’s case (2011) 14 SCC 770, it is ruled in para 36 that, if Judge passes any order in the case where he is ‘directly or indirectly’ concerned then such order is null & void and vitiated as ‘Coram- Non- Judice’.

4.3.5. In Sukhdev Singh Sodhi’s case 1954 Cri L J 460, it is ruled as under; ‘‘23. …….. We consider it desirable on general principles of justice that a judge who has been personally attacked should not as far as possible hear a contempt matter which, to that extent, concerns him personal1y It is otherwise when the attack is not directed against him personally. We do not lay down any general rule because there may be cases where that is impossible, as for example in a court where there is only one judge or two and both are attacked. Other cases may also arise where it is more convenient and proper for the judge to deal with the matter himself, as for example in a contempt in facie curioe. All we say is that this must be left to the good sense of the judges themselves who, we are confident, will comport, themselves with that dispassionate dignity and decorum which befits their high office and will bear in mind

the oft quoted maxim that justice must not only be done but must be seen to be done by all concerned and most particularly by an accused person' who should, always be given, as far as that is humanly possible,, A feeling of confidence that he will receive a fair, just and impartial trial by judges who have no personal interest or concern in his case.’’

4.3.6. This Hon’ble Court in Deepak Kumar Prahladka Vs. Chief Justice Prabha Shanker Mishra (2004) 5 SCC 217 it is ruled as under;

“ 7 ...... Further, the second contempt petition could not have been heard and disposed of by the learned Judges since they were respondents in the said petition. The prayer in that case though totally misconceived was to initiate contempt proceedings against the judges who heard and disposed it of. The justice should not only be done but should also appear to have been done. It may further be noticed that the present is not a case of contempt in the face of the court . It is a case where the averments made in the two contempt petitions are prima facie contemptuous and tend to scandalize the court.”

4.3.7. In Re: C.S. Karnan (2017) 7 SCC 1, it is ruled as under;

“55 Unfortunately the contemnor appears to be oblivious of one of the fundamental principles of law that a complainant/informant cannot be a judge in his own complaint.The contemnor on more than one occasion "passed orders purporting to be in exercise of his judicial functions" commanding various authorities of the states to take legal action against various judges of the Madras High

Court on the basis of the allegations made by him from time to time.

56. Whether all the above-mentioned conduct amounts to either "proved misbehavior" or "incapacity" within the meaning of Article 124(4) read with Article 217(1)(b) of the Constitution of India warranting the impeachment of the contemnor is a matter which requires a very critical examination. If the contemnor is unable to prove the various allegations made against judges of the Madras High Court, what legal consequences would follow from such failure also requires an examination. Probably, the contemnor would be amenable for action in accordance with law for defamation, both civil and criminal apart from any other legal consequences.” 4.3.8. In Amicus Curiae Vs. Adv. Prashant Bhushan (2010) 7 SCC 592 Justice S.H.Kapadia did not signed the order issuing notice. It is ruled as under; (i) During the course of hearing of certain Interlocutory Applications in Writ Petition (C) No.202 of 1995, an application was filed by the Amicus Curiae, Mr. Harish N. Salve, learned Senior Advocate, drawing the attention of this Court to certain statements made by Respondent No.1, Shri Prashant Bhushan, Senior Advocate, which was reported in Tehelka magazine, of which Shri Tarun J. Tejpal, the Respondent No.2, was the Editor-in- Chief.

(ii) The learned Amicus Curiae drew the attention of

the Court to certain statements which had been made by the Respondent No.1 in an interview given to Ms. Shoma Chaudhury, wherein various statements were made alleging corruption in the judiciary and, in particular, the higher judiciary, without any material in support thereof. In the interview he went on to say that although he did not have any proof for his allegations, half of the last 16 Chief Justices were corrupt. He also made a serious imputation against the Hon'ble the Chief Justice of India, Justice S.H. Kapadia, as His Lordship then was, alleging misdemeanor with regard to the hearing of a matter involving a Company known as Sterlite, in which Justice Kapadia had certain shares, deliberately omitting to mention that the said fact had been made known to the Counsel appearing in the matter, who had categorically stated that they had no objection whatsoever to the matter being heard by His Lordship.

(iii) On 6th November, 2009, when the said facts were placed before the Bench presided over by Hon'ble the Chief Justice, K.G. Balakrishnan, as His Lordship then was, in which Justice Kapadia was also a member, directions were given to issue notice and to post the matter before a three Judge Bench of which Justice Kapadia was not a member. It should, however, be indicated that Justice Kapadia was not a party to the aforesaid order that was passed.” 4.3.9. In Smt. Maya Dixit And Others vs State Of U.P. , 2010 SCC OnLine All 1740, Full Bench approved the abovesaid law laid down in Prof. Y.C. Simhadri, Vice Chancellor, B.H.U. & Ors. Vs. Deen

Bandhu Pathak, Student, 2001 (4) AWC 2688,regarding cognizance of contempt by a Judge under Article 215 of the Constitution for contempt being not permissible without being assigned by the Chief Justice. Such orders are held to be without jurisdiction, void and non est. It was further ruled that, even in respect of tied up matters, in terms of the rule quoted above, this power, could only be exercised by the Chief Justice who constitutes the Benches and not by the Registry of the Court, nor can a Bench hold that it can proceed with the matter as a part heard matter.

4.3.10. In Prof. Y.C. Simhadri, V.C., B.H.U., Varanasi Vs. Deen Bandhu Pathak, 2001 SCC OnLine All 572 it is ruled that; ‘‘The Cognizance of contempt by Court of Record and order issuing notice by the Judge even under Art. 215 of the Constitution without contempt case being assigned by the Chief Justice was beyond his competence or jurisdiction to pass such order, it is void and non-est - the learned single Judge on the face of record has exercised the jurisdiction not vested in him in passing the order on the application under Article 215 of the Constitution in respect of matters relating to contempt and by directing issuance of notice to respondents therein and as such, the order passed by him is void and is liable to be set aside. Accordingly the special appeal is allowed and the impugned order passed by the learned Single Judge is set aside. Contempt if any is the contempt of whole court as an institution and not concerned with any particular Judge and at the stage of cognizance there is no role of Art. 215, at that stage the rules of Chief Justice being Master of Roaster are

to be applied. It cannot be said that thereby the impugned Rule has in any manner affected the status of the High Court as a court of record. That exercise has nothing to do with Article 215. Article 215 saves the inherent powers of the High Court as a court of record to suitably punish the contemnor.

After considering various judgments of Full Bench of the Supreme Court in the case of in Dr. L.P. Misra vs State Of U.P [(1998) 7 SCC 379 , High Court of Judicature at Allahabad v. Raj Kishore Yadav41997 (3) SCC 11. it is summarized that;

‘‘15. Thus, the following principles emerge from the foregoing discussions:

1. The administrative control of the High Court vests in the Chief Justice alone and it is his prerogative to distribute business of the High Court both judicial and administrative. 2. The Chief Justice alone has the right and power to decide how the Benches of the High Court are to be constituted; which Judge is to sit alone and which cases he can and is required to hear as also which Judges shall constitute a Division Bench and what work those Benches shall do. 3. The Puisne Judges can only do what work which is allotted to them by the Chief Justice or under his directions. No Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court unless the case is alloted to him or them by the Chief Justice.

4. Any order which a Bench or a Single Judge may choose to make in a case that is not placed before them or him by the Chief Justice or in accordance with his direction is an order without jurisdiction and void. 5. Contempt jurisdiction is an independent jurisdiction of original nature whether emanating from the Contempt of Courts Act or under Article 215 of the Constitution of India. 6. For exercising the jurisdiction under Article 215 of the Constitution of India the procedure prescribed by law has to be followed. It appears that on 26.3.2001 when the learned Judge passed the said order, he was allotted and assigned the determination with regard to the following matters by the Chief Justice as appears from the printed cause list: “FRESH WRITS IN EDUCATIONAL MATTERS (EXCEPT SERVICE WRITS) FOR ORDERS, ADMISSION AND HEARING AND ALL SINGLE JUDGE WRIT-C FOR ORDER, ADMISSION AND HEARING INCLUDING BUNCH CASES.” 16. The learned Judge on the face of the record, therefore, had no determination assigned to him by the Chief Justice with regard to the matters relating to contempt and the said jurisdiction had been assigned to another Hon'ble Single Judge.

17. In view of the rule as already noted that the power to constitute Benches and allotment of work to the learned Judges vests absolutely in the Chief Justice and the Rules 1, 6, and 17

of Chapter V and Rule 2 of Chapter VIII of the Allahabad High Court Rules also clearly provide for the same.

18. In that view of the matter the order passed by the learned Single Judge in the instant case appears to us to be without jurisdiction and void.

4.3.11. In Davinder Pal Singh Bhullar[2011] 14 SCC 770 it is ruled that, any order passed by an interested and disqualified Judge is nullity as ‘Coram-Non- Judice’.

It is ruled as under; “36. Thus, it is evident that the allegations of judicial bias are required to be scrutinised taking into consideration the factual matrix of the case in hand. The court must bear in mind that a mere ground of appearance of bias and not actual bias is enough to vitiate the judgment/order. Actual proof of prejudice in such a case may make the case of the party concerned stronger, but such a proof is not required. In fact, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. However, once such an apprehension exists, the trial/judgment/order, etc. stands vitiated for want of impartiality. Such judgment/order is a nullity and the trial coram non judice.”

4.3.12. That, Supreme Court Bar Association on 22.04.2019 passed a resolution objecting the Judges of Supreme Court sitting in the Bench hearing the case related with themselves and the then CJI Shri. Ranjan Gogoi did not sign the order in the matter. The relevant submission and resolution of Supreme Court Bar Association is already reproduced by Alleged Contemnor No. 2 in his Reply Affidavit dated 23.10.2019 at Page

No. 171 Para 35.12, Page No. 170 Para 35.11. Whole para 35 is on this ground only.

Para No. 35.11 & 35.12 of the Reply Affidavit read as under;

“35.11. Recently, Hon’ble CJI also did not signed the order through he was sitting in the Bench.

In Re: Matter of Great Public Importance Touching Upon The Independence Of Judiciary – Mentioned By Shri.Tushar Mehta, Solicitor General of India in Suo Moto Writ Petition (C) No.1/2019 order dated 20th April, 2019 wassigned by Shri. Justice Arun Mishra & Shri.Justice Sanjiv Khanna. The Hon’ble CJI was a part of the bench in this matter. However, the Hon’ble CJI Shri. Ranjan Gogoi recused himself from signing the order since this matter pertains to himself.

Needless to mention here that, all Bar Association including Supreme Court Bar Association (SCBA), Supreme Court Advocate on Record Association (SCAORA) etc. objected even sitting of Hon’ble CJI on the said Bench.

35.12. RESOLUTION OF EXECUTIVE COMMITTEE OF THE SUPREME COURT BAR ASSOCIATION DATED 22ND APRIL, 2019 READS AS UNDER;

“Resolution of Executive Committee of the Supreme Court Bar Association dated 22nd April, 2019

The Executive Committee of the Supreme Court Bar Association in its emergent meeting has resolved that procedure adopted for conducting the Court

proceedings on 20.04.2019 In the matter of allegations made by Ex-Employee of Supreme Court against the Hon’ble Chief Justice of India is in violation of procedure established by law as well as principle of natural justice.

The EC further resolves and requests the Hon’ble Full Court of the Hon’ble Supreme Court to take all such necessary steps as may be required in law in this regard.

The EC further resolves that without prejudice to any enquiry which may be initiated as above, it shall collate all the materials and facts with regard to the said allegations from Social Media, Electronic Media, Print Media and other available sources, which may be considered in its next meeting.”

4.3.13. In State Vs. Mamta Mohanty (2011) 3 SCC 436 it is ruled as under;

“37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily

set aside. A right in law exists only and only when it has a lawful origin. (Vide Upen Chandra Gogoi v. State of Assam [(1998) 3 SCC 381 : 1998 SCC (L&S) 872 : AIR 1998 SC 1289] , Mangal Prasad Tamoli v. Narvadeshwar Mishra [(2005) 3 SCC 422 : AIR 2005 SC 1964] and Ritesh Tewari v. State of U.P. [(2010) 10 SCC 677 : (2010) 4 SCC (Civ) 315 : AIR 2010 SC 3823] )

“57….This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji & Ors. v. State of A.P. ., AIR 1993 SC 1048 observed as under: "...To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter (A.M.Y. at page 18: `a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors".

4.3.14. In Chandrabhai K. Bhoir Vs. Krishna Arjun Bhoir (2009) 2 SCC 315it is ruled as under;

“26. Thus, the said issue, in our opinion, did not attain finality. In any view of the matter, an order passed without jurisdiction would be a nullity. It will be a coram non judice. It is non est in the eye of law. Principles of res judicata would not apply to such cases. [See Chief Justice of Andhra Pradesh and Others v. L.V.A. Dixitulu (1979) 2 SCC 34, Union of India v. Pramod Gupta (2005) 12 SCC 1 and National Institute of Technology and Ors. v. Niraj Kumar Singh (2007) 2 SCC 481]

4.3.15. In Municipal Corpn. of Greater Mumbai v. Pratibha Industries Ltd. (2019) 3 SCC 203 it is ruled as under;

“13….The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power, but a duty to correct it.….…..

10. Insofar as the High Courts' jurisdiction to recall its own order is concerned, the High Courts are courts of record, set up under Article 215 of the Constitution of India. Article 215 of the Constitution of India reads as under:

“215. High Courts to be courts of record.—Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.”

It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record.

This has been recognized in several of our judgments.’’

4.3.16. But the Ld. Trial Court, instead of correcting the mistake perpetuated it further. 4.4. CONVICTION IS VITIATED AS THE CONVICTION IS FOR A CHARGE WHICH IS CONTRARY AND AGAINST THE COURT’S OWN ORDER DATED 02.09.2019 AND 09.12.2019 AND THEREFORE, IT IS VITIATED IN VIEW OF LAW LAID DOWN IN LALU PRASAD YADAV’S CASE (2017) 8 SCC 1, R.S. SHERAWAT VS. RAJEEV MALHOTRA (2018) 10 SCC 574 AND BHUPESH DEB GUPTA VS. STATE (1979) 1 SCC 87:-

4.4.1. That, the charge delineated against petitioner in the order dated 09.12.2019 was as under;

‘‘We want to make it clear that in view of the original order and the documents placed on record, the charge against Mr. Vijay Kurle-alleged Contemnor No.1 is only in respect of the scandalous allegations as against two Judges of this Court in letter dated 20.3.2019 sent by him as State President, Maharashtra & Goa (Indian Bar Association).

4.4.2. The first charge of connivance between petitioner and Respondent No. 4 Mr. Mathews Nedumpara was dropped by the Court vide order dated 02.09.2019 which is as under;

‘‘4. An application has been moved by Respondent 4 Mr Mathews Nedumpara for discharge. This contempt was registered basically on the joint complaint filed by the President of the Bombay Bar Association and the President of the Bombay Incorporated Law Society. In this complaint reference has been made to a communication (sent by Respondents 1 and 2) and the allegation against Respondents 3 and 4 is that they have acted in tandem with Respondents 1 and 2. Other than this allegation, there is no other material to show that Respondent 4 connived with Respondents 1

and 2. We, therefore, discharge Shri Mathews Nedumpara at this stage ’’

4.4.3. The petitioner and other alleged contemnors submitted their reply/defence objecting such strange procedure.

4.4.4. Surprisingly in the final judgment dated 27.04.2020 the petitioner was convicted for a charge which was not framed against the petitioner and which is contrary to the Court’s own order and findings of the own order and findings of the Court in its earlier orders dated 02.09.2019 and 09.12.2019.

4.4.5. It is not permissible for the court to take view contrary to one taken in earlier orders.

In State of Jharkhand Vs. Lalu Yadav (2017) 8 SCC 1, it is ruled as under;

“62. We are constrained to observe that the same learned Judge had taken a different view in R.K. Rana case on the basis of same facts, and same question of law in the same cases. Judicial discipline requires that such a blatant contradiction in such an important matter should have been avoided. The order passed in R.K. Rana was on sound basis and though the court had noted that there was some overlapping of facts but the offences were different, it, however, has taken a different view in the impugned order for the reasons which are not understandable. The court ought to have been careful while dealing with such matters and consistency is the hallmark of the court due to which people have faith in the system and it is not open to the court to take a different view in the same matter with reference to

different accused persons in the same facts and same case. Such inconsistent decision-making ought to have been avoided at all costs so as to ensure credibility of the system. The impugned orders are palpably illegal, faulty and contrary to the basic principles of law and the Judge has ignored large number of binding decisions of this Court…..”

4.4.6. That, it is settled law by catena of decisions of the Supreme Court that, on the same set of evidence if any of the accused is discharged then the benefit should go to all other accused. They should also be acquitted. Full Bench Shreekantiah Ramayya Munipalli vs The State Of Bombay,1955 SCR (1)1177 it is ruled as under; “ 29 . ….As the present trial cannot proceed against the second accused, and as all the accused are said to have acted in concert each playing an appointed part in a common plan, we do not think it would be right to direct a retrial ...... We therefore discharge (not acquit) both the appellants leaving it to Government either to drop the entire matter or to proceed in such manner as it may be advised. We do this because the accused expressly asked that the charge under the Prevention of Corruption Act should be left over for a separate trial. ..”

4.4.7. In Mohinder Singh (2004) 12 SCC 311 it is ruled as under;

‘‘18. As noted above, two of the accused persons — Sarabjit Singh, A-1 and Nirmal Singh, A-4 whose conviction is upheld by the High Court based on the very same evidence of the prosecution had filed an SLP which was dismissed for default. We find that there is absolutely no difference in the prosecution case about the involvement of the appellants herein and the

said accused A-1 and A-4, therefore, we think the benefit of the acquittal that is being granted to the appellants herein, has to be extended to those two accused persons also because we have come to the conclusion that on an evaluation of the evidence led by the prosecution in this case, no conviction of any accused is possible. This Court in a catena of cases like Bijoy Singh v. State of Bihar [(2002) 9 SCC 147 : 2003 SCC (Cri) 1093] , Raja Ram v. State of M.P. [(1994) 2 SCC 568 : 1994 SCC (Cri) 573] , Dandu Lakshmi Reddy v. State of A.P. [(1999) 7 SCC 69 : 1999 SCC (Cri) 1176] and Anil Rai v. State of Bihar [(2001) 7 SCC 318 : 2001 SCC (Cri) 1009] has laid down that the benefit of such judgments of acquittal is available to the non-appealing accused also. However, we have to notice in the case of the abovesaid accused A-1 and A-4, that they had actually filed an appeal but the same was dismissed for default but this would not make any difference in law if the basis of the judgments of the courts below is common to the appellants herein and the accused who are not before us or whose appeals have been dismissed for whatever reason. This Court in the case of Gurucharan Kumar v. State of Rajasthan [(2003) 2 SCC 698 : 2003 SCC (Cri) 675] has held in a similar fact situation as follows: “[E]ven in a case where one of the accused has not preferred an appeal, or even if his special leave petition is dismissed, in case relief is granted to the remaining accused and the case of the accused, who has either not appealed or whose special leave petition has been dismissed, stands on the same footing, he should not be denied the benefit which is extended to the other accused.”

(emphasis supplied)’’

4.4.8. In Nanha S/o Nabhan Kha Vs. State of U.P. 1992 SCC OnLine All 871it isruled as under;

“EQUALITY OF STATUS AND OPPORTUNITY - The preamble of the Constitution states that the people of India gave to themselves the Constitution to secure to all its citizens amongst other things "Equality of status and opportunity." Thus the principle of equality was regarded as one of the basic attributes of Indian Citizenship.

The High Court is one Court and each Judge is not a separate High Court. It will be unfortunate if the High Court delivers inconsistent verdicts on identical facts. If the argument of the learned State Counsel is carried further it would mean that even the same Judge while deciding bail application moved by several accused, whose cases stand on the same footing, is free to reject or grant bail to any one or more of them at his whim. Such a course would be wholly arbitrary.

The public, whose interests all judicial and quasi judicial authorities ultimately have to serve, will get a poor impression of a court which delivers contrary decisions on identical facts. Hence for the sake of judicial uniformity and non- discrimination it is essential that if the High Court granted bail to one co-accused it should also grant bail to another co- accused whose case stands on the same footing. Alexis de Toqueville remarked that a man's passion for equality is greater than his desire for liberty.

SUPREME COURT OBSERVED

There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however, high placed they may be. It is all the more improper and undesirable to expose the precious rights like the right of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy the high seats of power.

38. The preamble of the Constitution states that the people of India gave to themselves the Constitution to secure to all its citizens amongst other things "Equality of status and opportunity." Thus the principle of equality was regarded as one of the basic attributes of Indian Citizenship.

39. In a recent case of Shri Lekha Vidyarthi v. State of U.P., AIR 1991 SC 537 (para 21) the Supreme Court laid down :-

"We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity. Contrary to the professed ideals in the preamble." (The emphasis is mine).

40. Since judicial activity is one kind of State activity it must be held, as laid down in Shri Lakha Vidharthi's case, that courts cannot discriminate. In para 25 of the decisions the Hon'ble Supreme Court quoted with approval Wade's Administrative Law which states :-

"The whole conception of unfettered discretion is inappropriate to a public authority which possesses power solely in order that it may use them for the public good."

41. The Supreme Court went on to say that this principle applies not only to executive functions but also to judicial functions. 42. The High Court also performs sovereign functions and cannot discriminate with persons similarly situated.

43. In a democracy the judiciary, like any other State organ, is under scrutiny of the public and rightly so because the people are the ultimate masters of the country and all State organs are meant to serve the people. Hence the people will feel disappointed and dismayed if courts give contrary decisions of the same facts.

44. In this connection a reference may be made to the decision of the Supreme Court in Beer Bajranj Kumar v. State of Bihar, AIR 1987 SC 1345 in which the Supreme Court had set aside the order of the Patna High Court, dismissing the writ petition when on identical facts another writ petition had earlier been admitted. The same view was expressed in another case of Sushil Chandra Pandey v. New Victoria Mills, 1982 UPLBEC 211. These decisions lend support to the view I am taking. In Been Bajranj Kumar's case (supra) the Supreme Court observed :

"This, therefore, creates a very anomalous position and there is a clear possibility of two contrary judgments being rendered in the same case by the High Court."

45. In a very recent case of Har Dayal Singh v. State of Punjab, reported in 1992 (4) JT (SC) 353 : (AIR 1992 SC 1871) the Hon'ble Supreme Court has held that when the High Court had

acquitted four accused giving reasons to discard testimony of certain witnesses the parity of reasoning should have been extended to the fifth accused also. The Supreme Court, therefore, allowed the appeal and acquitted the fifth accused as well.

46. In the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 : (1991 Lab IC 91) the Supreme Court observed at page 173 :-

"There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however, high placed they may be. It is all the more improper and undesirable to expose the precious rights like the right of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy the high seats of power."

47. In his referring order the learned single Judge has referred to two conflicting views one is of Hon'ble K. K. Chaubey, J., in the case of Said Khan v. State of U.P., 1989 Allahabad Criminal Cases 98 and the other is Sobha Ram v. State of U.P., 1992 Allahabad Criminal Cases 59.

48. In the case of Said Khan (supra) Mr. Justice K. K. Chaubey held that the principle of consistency or demand for parity is only a factor to be considered and not a governing consideration.

49. In the light of the discussion made in the preceding paragraphs, the view expressed by K. K. Chaubey, J. does not

hold ground. Judicial consistency is a sound principle and it cannot be thrown to the winds by the individual view of judges. After all it is settled law that judicial discretion cannot be arbitrarily exercised. Moreover high aspirations of the public from the courts will sink to depths or despair if contrary decisions are given on identical facts. All judicial and quasi judicial authorities have not only to serve the public but also to create confidence in the minds of the public. Hence for the sake of uniformity and non-discrimination it is essential that uniform orders should be passed even in bail matters in case of persons who stand on the same footing. If the contrary course is adopted the public will loose confidence in the administration of justice”.

4.4.9. Five Judge Bench in Ramesh Maharaj’s case (1978) 2 WLR 902, had ruled that, if the charge is not distinctly stated and served upon the Respondents but it is used against the alleged contemnor in the order then it will amount to violation of fundamental rights of the alleged contemnor and state is bound to pay him the compensation.

It is ruled as under;

“According their Lordships in agreement with Phillips J.A. would answer question (2): “Yes; the failure of Maharaj J. to inform the appellant of the specific nature of the contempt of Court with which he was charged did contravene a constitutional right of the appellant in respect of which he was entitled to protection under s.1(a).”

The order of Maharaj J. committing the appellant to prison was made by him in the exercise of the judicial

powers of the State; the arrest and detention of the appellant pursuant to the judge’s order was effected by the executive arm of the State. So if his detention amounted to a contravention of his rights under S.1(a), it was a contravention by the State against which he was entitled to protection.

…This is not vicarious liability; it is a liability of the State itself. It is not a liability in tort at all; it is a liability in the public law of the State, not of the judge himself, which has been newly created by S.6(1) and (2) of the Constitution.

.. It is only in the case of imprisonment or corporal punishment already undergone before an appeal can be heard that the consequences of the judgment or order cannot be put right on appeal to an appellate court. It is true that instead of, or even as well as, pursuing the ordinary course of appealing directly to an appellate court, a party to legal proceeding who alleges that a fundamental rule of natural justice has been infringed in the course of the determination of his case, could in theory seek collateral relief in an application to the High Court under.

For these reasons the appeal must be allowed and the case remitted to the high court with a direction to assess the amount of monetary compensation to which the appellant is entitled .The respondent must pay the costs of this appeal and of the proceeding in both Courts below.”

4.4.10. In Re: Pollard 1868 LR 2 PC 106, Hon’ble Court laid down the specific law that, no person can be punished for contempt unless the

specific offence charged against him be distinctly stated, and an opportunity given him of answering. The charge which is not distinctly stated cannot be taken in to consideration against the alleged contemnor. It is ruled as under;

“Contempt of Court — Barrister — Fine — One fine for several offences Jurisdiction — Judicial Committee — Statute, 3 & 4 Will. 4, c. 41, s. 4.

A contempt of Court being a criminal offence, no person can be punished for such unless the specific offence charged against him be distinctly stated, and an opportunity given him of answering.

A Barrister engaged in his professional duty before the Supreme Court at Hong Kong, was, without notice of the alleged contempt, or rule to show cause, and without being heard in defence, by an Order of that Court, fined, and adjudged to have been guilty of several contempts of Court in disrespectfully addressing the Chief Justice while conducting a cause. Such Order, upon a reference by the Crown to the Judicial Committee, under the Statute, 3 & 4 Will. 4, c. 41, s. 4, set aside, and the fine ordered to be remitted, first, on the ground that the Order was bad, inasmuch as the offences charged were not of themselves such contempts of Court as legally constituted an offence; and secondly, that even if they had been so, no distinct charge of the several alleged offences was stated, and no opportunity given to the party accused of being heard, before passing sentence. Again, it was not competent for

the Court to punish the Appellant for an alleged contempt of Court committed on days anterior to that on which the judgment was pronounced, and after having heard the Appellant as Counsel in Court in the meantime.

In their judgment no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it given to him, and that in the present case their Lordships are not satisfied that a distinct charge of the offence was stated, with an offer to hear the answer thereto, before sentence was passed.

Their Lordships further report to your Majesty that, on the proceedings before them, it appears that Mr. Pollard has received one sentence as for six several offences, and that in the statement of those alleged offences in the judgment pronounced by the Chief Justice, their Lordships are not satisfied that each of the six amounted to a contempt of Court, or was legally an offence: for these reasons their Lordships humbly recommend to your Majesty that your Majesty should be graciously pleased to remit the fine of 200 dollars which was imposed on Edward Hutchinson Pollard by the Order of the 2nd of July, 1867.” Her Majesty, having taken this report into consideration, was pleased, by and with the advice of Her Privy Council, to approve thereof, and of what was therein recommended, and to order, that the fine of 200 dollars, which was imposed on Edward Hutchinson Pollard by the Order of the 2nd of July, 1867, be remitted. Whereof the Governor, Lieutenant-Governor, or Commander-in-

Chief of the Colony of Hong Kong for the time being, and all other persons whom it may concern, were to take notice, and govern themselves accordingly.

Mr. James , Q.C., and Mr. Ayrton , appeared for the Chief Justice:—

The Chief Justice has not deemed it consistent with his duty to bring forward evidence in reply to the affidavits of the Appellant, or to appear as a litigant in the matter. Without contesting the case brought forward, we submit that the tone of the affidavits filed by the Appellant is not respectful to the Chief Justice or the Supreme Court.

At the close of the argument, their Lordships intimated that they would certify their opinion to Her Majesty upon the matter.

No judgment was given, but the following report was made by their Lordships, and confirmed by Her Majesty's Order in Council, dated the 19th of June, 1868 Both the proceedings as well as the sentence here were irregular, and, therefore, void. The Appellant had no notice of the offence with which he was charged, neither was he heard in defence before sentence was pronounced. He had a right to know what offence he had committed, and notice, and a rule to shew cause, ought to have been served on him before any sentence of suspension could be pronounced against him. No such course was pursued here. The Chief Justice entirely overlooked the maxim, “Audi alteram partem,” so universally recognised —

Bagg's Case — and refused to hear the Appellant in explanation or defence.” 4.4.11. In Ebrahim Mammojec Parekh Vs. Emperor ILR 4 Rang 257 (AIR 1926 Rangoon 188), where it is ruled as under;

“JUDICIAL COMMITTEE OF 5 - JUDGES – Contempt – Even if it is a gross contempt and the person admitted said contempt then also the person cannot be punished without framing specific charge against him and giving opportunity to answering the said charge – The provisions of Criminal Procedure Code stating about no-necessity in summary proceedings to frame charges is not applicable to the Contempt Proceedings – In Contempt proceedings framing of charge is must – Sentence in Contempt set aside.

The matter of the learned Judge's alleged failure to frame a specific charge and to give appellant an opportunity of answering that charge is more difficult. As we have already said the learned Judge recorded that the learned advocate, who is now appearing for appellant but who was at that time appearing for the plaintiffs in the suit, drew his attention to the fact that appellant should be given an opportunity to show cause before action was taken against him, and it seems clear that if appellant had actually been called on to show cause the learned Judge would at that time have stated that that procedure had been followed. We are constrained therefore to find that appellant was not formally called upon to show cause against the proposed order of commitment.

If, therefore, the principle stated in Pollards' case [1868] 2 P. C. 106=5 Moor. P.C (N.S.) 111 must be applied we shall be bound to set aside the order as having been illegally made. The facts of this case are clearly different from those in Pollard's case [1868] 2 P. C. 106=5 Moor. P.C (N.S.) 111. There the alleged contempt had always been denied. Here it cannot be donied; but, on the contrary, it was repeatedly admitted by appellant during his examination as a witness. Nevertheless we cannot avoid the conclusion that, what the Privy Council laid down in Pollard's case [1868] 2 P. C. 106=5 Moor. P.C (N.S.) 111 and repeated in Chang Hang Kiu's case [1909] A. C. 312=78 L. J. P. C. 89=100 L. T. 310=21 Cox. C.C. 778=25 T.L.R. 381 was intended to be a general principle which must be applied in all cases of contempt, however, gross and that even if a witness has in evidence, given immediately before the proceedings for contempt, admitted the contempt, and even if the contempt which he has admitted is a gross contempt, nevertheless he cannot be punished for that contempt unless the specific offence charged against him has been distinctly stated and unless he has had an opportunity of answering the charge.

opinion that a formal charge is essentially necessary in summary proceedings for contempt, where possibly no evidence to establish the offence may be recorded and where in the absence of a formal charge the person alleged to be in contempt may not know exactly what particular conduct of his is alleged to have amounted to contempt.

The recent case or of Bason v. Skone A. I. R. 1926 Cal. 701=53 Cal. 401 as authority for the proposition that the jurisdiction of the Court in contempt ought not to be invoked in cases where the matter is one which can be dealt with adequately in a Magistrate's Court and where there is no necessity for the matter being dealt with immediately. This is the principle laid down in Davies case [1903] 1 K. B. 32 where it was said that: “the summary remedy is not to be resorted to if the ordinary methods of prosecution can satisfactorily accomplish the desired result, namely, to put an efficient and timely check upon such malpractices.” That principle is part of the common law of England which has been held by the Privy Council in Surendra Na Banerjee v. Chief Justice of Bengal [1884] 10 Cal. 109=10 I. A. 171=4 Sar. 474 (P. C.) to be applicable in the jurisdiction of the High Courts in India for contempt, and it is clearly binding on us.”

The learned Judge's order that appellant do stand committed of contempt for 30 days and be kept in prison and fed on jail diet is set aside, and appellant will be released forthwith.”

4.4.12. The above law is laid down in Re: Pollard LR 2 PC 106 [5-Judge Bench Privy Council’s Judicial Committee] law is mandatory to all

Courts in India in the case of Sukhdev Singh Sodhi 1954 SCR 454 where it is ruled as under; “21. ………………….All that is necessary is that the procedure is fair and that the contemnor is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. This rule was laid down by the Privy Council in In re Pollard (LR 2 PC 106 at 120) and was followed in India and in Burma in In re Vallabhdas (ILR 27 Bom 394 at 399)and Ebrahim Mamoojee Parekh v. King Emperor (ILR (4) Rang 257 at 259-261)

In our view that is still the law.”

4.4.13. That, in R.S. Sherawat Vs. Rajeev Malhotra (2018) 10 SCC 574, it is ruled that, the proceedings are vitiated for not framing of charge. It is ruled as under;

‘‘23. As a matter of fact, the appellant ought to succeed on the singular ground that the High Court unjustly proceeded against him without framing formal charges or furnishing such charges to him; and moreso because filing of affidavit by the appellant was supported by contemporaneous official record, which cannot be termed as an attempt to obstruct the due course of administration of justice. Accordingly, this appeal ought to succeed.’’

4.4.14. In Bhupesh Deb Gupta Vs. State (1979) 1 SCC 87 it is ruled as under;

“12. The wording of the charge framed by the Special Judge is that the money was remitted by Nikhil Chakraborty for showing, in exercise of official function a favour to the said

Sachindra Dey on the plea of securing service for the said Sachindra Dey. The High Court understood the charge as meaning that the money was sent by Nikhil Chakraborty on behalf of Sachindra Dey as a gratification for securing service for the said Sachindra Dey. It appears from the charge and from the judgment of the courts below that the courts proceeded on the basis that the gratification was received by the accused for showing favour as a public servant. As the basis of the charge is entirely different from what is sought to be made out now i.e. the gratification was paid to the accused for influencing a public servant, it cannot be said that the accused was not prejudiced by the frame of the charge. It would have been open to the prosecution to rely on the presumption if the charge was properly framed and the accused was given an opportunity to meet the charge which the prosecution was trying to make out against the accused. On a careful scrutiny of the facts of the case, we are unable to reject the contentions of the learned Counsel for the accused that he was prejudiced by the defect in the charge and that he had no opportunity to meet the case that is put forward against him.”

4.4.15. In Ram Krishna Redkar 1980 Cr. LJ. 254, it is ruled that, in a case of criminal nature, the charge is the foundation and evidence should be only with a respect to the matters put in the charge and not the other matters. If any departure is done then the trial is entirely vitiated and prejudice is obvious.

It is read as under;

‘‘In a criminal trial the charge is the foundation of the accusation and every care must be taken to see that it is not only properly framed but evidence is only tendered with respect to the matters put in the charge and not the other matters………….. Under these circumstances, in our view, the trial is entirely vitiated and prejudice is obvious.

5 We have uneasy feeling about the whole procedure that was followed with regard to the present trial…………. Similarly, the second count of the charge relates to the offence as regards certain entries of documents which are not specifically mentioned therein. The third count of the charge, similarly, does not give details of the entries of the stock register, which were sought to be proved as culpable by the prosecution against the accused. The fourth count of the charge relates to some other documents not covered by Exhibits 'A' to 'L' and which were obviously, and it is not disputed by the prosecution, not tendered in evidence. Thus, the whole matter of the foundation of the prosecution with regard to the present trial has proceeded on erroneous basis resulting in obvious miscarriage of justice both to the prosecution as well as to the accused…………..’’

4.5. THE ORDER PUNISHING THE PETITIONER FOR A CHARGE OF CONSPIRING WITH ALLEGED CONTEMNOR NO.4 MATHEWS NEDUMPARA, WHICH WAS ALREADY DROPPED BY THE ORDER DATED 02.09.2019 AND 09.12.2019, IS VIOLATIVE OF DOCTRINE OF DOUBLE JEOPARDY AND ARTICLE 20 (2) OF THE CONSTITUTION AND SECTION 300 OF CR.P.C. AND ALSO AGAINST THE LAW LAID DOWN IN SUDHIR VASUDERA (2014)

3 SCC 373, LALU PRASAD YADAV (2017) 8 SCC 1 AND THEREFORE VITIATES THE ENTIRE CONVICTION AND SENTENCE AND RENDERS THE PETITIONER ENTITLE FOR COMPENSATION.:-

4.5.1. Both the Ld. Judges vide order dated 02.09.2019 had dropped the charge of connivance between Respondent No 1, 2, and 3 with Respondent No.4. It was observed in the order as under;

‘‘An application has been moved by respondent No.4 Mr. Mathews Nedumpara for discharge. This contempt was registered basically on the joint complaint filed by the President of the Bombay Bar Association and the President of the Bombay Incorporated Law Society. In this complaint reference has been made to a communication (sent by respondents no.1 and 2) and the allegation against respondents no.3 and 4 is that they have acted in tandem with respondents no.1 and 2. Other than this allegation, there is no other material to show that respondent no.4 connived with respondents no.1 and 2.

Respondent No.4, in his discharge application, has stated that he barely knows respondents no.1 and 2 and has no concern with the communication sent by them. According to him, he is neither the author of this communication nor has he encouraged respondents no.1 and 2 to send the same. At this stage there is no direct material to connect respondent no.4 with the said communication.

We, therefore, discharge Shri Mathews Nedumpara at this stage. We make it clear that, in case, during the hearing of

this case, it is found that respondent no.4 is behind the issuance of this communication or that he has connived with respondents no.1 and 2, this order will not come in the way of this Court in summoning him again. Needless to say, respondent No.4 will have liberty to take all defences which may be available to him under law.’’

4.5.2. That, both the Ld. Judges vide order dated 09.12.2019 gave a finding that, there is no connivance between alleged contemnor No. 2 Rashid Khan with alleged contemnor No. 1 Vijay Kurle & Petitioner Nilesh Ojha and then delineated the charges against them.

4.5.3. But on 27.04.2020 the both the Ld. Judges pronounced a judgment taking a view contrary to their own order and against the charge which the respondents were called to answer. Both the Judges passed the conviction holding alleged contemnor No.1, 2 & Petitioner guilty of acting in Connivance, in tandem with alleged contemnor No. 4. In para 93 and in other paras, it is observed as under;

“ Shri Nedumpara in his affidavit filed in this Court stated that he barely knew Shri Vijay Kurle and Shri Nilesh Ojha. According to him, he did not know Shri Rashid Khan Pathan at all. On the basis of the statement we have discharged Shri Nedumpara. He, in fact, stated that he came to know about these complaints only after notice was issued and his colleague Mrs. Amin took out the complaints filed by Shri Vijay Kurle and Shri Rashid Khan Pathan from the social media. ….. 93. As far as the complaint of Shri Vijay Kurle is concerned, it is nothing but a proxy battle for Shri Nedumpara. If Shri Nedumpara did not know Shri Vijay Kurle, how could such a detailed complaint running into 183 pages have been filed by Shri Vijay Kurle on 20.03.2019 when the matter of Shri Nedumpara was still pending in this Court.

It is only when notice of contempt was issued, that Shri Nedumpara stated that he does not know Shri Vijay Kurle, Shri Nilesh Ojha and Shri Rashid Khan Pathan and totally disassociated himself from the complaints. Therefore, we have no doubt in our mind that all three i.e. Shri Vijay Kurle, Shri Rashid Khan Pathan and Shri Nilesh Ojha were working in tandem and making scurrilous and scandalous allegations against the Members of the Bench, probably with the intention that the Members of the Bench would thereafter not take action against Shri Nedumpara.

In our opinion, both these complaints were sent to the President of India with a view to browbeat this Court so that this Court is terrorised into not taking action against Shri Nedumpara.

There can be no manner of doubt that this complaint by Shri Vijay Kurle was filed with a view to intimidate the Judges so that no action against Shri Nedumpara is taken.” 4.5.4. In Samta Naidu 2020 SCC OnLine SC 252, it is ruled that, once the proceedings are dropped then the same Court cannot take a contrary view.

4.5.5. In Shakuntala Vs. H.P.Udhaykumar (2 012) 2 SCC 294 it is ruled that, in contempt proceeding the co-ordinate Bench in the same proceeding cannot take a contrary view without further evidence being led. The Co- ordinate Bench in the same matter cannot act as appellate Court , such orders are vitiated, null and void.

‘‘21. ……………….We are not saying that the complainant has made out a case for guilty of contempt of courts but the prima facie conclusion arrived at by the earlier Bench in the year 2006, based on the acceptable materials, cannot be

ignored by another Bench at the time of the passing of the final order as if it is an appellate court. In view of the same, we have no other option except setting aside the impugned order and remitting the matter to the High Court for passing a fresh order.’’

4.5.6.Full Bench Shreekantiah Ramayya Munipalli vs The State Of Bombay,1955 SCR (1)1177 it is ruled as under; “29 . ….As the present trial cannot proceed against the second accused, and as all the accused are said to have acted in concert each playing an appointed part in a common plan, we do not think it would be right to direct a retrial ...... We therefore discharge (not acquit) both the appellants leaving it to Government either to drop the entire matter or to proceed in such manner as it may be advised. We do this because the accused expressly asked that the charge under the Prevention of Corruption Act should be left over for a separate trial. ..”

4.5.7. In Mohinder Kaur vs Kusam Anand (2000) 4 SCC 214, it is ruled that, while setting aside order based on the arbitray and illogical presumptions drawn by the Division Bench, ruled that the court should not be allowed to draw inference in illegal and erroneous manner unless the rights of number of persons would be unsafe.

4.5.8. Full Bench in Sudhir Vasudeva (2014) 3 SCC 373 has ruled as under;

‘‘.……… Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like

review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above......

19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. …………….

……… Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 SCC 352 : 2002 SCC (L&S) 703] , V.M. Manohar Prasad v. N. Ratnam Raju [(2004) 13 SCC 610 : 2006 SCC (L&S) 907] , Bihar

Finance Service House ConstructionCoop. Society Ltd. v. Gautam Goswami [(2008) 5 SCC 339] and Union of India v. Subedar Devassy PV [(2006) 1 SCC 613] .’’

4.5.9. In State Vs. Baldev Raj 1991 SCC OnLine All 1070 it is ruled as under;

“In Contempt Proceedings Court cannot go against its own earlier orders. It can only be done by the Court of Higher jurisdiction’’

4.5.10. It is a gross violation of section 300 of Cr.P.C. and Article 20(2) of the Constitution.[Punjabrao Wankhede Vs. Rajeev Aggrawal (2003) 2 Mh.L.J 1047]

4.5.11. Same law is laid down in Sheetla Sahai (2009) 8 SCC 617 case where it is ruled as under;

‘‘49 ...... who worked till 19.06.1989 have been made accused but, on the other hand, those who were one way or the other connected with the decision, viz., Shri J.R. Malhotra and Mr. R.D. Nanhoria have not been proceeded at all. We fail to understand on what basis such a discrimination was made.

50. In Soma Chakravarty (supra), whereupon strong reliance has been placed by Mr. Tulsi, this Court opined:

"23. In a case of this nature, the learned Special Judge also should have considered the question having regard to the "doctrine of parity" in mind. An accused similarly situated has not been proceeded against ……………..

51. There cannot be any doubt whatsoever that the tests for the purpose of framing of charge and the one for recording a judgment of conviction are different.

A distinction must be borne in mind that whereas at the time of framing of the charge, the court may take into consideration the fact as to whether the accused might have committed the offence or not; at the time of recording a judgment of conviction, the prosecution is required to prove beyond reasonable doubt that the accused has committed the offence.’’

4.5.12. Furthermore, once the earlier charge of connivance, consent in Tandem between Respondent No. 1 to 4 was dropped then until the said order is in force there is specific bar of prosecution for same charge. The provisions of section 300 of Cr.PC are clear in this regard. Reopening of said charge is not permissible.

4.5.13. In Punjabrao Wankhede Vs. Rajeev Aggrawal (2003) 2 Mh.L.J 1047, it is that, provisions of section 300, 251 of Cr.PC are applicable to the cases under contempt proceedings. And if for whatever reason earlier proceedings are dropped then on the same material no new proceeding can lie. It is ruled as under;

“13. It is clear that, the order passed by this Court on 6-2- 2003 is an order in proceedings under of Contempt of Courts Act. Rule 17 provides that it shall be carried out, enforced and

executed as if they were an orders passed by the High Court under Code of Civil Procedure. It is clear that the method contemplated by the Rules for carrying out an order of dropping proceedings of contempt would be liable to be enforced under the Code of Criminal Procedure. The word ‘enforced’ in rule 17 must be read here as giving force to the order though normally it connotes execution of an order. Once the matter is made liable to be dealt with under the Code of Criminal Procedure, it must be dealt with under that Code. Section 300 of Code of Criminal Procedure reads as follows:—

“300.Person once convicted or acquitted not to be tried for same offence.— (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence; nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.”

“300. (2) — A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220.”

“300. (5) — A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.”

16. It is therefore, clear that applying section 300(2) and (5) of Code of Criminal Procedure to an order dropping proceedings must be treated on the same footing as an order of acquittal. In the present case, the proceedings have been clearly dropped because of non-appearance of petitioner which the Court held as a lack of interest on the part of the petitioner in prosecuting the contempt petition. The proceedings were therefore, dropped as if under section 256 of Code of Criminal Procedure, which reads as follows:—

“Non-appearance or death of complainant. — (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the attendance and

proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

17. It is some consequence to note that the legislative policy is that an order discharging a person charged with contempt of Court is not appealable. It has been so held by the Supreme Court in case of State of Maharashtra v. Mahboob S. Alibay and Company reported in AIR 1996 SC 2131. While the present application is certainly not by way of an appeal. I am of view that the legislative policy in providing for an appeal only against the order of conviction and not against an order of discharge is an indication that once the contempt proceedings are dropped in any reason whatsoever, they ought not to be restored.”

4.5.14. That, in Kolla Veera Rao Vs. Gorantla (2011)2 SCC 703, it is ruled as under; ‘‘4. It may be noticed that there is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) of Cr.P.C.. Article 20(2) states:

"no person shall be prosecuted and punished for the same offence more than once."

CRIMINAL APPEAL NO. 1160 OF 2006 On the other

hand, Section 300(1) of Cr.P.C. States: "300. Person once convicted or acquitted not to be tried for same

office (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221 or for which he might have been convicted under sub-section (2) thereof."

5. Thus, it can be seen that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts.

6. In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C.

7. The Appeal is allowed and the impugned judgment of the High Court is set aside.’’

4.5.15. In Madan Gangwani Vs State 2009 SCC OnLine Bom 483, it is ruled as under;

‘‘48. In State of Tamil Nadu and others v. S. Nalini and others, reported at 1999 Cri.L.J. 3124, on which the learned counsel for the appellants placed reliance, the Court was considering the provisions of TADA Act in the context of assassination of Rajiv Gandhi. The Court considered the scope of protection provided by Article 20(2) of the Constitution and Section 300 of the Code of Criminal Procedure. It may be useful to reproduce the observations in paras 238 to 242 of the judgment.

"238. The period of the aforesaid activities, as involved in that case, covered between 1987 and end of 1991. Section 300(1) of the Code of Criminal Procedure contains the ban against a second trial of the same offence against the same person. Sub- section (1) reads thus :

"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2), thereof."

"239. The well-known maxim 'nemo debet bis vexari pro eadem cause" (no person should be twice vexed for the same offence) embodies the well established Common Law rule that no one should be put to peril twice for the same offence. The principle which is sought to be incorporated into Section 300 of the procedure Code is that no man should be

vexed with more than one trial for offences arising out of identical acts committed by him. When an offence has already been the subject of judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts.

"241. Section 300 has further widened the protective wings by debarring a second trial against the same accused on the same facts even for a different offence if a different charge against him for such offence could have been made under Section 221(1) of the Code, or he could have been convicted for such other offence under Section 221(2) of the Code. In this context it is useful to extract Section 221 of the Procedure Code.

221.Where it is doubtful what offence has been committed.

(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was

not charged with it."

"242. As the contours of the prohibition are so widely enlarged it cannot be contended that the second trial can escape therefrom on the mere premise that some more allegations were not made in the first trial. We have absolutely no doubt that the offences which we have indicated above were fully covered by the trial in CC 7 of 1992, and therefore the prosecution is debarred in this case from proceeding against A-16 and A-17 for the aforesaid offences. Consequently the conviction and sentence passed by the Designated Court as per the impugned judgment for offences under Sections 3(3), 3(4) and 5 of TADA and also Section 5 of the Explosive Substances Act as well as Section 3(1) of the Arms Act on A-16 and A-17 are hereby set aside."

49. It may be seen from the observations in this judgment that wider protection provided by Section 300 of the Code of Criminal Procedure could be invoked by the accused to avoid such double jeopardy. While MCOC Act provides for modified application of certain provisions of the Code of Criminal Procedure, significantly it neither modifies Section 300 nor makes it inapplicable to trials under MCOC Act.

50. There is indeed a fresh thinking amongst jurists about continued utility of protection against double jeopardy in the present times particularly in the context of possibilities of discovery of unimpeachable scientific evidence after the trial ended in acquittal. It is felt that in such cases trial ought to be re-opened. Attempt of the State in the present case to have accused punished is, however, not based on discovery of any

new evidence but merely on the foundation of the fact that previously a trial was held. This would hardly justify departure from the principle enunciated in Section 300 of the Code of Criminal Procedure, which in any case, cannot be violated in the absence of any express provision.’’

All these case laws were provided to both the Ld. Judges of Trial Court. But they acted against the Constitutional mandate.

4.6. THE CONVICTION IS VITIATED AS IT IS BASED ON PER- INCURIAM FINDINGS IN PARA 82 OF THE IMPUGNED JUDGMENT THAT, IF JUDGE COMMITES ANY BLATENT WRONG, ILLEGALITY OR IRREGULARITY IN PASSING A JUDGMENT THEN THE ONLY REMEDY IS TO CHALLENGE THE ORDER AND NOT TO SEEK ACTION BY FILLING COMPLAINT IS AGAINST THE LAW LAID DOWN BY FULL BENCH IN K.K. DHAWAN’S CASE (1993) 2 SCC 56, BRAMHA PRAKASH SHARMA AIR 1954 SC 10:-

4.6.1. That, both the Ld. Judges in para 82 has made an observation that even if any Judge acts in breach of binding precedent of Constitution Bench or passes any order in breach of law then the only remedy is to file review or curative petition but filing of criminal complaint against a Judge with allegations of malafides is not permissible.

Para 82 of judgment dated 27.04.2020 reads as under;

‘‘82. Even assuming that Shri Rashid Khan Pathan, could criticise the judgment he should have stopped there. But in this case, Shri Rashid Khan Pathan did not stop at criticising the judgment. He has unambiguously attributed motives to the Judges by using phrases such as “judges deliberately ignored

the settled legal position” or “deliberately and conveniently ignored’ reference to certain observations, and “deliberately misinterpreted’ certain judgments cited before the Court. Further, it is alleged that the fact that the Bench acted in defiance of the Constitution Bench judgment of the Court is sufficient to prove the mala fide of the accused Judges. First of all, it is not for Shri Rashid Khan Pathan to decide whether the judgment is correct or not. There is a legal procedure established whereby a review petition or a curative petition could be filed. We cannot go into the merits of the judgment but even assuming that the judgment is not in consonance with the judgment of the Constitution Bench then also that is no ground to allege mala fide against the Judges comprising the Bench. He has also made allegations that the Judges have breached the oath of office and acted in a biased manner.’’

4.6.2. The abovesaid observations are against the binding precedents of Full Bench in K.K. Dhawan’s (1993) 2 SCC 56 where it is ruled that, the jurisdiction to Challenge the order is different thing and jurisdiction to take the action against concerned Judge is a different thing.

It is ruled as under;

“If any Judge acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. And he can be proceeded for passing unlawful order apart from the fact that the order is appealable. Action for violation of Conduct Rules is must for proper administration.

“28. Certainly, therefore, the officer who exercises judicial or quasi - judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:

(iv) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;

(v) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;

(vi) if he has acted in a manner which is unbecoming of a government servant;

(vii) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;

(viii) if he had acted in order to unduly favour a party-,

(ix) if he had been actuated by corrupt motive however, small

the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great."

“17. In this context reference may be made to the following observations of Lopes, L.J. in Pearce v. Foster.

"If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant."

(emphasis supplied)”

4.6.3. In Umesh Chandra 2006 (5) AWC 4519 it is ruled as under;

“Judge passing order for extraneous Consideration – Judge Suspended from the post – After enquiry Judge was punished – It was argued on behalf of said Judge that there was no direct evidence of any extraneous consideration for passing the order.

37……Held, In such cases, there cannot be direct evidence for granting the relief on extraneous consideration by the Presiding Officer. However, presumption can be drawn.

19. In spite of the fact that an order can be corrected in appellate/revisional jurisdiction but if the order smacks of

any corrupt motive or reflects on the integrity of the judicial officer, domestic enquiry can be held.

23. The judicial officer had proceeded in haste and that may also be taken note of that anything done in undue haste can also be termed as arbitrary and cannot be condoned in law.’’

4.6.4. Needless to mention that the same Bench of two Ld. Judges (Justice Deepak Gupta & Justice Aniruddha Bose) in the case of Shrirang Waghmare 2019 SCC OnLine SC 1237, has uphold the dismissal of a Judge. It is ruled as under;

“9. There can be no manner of doubt that a Judge must decide the case only on the basis of the facts on record and the law applicable to the case. If a Judge decides a case for any extraneous reasons then he is not performing his duty in accordance with law.

10. In our view the word “gratification” does not only mean monetary gratification. Gratification can be of various types. It can be gratification of money, gratification of power, gratification of lust etc., etc. In this case the officer decided the cases because of his proximate relationship with a lady lawyer and not because the law required him to do so. This is also gratification of a different kind.

11. The judicial officer concerned did not live up to the expectations of integrity, behaviour and probity expected of him. His conduct is as such that no leniency can be shown and he cannot be visited with a lesser punishment.”

4.6.5. The procedure to take action against Supreme Court Judges is 'In- House-Procedure' as explained in Additional District and Sessions

Judge ‘X’ (2015) 1 SCC 799. In that procedure there is a provision for withdrawal of work from incompetent, corrupt Judge passing order for ulterior purposes. There is also provision for initiating impeachment proceedings and launching criminal prosecution against the Supreme Court Judges.

4.6.6. In the case of Justice Shukla of Allahabad High Court having passed an order by taking bribe, the Chief Justice of India exercised his power and withdrew all the judicial work from the said Judge and CBI was allowed to investigate. Recently, C.B.I has filed the chargesheet against Justice Shukla.

4.6.7. In another case Justice Nirmal Yadav was charge sheeted by CBI for accepting Rs. 10 Lakh bribe for passing an unlawful order. [Justice Nirmal Yadav 2011 (4) RCR (Criminal) 809]

4.6.8. The allegations of malafide intention of a Judge in passing a Judicial order is permissible in view of law laid down by Constitution Bench in Re: C.S. Karnan (2017) 7 SCC 1. Also Relied On:- i) Ram Piarra comrade 1972 SCC OnLine P&H 277,

ii) Harihar Shukla 1976 Cr.L.J. 507,

iii) Ram Surat Singh 1971 Cri.L.J. 580. 4.6.9. In R.R. Parekh (2016) 14 SCC 1 it is ruled as under;

“A judge passing an order against provisions of law is said to have been actuated by an oblique motive or corrupt practice - breach of the governing principles of law or procedure by a Judge is indicative of judicial officer has been actuated by an oblique motive or corrupt practice - No direct evidence is necessary - A charge of misconduct against a Judge has to be established on a preponderance of

probabilities - The Appellant had absolutely no convincing explanation for this course of conduct - Punishment of compulsory retirement directed.”

4.7. THE CONVICTION IS VITIATED AS IT IS BASED ON PER- INCURIAM FINDINGS IN PARA 48 AND PARA 86 OF THE IMPUGNED JUDGMENT THAT, NO PARTY CAN ATTRIBUTE MOTIVE TO A JUDGE OR QUESTION THE BONAFIDES OF THE JUDGE OR RAISE QUESTION WITH REGARD TO THE COMPETENCE OF THE JUDGE. SUCH OBSERVATIONS ARE AGAINST THE BINDING PRECEDENT OF CONSTITUTION BENCH IN RE: C. S. KARNAN (2017) 7 SCC 1, SUBRAMANIAN SWAMY VS. ARUN SHOURIE (2014) 12 SCC 344, ADDL. DISTRICT & SESSIONS JUDGE ‘X’ (2015) 1 SCC 799, BARADKANTA MISHRA (1974)1 SCC 374, K. VEERASWAMY’S CASE (1991) 3 SCC 655:-

4.7.1. That, is Para 48 of the judgment dated 27.04.2020 both the Ld. Judges had observed as under;

“48. There can be no manner of doubt that any citizen of the country can criticise the judgments delivered by any Court including this Court. However, no party has the right to attribute motives to a Judge or to question the bona fides of the Judge or to raise questions with regard to the competence of the Judge.”

4.7.2. That in para 86 of the Judgment dated 27.04.2020 it is observed by both the Ld. Judges that, 'No Litigant has a right to question the integrity of a Judge.'

The said view is against the Constitution Bench judgment in K. Veeraswami Vs. Union of India (1991) 3 SCC 655.

4.7.3. The view taken by the Ld.2-Judge Bench is against the law laid down by the Constitution Bench in Baradkanta Mishra (1974) 1 SCC 374 where it is ruled that; ‘‘86. Similarly, in Rex v. B.S. Nayyar [AIR 1950 All 549, 554 : 51 Cri LJ 1500] the Court considered a representation made to the Premier of the State about a judicial officer and also to the President of the All India Congress Committee. ………………... A pregnant observation made by the Court deserves mention: “It would indeed be extraordinary if the law should provide a remedy — the conduct of even a member of the highest Judicial Tribunal in the exercise of his judicial office may be the subject of enquiry with a view to see whether he is fit to continue to hold that office — and yet no one should be able to initiate proceedings for an enquiry by a complaint to the appropriate authority by reason of a fear of being punished for contempt, and I can find no justification for this view.” 93. To wind up, the key word is “justice”, not “judge”; the keynote thought is unobstructed public justice, not the self- defence of a judge; the corner-stone of the contempt law is the accommodation of two constitutional values — the right of free speech and the right to independent justice. The ignition of contempt action should be substantial and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel. 71. As early as 1892, the Privy Council in The matter of a Special Reference from the Bahama Islands [1893 AC 138,

149] had to upset a sentence of indefinite imprisonment imposed by the Chief Justice of Bahamas on one Mr Moseley for two “letters to the editor” full of snub and sarcasm about Yelverton, Esq., Chief Justice. In these there was cynical reference to the Chief Justice's incompetence and imprudence, couched in stinging satire. The Judicial Committee held: “(a) That the letter signed ‘Colonist’ in The Nassau Guardian though it might have been made the subject of proceedings for libel was not, in the circumstances, calculated to obstruct or interfere with the course of justice or the due administration of the law, and therefore did not constitute a contempt of Court.

4.7.4. The above view is also against the binding precedents of Constitution Benches. In Re: C.S. Karnan (2017) 7 SCC 1, it is ruled as under;

“70. In a judgment rendered almost a decade back, one of us (Gogoi, J.) sitting in the Gauhati High Court in Lalit Kalita ,In Re(2008) 1 Gau LT 800 had ruled that;

“14. Judiciary is not over-sensitive to criticism; in fact, bona fide criticism is welcome, perhaps, because it opens the doors to self-introspection. Judges are not infallible; they are humans and they often err, though, inadvertently and because of their individual perceptions. In such a situation, fair criticism of the viewpoint expressed in a judicial pronouncement or even of other forms of judicial conduct, is consistent with public interest and public good that Judges are committed to serve and uphold. The system of

administration of justice, therefore, would receive due impetus from a realization amongst Judges that they can or have actually erred in their judgments; another perspective, a new dimension or insight must, therefore, always be welcome. Such a realization which would really enhance the majesty of the Rule of Law, will only be possible if the doors of self-assessment, in the light of the opinions of others, are kept open by Judges.

16. But when should silence cease to remain an option? Where is the line to be drawn? A contemptuous action is punishable on the touchstone of being a wrong to the public as distinguished from the harm caused to the individual Judge. Public confidence in the judicial system is indispensable. Its erosion is fatal. of course, Judges by their own conduct, action and performance of duties must earn and enjoy the public confidence and not by the application of the rule of contempt. Criticism could be of the underlying principle of a judicial verdict or its rationale or reasoning and even its correctness. Criticism could be of the conduct of an individual Judge or a group of Judges. Whichever manner the criticism is made it must be dignified in language and content because crude expressions or manifestations are more capable of identification of the alleged wrong with the system as a whole. Motives, personal interest, bias, pre-disposition etc. cannot be permitted to be Bad as being responsible for the judicial verdict, unless, of course, the same can be established as an existing fact.” 4.7.5. In Lalith Kalitha 2008 (1) GLT 800 it is ruled as under;

“Contempt – When allegations are made against a Judge that he passed an order for extraneous consideration then maker has to establish it on the basis of materials. The maker of such an allegation, therefore, has to establish that he had reasonable materials and/or information in his possession on consideration of which he felt that it would be justified, in public interest, to inform the public of all that had happened by means of the news item in question. This, according to us, is the crucial and core test that has to be applied by us to determine the culpability of the respondents, if any.” 4.7.6. In Subramanyam Swamy (2014) 12 SCC 344 it is ruled as under;

“12. In Wills [Nationwide News (Pty) Ltd. v. Wills, (1992) 177 CLR 1 (Aust)] the High Court of Australia suggested that truth could be a defence if the comment was also for the public benefit. It said, “… The revelation of truth—at all events when its revelation is for the public benefit—and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive the court or Judge of public confidence…”

4.7.7. Constitution Bench of Supreme Court in Bathina Ramakrishna Reddy AIR 1952 SC 149 had read in para 12 as under;

“12. [Scandalous News published against a Judge] ...... If the allegations were true it would be to the benefit of the public to bring these matters in to light ...... ”

4.7.8. In Rama Surat Singh Vs. Shiv Kumar Pandey 1969 SCC OnLine All 226, it is ruled as under;

“Contempt of Courts Act (32 of 1952), S.3- Complaint against Judge alleging corrupt practices and malfides - Is no contempt - The contempt is not available as a cloak for judicial authorities to cover up their inefficiency and corruption or to stifle criticism made in good faith against such officers. - Vindication of prestige is not the object of Contempt. - If a particular judge or magistrate is corrupt and sells justice, then a bona fide complaint to higher authorities to take necessary action against the delinquent judicial officer is also an act to maintain the purity of the administration of justice, for it is unthinkable that a judicial officer should be allowed to take bribes and if anybody makes a grievance of the matter to the higher authorities, he should be hauled up for contempt of Court. Contempt law does not mean that if a Magistrate or judge acts dishonestly or is corrupt then too, he is beyond the reach of law and can take protection under the threat of prosecuting those who bona fide raise their voice against him.

In the light of the law as laid down by the Supreme Court and interpreted by this Court these opposite parties should not be prosecuted for contempt, particularly when the allegations of corruption made by the first opposite party against the applicant are still under investigation and it cannot be said, at this stage that they were either untrue or mala fide.

The Committee of International Jurists 1959 Lord Shaw Cross at page 15 desired a more progressive view when he stated :-

"…….Clearly if someone wishes in good faith to make a charge of partiality or corruption against Judge he ought to have the opportunity of making it : ......

We consider that he should be able to do so by letter to the Lord Chancellor or to his Member of Parliament without fear of punishment and would deplore the use of the law of contempt to prevent him from doing so. The charges could then be considered either administratively or in the House of Commons or in the House of Lords."

4.7.9. High Court in Harihar Shukla 1976 Cri. LJ 507, had laid down that, when law provides remedy for making complaint then Contempt cannot lie as it will violate that right and create fear in the mind of complainants. Similar law is laid down by the Constitution Bench in the case of Baradkanta Mishra (1974) 1 SCC 374

It is ruled in Harihar Shukla’s case (supra) as under;

“When law provide a remedy-the conduct of even a member of a highest judicial tribunal in the exercise of his judicial office may be the subject of enquiry with a view to see whether he is fit to continue to hold that office then if action under contempt is taken for such complaints then no one should be able to initiate proceeding for enquiry by a complaint to the appropriate authority by reason of a fear of being punished for contempt. There is no justification for this view.

The learned Government Advocate was unable to point to any decision in which action might have been taken for contempt of court in such circumstances. All the case that were placed before

us were cases in which public criticism was made of the conduct of a judicial officer in the newspaper or in speeches.

Where a complaint containing defamatory allegations against a presiding officer of a court, is made to a superior authority, requesting it to take appropriate administrative action in the matter and a copy of the same is not communicated to the officer concerned [accused Judge] then no contempt is made out. Contempt Notice discharged.

A libel, attacking the integrity of a Judge may not, in the circumstances of a particular case, amount to contempt at all although it may be the subject-matter of a libel proceeding. This is clear from the observation of the Judicial Committee in the case of the matter of Special Reference from Bahama Island, 1893 AC 188" 4.7.10. In Court on its Own Motion Vs. Ram Piara Comrade1972 SCC OnLine P & H 277 it is ruled as under; “Contempt of Court - Scandalous complaint against Judge to higher authority including Chief Justice of India, Which are admittedly the authorities with disciplinary control does not amount to a publication tending to scandalize the Court of the said Judge Shri Lamba within the meaning of Section 2(c). The mere fact that copies were sent to the Chief Justice of India who too is believed to be having supervisory control over the judiciary in India does not in any way in the instant case amount to publication within the meaning of Section 2 of the Act. 12. The very idea of a complaint has inherent in it that the person complaining is levelling some sort of accusations.

The complaint for which there is a lawful justification is not per se a publication unless it is a garbled version falsifying the issues raised in the complaint so as to negative any good faith.

12. The order is as stated above so patently illegal that the suspicion of the respondent mentioned in his complaints to the Chief Justice that the Judicial Officer might have acted with a corrupt motive or for any other extraneous reason could not be totally ruled out as baseless so as to justify a conclusion by us that the respondent did not act honestly and intended only to scandalize the Court of Shri Lamba.

12. For the exercise of power of punishing a contemner the vehemence of the language used in the offending publications concerning a judge is not the only criterion. While punishing a contemner is in the interest of the society, it is equally necessary in order to protect that interest in a democratic set up that a citizen should be allowed to make a complaint to the High Court about a subordinate Judicial Officer so long as the complaint is made in good faith as the Constitution vests in the High Court full and complete administrative and disciplinary control over subordinate judiciary in the State. In order to have a proper control and check over the judiciary, it is but expedient that a citizen is not dissuaded by the threat of prosecution for contempt from making a bona fide complaint to the High Court against the Presiding Officer of a Subordinate Court.

13. The act of the respondent in making complaints to the Chief Justice of this Court against Shri Lamba and sending

copies of the same to the Governor and the Chief Minister, who are admittedly the appointing authorities;' though disciplinary control is with the High Court, is covered by Section 6 of the Act and does not amount to a publication tending to scandalize the Court of Shri Lamba within the meaning of Section 2(c). The mere fact that copies were sent to the Chief Justice of India who too is believed to be having supervisory control over the judiciary in India does not in any way in the instant case amount to publication within the meaning of Section 2 of the Act.

14. In the result, the rule issued against the respondent is discharged with no order as to costs.

4.7.11. A- Seven Judge Bench in Nationwide News Pty. Limited V. Wills (1992) 177 CLR 1, it is ruled as under; “Contempt-A person is immune for making scandalous allegations and criticism of a Judge which are accurately stated and based on rational ground and fact, though the truth revealed or the criticism made is such as to deprive the court or Judge of public confidence. "The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect". So long as the defendant is genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, he or she is immune.’’

4.7.12. In Indirect Tax Practitioner Vs. R.K. Jain (2010) 8 SCC 281, the law of scandalous pleading are explained as under;

‘‘31. The word “scandalise” has not been defined in the Act. In Black's Law Dictionary, 8th Edn., p. 1372, reference has been made to Eugene A. Jones, Manual of Equity Pleading and Practice 50-51, wherein the word scandal has been described as under;

“Scandal consists in the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to decency or good manners, or which charges some person with a crime not necessary to be shown in the cause, to which may be added that any unnecessary allegation, bearing cruelly upon the moral character of an individual, is also scandalous. The matter alleged, however, must be not only offensive, but also irrelevant to the cause, for however offensive it be, if it is pertinent and material to the cause the party has a right to plead it. It may often be necessary to charge false representations, fraud and immorality, and the pleading will not be open to the objection of scandal, if the facts justify the charge.”

(emphasis in original) 32. In Aiyer's Law Lexicon, 2nd Edn., p. 1727, reference has been made to Millington v. Loring [(1880) 6 QBD 190: 50 LJQB 214 (CA)] wherein it was held:

“A pleading is said to be ‘scandalous’ if it alleges anything unbecoming the dignity of the court to hear or is contrary to good manners or which charges a crime immaterial to the issue. But the statement of a scandalous fact that is material to the issue is not a scandalous pleading.”

4.7.13. In Dr. D.C. Saxena Vs. Hon’ble Chief Justice of India (1996) 5 SCC 216 case itself laid down the ratio that, making complaint against Supreme Court Judges as per ‘In-House Procedure’ are protected from action under contempt.

It is ruled as under;

59 ...... Therefore, when the Constitution prohibits

the discussion of the conduct of a Judge, by implication, no one has power to accuse a Judge of his misbehaviour or incapacity except and in accordance with the procedure prescribed in the Constitution and the Judges (Inquiry) Act or as per the procedure laid down in Bhattacharjee case [(1995) 5 SCC 457 : 1995 SCC (Cri) 953]’’

4.7.14. In Additional District and Sessions Judge 'X' (2015) 4 SCC 91 it is ruled as under;

“55 .In view of the consideration and the findings recorded hereinabove, we may record our general conclusions as under: (i) The "in-house procedure" framed by this Court, consequent upon the decision rendered in C. Ravichandran

Iyer's case (supra) can be adopted, to examine allegations levelled against Judges of High Courts, Chief Justices of High Courts and Judges of the Supreme Court of India.

(ii) The investigative process under the "in-house procedure" takes into consideration the rights of the complainant, and that of the concerned judge, by adopting a fair procedure, to determine the veracity of allegations levelled against a sitting Judge. At the same time, it safeguards the integrity of the judicial institution.” 53. It is essential for us to record a finding even on the last contention advanced at the hands of the learned counsel. We say so, because according to the learned counsel for the petitioner, it would not be proper, in the facts and circumstances of this case, to reinitiate the process expressed in the "in-house procedure", through the Chief Justice of the High Court. It seems to us, that there is merit in the instant contention. Undoubtedly, the Chief Justice of the High Court has adopted a position, in respect of some aspects of the matter, contrary to the position asserted by the petitioner. Truthfully, even though these facts do not have any direct bearing on the allegations levelled against respondent no. 3, yet when examined dispassionately, the fact of the matter is that the Chief Justice of the High Court, personally perceived certain facts differently. These facts are personal to the Chief Justice of the High Court, namely, whether attempts were made by the petitioner to meet the Chief Justice of the High Court, and whether he declined such attempts. In the above view of the matter, we are of the considered view, that it may

not be appropriate, in the facts and circumstances of the present case, to associate the Chief Justice of the High Court with the investigative process. It is not as if, there is any lack of faith, in the Chief Justice of the High Court. It is also not as if, there is any doubt in our mind, about the righteousness of the Chief Justice of the High Court. The issue is that of propriety. To the credit of the Chief Justice of the High Court, we may also observe, that he may have adopted the present procedure, just for the reasons indicated above, namely, to keep himself out of the fact finding process, so as to arrive at a fair and just decision. But that is inconsequential. We are accordingly further satisfied in concluding, that following the "in-house procedure" strictly by associating the Chief Justice of the concerned High Court, would not serve the contemplated purpose, insofar as the present controversy is concerned.

46.2. It is the second stage of the "in-house procedure", relating to sitting judges of High Courts, which could lead to serious consequences. The second stage is monitored by none other, than the Chief Justice of India. Only if the Chief Justice of India endorses the view expressed by the Chief Justice of the High Court, that a deeper probe is called for, he would constitute a "three-member Committee", and thereby take the investigative process, to the second stage. This Committee is to comprise of two Chief Justices of High Courts (other than the concerned High Court), besides a Judge of a High Court. The second stage, postulates a deeper probe. Even though the "three-member Committee" is at liberty to devise its own procedure, the inherent requirement provided for is, that the

procedure evolved should be in consonance with the rules of natural justice. Herein, for the first time, the authenticity of the allegations, are to be probed, on the basis of an inquiry. The incumbents of the "three- member Committee", would have no nexus, with the concerned judge. Not only would the concerned judge have a fair opportunity to repudiate the allegations levelled against him, even the complainant would have the satisfaction, that the investigation would not be unfair. The "in-house procedure" was devised to ensure exclusion of favouritism, prejudice or bias.”

4.8. THE CONVICTION IS VITIATED AS IT IS BASED ON PER- INCURIAM FINDINGS IN PARA 67 OF THE JUDGMENT AND ORDER THAT, THE LAWYER CANNOT CLAIM RIGHT TO FILE COMPLAINT AGAINST A JUDGE. THIS OBSERVATION IS AGAINST THE LAW LAID DOWN IN I] BRAMHA PRAKASH SHARMA, AIR 1954 SC 10, II] ARUN SHOURIE (2014) 12 SCC 344, III] R.K.JAIN (2010) 8 SCC 281, IV] R. MUTHUKRISHNAN AIR 2019 SC 849:-

4.8.1. That, both the Ld. Judges, in their judgment dated 27.04.2020 had observed in para 67 that, the lawyers cannot claim the right to file criminal complaint against Judges and such trend should be dealt firmly. The para 67 reads is reads as under;

‘‘67. We also fail to understand how Shri Vijay Kurle who is a lawyer claims that it is his fundamental right to initiate criminal proceedings against Judges. Some members of the Bar cannot hold the judiciary to ransom by threatening Judges of initiating criminal action ...... ’’

4.8.2. The above findings are against binding precedent in R. Muthukrishnan AIR 2019 SC 849, where it is ruled as under;

“It is duty of the lawyer to lodge appropriate complaint to the concerned authorities as observed by this Court in Vinay Chandra Mishra (supra), which right cannot be totally curtailed.

……..Making the Bar too sycophant and fearful which would not be conducive for fair administration of justice. Fair criticism of judgment and its analysis is permissible. Lawyers' fearlessness in court, independence, uprightness, honesty, equality are the virtues which cannot be sacrificed.

It is the duty of the Bar to protect honest judges and not to ruin their reputation and at the same time to ensure that corrupt judges are not spared.”

4.8.3. In O.P. Sharma Vs. High Court Of Punjab & Haryana (2011) 6 SCC 86 it is ruled that;

“Section – I of Chapter-II, part VI title “standards of professional conduct and etiquette” of the Bar Council India rules specifies the duties of an advocate that ‘he shall not be servile and whenever there is proper ground for serious complaint against Judicial officer, it shall be his right and duty to submit his grievance to proper authorities.”

4.8.4. Constitution Bench in Bramha Prakash Sharma AIR 1954 SC 10 had ruled that, when any Judge conducts the case in highly irregular manner, then complaint should be made by the Bar Association.

4.8.5. Similar law is laid down in A.M. Bhattacharjee (1995) 5 SCC 457, Additional District & Sessions Judge ‘X’ (2015) 1 SCC 799.

4.8.6. In R.K. Jain (2010) 8 SCC 281, it is ruled that, it is the Constitutional duty under Article 51(A) (h) of the Constitution to make complaint against Judges and expose malpractices in judicial institutions.

4.8.7. In Aniruddha Bahal 2010 (119) DRJ 102 it is ruled as under;

“Duty of a citizen under Article 51 A (h) is to develop a spirit of inquiry and reforms. It is fundamental right of citizens of this country to have a clean & incorruptible judiciary, legislature, executive and other organs and in order to achieve this fundamental right every citizen has a corresponding duty to expose corruption wherever he finds. Constitution of India mandates citizens to act as agent provocateurs to bring out and expose and uproot the corruption - Sting operation by citizen - the sting operation was conducted by them to expose corruption - Police made them accused - The intention of the petitioners was made clear to the prosecution by airing of the tapes on T.V channel that they want to expose corruption - Quashing the charge-sheet and order of taking cognizance and issuing summons against whistle Blower high Court observed that- it is a fundamental right of citizens of this country to have a clean incorruptible judiciary, legislature, executive and other organs and in order to achieve this fundamental right, every citizen has a corresponding duty to expose corruption wherever he finds it, whenever he finds it

and to expose it if possible with proof so that even if the State machinery does not act and does not take action against the corrupt people when time comes people are able to take action. ‘’

4.9. THE CONVICTION IS VITIATED AS IT IS BASED ON PER- INCURIAM FINDINGS IN PARA 66 OF THE IMPUGNED JUDGMENT THAT, EVEN IF THE JUDGE OF SUPERIOR COURT ACTS IN WILFUL DISREGARD AND DEFIANCE OF BINDING PRECEDENTS OF THE HIGHER BENCHES, HE WILL NOT BE SUBJECT TO CONTEMPT PROCEEDINGS AT THE BEHEST OF AN INDIVIDUAL/LAWYER. THIS FINDING IS AGAINST THE LAW LAID DOWN BY CONSTITUTION BENCH JUDGMENT IN RE: C.S. KARNAN (2017)7 SCC 1:-

4.9.1. That, the Trial Court in para 66 of their judgment dated 27.04.2020 had observed that a lawyer cannot say that the Judge of Supreme Court committed a contempt even if the Judge deliberately acted against the binding precedents or committed offences against administration of justice.

‘‘66. Further on Page 124 of the first complaint it is alleged as follows:

“Hence it is clear that Justice Rohington Fali Nariman is a person who neither knows the law nor knows its application i.e. neither Command over shastras nor put it into practice.”

The alleged contemnors could have criticised the correctness of the judgment, but the allegation that observations of Justice Nariman amount to contempt of Court or show his poor level of understanding and lack of basic understanding of law is not language which a lawyer is expected to use against a sitting Judge of the Supreme Court ...... ’’

4.9.2. The abovesaid observations are in wilful disregard of the law laid down by Constitution Bench in Re: C.S. Karnan (2017) 7 SCC 1 where it is ruled that even a common man can file contempt petition against a Judge of a Constitutional Court and identity of a person is inconsequential before the Court hearing contempt petition. It is ruled as under;

“1. JAGDISH SINGH KHEHAR, C.J. (for himself and Misra, Chelameswar, Gogoi, Lokur, Ghose and Kurian, JJ.; Chelameswar and Gogoi, JJ. supplementing as well)— The task at our hands is unpleasant. It concerns actions of a Judge of a High Court. The instant proceedings pertain to alleged actions of criminal contempt, committed by Shri. Justice C.S. Karnan. The initiation of the present proceedings suo motu, is unfortunate. In case this Court has to take the next step, leading to his conviction and sentencing, the Court would have undoubtedly travelled into virgin territory. This has never happened. This should never happen. But then, in the process of administration of justice, the individual's identity, is clearly inconsequential. This Court is tasked to evaluate the merits of controversies placed before it, based on the facts of the case. It is expected to record its conclusions, without fear or favour, affection or ill will.

60. Faced with an unprecedented situation resulting from the

incessant questionable conduct of the contemnor perhaps made the Chief Justice of India come to the conclusion that all the abovementioned questions could better be examined by this Court on the judicial side. We see no reason to doubt the authority/jurisdiction of this Court to initiate the contempt proceedings. Hypothetically speaking, if somebody were to move this Court alleging that the activity of Justice Karnan tantamounts to contempt of court and therefore appropriate action be taken against him, this Court is bound to examine the questions. It may have accepted or rejected the motion. But the authority or jurisdiction of this Court to examine such a petition, if made, cannot be in any doubt.’’

4.10. ORDER IS VITIATED IN VIEW OF LAW LAID DOWN BY THE CONSTITUTION BENCH JUDGMENT IN CENTRAL BOARD OF DAWOODI BOHRA (2005) 2 SCC 673 FOR HIGHLY ILLEGAL OBSERVATIONS BY PLACING RELIANCE ON THE EDITORIAL NOTE OF AN AUTHOR OF THE BOOK AND TREATING IT AS A STATUTE IN ORDER TO REJECT THE LAW AND RATIO LAID DOWN BY THE BINDING PRECEDENTS OF FULL BENCH AND CONSTITUTION BENCHES OF THE SUPREME COURT AND PLACING RELIANCE ON OVERRULED JUDGMENT OF SMALLER BENCH:- 4.10.1. That on 09.12.2019 Sr. Adv. Luthra submitted his written arguments and pointed out to the Court that;

i. As per law laid down by 2-Judge Bench in Pritam Pal’s Case 1992 (1) Scale 416, the provisions of Contempt of Courts Act,1971 are not applicable to the Supreme Court and the Supreme Court can pass any order against the law, statutes and rules.

ii. As per the ratio laid down in C. K. Daphtary Vs. O.P. Gupta (1971) 1 SCC 626 and by 2-Judge Bench in Dr. D.C Saxena’s Case (1996) 5 SCC 216, no one can attribute motive to the Judge even if the Judge is guilty of serious offences.

4.10.2. In answer to this, Petitioner and Counsel for Respondent No.1 & 2 in the written and oral submissions pointed out that;

i. The Full Bench in Bal Thackrey’s Case (2005) 1 SCC 254, has disapproved that part of ratio laid down in Pritam Pal’s case which was decided by a 2-Judge Bench, where it is said that power under Article 129 and 215 is not controlled by the Contempt of Courts Act, 1971. Therefore the ratio of Pritam Pal’s Case is overruled. Furthermore, the other Full Bench Judgment in Pallav Seth (2001) 7 SCC 549 and Maheshwar Peri (2016) 14 SCC 251, had specifically ruled that, the proceedings under either Article 129 or Article 215 must be conducted as per the provisions of The Contempt of Courts Act, 1971. ii. In Suresh Bhoyer Vs. Shri Manohar Bhagat , 2012(5) ALL MR 230, it is ruled that; “ 4. Now, first dealing with the objections raised by the learned Counsel, one has to be alive to the factual position coupled with legal parameters and also the discipline. The judgment in the matter of Pritam Pal's case (Pritam Pal Vs. High Court of Madhya Pradesh, Jabalpur, 1992 SCW 681) dated 19.2.1992 was rendered by two Honourable Lordships of the Supreme Court, while the judgment in the matter of Pallav Sheth (Pallav Sheth Vs. Custodian and others, AIR 2001 SC 2763 )was by the three Honourable Judges of the Supreme Court. Consequently, no astrologer is required to comment

that the later judgment rendered by the Supreme Court by the three Honourable Judges on 10.8.2001 will only hold the field. The submissions vociferously advanced needs only to be discarded.” iii. The judgments of all courts relying on Pritam Pal v. High Court of Madhya Pradesh 1992 (1) SCALE 416 to the effect of non applicability of Contempt of Court’s Act , 1971 to Supreme Court and High Court are declared as no longer good law. iv. In G.P.Dinesh Kumar Vs. Mr.Biswas Metha, 2020 SCC OnLine Ker 1131 it is ruled that, Contempt of Courts Act,1971 is applicable when action is taken under Article 129 or 215 of the Constitution of India. View taken by the Court contrary to the judgment of the Apex Court in Pallav Sheth v. Custodian & Ors. ((2001) 7 SCC 549) is no longer good law. v. The judgment in C. K. Daphtary Vs. O.P. Gupta (1971) 1 SCC 626 case was declared to be no longer good law by the Supreme Court in a) P.N.Duda’s case (1988) 3 SCC 167, b) Biman Basu’s case (2010) 8 SCC 673 [Para 17]. It was held by the Supreme Court that, since, the judgment of C. K. Daphtary is delivered before the new Act, 1971 therefore, it is no longer a good law. vi. The ratio of Pritam Pal’s case 1992 (1) SCALE 416 and Rajeshwar Singh’s case is per-incuriam as it is passed by ignoring the Constitution Bench judgment in the case of Baradkanta Mishra Vs. The Registrar Of Orrisa (1974) 1 SCC 374, in para 66,67,49,33,37,38 where after referring the Article 129 of the Constitution it is ruled that, in the cases of scandalizing the Court i.e. Criminal Contempt the law applicable is the Contempt of Courts Act,

1971. vii. The judgment of Pritam Pal’s case 1992 (1) SCALE 416, was also criticized by ‘‘The National Commission to Review the working of the Constitution [NCRWC]”.

Based on the report of NCRWC the Contempt of Courts Act 2006 is amended. Constitution Bench in Subramanian Swamy’s case (2014) 12 SCC 344, had referred the report of NCRWC and clarified that, the proceedings under Article 129 of the Constitution has to conducted as per section 13, 2,15, 17 etc. of the Contempt of Courts Act, 1971. viii. The ratio laid down judgment in C. K. Daphtary case (supra) & Dr. D.C. Saxena’s case (supra), are per-incuriam & overruled.

They are per-incuriam for not considering the earlier binding precedent of Constitution Bench in Bathina Reddy’s case AIR 1952 SC 149, where it is ruled that, if any party is having proof that the Judge passed a order for malafide purposes then it is for the public good that such proof should be published. It is overruled because of amendment in the Contempt of Courts Act in2006 and the later Seven - Judge Constitution Bench judgments in Re: C.S. Karnan (2017) 7 SCC 1, Subramanian Swamy (2014) 12 SCC 344, Re: Lalith Kalitha 2008 (1) GLT 800, R.K. Jain (2010) 8 SCC 281 etc. ix. The Petitioner and Counsel for alleged contemnor No.1 and 2, prayed for action against Sr. Adv. Siddharth Luthra for giving overruled judgment which is gross professional misconduct and falling standard of professional ethics and also prayed to strip off his designation as a Senior Counsel as per law laid down in Lal Bahadur

Gautam (2019) 6 SCC 441, Nalinikanta (2004) 7 SCC 19, Heena Dharia 2016 SCC OnLine Bom 9859, E.S. Reddy (1987) 3 SCC 258.

4.10.3. In answer to the abovesaid accusation Mr. Luthra in his second written argument dated 02.03.2020 had made submission that, since the "Case Treatment'' obtained from ‘‘Lexis - Nexis’’ of Pritam pal's case(supra), Dr.D.C. Saxena’s case (supra), C. K. Daphtary (supra),, is not showing the above judgments as overruled or per- incuriam therefore, they are the binding precedents. The view taken by the Larger Benches cannot be referred and relied. The Lexis Nexis is the authority to decide the binding nature of the judgment. [ Para 13.7, 13.9 ]

4.10.4. Ld. Trial Court vide its order dated 02.03.2020 directed Respondents to submit their reply to the above submission till 16.03.2020.

4.10.5. On 16.03.2020 all the Respondents in their written submission again pointed out the law laid down by Full Bench in C. N. Rudramuthy's case (1998) 8 SCC 275, where it is ruled that, when view taken by the Larger Benches is on the record then the Supreme Court cannot re- examine a case which had by implication be declared incorrect. The other contrary view by Smaller Benches stands impliedly overruled. If the provisions of the Act are explained by the Larger Benches then no contrary view is permissible by Smaller Benches.

4.10.6. In Lal Bahadur Gautam (2019) 6 SCC 441, it is ruled that, the reliance on the judgment of repealed act amounts to reliance on overruled judgment by the advocate and is misconduct. It was pointed out that, the opinion of ‘Author or Editor’ cannot supersede the ratio laid down by Full Bench and Constitution Bench. Similar view is taken in Sandeep Bafna’s Case (2014) 16 SCC 623, Mr. Roy Joseph Creado 2008 ALL MR (Cri.) 851.

4.10.7. But the Ld. Trial Court refused to follow the law laid down by the Larger Benches and Constitution Benches because, they are contrary to the view taken by Author Mr. Samaraditya Pal of the Lexis Nexis in the Book ‘The Law of Contempt (2013)’ and followed the Authors Editorial note of the book by ‘Lexis Nexis’ and relied on the the overruled judgment of Smaller Benches only because this was the submission of Sr. Counsel Mr. Siddharth Luthra.

4.10.8. The para 7 of the judgment dated 27.04.2020 is sufficient to prove the abovesaid fact. It is observed as under; ‘‘7. Before we deal with the objections individually, we need to understand what are the powers of the Supreme Court of India in relation to dealing with contempt of the Supreme Court in the light of Articles 129 and 142 of the Constitution of India when read in conjunction with the Contempt of Courts Act, 1971. According to the alleged contemnors, the Contempt of Courts Act is the final word in the matter and if the procedure prescribed under the Contempt of Courts Act has not been followed then the proceedings have to be dropped. On the other hand, Shri Sidharth Luthra, learned amicus curiae while making reference to a large number of decisions contends that the Supreme Court being a Court of Record is not bound by the provisions of the Contempt of Courts Act. The only requirement is that the procedure followed is just and fair and in accordance with the principles of natural justice.

Article 129 of the Constitution of India reads as follows:

“129. Supreme Court to be a court of record.- The Supreme Court shall be a court of record and shall have all the powers of

such a court including the power to punish for contempt of itself.”

A bare reading of Article 129 clearly shows that this Court being a Court of Record shall have all the powers of such a Court of Record including the power to punish for contempt of itself. This is a constitutional power which cannot be taken away or in any manner abridged by statute.

……….. A comparison of the provisions of Article 129 and clause (2) of Article 142 clearly shows that whereas the founding fathers felt that the powers under clause 92) of Article 142 could be subject to any law made by parliament, there is no such restriction as far as Article 129 is concerned. The power under clause (2) of Article 142 is not the primary source of power of Court of Record which is Article 129 and there is no such restriction in Article 129. Samaraditya Pal in the Law of Contempt [ Pg 9-10 The law of Contempt- contempt of Courts and legislatures, Fifth Edn. Lexis Nexis Butterworth Wadhawa, Nagpur(2013) ] has very succinctly stated the legal position as follows:

“Although the law of contempt is largely governed by the 1971 Act, it is now settled law in India that the High Courts and the Supreme Court derive their jurisdiction and power from Articles 215 and 129 of the Constitution. This situation results in giving scope for “judicial self-dealing”.

The High Courts also enjoy similar powers like the Supreme Court under Article 215 of the Constitution. The main argument of the alleged contemnors is that notice should have been issued in terms of the provisions of the Contempt of Courts Act

and any violation of the Contempt of Courts Act would vitiate the entire proceedings. We do not accept this argument. In view of the fact that the power to punish for contempt of itself is a constitutional power vested in this Court, such power cannot be abridged or taken away even by legislative enactment.’’

4.10.9. The above view taken by the Bench of Ld. Justice Deepak Gupta is in direct contravention of the law laid down by the Full Bench in Bal Thackeray's case (2005) 1 SCC 254 and by Pallav Seth’s Case (2001) 7 SCC 549.

4.10.10. In Bal Thackeray's case (2005) 1 SCC 254, the conviction is set aside for not following the provisions of the Act. It is ruled as under;

“23. In these matters, the question is not about compliance or non- compliance of the principles of natural justice by granting adequate opportunity to the appellant but is about compliance of the mandatory requirements of Section 15 of the Act. As already noticed the procedure of Section 15 is required to be followed even when petition is filed by a party under Article 215 of the Constitution, though in these matters petitions filed were under Section 15 of the Act In absence of compliance of mandatory requirement of Section 15, the petitions were not maintainable.

24. As a result of aforesaid view, it is unnecessary to examine in the present case, the effect of non-compliance of the directions issued in Duda's case by placing the informative papers before the Chief Justice of the High Court.

25. For the foregoing reasons we set aside the impugned judgment and allow the appeals. Fine, if deposited by the

appellant shall be refunded to him.

4.10.11. That, after considering all the earlier judgments and Constitution Bench judgment in Supreme Court Bar Association case (1998) 4 SCC 409 it is ruled by Full Bench in Pallav Sheth’s Case (2001) 7 SCC 349 as under;

“31. This Court has always frowned upon the grant or existence of absolute or unbridled power. Just as power or jurisdiction under Article 226 has to be exercised in accordance with law, if any, enacted by the legislature, it would stand to reason that the power under Article 129 and/or Article 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously.

32. The Contempt of Courts Act, 1971 inter alia provides for what is not to be regarded as contempt; it specifies in Section 12 the maximum punishment which can be imposed; procedure to be followed where contempt is in the face of the Supreme Court or in the High Court or cognizance of criminal contempt in other cases is provided by Sections 14 and 15; the procedure to be followed after taking cognizance is provided by Section 17; Section 18 provides that in every case of criminal contempt under Section 15 the same shall be heard and determined by a Bench of not less than two Judges; Section 19 gives the right of appeal from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt. There is no challenge to the validity of any of the provisions of the Contempt of Courts Act as being

violative or in conflict with any provisions of the Constitution. Barring observations of this Court in Supreme Court Bar Assn. case [(1998) 4 SCC 409] where it did not express any opinion on the question whether maximum punishment fixed by the 1971 Act was binding on the Court, no doubt has been expressed about the validity of any provision of the 1971 Act. In exercise of its constitutional power, this Court has, on the other hand, applied the provisions of the Act while exercising jurisdiction under Article 129 or 215 of the Constitution. In Sukhdev Singh Sodhi case [AIR 1954 SC 186 : 1954 Cri LJ 460 : 1954 SCR 454] it recognised that the 1926 Act placed a limitation on the amount of punishment which could be imposed. Baradakanta Mishra case [(1975) 3 SCC 535 : 1975 SCC (Cri) 99] was decided on the interpretation of Section 19 of the 1971 Act, namely, there was no right of appeal if the court did not take action or initiate contempt proceedings. In the case of Firm Ganpat Ram Rajkumar case [1989 Supp (2) SCC 418 : 1989 Supp 1 SCR 223] the Court did not hold that Section 20 of the 1971 Act was inapplicable. It came to the conclusion that the application for initiating contempt proceedings was within time and limitation had to be calculated as for the purpose of limitation date of filing was relevant and furthermore that was a case of continuing wrong. In Kartick Chandra Das case [(1996) 5 SCC 342] the provisions of the Limitation Act were held to be applicable in dealing with application under Section 5 in connection with an appeal filed under Section 19 of the Limitation Act. A three-Judge Bench in Dr L.P. Misra case [(1998) 7 SCC 379] observed that the procedure

provided by the Contempt of Courts Act, 1971 had to be followed even in exercise of the jurisdiction under Article 215 of the Constitution. It would, therefore, follow that if Section 20 is so interpreted that it does not stultify the powers under Article 129 or Article 215 then, like other provisions of the Contempt of Courts Act relating to the extent of punishment which can be imposed, a reasonable period of limitation can also be provided.”

4.10.12. In Maheshwar Peri (2016)14 SCC 251, it is ruled as under;

“10. We are afraid, the contentions advanced by the learned Counsel for the appellants cannot be appreciated. Be it an action initiated for contempt under Article 129 of the Constitution of India by the Supreme Court or under Article 215 of the Constitution of India by the High Court, it is now settled law that the prosecution procedure should be in consonance with the Act, as held by this Court in Pallav Sheth case (supra).

4.10.13. The above law laid down in Pallav Sheth’s Case (supra) is again got approval by the Three Judge Bench in Bal Thackrey’s Case (2005)1 SCC 254 . It is ruled in para 11 as under;

‘‘11.The nature and power of the Court in contempt jurisdiction is a relevant factor for determining the correctness of observations made in Duda's case (supra). Dealing with the requirement to follow the procedure prescribed by law while exercising powers under Article 215 of the Constitution to punish for contempt, it was held by this Court in Dr. L.P. Misra v. State of U.P. [(1998) 7 SCC 379] that the High

Court can invoke powers and jurisdiction vested in it under Article 215 of the Constitution of India but such a jurisdiction has to be exercised in accordance with the procedure prescribed by law. The exercise of jurisdiction under Article 215 of the Constitution is also governed by laws and the rules subject to the limitation that if such laws/rules stultify or abrogate the constitutional power then such laws/rules would not be valid. In L.P.Misra's case (supra) it was observed that the procedure prescribed by the Rules has to be followed even in exercise of jurisdiction under Article 215 of the Constitution. To the same effect are the observations in Pallav Sheth's case (supra).’’

4.10.14. Despite referring to these judgment of Larger Benches, the Ld. Trial Court chose not to follow the Larger Bench judgments and have given their own interpretation and taken a view exactly against the view taken by the Larger Benches. This is a judicial impropriety and against the law laid down by Constitution Bench judgment in the case of Dawoodi Bohra (2005) 2 SCC 673, where it is specifically ruled that, if any earlier judgment is referred and interpretation is given by the three Judge Bench then the two Judge Bench cannot take any contrary view and if Smaller Bench is having any doubt then it can refer the matter to Larger Bench.

4.10.15. Ld. Trial Court has applied the yardstick that if ratio laid down in any judgment is not matching with the view taken by Author Samaraditya Pal in the book of ‘Lexis Nexis’ as interpreted in para 7 of the judgment, then all such judgments of the Full Bench and Constitutional Bench are not binding and cannot be followed and the view taken by the smaller benches even if overruled or per-incuriam are to

be taken into consideration since their ratio matches with the view of the Author of the book Lexis- Nexis as suggested by Sr. Adv. Siddharth Luthra.

4.10.16. It is settled law that, the two Judges Bench is bound to follow the interpretation of law laid down in Supreme Court Bar Association (1998) 4 SCC 409, as explained by Larger Benches in Pallav Sheth’s Case (supra) and in Bal Thackery case (supra).

4.10.17. Full Bench in the case of Official Liquidator Vs. Dayanand (2008) 10 SCC 1, ruled as under;

‘‘91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.

92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey [(2007) 11 SCC 92 : (2008) 1 SCC (L&S) 736] should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench.

84. In State of Bihar vs. Kalika Kuer and others [2003

(5) SCC 448], the Court elaborately considered the principle of per incuriam and held that the earlier judgment by a larger Bench cannot be ignored by invoking the principle of per incuriam and the only course open to the coordinate or smaller Bench is to make a request for reference to the larger Bench.

85. In State of Punjab vs. Devans Modern Breweries Ltd. [2004 (11) SCC 26], the Court reiterated that if a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter has to be referred to a larger Bench.

86. In Central Board of Dwaoodi Bohra Community vs. State of Maharashtra [2005 (2) SCC 673], the Constitution Bench interpreted Article 141, referred to various earlier judgments including Bharat Petroleum Corpn. Ltd. vs. Mumbai Shramik Sangha (supra), Pradip

Chandra Parija and others vs. Pramod Chandra Patnaik and others (supra) and held that "the law laid down in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength and it would be inappropriate if a Division Bench of two Judges starts overruling the decisions of Division Benches of three Judges. The Court further held that such a practice would be detrimental not only to the rule of discipline and the doctrine of binding precedents but it will also lead to inconsistency in decisions on the point of law; consistency and certainty in the development of and its contemporary status – both would be immediate casualty"

87. In State of U.P. and others vs. Jeet S. Bisht and another [2007 (6) SCC 586], when one of the Hon'ble Judges (Katju, J.) constituting the Bench criticized the orders passed by various Benches in the same case, the other Hon'ble Judge (Sinha, J.) expressed himself in the following words :

"100. For the views been taken herein, I regret to express my inability to agree with Brother Katju, J. in regard to the criticisms of various orders passed in this case itself by other Benches. I am of the opinion that it is wholly inappropriate to do so. One Bench of this Court, it is trite, does not sit in appeal over the other Bench particularly when it is a coordinate Bench. It is equally inappropriate for us to express total disagreement in the same matter as also in similar matters with the directions and observations made by the larger Bench. Doctrine of judicial restraint, in my

opinion, applies even in this realm. We should not forget other doctrines which are equally developed viz. Judicial Discipline and respect for the Brother Judges."

88. In U.P. Gram Panchayat Adhikari Sangh vs. Daya Ram Saroj [2007 (2) SCC 138], the Court noted that by ignoring the earlier decision of a coordinate Bench, a Division Bench of the High Court directed that part- time tube-well operators should be treated as permanent employees with same service conditions as far as possible and observed :

"26. Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity."

78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller

Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non- adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia vs. Administrator General of W.B. [1960 (3) SCR 578], this Court observed: "If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court."

[Emphasis added]

79. In Lala Shri Bhagwan vs. Ram Chandra [AIR 1965 SC 1767], Gajendragadkar, C.J. observed :

"It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger bench to examine the question. That is the proper and traditional way to deal with such mattes and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself."

80. In Union of India vs. Raghubir Singh [1989 (2) SCC 754], R.S. Pathak, C.J. while recognizing need for constant development of law and jurisprudence emphasized the necessity of abiding by the earlier precedents in following words : "The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."

81. In Sundarjas Kanyalal Bhatija and others vs.

Collector, Thane [1989 (3) SCC 396], a two- Judges Bench observed as under :

"In our system of judicial review which is a part of our constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Sub-ordinate courts would find themselves in an embarrassing position to choose between the conflicting opinion. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute."

82. In Dr. Vijay Laxmi Sadho vs. Jagdish [2001 (2) SCC 247], this Court considered whether the learned Single Judge of Madhya Pradesh High Court could ignore the judgment of a coordinate Bench on the same issue and held :

"33. As the learned Single Judge was not in agreement with the view expressed in Devilal case it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. It is well-settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction

whether on the basis of "different arguments" or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs."

83. In Pradip Chandra Parija and others vs. Pramod Chandra Patnaik and others [2002 (1) SCC 1], the Constitution Bench noted that the two learned Judges denuded the correctness of an earlier Constitution Bench judgment in Bharat Petroleum Corpn. Ltd. vs. Mumbai Shramik Sangha [2001 (4) SCC 448] and reiterated the same despite the fact that the second Constitution Bench refused to reconsider the earlier verdict and observed :

"3. We may point out, at the outset, that in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha(2001 (4) SCC 448) a Bench of five Judges considered a somewhat similar question. Two learned Judges in that case doubted the correctness of the scope attributed to a certain provision in an earlier Constitution Bench judgment and, accordingly, referred the matter before them directly to a Constitution Bench. The Constitution Bench that then heard the matter took the view that the decision of a Constitution Bench binds a Bench of two learned Judges and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At

the most, the Bench of two learned Judges could have ordered that the matter be heard by a Bench of three learned Judges.

5. The learned Attorney-General submitted that a Constitution Bench judgment of this Court was binding on smaller Benches and a judgment of three learned Judges was binding on Benches of two learned Judges -- a proposition that learned counsel for the appellants did not dispute. The learned Attorney-General drew our attention to the judgment of a Constitution Bench in Sub-Committee of Judicial Accountability v. Union of India (1992 (4) SCC 97) where it has been said that "no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench" (SCC p. 98, para 5). The learned Attorney-General submitted that the appropriate course for the Bench of two learned Judges to have adopted, if it felt so strongly that the judgment in Nityananda Kar (1991 Supp. (2) SCC 506) was incorrect, was to make a reference to a Bench of three learned Judges. That Bench of three learned Judges, if it also took the same view of Nityananda Kar, could have referred the case to a Bench of five learned Judges.

6. In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demands that a Bench of two learned

Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.

[Emphasis supplied]’’

4.10.18. That, apart from the abovesaid legal and factual position there is one more crucial aspect of the case. That, the issue regarding mandatory application of section 15 of the Contempt of Courts Act, 1971, to the proceedings before Supreme Court, came up before another Three-Judge Bench in the Case of Subramanyam Vs. Ramkrishna Hedge (2000) 10 SCC 331. The Three-Judge Bench forwarded a reference to Constitution Bench.

The said order reads thus:-

“1. These contempt matters relate to comments made by the alleged contemners against Shri Justice Kuldip Singh after he had submitted his report as Chairman of the Enquiry Commission set up by the Central Government. In Contempt Petition No. 9 of 1990 an objection has been raised by Shri D.D. Thakur, the learned Senior Counsel appearing for the alleged

contemner that the petition is not maintainable since consent of the Attorney General for India or the Solicitor General for India was not obtained as required by Section 15 of the Contempt of Courts Act, 1971. A question arises as to whether in the absence of the consent of the Attorney General or the Solicitor General suo motu proceedings can be initiated against the alleged contemner.

3. The learned counsel for the alleged contemners have urged that truth can be pleaded as a defence in contempt proceedings and that the decision of this Court in Perspective Publications (P) Ltd. v. State of Maharashtra [AIR 1971 SC 221 : (1969) 2 SCR 779] needs reconsideration. In our opinion, the questions that arise for consideration in these matters are of general public importance which are required to be considered by a Constitution Bench. We, therefore, direct that the matters be placed before a Constitution Bench.”

4.10.19. The said reference was answered by the Constitution Bench in Subramyam Swami (2014) 12 SCC 344, and upheld the validity of the Section 15 of Contempt of Courts Act, 1971 and answered the said issue as under;

“17. The three expressions, “court” in sub-clause (i), “judicial proceeding” in sub-clause (ii) and “administration of justice” in sub-clause (iii) of Section 2(c) are really important to answer the first question. Sections 12 and 15 of the 1971 Act are the other two sections which have some bearing. Section 12 prescribes punishment for contempt of court. Section 15 deals with cognizance of criminal contempt by the Supreme Court or

the High Court on its own motion or on a motion made by the Advocate General or any other person with the consent in writing of the Advocate General. The expression “Advocate General” in clauses (a) and (b) of Section 15(1) in relation to the Supreme Court means Attorney General or the Solicitor General.”

13. The legal position with regard to truth as a defence in contempt proceedings is now statutorily settled by Section 13 of the 1971 Act (as substituted by Act 6 of 2006). The Statement of Objects and Reasons for the amendment of Section 13 by Act 6 of 2006 read as follows: “1. The existing provisions of the Contempt of Courts Act, 1971 have been interpreted in various judicial decisions to the effect that truth cannot be pleaded as a defence to a charge of contempt of court.

2. The National Commission to Review the Working of the Constitution [Ncrwc] has also in its report, inter alia, recommended that in matters of contempt, it shall be open to the court to permit a defence of justification by truth. 3. The Government has been advised that the amendments to the Contempt of Courts Act, 1971 to provide for the above provision would introduce fairness in procedure and meet the requirements of Article 21 of the Constitution. 4. Section 13 of the Contempt of Courts Act, 1971 provides certain circumstances under which contempt is not punishable. It is, therefore, proposed to substitute the said section, by an amendment.

5. The Contempt of Courts (Amendment) Bill, 2003 was introduced in the Lok Sabha on 8-5-2003 and the same was referred to the Department-related Parliamentary Standing Committee on Home Affairs for examination. The Hon'ble Committee considered the said Bill in its meeting held on 2-9-2003. However, with the dissolution of the 13th Lok Sabha, the Contempt of Courts (Amendment) Bill, 2003 lapsed. It is proposed to reintroduce the said Bill with modifications of a drafting nature.” 14. Section 13(b) now expressly provides that truth can be valid defence in contempt proceedings. Section 13, which has two clauses (a) and (b), now reads as follows: “13.Contempts not punishable in certain cases.- Notwithstanding anything contained in any law for the time being in force -

(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice; (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.” The Court may now permit truth as a defence if two things are satisfied viz. (i) it is in public interest, and (ii) the request for invoking said defence is bona fide 15. A two-Judge Bench of this Court in R.K. Jain [Indirect

Tax Practitioners' Assn. v. R.K. Jain, (2010) 8 SCC 281 : had an occasion to consider Section 13 of the 1971 Act, as substituted by Act 6 of 2006. In para 39 the Court said: (SCC p. 311) “39. … The substituted Section 13 represents an important legislative recognition of one of the fundamentals of our value system i.e. truth. The amended section enables the court to permit justification by truth as a valid defence in any contempt proceeding if it is satisfied that such defence is in public interest and the request for invoking the defence is bona fide. In our view, if a speech or article, editorial, etc. contains something which appears to be contemptuous and this Court or the High Court is called upon to initiate proceedings under the Act and Articles 129 and 215 of the Constitution, the truth should ordinarily be allowed as a defence unless the Court finds that it is only a camouflage to escape the consequences of deliberate or malicious attempt to scandalise the court or is an interference with the administration of justice. Since, the petitioner has not even suggested that what has been mentioned in the editorial is incorrect or that the respondent has presented a distorted version of the facts, there is no warrant for discarding the respondent's assertion that whatever he has written is based on true facts and the sole object of writing the editorial was to enable the authorities concerned to take corrective/remedial measures.”

Thus, the two-Judge Bench has held that the amended section enables the Court to permit justification by truth as a valid defence in any contempt proceedings if it is satisfied that such defence is in public interest and the request for invoking the defence is bona fide. We approve the view of the two-Judge Bench in R.K.Jain. Nothing further needs to be considered with regard to second question since the amendment in contempt law has effectively rendered this question redundant.

16. It is now appropriate to consider the first question as to whether a sitting Supreme Court Judge who is appointed as a Commissioner by the Central Government under the 1952 Act carries with him all the powers and jurisdiction of the Supreme Court. In order to answer this question, it is appropriate to refer to relevant provisions of the two Acts, namely, the 1971 Act and the 1952 Act. The 1971 Act has been enacted by Parliament to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto. Section 2(a) defines “contempt of court” to mean “civil contempt” or “criminal contempt”. Civil contempt is defined in Section 2(b) while Section 2(c) defines criminal contempt. Omitting the definition of civil contempt, we may reproduce the definition of criminal contempt in the 1971 Act, which reads: “2. (c) ‘criminal contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which—

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;” 4.10.20. Even the Seven Judge Bench in the case Re: C.S. Karnan (2017) 7 SCC 1 has conducted the proceedings by relying on the provisions of Contempt of Courts Act, 1971 for making correction in the cognizance which was wrongly shown as Civil Contempt, but the Constitution Bench in para 1,71 and 59 has specified that, it is a criminal contempt as per section 2(c) of the Act,1971. Needless to mention that, the criminal contempt is not the part of Article 129 of the Constitution. The relevant para 1, 71, 59 reads as under; 1. The task at our hands is unpleasant. It concerns actions of a Judge of a High Court. The instant proceedings pertain to alleged actions of criminal contempt, committed by Shri Justice C.S. Karnan. The initiation of the present proceedings suo motu, is unfortunate………. 71. The Contempt of Courts Act, 1971 recognises two forms of contempt—civil and criminal. Such a distinction has always been made in this country ever since the present legal system was introduced by the British. “Civil contempt” is defined under Section 2(b) [ “2. (b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;”] to be “wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or

wilful breach of an undertaking given to a court”. Section 2(c) defines “criminal contempt”: “2. (c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which— (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;” It can be seen from the above that any act which scandalises or tends to scandalise the authority of the Court and interference or obstruction of the administration of justice in any manner are two forms of contumacious action. 59. But one thing appears to be certain. If the abovementioned conduct constitutes contempt, it surely can only be criminal contempt falling under the head of scandalising the Court.’’

4.10.21. Hence, there was no discretion to the two Judges Bench [Ld. Trial Court] to take any contrary view. But they put all the binding precedents to winds.

4.10.22. Moreover, in order dated 27.04.2020 both the Ld. Judges relied on the judgment of 2 Judge Bench in Pritam Pal’s Case 1992 (1) SCALE 416 and refused to follow the views taken by Full Bench in Bal Thackrey’s case (2005) 1 SCC 254, where view taken in Pritam Pal’s judgment is disapproved.

That, so far as the inherent powers of the Supreme Court there is no doubt. But the ratio/observation in last four lines as observed in para 20 of the judgement dated 27.04.2020 are not the correct law.

Needless to mention that, the said four lines were omitted by the Constitution Bench in Re: C.S. Karnan (2017) 7 SCC 1 while referring the ratio of Pritam Pal’s Case 1992 (1) SCALE 416 and the case was decided as per Contempt of Courts Act,1971.

4.10.23.Full Bench in C.N. Rudramurthy (1998) 8 SCC 275, had ruled th at, when view taken by higher benches is on record then the Supreme Court need not re-examine a case which had implication be declared incorrect. The other contrary view by Smaller Benches stands impliedly overruled. If provisions of Act is explained by the larger benches then no contrary view is permissible by Smaller Benches.

“Though this Court did not specifically referred to the decision in Padmanabha Rao's case, it is needless to say that the same stood overruled because the law declared by this Court was contrary to what was stated in Padmanabha Rao's case.

“ ….. In Shobha Surendar's case the High Court had proceeded to rely upon Padmanabha Rao's case; when the matter was brought to this Court though no specific reference was made to Padmanabha Rao's case, this Court stated that the law laid down in D.C. Bharia's case would be applicable, it was not open to the High Court to state that it would prefer to follow the decision in Rattan Arya's case. Indeed it is a matter of judicial discipline that required that when this Court states as to what the law on the matter is, the same shall be binding on all the Courts within the territory of India. This mandate of Article 141 of the Constitution is not based on any doctrine of

precedents, but is an imprimatur to all courts that the law declared by this Court is binding on them. If that is so, it was not open to the High Court to consider the effect of the decisions in Rattan Arya's case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in D.C. Bhatia's case. The clear pronouncement made by this Court in Shobha Surendar's case was that D.C. Bhatia's case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision, the High Court's decision was upset in another matter where the High Court had followed the Padmanabha Rao's case. In effect, Padmanabha Rao's case stood impliedly overruled. Thus, it was not at all open to the High Court to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court.

The law declared by this Court is clear that the D.C.Bhatia's case was applicable to the provisions of Karnataka Rent Control Act. So it was not open to the learned Judge to take any other view in the matter. …………..

However, learned counsel for the respondents submitted that there has been no decision of this Court directly stating that the law declared by the High Court in Padmanabha Rao's case was not correct and, therefore, the view taken in Padmanabha Rao's case may be examined by us and we may either uphold the view expressed therein or take another view though such a course was not open to the High Court. We do not think such an exercise is necessary when this Court applied its mind to the facts of the case, the law declared by this Court in D.C.Bhatia's case and applied the same with reference to the provisions of the Karnataka Rent Control Act.

………………. this Court itself considered the effect of D.C. Bhatia's case with reference to the provisions of the Karnataka Rent Control Act and applied the same thereto and thereafter declared what the law should be. Though this Court did not specifically referred to the decision in Padmanabha Rao's case, it is needless to say that the same stood overruled because the law declared by this Court was contrary to what was stated in Padmanabha Rao's case. Therefore that argument also is not sound and needs to be rejected. ”

4.10.24. In Nidhi Kaim (2017) 4 SCC 1, it is ruled as under;

‘‘ 91. In terms of the above judgment, with which we express our unequivocal concurrence, it is not possible to accept, that the words "complete justice" used in Article 142 of the Constitution, would include the power, to disregard even statutory provisions, and/or a declared pronouncement of law Under Article 141 of the Constitution, even in exceptional circumstances. Undoubtedly, the proposition can certainly be acceptable to a very limited extent, - to the extent of self- aggrandizement. The "trust" Mr. Nariman reposes in this Court, is indeed heartening and reassuring. But then, Mr. Nariman, and a number of other outstanding legal practitioners like him, undeniably have the brilliance to mould the best of minds. And thereby, to persuade a Court, to accept their sense of reasoning, so as to override statutory law and/or a declared pronouncement of law. It is this, which every Court, should consciously keep out of its reach. In our considered view, the hypothesis- that the Supreme Court can do justice as it perceives, even when contrary to statute (and, declared pronouncement of law), should never as a rule, be entertained

by any Court/Judge, however high or noble. Can it be overlooked, that legislation is enacted, only with the object of societal good, and only in support of societal causes? Legislation, always flows from reason and logic. Debates and deliberations in Parliament, leading to a valid legislation, represent the will of the majority. That will and determination, must be equally "trusted", as much as the "trust" which is reposed in a Court. Any legislation, which does not satisfy the above parameters, would per se be arbitrary, and would be open to being declared as constitutionally invalid. In such a situation, the legislation itself would be struck down.’’

4.10.25. In K.S. Subramaniyam (1976) 3 SCC 677, it is ruled that;

“12. But, we do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court. That is the practice followed by this Court itself. The practice has now crystallized into a rule of law declared by this Court……”

4.10.26. In Sundarjas Kanyalal Bhathija and others. Vs. The Collector, Thane, Maharashtra (1989) 3 SCC 346, it is ruled as under;

‘‘18. It would be difficult for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge court, the Judges are bound by

precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned Single Judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.

22. Cardozo propounded a similar thought with more emphasis [The Nature of the Judicial Process, Benjamin N. Cardozo, p. 33] :

I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly be some consideration of history or custom or policy or justice. Lacking such a reason, I must be logical just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another.

In our system of judicial review which is a part of our constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the courts, profession and public.

Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate courts would find themselves in an embarrassing position to choose between the conflicting opinion. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute.’’

4.10.27. That, the judgment of Bal Thackrey’s Case (2005) 1 SCC 254 was mentioned in the written arguments of the Petitioner and it was specifically pointed out that, the judgment of Pritam Pal’s 1992 (1) SCALE 416, case is overruled and reliance on it will amount to Contempt of Full Bench in Bal Thackrey’s case. The trial court has referred the Bal Thackrey’s Case in para 33 of their judgment dated 27th April, 2020. Then too, both the Ld. Judges taken a view which is against the view taken by the Full Bench and relied on an overruled judgment and hence, they acted in wilful disregard and defiance of law laid down by Full Bench and it is grossest contempt. 4.10.28. In Legrand Pvt. Ltd . 2007 (6) Mh.L.J.146, it is ruled as under;

‘‘9(c). If in spite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in Section 2(b) of the Contempt of Courts Act, 1971.’’

4.10.29. In Badrakanta Mishra (1973) 1 SCC 446, it is ruled as under;

‘‘15. The conduct of the appellant in not following the previous, decision of the High Court is calculated to create

confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of Contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of Contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly the deliberate and malafide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court, generally, but is also likely to subvert the Rule of Law 'and engender harassing uncertainty and confusion in the administration of law.’’

4.10.30. In Rabindra Nath Singh –Vs- Pappu Yadav case (2010 (3) SCC (Cri) 165 Hon’ble Supreme Court held that the High Court committed contempt of Court in not following the guidelines of Supreme Court in the concerned matter.

4.10.31. That, in in Superintendent of Central Excise Vs. Somabhai Ranchhodhbhai Patel (2001) 5 SCC 65, it is ruled that, the misinterpretation of Supreme Court judgment is contempt. It is ruled as under;

“(A) Contempt of Courts Act (70 of 1971), S.2 – Misinterpretations of judgment of Hon’ble Supreme Court.

15. Reverting now to the contempt proceedings initiated against the judicial officer, tendering unconditional and unqualified apology, he says that “with my limited understanding, I could not read the order correctly”……..

…………..

…………..The officer is holding a responsible position of a Civil Judge of Senior Division. Even a new entrant to judicial service would not commit such mistake assuming it was a mistake. Despite these glaring facts we assume, as pleaded by the judicial officer, that he could not understand the order and, thus, on that assumption it would be a case of outright negligence, which, in fact, stands admitted but wilful attempt to violate the order for any extraneous consideration or dishonest motive would, therefore, be absent. In this view, we drop these contempt proceedings against the officer by issue of severe reprimand.

16. What we have said above, however, is not the end of the matter. It cannot be ignored that the level of judicial officer's understanding can have serious impact on other litigants. There is no manner of doubt that the officer has acted in a most negligent manner without any caution or care whatsoever. Without any further comment, we would leave this aspect to the disciplinary authority for appropriate action, if any, taking into consideration all relevant facts. We do not know whether present is an isolated case of such

an understanding. We do not know what has been his past record. In this view, we direct that a copy of the order shall be sent forthwith to the Registrar General of the High Court of Gujarat.’’

4.10.32. In Sunil Goyal Vs. Additional District Judge,2011(2) I.L.R. (Raj.)530, it is ruled as under;

“The wrong interpretation or distinction of a judgment of Hon'ble Supreme Court and this Court in a cursory manner by subordinate court amounts to disobedience of the order of Hon'ble Supreme Court and this Court, therefore, the impugned order passed by first appellate court is contemptous. It also shows that legal knowledge or appreciation of judgment of Hon'ble Apex Court, of the first appellate court is very poor. The distinction made by first appellate court that Hon'ble Apex court has passed the order in S.L.P. is also not proper. The Apex Court, under Article 136 of the Constitution of India may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. Learned first appellate court has also committed an illegality in making a distinction for not following the judgments of this Court on the ground that the orders have been passed in second appeal whereas it was dealing first appeal.

First appellate court has distinguished the judgment of Hon'ble Apex Court delivered in M/s. Atma Ram Properties(P) Ltd. Vs. M/s. Federal Motors (P) Ltd.(supra) on

the ground that the said judgment relates to Delhi Rent Control Act, whereas present case is under the provisions of Rajasthan Rent Control Act, and further that Hon'ble Apex Court has passed the order in Special Leave Petition.

It appears that learned first appellate court without considering the ratio laid down in the above referred judgments, made distinction in a cursory manner, which is not proper for a Judicial Officer. The provisions of C.P.C. are applicable throughout the country and even if Atma Ram's case was relating to Delhi Rent Control Act, the provisions of Order 41 Rule 5 C.P.C. were considered and interpreted by Hon'ble Apex Court in the said judgment, therefore, the ratio laid down by the Hon'ble Apex Court was binding on first appellate court under Article 141 of the Constitution of India. Learned court below failed to take into consideration that judgments of this Court were relating to cases decided under the provisions of Rajasthan Rent Control Act and judgment of Hon'ble Apex Court in Atma Ram Properties(P) Limited Vs. Federal Motors (P) Limited(supra) was relied upon. When this Court relied upon a judgment of Hon'ble Apex Court, then there was no reason for the first appellate court for not relying upon the said judgment and in observing that the judgment of Hon'ble Apex Court in Atma Ram Properties(P) Limited Vs. Federal Motors (P) Limited(supra) is on Delhi Rent Control Act and the same has been passed in S.L.P. ……

From the above, it reveals that first appellate court deliberately made a distinction and did not follow the ratio

laid down by Hon'ble Apex Court in Atma Ram's case and this Court in Madan Bansal and Datu Mal's cases. ”

4.10.33. Above said judgment of Hon’ble High Court in Sunil Goyal Vs. Additional District Judge,2011(2) I.L.R. (Raj.) 530 is upheld by Supreme Court in Smt. Prabha Sharma Vs. Sunil Goyal (2017) 11 SCC 77, where it is ruled as under;

“Article 141 of the Constitution of India - disciplinary proceedings against Additional District Judge for not following the Judgments of the High Court and Supreme Court - judicial officers are bound to follow the Judgments of the High Court and also the binding nature of the Judgments of this Court in terms of Article 141 of the Constitution of India. We make it clear that the High Court is at liberty to proceed with the disciplinary proceedings and arrive at an independent decision. 4.10.34. In M.P. Dwivedi AIR 1996 SC 2299, it is ruled as under;

‘‘A ) VIOLATION OF GUIDELINES LAID DOWN BY SUPREME COURT BY JUDGE – THEY ARE GUILTY OF CONTEMPT.

21. Contemner 7, B.K. Nigam, was posted as Judicial Magistrate First Class, Alirajpur, at the relevant time. In the order dated 4-6-1993 it is stated that the undertrial prisoners were produced before him but he did not take any action against handcuffing of those prisoners by the police. In the said order, reference has also been made to the rejoinder affidavit of Dr Amita Baviskar filed on 1-6-1993 wherein it is stated that the contemner was apprised about the

decisions of this Court and he is reported to have stated that “… the Supreme Court decision has no application there and that the police has the right to transport the accused as they want, with or without handcuffs”. The contemner has filed two affidavits in response to the notice. …………

………….In the second affidavit dated 18-9-1993 the contemner has tendered his unconditional and unqualified apology for the lapse on his part that when undertrial prisoners in Crimes Nos. 11, 12, 17 and 19 of 1993 of Police Station Sondwa, who were agitating against the construction of Sardar Sarovar, were produced in handcuffs in his court, immediate action was not taken by him for the removal of their handcuffs and against the escort party for bringing them in court or taking them away from court in handcuffs. The contemner has submitted that he is a young judicial officer and that the lapse was not intentional.

22. We have carefully considered the two affidavits of the contemner as well as the affidavits of Shri Betulla Khan and Shri Girdhari Lal Vani, Advocates. We would assume that on 8-2-1993 the contemner did not make the statement about the judgments of this Court having no application there and the police having the right to transport the accused as they want, with or without handcuffs. But the contemner, being a judicial officer, is expected to be aware of law laid down by this Court in Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526 ] and Sunil Gupta v. State of M.P. [(1990) 3 SCC 119 ] Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526 ] was decided in 1980, nearly 13 years earlier. In his

affidavits also he does not say that he was not aware of the said decisions. Apart from that, there were provisions in Regulation 465 of the M.P. Police Regulations prescribing the conditions in which undertrial prisoners could be handcuffed and they contain the requirement regarding authorisation for the same by the Magistrate. It appears that the contemner was completely insensitive about the serious violations of the human rights of the undertrial prisoners in the matter of their handcuffing inasmuch as when the prisoners were produced before him in court in handcuffs, he did not think it necessary to take any action for the removal of handcuffs or against the escort party for bringing them to the court in handcuffs and taking them away in handcuffs without his authorisation. This is a serious lapse on the part of the contemner in the discharge of his duties as a judicial officer who is expected to ensure that the basic human rights of the citizens are not violated. Keeping in view that the contemner is a young judicial officer, we refrain from imposing punishment on him. We, however, record our strong disapproval of his conduct and direct that a note of this disapproval by this Court shall be kept in the personal file of the contemner. We also feel that judicial officers should be made aware from time to time of the law laid down by this Court and the High Court, more especially in connection with protection of basic human rights of the people and, for that purpose, short refresher courses may be conducted at regular intervals so that judicial officers are made aware about the developments in the law in the field.’’

4.10.35. In the present case, despite the legal position being pointed out in written arguments, both the Ld. Judges took a view, which is in direct contravention of binding precedents and therefore, it is a case of conscious and wilful disregard of the law laid down by Larger Benches.

4.10.36. In Nirankar Nath Wahi (1984) 3 SCC 531it is ruled as under;

“7. We have no hesitation in assuming that no Court would ever be influenced by the fact that the Respondent was a leading member of the Bar and influential person inasmuch as in the eye of law all citizens are entitled to equal treatment having regard to the doctrine of equality before law…….

8. So also the learned Judge might well have realised that the appellant was fighting a litigation in which a very senior member of the bar was personally impleaded as a defendant (respondent) and that it was understandable if he was labouring under a psychological complex……

10. We are afraid that these vital aspects were overlooked by the learned Judge when he granted only three days' time to make alternative arrangement for engaging a local senior counsel ….” …the learned Judge could not have armed himself with a ready made judgment dismissing the appeal when further arguments on behalf of the appellant were yet to be heard. And apparently there was no time-compulsion to pronounce the judgment or, that very day. The judgment rendered by the learned Judge is thus vitiated by reason of the failure to grant reasonable opportunity of hearing to the appellant and by reason of the procedure adopted in connection with the

preparation and pronouncement of the judgment. We may incidentally observe that we are also distressed that the High Court rejected the petition summarily in the face of these features and obliged the appellant to approach this Court.

Under the circumstances the appeal must be allowed.

4.10.37. Needless to mention that, the same Bench of two Ld. Judges (Justice Deepak Gupta & Justice Aniruddha Bose) in the case of Shrirang Waghmare 2019 SCC OnLine SC 1237, has uphold the dismissal of a Judge on the ground of passing an order against the law and acting under the influence of the Lawyer . It is ruled as under;

12. In our view the word “gratification” does not only mean monetary gratification. Gratification can be of various types. It can be gratification of money, gratification of power, gratification of lust etc., etc. In this case the officer decided the cases because of his proximate relationship with a lady lawyer and not because the law required him to do so. This is also gratification of a different kind.

13. The judicial officer concerned did not live up to the expectations of integrity, behaviour and probity expected of him. His conduct is as such that no leniency can be shown and he cannot be visited with a lesser punishment.”

4.10.38. In Nand Lal Mishra Vs Kanhaiya Lal Mishra AIR 1960 SC

882, it is ruled that, there should not be double standard by a Judge.

It is ruled as under; "Judge - Double standard and biased conduct of Judge- In the courts of law, there cannot be a double-standard - one for the highly placed and another for the rest: the Judge should have no concern with personalities who are parties to the case before him but only with its merits.

The record discloses that presumably the Magistrate was oppressed by the high status of the respondent, and instead of making a sincere attempt to ascertain the truth proceeded to adopt a procedure which is not warranted by the Code of Criminal Procedure, and to make an unjudicial approach to the case of the appellant. In the courts of law, there cannot be a double-standard - one for the highly placed and another for the rest: the Judge should have no concern with personalities who are parties to the case before him but only with its merits.

Though ordinarily, the Supreme Court would not interfere in such a case under Art. 136, considering the special circumstance of the case, the Supreme Court interfered and set aside the orders of Judge on ground of illegal procedure followed by him. "

In a Constitutional order grounded in the rule of law, it is imperative that, judges make decisions according to law, unclouded by personal bias or conflicts of interest. Accordingly, upon ascending the bench, every High Court and Supreme Court judge takes an oath to “faithfully and impartially discharge and perform all the duties without fear or favour” of judicial

office; and the Constitution has been construed to guarantee litigants the right to a “neutral and detached,” or impartial, Judge.

4.10.39. Moreover, in a democratic republic in which the legitimacy of government depends on the consent and approval of the governed, public confidence in the administration of justice is indispensable. It is not enough that Judges be impartial; the public must perceive them to be so. The Code of Conduct for Judges therefore admonishes judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and to “avoid impropriety and the appearance of impropriety in all activities.

4.10.40. In N. Balaji Vs. Savitri 2004 Cr. L. J. 2818 it is ruled that, if a Judge passes order under influence of the party then such order is vitiated. It is ruled that;

“In the case in hand the Magistrate has only acted against the warranting procedures established by law in a one sided manner absolutely without giving any opportunity for the girl to speak out her mind and as though treating her dumb founded animal, the Magistrate has acted in a biased manner absolutely bereft of any reason or legal consideration but only acting as an instrument of the first respondent for reasons known to himself.”

4.10.41. That, Supreme Court in Sandeep Bafna’s case (2014) 16 SCC 623 had made it clear that, the Judge cannot rely on the editorial note of the book but is duty bound to see the ratio decidendi of the law laid down by the Supreme Court. It is ruled as under;

“ …..the learned Single Judge appears to have blindly followed the incorrect and certainly misleading editorial note

in the Supreme Court Reports without taking the trouble of conscientiously apprising himself of the context in which Rashmi Rekha appears to hold Niranjan Singh per incuriam, and equally importantly, to which previous judgment. An earlier judgment cannot possibly be seen as per incuriam a later judgment as the latter if numerically stronger only then it would overrule the former.

In the common law system, the purpose of precedents is to impart predictability to law, regrettably the judicial indiscipline displayed in the impugned Judgment, defeats it. If the learned Single Judge who had authored the impugned Judgment irrepressibly held divergent opinion and found it unpalatable, all that he could have done was to draft a reference to the Hon’ble Chief Justice for the purpose of constituting a larger Bench; whether or not to accede to this request remains within the discretion of the Chief Justice. However, in the case in hand, this avenue could also not have been traversed since Niranjan Singh binds not only Co-equal Benches of the Supreme Court but certainly every Bench of any High Court of India. Far from being per incuriam, Niranjan Singh has metamorphosed into the structure of stare decisis, owing to it having endured over two score years of consideration, leading to the position that even Larger Benches of this Court should hesitate to remodel its ratio.

A perusal of the impugned Order discloses that the learned Single Judge was of the mistaken opinion that Niranjan Singh was per incuriam, possibly because of an editorial error in the reporting of the later judgment..

… It should not need belabouring that High Courts must be most careful and circumspect in concluding that a decision of a superior Court is per incuriam. And here, palpably without taking the trouble of referring to and reading the precedents alluded to, casually accepting to be correct a careless and incorrect editorial note, the Single Judge has done exactly so.

A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him”

4.10.42. In Roy Joseph Credao Vs. Sk. Tamisuddin 2008 ALL MR (Cri) 751, it is ruled that;

‘‘Many Judicial Officers follow practice of reproducing the head notes/placitum from the books/journals. This Court has noticed, of late, the practice adopted by many Judicial Officers to simply refer the decision of this Court or the apex Court without examining whether the ratio is really applicable to the given case. So also, many Judicial Officers follow practice of reproducing the head notes/placitum from the reported precedents. The Judicial Officers need to understand that the head notes are drawn by editors/staff members of the Law Journals. It is necessary to read the precedent in entirety. The judicial Officer is required thereafter to cull out the ratio of the authority. The matching of facts and circumstances would then enable the Court to examine whether such ratio is applicable to the case with which the Court is required to deal with. Unfortunately, both the Courts below have failed to undertake such exercise before making references to the authorities cited before them. How I wish, the Judicial Officers shall avoid such practice. They shall not

merely quote the head notes/placitum appearing from the indexes or the prelude to the judgments reported in the law Journal.’’

4.10.43. The more surprising part of the judgment is that, the two Ld. Judges have stated in the order that, Supreme Court is having inherent power and is not controlled by any Act. On the other hand, in para 19 [order dated 27.04.2020] they have taken a contrary view that, they will conduct the cases as per Supreme Court Rules, 1975 which were framed as per section 23 of the Contempt of Courts Act, 1971.

‘‘19. These Rules have been framed by the Supreme Court in exercise of the powers vested in it under section 23 of the Contempt of Courts Act,1971 and they have been notified with the approval of Hon’ble the President of India.’’

Needless to mention that, Section 23 says that, the rules should not be inconsistent with the provisions of Contempt of Courts Act, 1971.

Such ‘‘Aprobate and Reprobate’’ ‘‘blow hot & cold’’ ‘‘Fast & loose’’ is not permissible. (Cauvery Coffee Traders Vs. Hornor Resources Company Limited (2011) 10 SCC 420)

4.11. PROCEEDINGS ARE VITIATED SINCE THESE WERE CONDUCTED WITHOUT MENTIONING AND FRAMING SPECIFIC CHARGE IN THE ORDER TAKING COGNIZANCE WHICH IS AGAINST SECTION 15 (3) OF THE CONTEMPT OF COURTS ACT, 1971 READ WITH RULE 6 OF ‘THE RULES TO REGULATE PROCEEDINGS FOR CONTEMPT OF THE SUPREME COURT, 1975’ AS MANDATED IN J.R. PARASHAR (2001) 6 SCC 735, R.S. SHERAWAT (2018) 10 SCC 574. THE CONTRARY VIEW IN THE IMPUGNED JUDGMENT DATED 27.04.2020 BY QUOTING THE

IRRELEVANT PARA OF THE OVERRULED JUDGEMENT IS VITIATED:-

4.11.1. That, both the Ld. Judges in the impugned judgment observed that, in contempt proceedings framing of charge is not mandatory. They have refused to accept the mandatory application of section 15 (3) of the Contempt of Courts Act, 1971.

4.11.2. The paras 10 and 32 of the order dated 27.04.2020 reads as under;

‘‘10. In respect of the absence of a specific charge being framed, the Court held that a specific charge was not required to be framed and the only requirement was that a fair procedure should be followed

32. This Court, as mentioned above, has its own Rules and Form I lays down the manner in which notice is to be issued. ….

……. The only requirement of the Rules and the Form is that the brief nature of the contempt is to be stated in the Form. There is no requirement of giving all the documents with the Form. A perusal of the order whereby contempt proceedings were initiated clearly shows that the grounds for initiating contempt were reflected in the order itself. This order was admittedly sent to the alleged contemnors. Therefore, in our opinion, the notice was strictly in accordance with Form-1, which only requires that the notice should briefly state the nature of the contempt. Once the order was attached to the notice that became part and parcel of the notice itself. ………….

4.11.3. That, the observations in above paras are in contradiction with the

observations in the para 8 of the same order.

4.11.4. That, in para 8 of the order dated 27.04.2020 the Court relied on the ratio laid down by the Full Bench in Sukhdev Singh Sodhi’s case 1954 SCR 454 where it is ruled that, charge should be framed.

The para 8 reads as under;

“8. ……. The first judgment on the point is Sukhdev Singh Sodhi v. The Chief Justice and Judges of the Pepsu High Court “. ………….., this Court held as follows:-

“. We hold therefore that the Code of Criminal Procedure

does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. This rule was laid down by the Privy Council in In re Pollard (LR. 2 RC. 106 at 120) and was followed in India and in Burma in In re Vallabhdas (l.L.R. 27 Bom. 394 at 390] and Ebrahim Mamoojee Parekh v. King Emperor (I.L.R. 4 Rang. 257 at 259 261).

In our view that is still the law."

4.11.5. In the abovesaid judgment of Ebrahim Mamoojee Parekh v. King Emperor (ILR 4 Rang 257) it is ruled that, framing of charge is must, even if contemnor accept the guilt.

It is ruled as under; “JUDICIAL COMMITTEE OF 5 - JUDGES – Contempt –

Even if it is a gross contempt and the person admitted said contempt then also the person cannot be punished without framing specific charge against him and giving opportunity to answering the said charge – The provisions of Criminal Procedure Code stating about no-necessity in summary proceedings to frame charges is not applicable to the Contempt Proceedings – In Contempt proceedings framing of charge is must – Sentence in Contempt set aside.

If, therefore, the principle stated in Pollards' case [1868] 2 P.

C. 106=5 Moor. P.C (N.S.) 111 must be applied we shall be bound to set aside the order as having been illegally made. The facts of this case are clearly different from those in Pollard's case [1868] 2 P. C. 106=5 Moor. P.C (N.S.) 111.

There the alleged contempt had always been denied. Here it cannot be donied; but, on the contrary, it was repeatedly admitted by appellant during his examination as a witness. Nevertheless we cannot avoid the conclusion that, what the

Privy Council laid down in Pollard's case [1868] 2 P. C. 106=5 Moor. P.C (N.S.) 111 and repeated in Chang Hang Kiu's case [1909] A. C. 312=78 L. J. P. C. 89=100 L. T. 310=21 Cox. C.C. 778=25 T.L.R. 381 was intended to be a general principle which must be applied in all cases of contempt, however, gross and that even if a witness has in evidence, given immediately before the proceedings for contempt, admitted the contempt, and even if the contempt which he has admitted is a gross contempt, nevertheless he cannot be punished for that contempt unless the specific offence charged against him has been distinctly stated and unless he has had an opportunity of answering the charge.

We have considered whether the principle embodied in S. 535 of the Code of Criminal Procedure could be applied to the case, but we have come to the conclusion that it ought not to be applied because although a formal charge may in certain circumstances be dispensed with in regular criminal cases, where evidence is taken and the depositions of the witnesses show for what offence the accused is being tried, we are of opinion that a formal charge is essentially necessary in summary proceedings for contempt, where possibly no evidence to establish the offence may be recorded and where in the absence of a formal charge the person alleged to be in

contempt may not know exactly what particular conduct of his is alleged to have amounted to contempt.

The learned Judge's order that appellant do stand committed of contempt for 30 days and be kept in prison and fed on jail diet is set aside, and appellant will be released forthwith.”

4.11.6. That, Rule 6 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, reads as under;

‘‘6. (1) Notice to the person charged shall be in Form I. The person charged shall, unless otherwise ordered, appear in person before the Court as directed on the date fixed for

hearing of the proceeding, and shall continue to remain present during hearing till the proceeding is finally disposed of by order of the Court.

(1) When action is instituted on a petition, a copy of the petition along with the annexures and affidavits shall be served upon the person charged.’’

4.11.7. Similarly section 17 of the Contempt of Courts Act mandates that, the notice should be issued only after charges are framed.

The section 17 thus reads as under; ‘‘17. Procedure after cognizance.— (1) Notice of every proceeding under section 15 shall be served personally on the person charged, unless the court for reasons to be recorded directs otherwise. -(1) Notice of every proceeding under section 15 shall be served personally on the person charged, unless the court for reasons to be recorded directs otherwise." (2) The notice shall be accompanied- (a) in the case of proceedings commenced on a motion, by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded; and (b) in case of proceedings commenced on a reference by a subordinate court, by a copy of the reference. ………………………… (5) Any person charged with contempt under section 15 may file an affidavit in support of his defence, and the court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be

necessary, and pass such order as the justice of the case requires.’’

4.11.8. In J.R. Parashar (2001) 6 SCC 735 it is ruled that the Supreme Court has to conduct contempt proceeding as per section 15[3] of the contempt of Courts Act,1971 which mandates for distinct and specific charge. It is further ruled that, the Court cannot punish the contemnor for the charge which was not served in the notice. For any new charge fresh notice is required to be issued.

It is ruled as under;

‘‘22. The actual proceedings for contempt are quasi- criminal and summary in nature. Two consequences follow from this. First, the acts for which proceedings are intended to be launched must be intimated to the person against whom action is proposed to be taken with sufficient particularity so that the persons charged with having committed the offence can effectively defend themselves. It is for this reason Section 15 requires that every motion or reference made under this section must specify the contempt of which the person charged is alleged to be guilty. The second consequence which follows from the quasi-criminal nature of the proceeding is that if there is reasonable doubt on the existence of a state of facts that doubt must be resolved in favour of the person or persons proceeded against. In addition this Court has framed Rules under, inter-alia, Section 23 of the Act providing in detail for the procedure to be followed by the Court and its Registry on the one hand and the complainant/respondent on the other.” 38. We are conscious that the respondent No. 3 has said

before us that she stood by the comments made even if they were held to be contumacious. At the same time, we are also aware that when the statement was made, the respondent had not been called on formally to defend herself against this charge. The prescribed procedure will have to be followed.

39. For the aforementioned reasons, while dismissing the proceedings initiated on the basis of the petition against all three respondents, we direct that notice in the prescribed form be issued to the respondent No.3 as to why the respondent No. 3 should not be proceeded against for contempt for the statements in the three paragraphs of her affidavit set out earlier in this judgment.’’

4.11.9. The law laid down in J.R. Parashar’s case is further upheld by Full Bench in Bal Thackrey’s case (2005) 1 SCC 254.

Therefore, the view taken by both the Ld. Judges is conscious disregard of the binding precedents.

4.11.10. In The Editor for Blitz Publications Vs. The State 1979 ILR Bombay 25 (D.B.) it is ruled as under;

‘‘A] Contempt of Court Act, 1971 – Section 15(3) – In all proceedings including Suo-Moto proceedings the notice given must indicate the specific contempt which the person charged is alleged to be guilty of. The notice ought to have indicated in clear terms in what way the Editor had committed contempt as defined in the Act. Notice defective.

The article ‘No Money Then No Justice?’ does not prejudice or interfere with the due course of Justice. The article is an article pleading for the course of justice.

Notice discharged.

4.11.11. In Suo Motu Vs. Nandlal Thakkar, Advocate 2013 Cri. L.J. 3391 (D.B) it is ruled as under;

‘‘ ….. Since we have relied upon the decision in J.R. Parashar's case (supra) we also looked into the Supreme Court Rules regulating proceedings for contempt of the Supreme Court, 1975. We looked into the language used in the Rules and we found that Rule 6 clause (1) in the following language:-

“Notice to the person charged shall be in Form-I”.

The language used indicates that the same is mandatory and that is the reason why Supreme Court in paragraph 22 of J.R. Parashar has led much emphasis on the procedural aspect.

11. What can be deduced from the judgment of the apex Court in the case of Muthu Karuppan (supra) is that any violation or deviation from the Rules which are framed by the High Court in exercise of powers under Section 23 of the Act should not be accepted or condoned lightly and must be deem to be fatal to the proceedings taken to initiate action for contempt. In the present case also, we are convinced that there is gross violation of the Rules, 1984. No notice at any point of time was drawn and served upon the respondent in the model form, Form No. I, as provided in the Schedule to

the Rules.

11. In a very recent pronouncement of the Supreme Court in the case of Anup Bhushan Vohra (supra), which has been referred to earlier, the Supreme Court has quoted with approval the view in Muthu Karuppan's case (supra) and has once again reiterated that any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt.

12. We have also examined the issue in question from a little different dimension. What will be the effect of the words “as far as may be” as provided in Rule 13 clause (1) of the 1984 Rules. The expression “as far as may be” at the first brush would suggest that it is not mandatory but directory. However, this would not save the situation because if it is held to be directory, then in that case the simple notice without the requisite and necessary particulars will be bereft of the charge of the acts for which proceedings are intended to be launched against the alleged contemner. Even if it is believed that the rule is directory and not mandatory keeping in mind the nature of the proceedings, the rule needs to be interpreted very strictly. There is nothing on record to show as to what was that impediment in the way of the Registry in not issuing the notice in Form I as prescribed under the Rules. In a given case if there is any practical difficulty, then the lapse perhaps may be excused, but the term “as far as may be” itself suggests that it is only in the rarest of the rare cases that the notice under Form I can be avoided. At this stage, we may

quote paragraph 22 of the decision of the Supreme Court in J.R. Parashar, Advocate v. Prasant Bhushan, Advocate, reported in AIR 2001 SC 3395. It reads as under:-

“The actual proceedings for contempt are quasi-criminal and summary in nature. Two consequences follow from this. First, the acts for which proceedings are intended to be launched must be intimated to the person against whom action is proposed to be taken with sufficient particularity so that the persons charged with having committed the offence can effectively defend themselves. It is for this reason S. 15 requires that every motion or reference made under this section must specify the contempt of which the person charged is alleged to be guilty. The second consequence which follows from the quasi-criminal nature of the proceedings is that if there is reasonable doubt on the existence of a state of facts that doubt must be resolved in favour of the person or persons proceeded against. In addition this Court has framed Rules under, inter-alia S. 23 of the Act providing in detail for the procedure to be followed by the Court and its Registry on the one hand and the complainant/respondent on the other.”

We would also like to quote a part of para 35 where the Supreme Court has observed as under:-

“35. ………. It is true that the notice did not specify the contumacious acts with which the respondent was charged in terms of Rule 6 read with Form 1. Only a copy of the petition had been served on the respondents along with the notice. It would not be unreasonable for the respondent No. 2

to assume that every statement contained in the petition formed part of the charge.”

Since we have relied upon the decision in J.R. Parashar's case (supra) we also looked into the Supreme Court Rules regulating proceedings for contempt of the Supreme Court, 1975. We looked into the language used in the Rules and we found that Rule 6 clause (1) in the following language:-

“Notice to the person charged shall be in Form-I”.

The language used indicates that the same is mandatory and that is the reason why Supreme Court in paragraph 22 of J.R. Parashar has led much emphasis on the procedural aspect.

We also take judicial notice of a very important fact. We have gone through the Rules of practically all High Courts and we have noticed that all High Courts have said in the Rules that the notice shall be in Form-I as prescribed under the Rules. It is only in the 1984 Rules of our High Court that the language employed is “as far as may be”. Be that as it may, we have explained the importance of the notice and the contents of the same keeping in mind that the actual proceedings for contempt are quasi-criminal and summary in nature.

14. In the above view of the matter, and more particularly in view of the dictum as laid down in Muthu Karuppan (supra) and Anup Bhushan Vohra (supra), we are left with no other option but to discharge the notice issued upon the respondent

for contempt. It is bit disturbing to discharge the notice due to a serious lapse in strictly following the procedure as laid down under the Act and the Rules. This is an eye-opener for the Registry of this High Court to ensure that henceforth any notice issued by the High Court, be it on its own motion or otherwise, has to be in model Form No. I and all other Rules governing the procedure should be scrupulously followed and observed. We therefore, deem fit to direct the Registry of the High Court to ensure that the notice for contempt issued by the High Court shall be drawn in the model Form No. I annexed to the Contempt of Courts (Gujarat High Court) Rules, 1984, and other Rules of 1984 are followed without any deviation. It is also not permissible for us now at this stage to ask the Registry to issue notice in Form No. I as prescribed in Rule 13 of the Rules, as fresh contempt action would be time barred under Section 20 of the Contempt of Courts Act, 1971.’’

4.11.12. That, specific section 15(3) is inserted which mandates the Judges taking cognizance to mention specific change in the order taking cognizance and in the notice ‘From-I’. Full Bench in Nagar Mahapalika 1966 SCC OnLine SC 1, had relied that mere annexing the copy of order is not a fair procedure. The distinct charge has to be mentioned in the show cause notice served upon the alleged contemnor. The ‘FORM-I’ when read with Rule-6 itself mandates that the notice is to the person charged. and therefore, the notice is to be issued only after framing of formal charge.

4.11.13. In Jayantilal Hiralal & Co. Vs. Waman Narayen Velinkar 1932 SCC OnLine Bom 121 it is ruled as under;

‘‘7. The next point taken by the Advocate-General is that the charge ought to have been specifically set out in the notice of motion. It is merely stated in the notice of motion that the Court will be asked for an order to commit the respondent to jail for contempt of the Court's order. What the particular contempt alleged is not stated. It is contended in answer by Mr. Engineer that sufficient particularity as to the nature of the charge is given in para 9 of the affidavit of Waman Narayan Velinkar elated 11th December 1931, and that notice is given by the notice of motion that affidavit will be relied upon. His submission is that all that is required is that the respondent shall be given notice of the precise charges against him in order that he may have an opportunity of knowing them and of meeting them if he can. There are some useful observations on the question of giving precise notice of the charge in Russell, J's judgment in Bat Moolbai v. Chunilal Pitamber (3) to which I have already referred at p. 633, where that learned Judge points out that proceedings for contempt of Court are in the nature of a criminal offence, and that precise charges should accordingly be framed. In my opinion, the precise breach or breaches of the order complained of should be set out in the notice of motion itself and the respondent should not be left to ascertain, if he can from the affidavit relied upon in support what the charges are. It may well be that in para 9 of the affidavit in support notice of the breaches complained of has been given in this particular case. But in my judgment, a respondent ought not to be left to gather, if he can, from the terms of the affidavit in support what is the

precise nature of the charge brought against him. In this connexion it is useful to refer to the form of notice of motion for contempt for breach of a judgment or order, which is set out in App. 2, at p. 272, in Oswald on Contempt. It will be seen that form contemplates the precise nature of the breach of the judgment or order being set out in the notice of motion. I hold therefore that the notice of motion in the case is defective.

12. Even if the proceedings had been in order in this case, in the exercise of my decretion I should have declined to do so. In the result this notice of motion will be dismissed with costs.’’

4.11.14. In Court on Its Own Motion Vs. Biman Bose 2010 SCC OnLine Cal 855, it is ruled as under;

‘‘24. We are quite conscious of the position of law that in order to hold a person guilty of criminal contempt, rules framed for such type of proceedings must be strictly complied with. We have already pointed out that there is no indication in the Rules as regards the nature of contumacious conduct which is required to be provided in the Suo Motu Rule so that the respondents can effectively answer the rule. In their respective affidavits, the respondents have specifically asserted that the initiations of the Suo Motu rules are not maintainable and that those rules are not in tune with the rules framed under the Act. It is further asserted that the application did not specify in what manner the alleged statements were contumacious and that in the absence of specific allegations, it was very difficult to deal with the same.

30. We, therefore, hold that these Rules are defective ab initio, first for non-compliance of the Rules framed by this High Court as indicated above, and secondly, which is really crucial, for absolving some of the alleged contemners without indicating any reason whatsoever and at this stage, those defects cannot be cured because of the bar of limitation created by Section 20 of the Act.’’

This fact was well settled by recent judgments in following case ; i) J.R. Parashar (2001) 6 SCC 735, ii) R.S. Sherawat Vs. Rajeev Malhotra (2018) 10 SCC 574, iii) The Editor for Blitz Publications (Pvt.) Ltd. 1979 ILR Bom 25 (DB), iv) Archit Goyal Vs. State 2005 SCC OnLine P & H 174, v) Mira Bose Vs. Santosh Kumar Bose 1972 SCC OnLine Cal 160, vi) Sahdeo Singh Versus State (2010) 3 SCC 705.

4.11.15. That, in R.S. Sherawat Vs. Rajeev Malhotra (2018) 10 SCC 574, it is ruled that, the proceedings are vitiated for not framing of charge. It is ruled as under;

4.11.16. In Sahdeo Alias Sahdeo Singh Versus State of Uttar Pradesh and Others (2010) 3 SCC 705, it is ruled as under;

“36. The notice did not make any reference to the judgment of this Court in D.K.Basu (supra). Neither the report of the District Judge nor any evidence collected by him during that inquiry, nor any other document relevant to the case was annexed with the said notice. Rather, considering the reply of Constable Ramesh Chandra and Sahdeo Singh, the impugned judgment and order has been passed. The aforesaid Rules 1952 provide for a specific procedure to hold the trial in contempt cases. The Rules 1952 mandatorily require the framing of charge(s) and furnishing the copy of the documents to the alleged contemnor on the basis of which, the charges have been framed. In the instant cases, there has been no compliance of these mandatory provisions contained in the Rules. In absence of the charge(s), a delinquent / accused/ alleged contemnor may not be able to furnish any defence as he is not aware as to what charge(s) he is required to meet.

37. Every statutory provision requires strict adherence, for the reason that the Statute creates rights in favour of persons concerned. The impugned judgment suffered from non-observance of the principles of natural justice and not ensuring the compliance of Statutory Rules, 1952. Thus, the trial itself suffered from material procedural defect and stood vitiated. The impugned judgment and order, so far as the conviction of the appellants in Contempt proceedings are concerned, is liable

to be set aside.

4.11.17. In Mira Bose Vs. Santosh Kumar Bose 1972 SCC OnLine Cal 160, it is ruled that, if specific charge is not framed, then there is no charge to answer.

It is ruled as under;

“10. It is pertinent in this context to refer to thecase of Dulal Chandra Bhar v. Sukumar Banerjee reported in 62 Cal WN 595 : (58 Cri LJ 1162) wherein Chakraborty, C.J. delivering thejudgment of the Division Bench observed at page 606 that; “It is well-established now that a notice or Rule for contempt must set out precisely and in detail the deeds or words which are said to constitute contempt and that if such details of the charge are not given there is no case to answer.”

11. Here the particulars have been incorporated and the respondent was called upon to make a full answer to the charge against him. The ancillary submission of Mr. Chakraborty does not dovetail into the terms of the Rule.’’

4.11.18. Three Judge Bench in Re: Ram Pratap Sharma Vs. In Re: Daya Nand (1977) 1 SCC 150 has ruled as under;

“10. It appears before us that the allegations in the letter were not disputed and challenged. The High Court proceeded on the basis that the letters written by the appellants were correct. It is indeed curious that the High Court in the notice referred to the letter of the appellant and said "on a perusal of the contents thereof a prima facie case for contempt is made out".

The High Court did not mention which particular portion of the letter constituted contempt of court.”

4.11.19. Five Judge Bench in Ramesh Maharaj’s case (1978) 2 WLR 902, had ruled that, if the charge is not distinctly stated and served upon the Respondents but it is used against the alleged contemnor in the order then it amounts to violation of fundamental rights of the alleged contemnor and the State is bound to pay him the compensation.

4.11.20. Three Judge Bench in Nagar Mahapalika 1966 SCC OnLine SC 1, had ruled that, the contemnor should not be left to search from the order as to what is charge against them. Specific charge need to be framed. It is ruled as under;

‘‘An allegation of contempt of court is a serious one and is considered by courts with a certain amount of strictness A person against whom such an allegation is made is entitled to be told the precise nature of it. Vague charge of contempt is not a fair or permissible way of charging a person with contempt of court. The contempt alleged cannot be left to be spelt out from the allegations made nor can the person charged be left to guess what contempt is alleged against him. These defects are serious."

"We will deal first with the case of the Municipality. It will have been noticed that it was not the respondent's case that the Municipality had issued any new licence after the order of July 14, 1961. In fact, it was conceded that it did not do so. What was said was that the Municipality adopted a practice of realising rickshaw taxes from the owners and printing the fact of the receipt of the tax on the rickshaws and permitting them to ply without licences. The way the case seems to have been put before the High Court was that this was a

subterfuge adopted by the Municipality to get round the order of the High Court, the object of which was to stop new rickshaws plying for hire, by permitting rickshaws to ply without a licence on payment of the tax. This contention was accepted by the High Court. It seems to us somewhat unfortunate that the matter proceeded in this way. An allegation of contempt of court is a serious one and is considered by courts with a certain amount of strictness. A person against whom such an allegation is made is entitled to be told the precise nature of it. In this case the respondent did not state that any subterfuge had been adopted by the Municipality or that the Municipality had sought to defeat the orders of the courts; that was only insinuated. This is not a fair or permissible way of charging a person with contempt of court. The contempt alleged cannot be left to be spelt out from the allegations made nor can the person charged be left to guess what contempt is alleged against him.

Further, paragraph 8 of the petition for committal for contempt stated that there was a direct contravention of the order which of course, there was not as no licences had been issued. Neither were any particulars given as to how the alleged practice that was adopted was intended to get round the order, nor of how the Municipality permitted rickshaws to ply without licences. We think the learned Attorney- General was perfectly justified in drawing our attention to these defects in the petition and characterizing them as serious."

4.11.21. That, the procedure of pointing out relevant scandalous paras from

the material, in the order taking cognizance is followed in Dr. D.C. Saxena Vs. Hon'ble The Chief Justice of India (1996) 5 SCC 216, wherein it is ruled as under;

“63. It is already noted that while dismissing the second writ petition, this Court has pointed out the scandalous nature of accusations which found place in the second writ petition and when the petitioner persisted for consideration of scandalous accusations to lay proceedings against the Chief Justice of India for prosecution and other reliefs referred to hereinbefore, he reiterated that he would stand by those accusations. Resultantly this Court was constrained to be into merits and dismissed the petition and initiated suomotu contempt proceedings and got the notice issued to him pointing out specifically 14 items which constituted scandalous and reckless litigations pleaded with irresponsibility ”

4.11.22. That, in Satish Mehra Vs. State (2012) 13 SCC 614 it is ruled that, the framing of charge affects fundamental rights of the citizen and therefore, it should be done with due care. It is ruled as under;

‘‘16. It would also be worthwhile to recapitulate an earlier decision of this Court in Century Spg. & Mfg. Co. Ltd. v. State of Maharashtra [(1972) 3 SCC 282 : 1972 SCC (Cri) 495 : AIR 1972 SC 545] noticed in L. Muniswamy case [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489] holding that: (SCC p. 704, para 10)

“10. … the order framing a charge affects a person's liberty substantially and therefore it is the duty of the

court to consider judicially whether the material warrants the framing of the charge.”

It was also held that the court ought not to blindly accept the decision of the prosecution that the accused be asked to face a trial.

19. The view expressed by this Court in Century Spg. case [(1972) 3 SCC 282 : 1972 SCC (Cri) 495 : AIR 1972 SC 545] and in L. Muniswamy case [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489] to the effect that the framing of a charge against an accused substantially affects the person's liberty would require a reiteration at this stage. The apparent and close proximity between the framing of a charge in a criminal proceeding and the paramount rights of a person arrayed as an accused under Article 21 of the Constitution can be ignored only with peril. Any examination of the validity of a criminal charge framed against an accused cannot overlook the fundamental requirement laid down in the decisions rendered in Century Spg. [(1972) 3 SCC 282 : 1972 SCC (Cri) 495 : AIR 1972 SC 545] and Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489] . It is from the aforesaid perspective that we must proceed in the matter bearing in mind the cardinal principles of law that have developed over the years as fundamental to any examination of the issue as to whether the charges framed are justified or not.

21. A criminal trial cannot be allowed to assume the character of a fishing and roving enquiry. It would not be permissible in law to permit a prosecution to linger, limp and

continue on the basis of a mere hope and expectation that in the trial some material may be found to implicate the accused. Such a course of action is not contemplated in the system of criminal jurisprudence that has been evolved by the courts over the years. A criminal trial, on the contrary, is contemplated only on definite allegations, prima facie, establishing the commission of an offence by the accused which fact has to be proved by leading unimpeachable and acceptable evidence in the course of the trial against the accused. We are, therefore, of the view that the criminal proceeding in the present form and on the allegations levelled is clearly not maintainable against either of the appellant- accused G.K. Bhat and R.K. Arora.’’

Same view is taken in Satish Shah (2019) 9 SCC 148.

4.11.23. So unless a specific order is given, there is no question of said charge being mentioned in the notice by the Registry.

4.11.24. In R.S. Sujatha v. State of Karnataka & Ors., (2011) 5 SCC 689 it is ruled as under;

‘‘13. In the instant case, all the documents summoned by the Tribunal had not been produced before the Tribunal. More so, any document sent by Registered Post is presumed to have been received by the addressee in view of the provisions of Section 27 of the General Clauses Act, 1897 and Illustration (f) of Section 114 of the Indian Evidence Act, 1872, but every presumption is rebuttable. (Vide: Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102; Gujarat Electricity

Board & Anr. v. Atmaram Sugomal Postani, AIR 1989 SC 1433; Shimla Development Authority & Ors. v. Santosh Sharma (Smt.) & Anr., (1997) 2 SCC 637; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287).

14. In such a fact-situation, the appellant ought to have been given time to rebut this presumption and lead evidence to prove that she did not receive the said document as alleged by the opposite parties, and it was necessary to do so for the reasons we record later.

15. The Tribunal proceeded in great haste as the show cause notice was issued by the Tribunal on 15.11.2002 for initiating the said proceedings, fixed the date for 12.12.2002 and disposed of the matter on 19.12.2002. The Tribunal failed to appreciate that criminal contempt proceedings are quasi criminal in nature and any action on the part of a party by mistake, inadvertence or by misunderstanding does not amount to contempt. In contempt proceedings, the court is the accuser as well as judge of the accusation. Therefore, it behoves the Tribunal to act with great circumspection as far as possible, making all allowances for errors of judgment. Any action taken in unclear case is to make the law of contempt do duty for other measures and therefore is totally unwarranted and should not be encouraged. The proceedings being quasi criminal in nature, burden and standard of proof required is the same as required in criminal cases. The

charges have to be framed as per the statutory rules framed for the purpose and proved beyond reasonable doubt keeping in mind that the alleged contemnor is entitled to the benefit of doubt. Law does not permit imposing any punishment in contempt proceedings on mere probabilities. The court cannot punish the alleged contemnor without any foundation merely on conjectures and surmises. (See Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh & Ors., (2010) 3 SCC 705).

16. Needless to say, the contempt proceedings being quasi criminal in nature require strict adherence to the procedure prescribed under the rules applicable in such proceedings. In L.P. Misra (Dr.) v. State of U.P., AIR 1998 SC 3337, this court while dealing with the issue of observance of the statutory rules held as under:

" we are of the opinion that the Court while passing the impugned order had not followed the procedure prescribed by law. It is true that the High Court can invoke powers and jurisdiction vested in it under Article 215 of the Constitution of India but such a jurisdiction has to be exercised in accordance with the procedure prescribed by law."

(Emphasis supplied)

17. In Three Cheers Entertainment Pvt. Ltd. v. C.E.S.C. Ltd., AIR 2009 SC 735, and Sahdeo (supra), this Court reiterated a similar view observing that in contempt proceedings the court must conclude the trial and complete the proceedings "in accordance with the procedure prescribed by law".

18. The instant case has to be dealt with under the 1992 Rules. The aforesaid rules provide the following procedure:

"Rule 7. Initiation of proceedings: - (i) ...... (ii) Every petition for `Criminal Contempt' made in accordance with these rules and every information other than a petition, for initiating action for criminal contempt under the Act on being scrutinized by the Registrar shall first be placed on the administrative side before the Chairman in the case of the principal Bench and the concerned Vice Chairman in the case of other Benches or such other Member as may be designated by him for this purpose and if he considers it expedient and proper to take action under the Act, the said petition or information shall be registered and numbered in the Registry and placed before the Bench for preliminary hearing.

(iii) When suo motu action is taken, the statement of facts constituting the alleged contempt and copy of the draft charges shall be prepared and signed by the Registrar before placing them for preliminary hearing.

Rule 13. Hearing of the case and trial:- (a) ...... (b) ......

(c) The respondent shall be furnished with a copy of the charge framed, which shall be read over and explained to the respondent. The Tribunal shall then record his plea, if any.

(d) ......

(e) ......

Rule 15. Procedure for trial:-

(i) Except as otherwise provided in the Act and these rules, the procedure prescribed for summary trials under Chapter XXI of the Code shall as far as practicable be followed in the trial of case for contempt.

(ii) ......

(iii) ......

(iv) ......

(v) ......

(Emphasis added)

19. In the instant case, admittedly, the procedure prescribed hereinabove under the 1992 Rules has not been followed. A criminal contempt case has neither been registered nor numbered separately. No charge (s) had ever been framed by the Tribunal as mandatorily required under the rules. Thus question of furnishing the copy of the same to the appellant did not arise. Therefore, the contempt proceedings had not been concluded in conformity with the aforesaid rules at all. This Court in Sahdeo (supra) while dealing with a similar situation held as under:

"Every statutory provision requires strict adherence, for the reason that the Statute creates rights in favour of persons concerned. The impugned judgment suffered from non- observance of the principles of natural justice and not ensuring the compliance of Statutory Rules, 1952. Thus, the trial itself suffered from material procedural defect and stood vitiated. The impugned judgment and order, so far as the conviction of the appellants in Contempt proceedings are concerned, is liable to be set aside."

(Emphasis added)

20. The ratio of the judgment in Sahdeo (supra) applies to this case in entirety. The instant case is squarely covered by the aforesaid judgment. In view of the above, the impugned judgment and order dated 19.12.2002 in O.A. No. 715 of 2002 passed by the Tribunal is liable to be set aside. The appeal is allowed. The judgment and order of the Tribunal is set aside. No costs.’’

4.11.25. In Anil Kumar Dubey 2017 SCC Online Chh 95, had ruled as under;

to the conclusion that there is not sufficient material to frame charges and the proceedings could be dropped. Therefore, an order framing charge decides that there is sufficient material to continue with the contempt proceedings. In our considered view, his would be an order passed in exercise of the jurisdiction to punish for contempt. Therefore, an appeal would lie against such order.

51. In view of the above discussion, we answer the question referred to this Court by holding that an appeal shall lie under Section 19 of the Contempt of Courts Act, 1971 against an order framing charge in contempt proceedings.’’ 4.12. PROCEEDINGS ARE VITIATED AS THE SHOW CAUSE NOTICE ISSUED TO ALLEGED CONTEMNORS WAS NOT IN FORM-I AND WAS WITHOUT MENTIONING SPECIFIC CHARGE, AS MANDATED BY THE RULE 6 OF ‘THE RULES TO REGULATE PROCEEDINGS FOR CONTEMPT OF SUPREME COURT, 1975’, AND THE SAID NOTICE WAS NOT ISSUED BY PLACING IT BEFORE THE BENCH AND GETTING THE ENDORSEMENT OF THE BENCH AS PER LAW LAID DOWN IN R.S. SUJATHA V. STATE OF KARNATAKA, (2011) 5 SCC 689,NANDLAL THAKKAR 2013 CRI.L.J. 3391, MC.ILRAITH VS. GRADY[1968] 1 QB 468:-

4.12.1. That, the Ground No.10 taken in Discharge Application by alleged contemnor No.2 Shri. Rashid Khan Pathan was as under;

‘‘# GROUND NO. 10 # NOTICE IS NOT IN “FORM-I” WHICH VITIATES THE PROCEEDINGS AS IT CAUSES PREJUDICE IN PREPARING DEFENCE’’

4.12.2. That, the FORM-I of the Supreme Court Rules 1975, is as under;

FORM I

Notice to a person charged with contempt of Court

(See rule 6)

IN THE SUPREME COURT OF INDIA

(Original Jurisdiction)

Whereas your attendance is necessary to answer a charge of Contempt of Court by (here briefly state nature of the Contempt).

You are hereby required to appear in person (or by Advocate if the Court has so ordered) before this Court at New Delhi on the day of...... 20 …….

You shall attend the Court in person on the day of….20……. and shall continue to attend the Court on all days thereafter to which the case against you stands adjourned and until final orders are passed on the charge against you.

Herein fail not.

Dated this day of ..20 ..

(SEAL) REGISTRAR

To be omitted where the person charged is allowed or ordered to appear by advocate.

4.12.3. In the notice served upon the Petitioner, it was mandatory as per FORM-I to mention the specific charge, but no charge was mentioned in the show cause notice.

4.12.4. The notice served upon petitioner reads as under;

WHEREAS the Hon’ble Court on 27th March, 2019 while hearing Suo Motu Contempt Petition (Crl.)1 of 2019 titled In Re Mathews Nedumpara, inter alia passed the following order;

Given the serious nature of the allegations levelled against this Bench, the Chief Justice of India to constitute an appropriate Bench to hear and decide this contempt case.”

(A Certified copy of the Order dated 27th March, 2019 is enclosed herewith)

Whereas your attendance is necessary to answer in terms of the Order quoted above.

You are hereby required to appear in person before this Court at New Delhi on Wednesday the10th day of April, 2019 at 10.30 A.M.

You shall attend the Court in Person on Wednesday the10th day of April,2019 at 10.30 A.M and shall

continue to attend the Court on all days thereafter to which the case against you stands adjourned and until final orders are passed against you.

HEREIN FAIL NOT.

DATED THIS THE 29TH DAY OF MARCH 2019.

(VINOD KULVI)

DEPUTY REGISTRAR

4.12.5. Hence, it is clear that, the notice was not as per ‘FORM-I’. But this issue was not dealt by the Ld. Trial Court and the Court misdirected itself to on issue of requirement of annexing the documents to the notice.

4.12.6. The law as mentioned in the earlier paras mandates for preparation of distinct charge and mentioning said charge in the notice in FORM-I.

4.12.7. After considering Rule 6 and section 15 (3) of the Contempt of Courts Act, and the binding precedents of Supreme Court in various cases it is ruled that, the failure to mention the distinct charge in the notice in FORM-I is fatal to the prosecution and is sufficient to violate the proceeding. [See:- Nandlal Thakkar 2013 Cri. L.J. 3391, Jayantilal Hiralal 1932 SCC OnLine Bom 121]

4.12.8. Needless to mention here that, the law also mandates that, the notice in ‘FORM-I’ should be placed before the Court and after taking endorsement from the Judge the notice is to be dispatched. Three Judge Bench in Mc Ilraith V. Grady [1968] 1 Q.B. 468 it is ruled as under;

‘‘Contempt of Court - Summons to commit for contempt - Particular matter of contempt not set out in the space

provided in the notice as per FORM set out as per rules Committal order bad Here we must remember the fundamental principle that no man's liberty is to be taken away unless every requirement of the law has been strictly complied with: see Gordon v. Gordon, [1946] 1 All E.R. 247, C.A. by Lord Greene M.R. Mr. Howard says that the committal order does not comply with the rules. It recited that evidence had been heard and then stated: The court being of opinion upon consideration of the facts disclosed by the evidence given that the said Grady has been guilty of a contempt of this court by neglecting to obey the said order doth order that the said Grady do stand committed to her Majesty's prison at Norwich for his contempt and that a warrant of attachment for the arrest of the said Grady be forthwith issued. Where the liberty of the subject is involved, all the technicalities must be strictly observed: see per Lord Greene M.R. in Gordon v. Gordon. [1946] 1 All E.R. 247, C.A. ……….but if the order does not particularise he cannot be asked to respond in blank for matters which may have had nothing to do with him. On the second appeal against the order of committal, the form used is that prescribed by Order 25, r. 68 (4), of the County Court Rules, 1936, which are made under statute, and the rule is mandatory, that, the order for the issue of the warrant shall be in Form 195. The form served on the defendant does not comply with the technical requirements. It ought to specify the breach for which the defendant is being committed, with dates and particulars, whereas there is no specification

whatever and the words by a breach of have been struck out, leaving the alternative words by neglecting to obey. In Reg. v. Lambeth County Court Judge and Jonas , 4 T.L.R. 158, D.C. where a committal order didnot specify in what particular the contemner was guilty of contempt, Wills J. Ibid. 476, said that it was bad on its face and that no man should be in prison save for some act clearly stated. In this case where there were various allegations of obstruction, the bicycle, the van, the dustbin and gates, the defendant should be told what has been found against him. This view is supported by Reg. v. Lambeth County Court Judge and Jonas , 4 T.L.R. 158, D.C. before a Divisional Court of Wills J. and Grantham J. A committal order merely recited the terms of the original order and did not specify any particular breach. Wills J. said it was as bad as bad could be.‖ 36 W.R. 475, 476. He said: ‘‘I think, therefore, that this objection to the committal order is a good and valid one namely, that this order does not clearly and distinctly specify in what respect or respects the disobedience to the original order has been incurred. The particular matter must be set out in the order. It is not done so in the order. Therefore the committal is bad. I would allow the second appeal and set aside the committal order. The printed form, however, has a place for the signature of the registrar, whose title appears specifically in type on the form, and the registrar has signed it. It seems to me it is absolutely vital that the particular matter of contempt should in these circumstances be set out in the order of attachment which is the order leading to the issue of the warrant of

attachment which is in fact signed by the registrar. For these reasons I too think that this committal was bad. For the rest, I agree entirely with what my Lords have said, that the appeal in that respect fails. Appeal on committal proceedings allowed with costs in Court of Appeal.’’

4.13. PROCEEDING ARE VITIATED FOR NOT RECORDING THE PLEA OF THE ALLEGED CONTEMNORS ON THE ALLEGED DELINEATED CHARGE DATED 09.12.2019 AS PER BASIC RULES OF CONTEMPT LAW FOLLOWED IN THE CASE OF COURT ON ITS ON MOTION VS. HARMEET SINGH 2020 SCC ONLINE P& H

4.13.1. That, the framing of charge in a contempt proceeding is a serious matter affecting life and liberty of the alleged contemnor.

Full Bench in Anil Kumar Dubey 2017 SCC Online Chh 95, had ruled as under;

“50. As far as framing of charge is concerned, such an order has to be passed after hearing the parties and the Court, after hearing the parties, considers the material on record and feels that there is sufficient material to frame charge against the contemnor. While framing the charge, the Court applies its mind. It comes to the conclusion that the proceedings should not be dropped and there is sufficient material to proceed with the case. The Court can also come to the conclusion that there is not sufficient material to frame charges and the proceedings could be dropped. Therefore, an order framing charge decides that there is sufficient material to continue with the contempt proceedings. In our considered view, his would

be an order passed in exercise of the jurisdiction to punish for contempt. Therefore, an appeal would lie against such order.

51. In view of the above discussion, we answer the question referred to this Court by holding that an appeal shall lie under Section 19 of the Contempt of Courts Act, 1971 against an order framing charge in contempt proceedings.’’ 4.13.2. Contempt proceeding are quasi-criminal in nature and requires of recording plea/charge when the alleged contemnor is present and to put specific question whether he admits the charge. In a recent judgement in Court On Its On Motion Vs. Harmeet Singh 2020 SCC OnLine P&H order dated 4th June, 2020 had ruled that;

‘‘This is in continuation of order dated June 03, 2020.

While pronouncing the aforesaid order, we passed an order of framing the following charge against the respondent - contemnor :-

"1. That you have made a ‘YouTube’ account titled ‘Ugly face of Indian Judiciary, Ludhiana’ and uploaded videos lambasting the judicial officers by levelling false allegations and conveyed wrong message to the public and discouraged the public from getting justice from the Court of Law;

2. That, by uploading video clips on social media, you have stressed on the matter of your transfer from Sessions Division, Ludhiana and tried to lower the dignity of this Court as well as scandalize the names of Hon’ble sitting Judges;

3. That uploading such videos which scandalize the whole judicial institution and particularly the names of the Hon’ble Judges of this Court do not come under the purview of liberty

of free expression. Such unfounded, unwarranted and irresponsible aspersions against the Judges or Courts, which sub-serve the public interest in reasonable measure, is certainly an attack on the Judges’ integrity and is offensive, intimidatory and malicious;

4. That, you have concocted stories of corruption, bribery and nepotism prevailing in the District Judiciary, which are nothing but a figment of your imagination;

5. That, you have uploaded videos on social media and made statements in the media without previous sanction of the competent authority.

RO & AC

Question:- The contents of the aforesaid charge have been read over and explained to you?

Answer:- Yes

Question:- Whether you plead guilty or claim trial?

Answer:- I do not plead guilty and claim trial."

The aforesaid order dated June 03, 2020 was passed presumingly that the respondent would come present in person and the contents of the charge sheet would be read over and explained to him. On account of the prevailing Pandemic, Covid-19, the presence of either the Advocate or the respondent could not be ensured. Inadvertently, the aforesaid charge was framed and it was ordered to be read over and explained but the requirement of the law is that the charge should be read over and explained to the respondent in person. This

inadvertent mistake took place only account of the pronouncement of the aforesaid order through Video Conferencing.

In order to impart fair and substantial justice and to give an appropriate opportunity to the respondent to deny or admit the contents of the charge, it would have been appropriate to pronounce the order of framing of charge in the presence of the respondent. In the given circumstances, order dated June 03, 2020 passed to the extent of framing of charge, reproduced above, is recalled and an opportunity is given to the respondent to be present in the Court on the next date of hearing i.e. 24.09.2020 to admit or deny the aforesaid charge, in accordance with law.

Registry is directed to inform the counsel for the parties including the respondent.’’

4.13.3. This Hon’ble Court in Satishchandra Shah Vs. State (2019) 9 SCC 148 it is ruled as under ;

“9…………An order for framing of charges is of serious concern to the accused as it affects his liberty substantially. Courts must therefore be cautious that their decision at this stage causes no irreparable harm to the accused.”

4.13.4. That, in Satish Mehra Vs. State (2012) 13 SCC 614, it is ruled as under;

‘‘19. The view expressed by this Court in Century Spg. case [(1972) 3 SCC 282 : 1972 SCC (Cri) 495 : AIR 1972 SC 545] and in L. Muniswamy case [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489] to the effect that the

framing of a charge against an accused substantially affects the person's liberty would require a reiteration at this stage. The apparent and close proximity between the framing of a charge in a criminal proceeding and the paramount rights of a person arrayed as an accused under Article 21 of the Constitution can be ignored only with peril. Any examination of the validity of a criminal charge framed against an accused cannot overlook the fundamental requirement laid down in the decisions rendered in Century Spg. [(1972) 3 SCC 282 : 1972 SCC (Cri) 495 : AIR 1972 SC 545] and Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489] . It is from the aforesaid perspective that we must proceed in the matter bearing in mind the cardinal principles of law that have developed over the years as fundamental to any examination of the issue as to whether the charges framed are justified or not.

4.13.5. Five Judge Bench of Privy Counsel in Ramesh Maharaj’s case (1978) 2 WLR 902, had ruled that, in the event failure to follow this procedure the state is bound to pay compensation to the alleged contemnor.

4.13.6. In Ebrahim Mammojec Parekh Vs. Emperor ILR 4 Rang 257 (AIR 1926 Rangoon 188), it is ruled that, following the above procedure is must, even if the alleged contemnor accepts the guilt.

4.14. CONVICTION IS VITIATED FOR CONDUCTING THE PROCEEDINGS AGAINST THE LAW LAID DOWN BY THE FULL BENCH IN R.K. ANAND VS. DELHI HIGH COURT (2009) 8 SCC 106, WHERE IT IS RULED THAT IF THE COURT IS OF THE VIEW

THAT, THE DEFENCE OF THE ALLEGED CONTEMNOR IS NOT ADMISSIBLE THEN, AS A RULE, THE COURT HAS TO GIVE NOTICE TO THE ALLEGED CONTEMNOR TO PRODUCE EVIDENCE TO PROVE DEFENCE. THE COURT IS NOT PERMITTED TO REJECT THE DEFENCE IN REPLY AFFIDAVIT WITHOUT GIVING OPPORTUNITY TO PROVE THE SAID DEFENCE. BUT HON’BLE BENCH REJECTED THE DEFENCE VERSION WITHOUT FOLLOWING THE ABOVE BINDING PRECEDENT OF FULL BENCH AND THEREFORE CONVICTION IS VITIATED.

4.14.1. It is settled law of Contempt by almost all benches of Full Bench of Hon’ble Supreme Court that, the conviction should not be based on assumptions, presumptions, surmises and conjunctures. The presumption howsoever strong cannot take place of the proof.

But, the Trial Court acted in utter disregard and wilful defiance of the above legal position.

4.14.2. That, in the present case, the evidence on record, the written submissions, reply affidavit, arguments are ignored and the petitioner is convicted on the basis of presumption and without affording him an opportunity to prove his defence.

4.14.3. That, the Petitioner in his affidavit has denied the charge of consent which was framed in the order dated 09.12.2019. The affidavit was filed as per liberty granted by the Court. Thereafter, Amicus Adv. Siddharth Luthra changed the charge to which Petitioner in his written arguments dated 16.03.2020 had made following submissions;

‘‘17. If this Hon’ble Court has to deal with this new charge of consent then, I must be given opportunity to lead the evidence as mandated by Full Bench in (i) Prof. Ramesh Chandra Kapse

(1996) 1 SCC 206 [Volume – 6 Pg. 62] (ii) Rajeev Dawar (2018) 12 SCC 437 [para 3], (iii) R.K. Anand (2009) 8 SCC 106 [para 207 to 210]

16. The Ld. Amicus in his Written Statement filed on 17.12.2019 brought third charge, which is against the order dated 09.12.2019. It was based on false, misleading and incorrect submission. This Hon’ble Court did not asked Respondents to reply those new charge. However, the falsity, incorrectness and illegality of submission by Ld. Amicus is explained by Respondent No. 3 in the W. S. Pg. No. 215 para 25, 25.1, to 25.6, 26, 26.1 to 26.20.’’

4.14.4. That, the respondent No.1 in his written submission dated 16.03.2020 had made following submission; ‘‘13. In addition to above legal position the Ld. Amicus in his written submission dated 02.03.2020 at the fag end of the hearing take reference of affidavit of Adv. Rohini Amin. As per law it is mandatory that, the respondents should be given opportunity to counter those submissions and if required the Respondent be permitted to cross- examine the new witness relied by Ld. Amicus.[R.S. Sherawat (2018) 10 SCC 106, R.K. Anand (2009) 8 SCC 106 [Para 207, 208, 210]

14. There is another aspect of this case. The charge mentioned in order dated 27.03.2019 that, Respondent No. 1 & 2 acted in conspiracy with Respondent No. 3 & 4 is falsified in view of conclusion in the order dated 02.09.2019. Then on 09.12.2019 Ld. Amicus Mr. Luthra brought new charge regarding consent of Respondent No. 3 to Respondent No. 1. Please see order dated 09.12.2019 and affidavit dated 12.12.2019 filed by Respondent No.

15. Thereafter, in written argument dated 17.12.2019 Ld. Amicus brought third new charge of consent of Respondent No. 3 to No. 1 & No. 2. at Pg. No. 24 Pt. No. (x) (1) & (2).

16. The said new charge is also denied by all the Respondents i.e. No. 1 to 3. Under these circumstances this Hon’ble Court is duty bound to direct Ld. Amicus to lead evidence to prove said consent and allow respondent to lead evidence to disprove it as per law laid down in Prof. Ramchandra Kapse’s case (1996) 1 SCC 206 [Para 15 & 16][Volume – 6 Pg. 62], R.K. Anand’s case (supra).

17. It is settled law that, in contempt proceedings it will not be permissible to proceed further if there are only word against word. [M.R. ParasharVs. Farooq Abdullah (1984) 2 SCC 343, S.A. Khan Vs. Ch. Bhajan Lal (1993) 3 SCC 151, Vinod Surha Vs. State 2017 SCC OnLine Del 9037.

18. Furthermore, in National Fertilizer (2013) 9 SCC 600, in Para 35, 36 it is ruled that, the one who asserts must prove the charge first. The decision cannot be taken on the basis of assumption or the reply given by the alleged contemnor.

19. Hence it is just and necessary that, if this Hon’ble court is going to take the new charge in to consideration then the Ld. Amicus be directed to produce evidence of his alleged theory of conspiracy between the respondents. Further my witnesses be also summoned and then the case be decided on the basis of evidence which will come on record.

20. That, the basic cause of my complaint is that, an advocate Mr. Mathews Nedumpara was convicted without any trial and procedure as mandated by binding precedents. Nine Judge Bench in Windsor Vs. Mcevigh 93 US 274 (1876) had ruled that, ‘‘A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. Such proceedings would not be entitled to be dignified with the name of a judicial proceeding. It would be a mere arbitrary edict, not to be regarded anywhere as the judgment of a court.' In common sense and common honesty, that the sentence of the tribunal which first punishes and then hears the party, castigatque, auditque. Such sentences 'as mere mockeries, and as in no just sense judicial proceedings;' and are charecterized they 'ought to be deemed, both ex directo in rem and collaterally, to be mere arbitrary edicts or substantial frauds.' It is equally applicable and pertinent to proceedings in rem of a domestic court, when they are taken without any monition or public notice to the parties.

Therefore, being state President of Indian Bar Association, I have filed complaint to maintain dignity of the Bench & Bar. But, Instead of taking measures for enhancing the binding precedents the respondent No. 1 was made accused for performing his duty.

21. Apart from the above issue with great pain I would like to point out the unfortunate incidence happened during hearing on 02.03.2020.

That, Hon’ble Justice Deepak Gupta shouted at my Counsel when he was pointing out the falsity of Ld. Amicus Mr. Siddharth Luthra

and also his tendency to rely on overruled, per-incuriam judgments and to misinterpret and misquote the ratio.

With due respect to Hon’ble Justice Gupta, I have serious objection to such an insult of my advocate. Hon’ble Justice Gupta himself gave speech on 25th February, 2020 at Supreme Court bar Association, that, ‘we should respect dissent and freedom of expression’.

If Hon’ble Justice Gupta were of the view that, my allegations against Ld. Amicus Mr. Siddhart Luthra are not temperate or even overboard or wrong then Hon’ble Justice Gupta could have said in a dignified way. At the most contempt notice for new charge can be issued, but threat to an advocate that, if he argue on this point then he will be behind bar is highly objectionable. My Counsel is also an officer of the Court and therefore, he cannot be threatened like this.

Because of said threats my Counsel was not in a position to give proper submission and my right to have a fair trial are violated.

Full Bench of Hon’ble Supreme Court in R. Vishwanathan AIR 1963 SC 1 had ruled that, it is rule of judicial conduct which bears upon the hearing case is that the Judge is expected to be serene and evenhanded, even though his patience may be sorely tried and the time of the court appear to be wasted. This is based on the maxim which is often repeated that justice should not only be done but should be seen to be done. No litigant should leave the Court feeling reasonable that his case was not heard or considered on its merit. If he does, then justice, even though done in the case, fails in the doing of it.If the Judge unreasonably obstructs the flow of an argument or does not allow it to be raised, it may be said that there has been no fair hearing.

Oswald's in his book on Contempt of Court, III Edition, By Robertson, had said about rights and protection of advocates while arguing a case as under; “An advocate is at liberty, when addressing the Court in regular course, to combat and contest strongly any adverse views of the Judge or Judges expressed on the case during its argument, to object to and protest against any course which the Judge may take and which the advocate thinks irregular or detrimental to the interests of his client, and to caution juries against any interference by the Judge with their functions, or with the Advocate when addressing them, or against any strong view adverse to his client expressed by the presiding Judge upon the facts of a case before the verdict of the jury thereon. An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client's case. It is said that a Scotch advocate was arguing before a Court in Scotland, when one of the Judges, not liking his manner, said to him, "It seems to me, Mr. Blank, that you are endeavoring in every way to show your contempt for the Court." "No," was the quick rejoinder, "I am endeavouring in every way to conceal it.”

22. My case is greatly prejudiced. Hon’ble Full Bench in R.K. Anand (2009) 8 SCC 106 case had ruled that, the principles of natural Justice applies with greater rigor to contempt proceedings. The principles of natural justice mandates the rule of ‘Audi-Alterim- Partem’. This Hon’ble Court in Indirect Tax Practitioner’s Association case (2010) 8 SCC 281 had ruled, Contempt - Voltaire expressed a democrat's faith when he told an adversary in

argument: ‘I do not agree with a word you say, but I will defend to the death your right to say it.’ Champions of human freedom of thought and expression, throughout the ages, have realised that intellectual paralysis creeps over a society which denies, in however subtle a form, due freedom of thought and expression to its members.”

23. That, after the said threats my Counsel compelled to wind up his arguments. Ld. Amicus Mr. Siddharth Luthra at around 4.15 P.M. gave additional written submission (52+41=93 pages). Permission sought by my advocate to oral arguments to counter said argument was not accepted. It is settled law that written argument is not substitute to argument and denial of oral hearing is violative of rule ‘Audi-Alteram partem’ and violates the principles of natural justice. Automotive Tyre Manufacturers Assn. (2011) 2 SCC 258.

Therefore, I request that, a fresh hearing be given and it be conducted in a video recording/live telecast as ruled by Constitution Bench in the case of Swapnil Tripathi (2018) 10 SCC 639.

24. That, the present case is very important on the issue of Independence of Bar. Recently, Supreme Court Bar Association (S.C.B.A.) & Supreme Court Advocates on Record Association (S.C.A.O.R.A.) passed resolution in a similar incident happened with Senior Adv. Shankarnaryan before Hon’ble Justice Arun Mishra.

In the present suo-moto contempt, many advocates of Supreme Court are attending the case. On 3rd February, 2020 around 139

advocates were present to represent Respondents. Therefore, it is least expectation that as being Judge of Highest court in the country, Hon’ble Justice Deepak Gupta should not have acted in such a fashion. Needless to mention here that, every word, every action of a Judge of Supreme Court is viewed seriously and have serious impact on the parties and society. It may be taken as a precedent and followed by the sub-ordinate Judges.

25. The impression which is being created in my mind is that, if Ld. Amicus Mr. Luthra makes any false, frivolous statement gives any overruled judgment then he is permitted and if, I avail my legal rights based on binding precedents, points out his illegality then the counsel representing me are humiliated.

This I feel as violation of Article 14 of the Constitution of India. My allegations against Ld. Amicus Mr. Luthra are based on sound proofs and binding precedents. No one is above the law. Only because Mr. Luthra is appointed as an Amicus does not give him any protection to act with immunity against guidelines given to advocates as relied in Para 13.1 to 13.11 of written submission of Respondent No. 3.

If my submission are wrong then I request this Hon’ble Court to issue me a fresh contempt notice. But if my submission against Mr. Luthra are correct then he should face the consequences as per law laid down by this Hon’ble Court. No one is above law and there cannot be different standards for different advocates when they commit offences. In Nirankar Nath Wahi (1984) 3 SCC 531 it is ruled as under;

“7. We have no hesitation in assuming that no Court would

ever be influenced by the fact that the Respondent was a leading member of the Bar and influential person inasmuch as in the eye of law all citizens are entitled to equal treatment having regard to the doctrine of equality before law…….

10. We are afraid that these vital aspects were overlooked by the learned Judge when he granted only three days' time to make alternative arrangement for engaging a local senior counsel ….”

26. Hon’ble Supreme Court in Zahira Shaikh (2006) 3 SCC 374

had ruled as under; “24. It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep the promise to justice and it cannot stay petrified and sit nonchalantly. The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection lose hope (see Jennison v. Baker [(1972) 1 All ER 997 : (1972) 2 QB 52 : (1972) 2 WLR 429 (CA)] ).

Increasingly, people are believing as observed by Salmon quoted by Diogenes Laertius in Lives of the Philosophers, “Laws are like spiders' webs: if some light or powerless thing falls into them, it is caught, but a bigger one can break through and get away.” Jonathan Swift, in his “Essay on the Faculties of the Mind” said in

similar lines: “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”

27. In view of the above mention submission, I am seeking discharge of my advocate and wants to argue the case ‘In-Person’.

28. Hence, I request Hon’ble Court to pass appropriate order.

29. With due respect I request that, on any of my written submissions order be passed giving detail reasons on each points raised by me, as mandated by Hon’ble Supreme Court. [Relied on: i) Ashok Agarwal (2014) 3 SCC 602, ii)jhb Bhagabhai Dhanabhai Barad 2019 SCC OnLine Guj 1535]’’

4.14.5. Full Bench of Hon’ble Supreme Court in the case of R.K. Anand Vs. Delhi High Court (2009) 8 SCC 106, ruled as under;

207. Mr. P. P. Rao submitted that the approach of the High Court was quite unfair. The proceeding before the High Court was not in the nature of a suit or a criminal trial. In response to the notice issued by the Court the appellant had made a positive statement in his reply affidavit. The statement was not formally traversed by anyone. There was, therefore, no reason for the appellant to assume that he would be required to produce evidence in support of the statement. In case the High Court felt the need for some evidence in support of the averment it should have at least made it known to the appellant. But the High Court without giving any inkling to the appellant rejected the plea in the final judgment. The appellant was thus clearly denied a proper opportunity to defend himself.

208. We find that the submission is not without substance. The proceeding before the High Court was under the Contempt of Courts Act and the High Court was not following any well known and well established format. In that situation it was only fair to give notice to the proceeded to substantiate the pleas taken in the reply affidavit by leading proper evidence. It must, therefore be held that the High Court rejected a material plea raised on behalf of the IU Khan without giving him any opportunity to substantiate it.

209. Further, as noticed above, the High Court, for arriving at the finding that there was a high degree of familiarity among IU Khan, Kulkarni and RK Anand has repeatedly used the transcripts of the meetings between Kulkarni and RK Anand. It is indeed true that in the exchanges between Kulkarni and RK Anand there are many references to IU Khan. That may give rise of a strong suspicion, of a common connection between the three. But having regard to the charge of criminal contempt any suspicion howsoever strong cannot take the place of proof and we don't feel it wholly prudent to rely upon the exchanges between Kulkarni and RK Anand to record a finding against IU Khan.

210. Further, according to the High Court, the essence of culpability of IU Khan was his omission to inform the prosecution and the Court "that one of its witnesses was more than an acquaintance of defence lawyer".

211. Mr. P. P. Rao submitted that the High Court convicted the appellant for something in regard to which he was never given

an opportunity to defend himself. From the notice issued by the High Court it was impossible to discern that the charge of criminal contempt would be eventually fastened on him for his failure to inform the court and the prosecution about the way Kulkarni's was being manipulated by the defence.

212. Mr. Rao further submitted that the reason assigned by the Court to hold the appellant guilty was based purely on assumption. The appellant was given no opportunity to show that, as a matter of fact, after Kulkarni met him at the Patiala House on April 28, 2007 he had informed the concerned authorities that after being summoned by the court Kulkarni was back to his old tricks. He further submitted that the appellant, given the opportunity, could also show that the decision to not examine him as one of the prosecution witnesses was taken by the concerned authorities in consultation with him.

213. We find substance in Mr. Rao's submission. In our considered view, on the basis of materials on record the charge of criminal contempt cannot be held to be satisfactorily established against IU Khan. In our opinion he is entitled to the benefit of doubt.’’

4.14.6. In Prof. Ramchandra G. Kapse v. Haribansh Ramakbal Singh (1996) 1 SCC 206, it is ruled that;

‘‘The High Court's order refusing permission to Professor Kapse to lead that evidence and thereafter to amend the written statement for making a clear assertion to this effect is contrary to law. The finding on this question even against the

returned candidate Professor Kapse is, therefore, vitiated due to this defect. The express denial by Professor Kapse in his statement of his presence in the meeting at Thane on 21-5-1991 cannot be rejected. The implied admission read in the written statement of Professor Kapse has earlier been rejected by us. There is no reliable evidence to prove the alleged conduct of Professor Kapse which was relied to prove his consent for the speech of Sadhvi Reethambara, irrespective of the nature of her speech. This alone is sufficient to reject the finding of the High Court that any corrupt practice is proved to have been committed by Professor Kapse on the basis of that speech.’’ prove the alleged conduct of Professor Kapse which was relied to prove his consent for the speech of Sadhvi Reethambara, irrespective of the nature of her speech. This alone is sufficient to reject the finding of the High Court that any corrupt practice is proved to have been committed by Professor Kapse on the basis of that speech.’’

4.14.7. In Rajiv Dawar Vs. High Court of Delhi (2018) 12 SCC 487, where it is observed as under;

“3. We find that the learned amicus before the High Court had also requested the High Court to comply with the procedural formalities giving full opportunity to the appellant to disabuse the allegations against him. In contempt proceedings, the contemnor has to be given an opportunity to establish his innocence. From the proceedings it is seen that the appellant was not granted such an opportunity except the opportunity of filing an affidavit.

……………………….” 4.14.8. In Coward v. Stapleton , (1953) 90 CLR 573, it is ruled that ;

“ Contempt – Framing of specific and distinct Charge and reasonable opportunity of examining witnesses before the court in support of defence must be given before judgment is pronounced . Everything needs to be considered in the final judgment. When the court, has itself preferred the charge, must be alert to see that it withholds judgment on the issue until it has considered everything which the witness may fairly wish to urge in his defence. This principle must be rigorously insisted upon as accepted notions of elementary justice.- The request by appellant to examine his witness to prove his defence was refused - The Court overlooked the imperative necessity of deferring the formation of a concluded opinion as to the inference to be drawn from the appellant's words until there could be placed in the scales everything that the appellant might fairly wish to say, not only upon the questions asked of him, but also upon the question whether his purported answers amounted to a contempt of court, and, if so, what the sentence of the court should be.

No doubt the explanation is that the learned judge, having already allowed the appellant the most ample liberty to give a real, as distinguished from an impudently unreal, account of his relevant dealings, believed that to offer him any further opportunity would be a completely empty formality. But, with great respect to his Honour, to take that view at that stage was to overlook the imperative necessity of deferring the formation of a concluded opinion as to the inference to be drawn from the appellant's words until there could be placed in the scales everything that the appellant might fairly wish to say, not only upon the questions asked of him, but also upon the question whether his purported answers amounted to a contempt of court, and, if so, what the sentence of the court should be. (at p581)

13. In these circumstances the order appealed from cannot be affirmed. We must allow the appeal, set aside the order, and direct that the appellant be discharged from prison. There will be no order as to costs. (at p582)”

4.14.9. In R. S. Sherawat Vs. Rajeev Malhotra (2018) 10 SCC 574, it is ruled as under;

“ 12. Be that as it may, the law relating to contempt proceedings has been restated in the case of Sahdeo Alias Sahdeo Singh Versus State of Uttar Pradesh and Others (2010) 3 SCC 705 in paragraph 27 as follows:

“27. In view of the above, the law can be summarised that the High Court has a power to initiate the contempt proceedings suo motu for ensuring the compliance with the orders passed by the Court. However, contempt proceedings being quasi- criminal in nature, the same standard of proof is required in the same manner as in other criminal cases. The alleged contemnor is entitled to the protection of all safeguards/rights which are provided in the criminal jurisprudence, including the benefit of doubt. There must be a clear-cut case of obstruction of administration of justice by a party intentionally to bring the matter within the ambit of the said provision. The alleged contemnor is to be informed as to what is the charge, he has to meet. Thus, specific charge has to be framed in precision. The alleged contemnor may ask the Court to permit him to cross- examine the witnesses i.e. the deponents of affidavits, who have deposed against him. In spite of the fact that contempt proceedings are quasi-criminal in nature, provisions of the Code of Criminal Procedure, 1973 (hereinafter called “CrPC”) and the Evidence Act are not attracted for the reason that proceedings have to be concluded expeditiously. Thus, the trial has to be concluded as early as possible. The case should not rest only on surmises and conjectures. There must be clear and reliable evidence to substantiate the allegations against the alleged contemnor.The proceedings must be concluded giving strict adherence to the statutory rules framed for the purpose.

13.We may usefully refer to two other decisions dealing with the issue under consideration. In Muthu Karuppan, Commissioner of Police, Chennai Vs. Parithi Ilamvazhuthi and Anr.(2011) 5 SCC 496, 2 this Court observed thus:

“15. Giving false evidence by filing false affidavit is an evil which must be effectively curbed with a strong hand.

Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent, but there must be a prima facie case of „deliberate falsehood‟ on a matter of substance and the court should be satisfied that there is a reasonable foundation for the charge.”

“17. The contempt proceedings being quasi-criminal in nature, burden and standard of proof is the same as required in criminal cases. The charges have to be framed as per the statutory rules framed for the purpose and proved beyond reasonable doubt keeping in mind that the alleged contemnor is entitled to the benefit of doubt. Law does not permit imposing any punishment in contempt proceedings on mere probabilities, equally, the court cannot punish the alleged contemnor without any foundation merely on conjectures and surmises. As observed above, the contempt proceeding being quasi-criminal in nature require strict adherence to the procedure prescribed under the rules applicable in such proceedings.”

4.14.10. But both the Ld. Judges acted in utter disregard and defiance of abovesaid binding precedents and instead of either dropping the charge or allowing the petitioner to lead the evidence, directly pronounced the judgment holding petitioner guilty.

4.14.11. That, all the case laws were provided in the written arguments but both the both the Ld. Judges, did not even refer the said judgments/case laws in the order dated 27.04.2020, and taken a contrary view.

4.14.12. Full Bench in Dwarikesh Sugar Industries Ltd. (1997) 6 SCC 450, had condemned such practice and ruled as under;

“JUDICIAL ADVENTURISM - When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position - It should not be permitted to Subordinate courts including High Courts to not to apply the settled principles and pass whimsical orders granting wrongful and unwarranted relief to one of the parties to act in such a manner - The judgment and order of the High Court is set aside - The appellant would be entitled to costs which are quantified at Rs. 20,000.00.

It is unfortunate that the High Court did not consider it necessary to refer to various judicial pronouncements of this Court in which the principles which have to be followed while examining an application for grant of interim relief have been clearly laid down. The observation of the High Court that reference to judicial decisions will not be of much importance was clearly a method adopted by it in avoiding to follow and apply the law as laid down by this Court.”

4.14.13. A Constitution Bench of the Apex Court, in Natural Resources

Allocation, In Re, Special Reference No. 1 of 2012 (2012) 10 SCC 1 held as follows:

"70. Each case entails a different set of facts and a decision is a precedent on its own facts; not everything said by a Judge while giving a judgment can be ascribed as precedential value. The essence of a decision that binds the parties to the case is the principle upon which the case is decided and for this reason, it is important to analyse a decision and cull out from it the ratio decidendi..."

4.14.14. In Dattani and Co.Vs. Income Tax Officer2013 SCC OnLine Guj 8841 it is ruled as under;

‘‘Precedents - Applicability of case Law - Held, whenever any decision has been relied upon and/or cited by any party, the authority/tribunal is bound to consider and/or deal with the same and opine whether in the facts and circumstances of the particular case, the same will be applicable or not.

In the instant case, the tribunal has failed to consider and/or deal with the aforesaid decision cited and relied upon by the assessee. Under the circumstances, all these appeals are required to be remanded to the tribunal.’’

4.15. JUDGMENT DATED 27.04.2020 AND ORDER DATED 04.05.2020 ARE PERVERSE AND VITIATED FOR ACTING AGAINST BINDING PRECEDENT AND GIVING FINDINGS BY IGNORING EVIDENCE/PROOFS AVAILABLE ON RECORD I.E. THE WRITTEN COMMUNICATION BY DY. REGISTRAR AND WRITTEN SUBMISSION AVAILABLE ON RECORD STATING THAT, THE SAID LETTER DATED 23.03.2019 WAS NOT ASSIGNED BY THE HON’BLE

CJI TO THE BENCH OF LD. JUSTICE ROHINTON NARIMAN AND ON 27.03.2019, I.E. ON THE DATE OF PASSING ORDER ISSUING THE SHOW CAUSE NOTICE, THE COMPLAINTS SENT BY ALLEGED CONTEMNOR NO. 1 AND 2 WERE NOT AVAILABLE ON RECORD. BUT THE HON’BLE BENCH BY IGNORING THE PROOFS, GAVE FINDINGS ON ILLOGICAL AND IRREGULAR PRESUMPTION, CONTRARY TO THE CLEAR PROOFS AND DECIDED THE CASE ON SURMISES, SUSPICION, PROBABILITY AND CONJECTURES, WHICH IS PROHIBITED BY THE HON’BLE SUPREME COURT, IN THE CASE OF UNION OF INDIA VS. IBRAHIM UDDIN (2012) 8 SCC 148, NATIONAL FERTILIZER LIMITED VS. TUNCKY (2013) 9 SCC 600, VIJAY SHEKHAR (2004) 4 SCC 666, PREM KAUR VS. STATE (2013) 14 SCC 653.

4.15.1. That, the alleged contemnor No.1, in his application I.A. No. 48480 of 2020, had taken a specific ground that, the findings in para 40 of the judgment dated 27.04.2020 that, the letter dated 23.03.2019 might have been forwarded by the office of the Chief Justice of India, is also proved to be wrong and incorrect, in view of the written communication by the Dy. Registrar of the Supreme Court.

In Union of India (UOI) Vs. Ibrahim Uddin (2012) 8 SCC 148, it is ruled that, that presumption could not have been drawn if other larger evidence was shown to the contrary. (See also: Mohinder Kaur v. Kusam Anand, MANU/SC/0220/2000 : (2000) 4 SCC 214; and Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. AIR 2001 SC 2328).

4.15.2. In Mohinder Kaur Vs. Kusam Anand (2000) 4 SCC 214, while setting aside order based on the arbitray and illogical presumptions

drawn by the Division Bench, ruled that the court should not be allowed to draw inference in illegal and erroneous manner unless the rights of number of persons would be unsafe.

4.15.3. ORDER BASED ON WRONG PREMISE IGNORING COMMUNICATION BY SC REGISTRY IS VITIATED - The communication by registry that, the letter dated 23.03.2019 by BBA on which cognizance is taken, was not forwarded by the Chief Justice to the Bench and that this letter was not accompanied with the copy of the complaint [P-1and P-2] by alleged contemnor No. 1 and 2, was ignored by this Hon’ble Court. Instead, the finding in para 40 of the judgment states that, the said letter might have been forwarded by the office of the CJI. This finding is highly illegal. Hence, findings of the Ld. Trial Court by ignoring communication of registry mentioned in discharge application and written submission is null and void. Relied on National Fertilizer Limited Vs. Tuncky (2013) 9 SCC 600, Vijay Shekhar (2004) 4 SCC 666, Prem Kaur Vs. State (2013) 14 SCC 653.

4.16. CONVICTION IS VITIATED DUE TO RELIANCE PLACED BY LD. TRIAL COURT ON AFFIDAVIT OF DISPUTED AND UNVERIFIED TESTIMONY OF ADV. ROHINI AMIN, WHICH IS AGAINST THE LAW LAID DOWN IN THE CASE OF THREE CHEERS ENTERTAINMENT PRIVATE LIMITED VS. CESC LIMITED (2008) 16 SCC 592, WHICH MANDATES THAT NO RELIANCE ON ANY AFFIDAVIT CAN BE PLACED WITHOUT ALLOWING THE ALLEGED CONTEMNOR TO CROSS-EXAMINE IT:-

4.16.1. That, Amicus Adv. Siddharth Luthra at the end of the hearing produced a copy of affidavit of Adv. Rohini Amin to misguide the Court

that, the complaint of alleged contemnor No.1 Vijay Kurle was circulated. A Copy of said affidavit was not provided to the Petitioner. 4.16.2. Respondent No. 1 in his written submission dated 16.03.2020 had taken a specific objection for the admissibility of the said affidavit before it is tested by Cross-examination. The relevant para reads as under;

‘‘13. In addition to above legal position the Ld. Amicus in his written submission dated 02.03.2020 at the fag end of the hearing take reference of affidavit of Adv. Rohini Amin. As per law it is mandatory that, the respondents should be given opportunity to counter those submissions and if required the Respondent be permitted to cross-examine the new witness relied by Ld. Amicus. [R.S. Sherawat (2018) 10 SCC 106, R.K. Anand (2009) 8 SCC 106 [Para 207, 208, 210]’’ 4.16.3. But the said objection was neither considered nor was rejected and abruptly the final judgment of conviction was pronounced by placing reliance on the unverified testimony of Adv. Rohini Amin.

Therefore, para 93 of the judgment dated 27.04.2020 reads thus;

‘‘93…………These communications were widely circulated on social media, as is apparent from the affidavit of Mrs. Rohini M. Amin filed in the present case where she has stated that she obtained a copy of the complaint from the social media….’’

4.16.4. The finding of conviction is against the basic law of Contempt as mandated by Hon’ble Three Cheers Entertainment Pvt. Ltd. Vs. C.E.S.C. Ltd., (2008) 16 SCC 592, where it is ruled that, without allowing opposite party to cross-examine no reliance can be placed on affidavit.

It is ruled as under;

“25. Indisputably, the majesty of the court is required to be upheld. The court must see that its orders are complied with. But for the said purpose, a roving enquiry is not permissible. Several proceedings which seek to achieve the same purpose are unknown to the process of law. If the trial was to be held on the issues framed by the learned Single Judge, it should have been allowed to be brought to its logical conclusion. When the trial was incomplete, we fail to see any reason why the contempt proceeding was heard on affidavits. Even if that was done, reliance was sought to be placed on the depositions of the witnesses in the said enquiry, which was admittedly incomplete. Witnesses affirming affidavits before the learned Single Judge were not being cross-examined so as to enable to counsel for the parties to draw their attention to the earlier statement made by them in terms of Section 145 of the Evidence Act.

26. On what basis comments against Sanat Ray were made that he was “over smart person” although he did not examine himself before the learned Single Judge is not known. ………….. ………………….. I can say up to where my knowledge goes nothing beyond that.” The Division Bench of the High Court, unfortunately, did not bestow its consideration on these vital aspects of the matter. No sufficient or cogent reason has been assigned therein. 30. In Chhotu Ram v. Urvashi Gulati [(2001) 7 SCC 530 : 2001 SCC (L&S) 1196] this Court held that a contempt of court proceeding being quasi-criminal in nature, the burden to prove would be upon the person who made such an allegation. A person cannot be sentenced on mere probability. Wilful disobedience and contumacious conduct is the basis on which a contemnor can be

punished. Such a finding cannot be arrived at on ipse dixit of the court. It must be arrived at on the materials brought on record by the parties……. ……………………. 36. As orders of injunctions in terms of Prayers (a) and (b) are in operation and the CDs are already in possession of the Court, we in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the contempt proceedings itself be dropped. The amount of fine deposited by the appellants should be refunded by the High Court forthwith. 37. The appeal is allowed with the aforementioned directions with costs payable by Respondent 1 to the West Bengal State Legal Services Authority, Calcutta. Counsel's fee assessed at Rs 1,00,000’’ 4.16.5. Similar law is laid down in R.S. Sherawat Vs. Rajeev Malhotra (2018) SCC Online SC 1347, Sahdeo Singh Versus State (2010) 3 SCC 705.

4.17. THE PROCEEDINGS ARE CONDUCTED AGAINST THE PROCEDURE OF CONTEMPT PROCEEDING LAID DOWN BY FULL BENCH IN NATIONAL FERTILIZERS LIMITED VS. TUNCAY ALANKUS (2013) 9 SCC 600, WHICH MANDATES THAT, THE PARTIES (MR. MILIND SATHE AND MR. KAIWAN KALYANIWALLA ) WHO ASSERTED AGAINST THE PETITIONER HAVE TO BE DIRECTED TO LEAD THEIR EVIDENCE FIRST, REGARDING THEIR ALLEGATIONS OF CONSPIRACY/CONSENT BETWEEN ALL THE ALLEGED CONTEMNORS. UNLESS SOUND PROOFS ARE GIVEN BY THE INFORMANT, THE PERSON CHARGED (ALLEGED CONTEMNOR) IS NOT BOUND TO PROVE OTHERWISE. THE FINDINGS AND CONVICTION IN VIOLATION OF

THIS RULE ARE VITIATED AS PER LAW LAID DOWN IN NATIONAL FERTILIZERS LIMITED VS. TUNCAY ALANKUS (2013) 9SCC 600, RAJEEV DAWAR (2018) 12 SCC 437, HUKUM CHAND 2020 SCC ONLINE SC 438, R.K. ANAND (2009) 8 SCC 106

AND PROF. RAMESHCHANDRA KAPSE’S CASE (1996) 1 SCC 206.

4.17.1. In contempt proceedings the burden of proof rests upon the person who substantially asserts the affirmative and not upon the person who denies it. The rule has its origin in the Roman maxim: ‘‘ei qui affirmat non ei qui negat incumbit probatio’’, viz., he who seeks the aid of a court should be the first to prove that he has a case, and that in the nature of things it is more difficult to prove a negative than an affirmative. The one who asserts must prove. [National fertilizers Ltd. (2013)9 SCC 600]

4.17.2. When there is word against word then Court cannot decide the case of Criminal Contempt. It is duty of the petitioner to prove his version and establish the truth of that version. [M.R.Parashar (1984)2 SCC 343]

4.17.3. The law mandates that at first the informant be directed to give proofs to substantiate the allegations. Only then the Alleged Contemnors can be called to reply the same. 4.17.4. If anything is denied by the Alleged Contemnors, then it is the duty of the informant/prosecutor to produce evidence. If evidence in rebuttal is not produced, the Contempt proceedings are liable to be dropped. [Rajkumari (2003) 11 SCC 500. (Para 14, 16)]

4.17.5. The Supreme Court has pointed out that it is too hazardous to take action and impose sentence in exercise of contempt jurisdiction on mere probabilities. [R. S. Sherawat (2018) 10 SCC 574, Hukum Chand Vs. Satish Raj 2020 SCC OnLine SC 438]

4.17.6. The standard of proof sufficient to sustain action the charge of

contempt must be established by clear and convincing evidence pointing to the guilt of the accused beyond reasonable doubt. The rule of mere preponderance of evidence is considered insufficient. In proceedings for criminal contempt, as in any other criminal case, the presumption of innocence remains, and the burden of proving guilt is placed on the prosecution. The guilt of the person accused of having committed contempt of court must rest on reasonable certainty. Suspicion, no matter, how strong and speculation, howsoever, spacious must not form a basis for action in Contempt. (Jawand Singh Hukam Singh AIR 1959 Punj 632, Aarish Qureshi 2019 SCC OnLine SC 306, Bhajan Lal (1993)3 SCC 151, Vinod Surha 2017 SCC OnLine Del 9037 )

4.17.7. The evidence should be legally admissible evidence. Court cannot frame charge on the basis of probabilities. [All India Anna Dravida Munnetra Kazhagam (2009) 5 SCC 417].

4.17.8. Contempt proceedings cannot be decided on affidavit only. If the contemnor is denied a reasonable opportunity of presenting his evidence to disabuse the allegations against him is resulting in denial of natural justice, then the contempt proceeding cannot be said to be proved. [Rajeev Dawar (2018) 12 SCC 487] 4.18. FINDINGS ARE BASED ON INCORRECT OBSERVATIONS AND AGAINST MATERIAL ON RECORD ABOUT PROOFS/ EVIDENCE AND REQUEST TO SUMMON WITNESSES AS PER RULE 12 OF ‘THE RULES TO REGULATE PROCEEDINGS FOR CONTEMPT OF SUPREME COURT, 1975’, TO BRING EVIDENCE IN SUPPORT OF THE ALLEGATIONS MADE BY ALLEGED CONTEMNOR AGAINST SHRI JUSTICE ROHINTON FALI NARIMAN AND THEREFORE THE CONVICTION AND SENTENCE IS VITIATED IN VIEW OF LAW LAID DOWN IN COWARD V.

STAPLETON, (1953) 90 CLR 573, RAJEEV DAWAR (2018) 12 SCC 437:-

4.18.1. During the course of arguments, Ld. Justice Deepak Gupta had put specific question to Counsel for alleged contemnor No. 1 and 2 that, whether they were having proofs to substantiate the allegations against Ld. Justice Rohinton Nariman and Justice Vineet Saran. The said question was answered in affirmative. The list of witnesses was also submitted on 16.03.2020.

This fact was also reproduced in written submission dated 16.03.2020. The relevant paras from the written submission by alleged contemnor No. 1 reads as under;

‘‘4.3 That, this Hon’ble Court on 02.03.2020 summed up the entire case of scandalous allegations against a judicial order as under;

“(i) One can make complaints for passing wrong order that right cannot be curtailed. You can even call Judge as Ass/Fool. But attributing motive of a judge in passing an order is not permissible. If motive is attributed then it must be supported by proofs and the Respondent No. 1 has to proove the charges levelled by him against 2 Judges Shri. R.F. Nariman& Shri Vineet Saran.

(ii) The complaint given by Respondent No. 1 is actually a charge sheet given against the two Ld. Judges. ………………… 6. With reference to direction given by Hon’ble Justice Deepak Gupta to give proofs of allegations in my complaint about malafide intention/motive of Ld. Justice

Rohinton Nariman & Ld. Justice Vineet Saran, with due respect and without prejudice to my other contentions of non-maintainability of the present proceedings, the Respondent No. 1 submits that, he is ready to give evidences and proofs about the charges levelled by him and for that purpose he wants to examine witnesses including himself.

7. The law of examining witnesses including the Judgesof the Supreme Courts is already mentioned in affidavit dated 25.10.2019 by Respondent No. 2 in Para 37.3 to 37.6, 38, 38.1, 38.2, 38.3.

8. Furthermore, in R. Vishwanathan Vs. Rukn AIR 1963 SC 1 the Chief Justice and 2 other Judges were examined as a witness to prove the bias of a Judge in passing the order. [Relevant para is para 110] 9. Recently, in Suo Motu Vs. Santy George 2020 SCC OnLine Ker 563, the Division Bench of Hon’ble High Court in contempt proceedings issued summons to complaining Judge Kamal Pasha whose order was attacked and at whose instance the contempt proceedings were initiated.

10. The law is well settled that, the contempt proceedings cannot be decided only on the basis of affidavits but the parties should be given permission to lead evidence to disabuse the charge against him and to prove hisdefence. Therefore, in order to prove the charges against Ld. Justice Rohinton Nariman & Ld. Justice Vineet Saran, I must be allowed to lead evidence if this Hon’ble Court finds that, the petition is maintainable and my preliminary objection are not proper.[Rajeev Dawar (2018) 12 SCC 437 [para 3],

R.K. Anand (2009) 8 SCC 106 [para 207 to 210], R.S. Sherawat (2018) 10 SCC 574]

11. In addition to the list given by Respondent No. 2, I want to examine my witnesses of which list is given at ‘Annex – A’

12. That, the request made by Respondent No. 2 to summon Ld. Justice Rohinton Nariman & Ld. Justice Vineet Saran and its legal position is not disputed by Ld. Amicus Mr. Luthra in his both the written submissions. Said request is still not decided by this Hon’ble Court and straightaway the matter is posted for hearing on discharge applications.

13. In addition to above legal position the Ld. Amicus in his written submission dated 02.03.2020 at the fag end of the hearing take reference of affidavit of Adv. Rohini Amin. As per law it is mandatory that, the respondents should be given opportunity to counter those submissions and if required the Respondent be permitted to cross- examine the new witness relied by Ld. Amicus.[R.S. Sherawat (2018) 10 SCC 106, R.K. Anand (2009) 8 SCC 106 [Para 207, 208, 210]

09.12.2019 and affidavit dated

12.12. 2019 filed by Respondent No. 3.

15. Thereafter, in written argument dated 17.12.2019 Ld. Amicus brought third new charge of consent of Respondent No. 3 to No. 1 & No. 2. at Pg. No. 24 Pt. No. (x) (1) & (2).

17. It is settled law that, in contempt proceedings it will not be permissible to proceed further if there are only word against word. [M.R. ParasharVs. FarooqAbdullah (1984) 2 SCC 343, S.A. Khan Vs. Ch. Bhajan Lal (1993) 3 SCC 151, Vinod Surha Vs. State 2017 SCC OnLine Del 9037.

19. Hence it is just and necessary that, if this Hon’ble court is going to take the new charge in to consideration then

the Ld. Amicus be directed to produce evidence of his alleged theory of conspiracy between the respondents. Further my witnesses be also summoned and then the case be decided on the basis of evidence which will come on record.

4.18.2. Similar was the submission of alleged contemnor No. 2 and 3.

4.18.3. But Ld. Trial Court did not comment on the above written submission and without passing any order on summoning the witnesses and without allowing respondents to produce the evidence in support of their allegations and submissions in affidavit, had straightaway drawn the final conclusion against the Respondents.

This was done against the binding precedents of Full Benches and against its own order dated 09.12.2019 and 02.09.2019.

4.18.4. Needless to mention here that, Ld. Justice Nariman has never denied the allegations against him and not even mentioned in the order dated 27.03.2019 that, the allegations are false.

4.18.5. Therefore, the conclusion drawn in the judgment dated 27.04.2020 that the allegations made by alleged contemnors No.1 and 2 are false and without any proofs is incorrect, illegal and against the material on record.

4.18.6. In Prem Kaur Vs. State (2013) 14 SCC 653 it is ruled that, the judgment passed by ignoring arguments of the parties and evidence available on record, against the weight of the evidence , irrational, illogical and suffers from the vice of procedural irregularity, then such judgment is called as perverse and stands vitiated.

4.18.7. In Coward v. Stapleton , (1953) 90 CLR 573, it is ruled that ;

It is against the law laid down in Re: Pollard (1868) LR 2 PC 106, at p 120 - Even apart from any express provision, it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him. The gist of the accusation must be made clear to the person charged. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing

before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment. (at p580)

12. It will be seen that the appellant was given no opportunity to say anything by way of evidence or address between the conclusion of his questioning and the delivery of judgment against him; and what took place after the making of the order underlined this fact. No doubt the explanation is that the learned judge, having already allowed the appellant the most ample liberty to give a real, as distinguished from an impudently unreal, account of his relevant dealings, believed that to offer him any further opportunity would be a completely empty formality. But, with great respect to his Honour, to take that view at that stage was to overlook the imperative necessity of deferring the formation of a concluded opinion as to the inference to be drawn from the appellant's words until there could be placed in the scales everything that the appellant might fairly wish to say, not only upon the questions asked of him, but also upon the question whether his purported answers amounted to a contempt of court, and, if so, what the sentence of the court should be. (at p581)

11. In these circumstances the order appealed from cannot be affirmed. We must allow the appeal, set aside the order, and direct that the appellant be discharged from prison. There will be no order as to costs. (at p582)”

4.18.8. Needless to mention that as per Rule 12 of the ‘Rules to Regulate the proceedings for Contempt of the Supreme Court, 1975’ it was

mandatory to Ld. Justice Deepak Gupta to pass a specific order on the request to summon witnesses. The Rule 12 reads as under;

‘‘12. The Court may, either suo motu, or on motion made for that purpose, order the attendance for cross- examination, of a person whose affidavit has been filed in the matter.’’

In the present case and in view of law laid down by Full Bench in R.K. Anand Vs. Delhi High Court (2009) 8 SCC 106, Prof. Rameshchandra Kapse’s Case (1996) 1 SCC 206,Rajeev Dawar (2018) 12 SCC 437, the order to summon witness was must.

4.18.9. In Maria Margarida Sequeria Fernandes and Ors v. Erasmo Jack de Sequeria (Dead) through L. Rs, AIR 2012 SC1727, it is ruled that it must be the endeavor of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. It is ruled as under;

“39. Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.

40. Lord Denning further observed in the said case of Jones (supra) that "'It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth?"

51. In the administration of justice, judges and lawyers play equal roles. Like judges, lawyers also must ensure that truth triumphs in the administration of justice.

52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth. ”

4.18.10. But the Ld. Trial Court did not follow the binding precedent and passed the judgment contrary to the law. Therefore, the proceedings are vitiated.

4.19. FINDINGS IN PARA 95 THAT ‘OTHER THAN SAYING THAT THE JUDGES HAD MISINTERPRETED THE JUDGMENTS OF THIS COURT OR HAD IGNORED THEM OR THAT JUSTICE R.F. NARIMAN WAS BIASED, THERE IS NO MATERIAL PLACED ON RECORD TO SUPPORT THIS DEFENCE, ARE NOT ONLY AGAINST THE MATERIAL ON RECORD BUT ALSO ARE AGAINST THE LAW LAID DOWN IN R.R. PAREKH’S CASE (2016) 14 SCC 1, WHERE IT IS RULED THAT, WHEN ANY JUDGE PASSES AN ORDER IN WANTON BREACH OF THE MANDATORY PROCEDURE THEN SUCH ORDER ITSELF IS A PROOF THAT, THE SAID JUDGE ACTED WITH AN ULTERIOR MOTIVE. NO FURTHER PROOFS ARE REQUIRED:-

4.19.1. That in Para 75 it is observed by the Ld. Trial Court as under;

“75. On Page 135 of the first letter, Shri Vijay Kurle has made the following allegations:

“In the present case when Justice Rohington Fali Nariman had not taken any action on the spot i.e. on 5th March, 2019 then there was no such urgency to bot to follow the procedure of Section 14 & Section 15 of Contempt of Courts Act 1971 as ruled by Full Bench of Hon'ble Supreme Court in Dr. L.P. Mishra v. State of U.P., (1998) 7 SCC 379 (Supra).

But Justice Rohington Fali Nariman had acted against the procedure without any explanation as to what is the urgency to not to follow the procedures mandated under the law. This itself is a ground to infer that he have been actuated by an oblique motive or corrupt practice.

[Vide R.R. Parekh v. High Court of Gujarat, (2016) 14 SCC 11”

The allegations that “this itself is a ground to infer that he have been actuated by an oblique motive or corrupt practice” is a totally baseless and unfounded allegation which scandalises this Court and lowers the majesty of this Court.”

The incorrectness and illegality of this finding is ex-facie proved from the paras of judgment in R. R. Parekh’s Case (2016) 14 SCC 1, where it is ruled that, wrong and illegal order itself is a proof against the said Judge. No direct proof is required. It is ruled as under;

probabilities - The Appellant had absolutely no convincing explanation for this course of conduct - Punishment of compulsory retirement directed.”

4.20. CONVICTION AND SENTENCE IS VITIATED AS TRIAL WAS CONDUCTED BY APPOINTING PRIVATE COUNSEL MR. SIDDHARTH LUTHRA TO ASSIST THE COURT WHICH IS AGAINST THE ‘RULE 10’ OF ‘THE RULES TO REGULATE PROCEEDINGS FOR CONTEMPT OF SUPREME COURT, 1975’, WHICH PERMITS ONLY ATTORNEY–GENERAL OR SOLICITOR-GENERAL TO APPEAR AND ASSIST THE COURT AND THIS HAS BEEN FOLLOWED BY CONSTITUTION BENCH IN SUBRAMANIAN SWAMY VS. ARUN SHOURIE (2014)12 SCC 344, RE: C.S. KARNAN (2017) 2 SCC 757 (1) DR. L.P. MISHRA VS. STATE (1998) 7 SCC 379 (FULL BENCH):-

4.20.1. That, the 'Trial Court' vide its order dated 30.09.2019 had appointed Sr. Adv. Siddharth Luthra as an Amicus Curiae in the Contempt Proceedings.

The order dated 30.09.2019 reads thus;

“We appoint Shri Siddharth Luthra, Senior Advocate, as Amicus Curiae to assist the Court. He is also permitted to appoint one junior Advocate of his choice to assist him. ”

The order dated 27.04.2020 reads thus;

“2. …….

On the same date, we appointed Shri Siddharth Luthra, learned Senior Counsel, as amicus curiae to assist the Court”

4.20.2. That, in any other proceedings, the Supreme Court can appoint

any Advocate as an Amicus Curiae, but in the Contempt Proceedings, only the Attorney General or Solicitor General be asked to assist the Court. The ‘Rule 10’ of the ‘The Rules To Regulate Proceedings For Contempt Of Supreme Court, 1975’, reads as under:

“10. The Court may direct the Attorney–General or Solicitor- General to appear and assist the Court.”

This procedure was followed by Constitution Bench in Subramanian Swamy Vs. Arun Shourie (2014) 12 SCC 344, where the following order is passed;

“5. On 03.09.1990, the suo motu contempt matter and so also the contempt petition filed by Dr. Subramanian Swamy came up for consideration before the three Judge Bench of this Court headed by the Hon’ble the Chief Justice. The proceeding of 03.09.1990 reads as under:

'In Re : Arun Shourie and Anr.

………….

Issue notice to the Attorney General of India to appear and assist the Court in hearing the matter ...... ”

4.20.3. That, both the Ld. Judges in the order dated 27.04.2020 had also agreed that, the proceeding under Contempt has to be conducted as per the Rules. It reads thus;

“17. This Court has framed rules in this regard known as the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 ( for short ' the Rules' ) …….

19. These Rules have been framed by the Supreme Court in exercise of the power vested in it under Section 23 of the

Contempt of Courts Act, 1971 and they have been notified with the approval of Hon'ble the President of India. 29. Therefore, the only requirement is to follow a procedure which is just, fair and in accordance with the rules framed by this court.”

That, this Hon'ble Court in many judgments and more particularly in the case of R.S. Sujhata (2011) 5 SCC 689, had ruled that, any deviation from rules framed by the Court in contempt is fatal to the case and vitiates the Contempt Proceedings. It is ruled as under;

“25. This Court in Sahdeo [(2010) 3 SCC 705] while dealing with a similar situation held as under: (SCC pp. 717-18, para 37) “37. Every statutory provision requires strict adherence, for the reason that the statute creates rights in favour of persons concerned. The impugned judgment suffered from non- observance of the principles of natural justice and not ensuring the compliance with statutory 1952 Rules. Thus, the trial itself suffered from material procedural defect and stood vitiated. The impugned judgment and order, so far as the conviction of the appellants in contempt proceedings are concerned, is liable to be set aside.”

4.20.4. It is settled law that, when Government Law Officer/Pleader has to conduct the trial then allowing the ‘Private Counsel’ to conduct the trial violates the fundamental rights of the accused and it causes serious prejudice to his defence and results in miscarriage of justice. Such conviction stands vitiated. In Medichetty Ramakistiah Vs. State AIR 1959 AP 659, it is ruled as under;

“Judge committed grave illegality in allowing the prosecution to be conducted by a private counsel and not by the Public Prosecutor. It is in violation of the express and mandatory provisions of the Code - the irregularity in the conduct of the trial has caused prejudice to the accused and has occasioned a failure of justice. The appeal need not be heard on merits because an objection taken by the learned counsel for the appellants as to the manner in which the trial was conducted must prevail and there should be a retrial of the case - The convictions and sentences are set aside- Re- Trial ordered. A demand made on behalf of the accused for the examination of certain persons--whose names were mentioned in the charge-sheet as having been present at the time of the offence and who had even been served with summonses--as witnesses for the prosecution, was turned down by the court at the instance of that pleader.

When a private prosecutor is in complete charge, assurance will be lacking that even material witnesses, the effect of whose testimony may be against the case for the prosecution, are likely to be called. No accommodation was made to the point of view urged on behalf of the accused- Further, certain objections raised by the accused to the order in which the most important witnesses for the prosecution were examined, were met by the same pleader and overruled by the Courts. When a private prosecutor is in complete charge, assurance will be lacking that even material witnesses, the effect of whose testimony may be against the case for the prosecution, are likely to be called. That as many as nine witnesses

referred to in the charge-sheet have been withheld during the trial. A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the licensed and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman.

The result therefore is that in our opinion the irregularity in the conduct of the trial has caused prejudice to the accused and has occasioned a failure of justice. The convictions and sentences are therefore set aside and the appellants will be re-tried on charges properly framed.

Unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleader for a private party may degenerate into a legalized means for wreaking private vengeance. The pro-secution instead of being a fair and dispassionate presentation of the facts of the case for the deter-mination of the Court, would he transformed into a

battle between two parties in which one was trying to get better of the other, by whatever means available. It is true that in every case there is the over-all control of the court in regard to the conduct of the case by either party. But it cannot extend to the point of ensuring that in all matters one party is fair to the other.

A re-trial does not only involve fresh expenditure of public time and money; it also oc-casions considerable hardship to the accused by prolonging the period of uncertainty as to their fate and entailing, at least in cases where they retain counsel of their own, extra expenditure of money for them too. There will be, besides, considerable inconvenience caused to the witnesses, an inconvenience so graphically described by Bose J. . Fully aware as we are of these undesirable consequences, we need hardly state that we are ordering a re-trial of the case because we are convinced that it is the only course to adopt in the interests of justice.

These provisions are clearly conceived in the public interest as well as in the interest of the accused because the position of the Public Prosecutor is, it must be borne in mind, unlike that of any advocate appearing for a private party. It is well- recognised, to use the words of Crompton J., in R. v. Puddick, (1865) 4 F and F 497 at p. 499, Public Prosecutors "should regard themselves rather as Ministers of Justice assisting in its administration than as advocates"--an observation which was adopted by the Court of Criminal Appeal in R. v. Banks, 1916-2 KB 621.

A demand made on behalf of the accused for the examination of certain persons--whose names were mentioned in the charge-sheet as having been present at the time of the offence and who had even been served with summonses--as witnesses for the prosecution, was turned down by the court at the instance of that pleader.

Further, certain objections raised by the accused to the order in which the most important witnesses for the prosecution were examined, were met by the same pleader and overruled by the Courts; as a result, two out of four such principal witnesses were examined after an interval of twenty days from the date of the examination of the other two. It was the same pleader again who raised objections successfully to certain questions sought to be put by counsel for the accused during the cross-examination of the 10th witness for the prosecution.

The Public Prosecutor on all such, occasions would seem to have not taken any part; in truth he did not conduct the prosecution. It is no wonder therefore that no accommodation was made to the point of view urged on behalf of the accused.

A case such as this calls for more than the usual vigilance on the part of the prosecution in the exercise of its duty to be fair.

16. Before parting with this case, we should like to impress upon all public Prosecutors that they are the representatives of the State and their office is one of trust and responsibility. That being so, they should do nothing to lower the dignity of

the office by effacing themselves or by being con tent to play second fiddle in the trial of Sessions Cases.”

4.20.5. The importance and role of the Government Law Officer is explained by this Hon’ble Court in Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277, it is ruled as under;

‘‘77. The Public Prosecutor has a very important role to play in the administration of justice and, particularly, in criminal justice system. Way back on 15-4-1935 in Berger v. United States [79 L Ed 1314 : 295 US 78 (1935)] , Sutherland, J., who delivered the opinion of the Supreme Court of United States, said about the United States attorney that he is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. The twofold aim of the United States attorney is that guilt shall not escape or innocence suffer. It is as much his duty to refrain from improper methods calculated to produce wrongful conviction as it is to use every legitimate means to bring about a just one.

78. The Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, adopted guidelines on the role of prosecutors in 1990. Inter alia, it states that prosecutors shall perform their duties fairly, consistently and expeditiously and respect and protect human dignity and uphold human rights. He shall take proper account of the position of the suspect and the victim and pay attention to all

relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect. 79. As a follow-up action to the above guidelines on the role of prosecutors, the International Association of Prosecutors adopted Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors which, inter alia, provides that prosecutors shall strive to be, and to be seen to be, consistent, independent and impartial; prosecutors shall preserve the requirements of a fair trial and safeguard the rights of the accused in cooperation with the Court.

80. The European Guidelines on Ethics and Conduct for Public Prosecutors (the Budapest Guidelines) adopted in the Conference of Prosecutors General of Europe on 31-5-2005 are on the same lines as above. Under the head “professional conduct in the framework of criminal proceedings”, these guidelines state that when acting within the framework of criminal proceedings, Public Prosecutor should at all times carry out their functions fairly, impartially, objectively and, within the framework of the provisions laid down by law, independently; seek to ensure that the criminal justice system operates as expeditiously as possible, being consistent with the interests of justice; respect the principle of the presumption of innocence and have regard to all relevant circumstances of a case including those affecting the suspect irrespective of whether they are to the latter's advantage or disadvantage.

81. In India, the role of Public Prosecutor is no different. He

has at all times to ensure that an accused is tried fairly. He should consider the views, legitimate interests and possible concern of witnesses and victims. He is supposed to refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods. His acts should always serve and protect the public interest. The State being a prosecutor, the Public Prosecutor carries a primary position. He is not a mouthpiece of the investigating agency. In Chapter II of the BCI Rules, it is stated that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent; he should scrupulously avoid suppression of material capable of establishing the innocence of the accused.’’

4.20.6. Hence, the entire proceeding is vitiated, as it is conducted by a Private Counsel against the Supreme Court Rules.

4.20.7. Needless to mention that, Adv. Siddharth Luthra conducted the case like a Personal Rival of the present Petitioner. He gave false and misleading submissions, gave overruled judgments, suppressed and concealed material facts, committed many offences under section 192,193,471,474 r/w 120(B), 34 of IPC. Adv. Siddharth Luthra was hellbent on securing conviction of the Petitioner come what way and to achieve this end he has used all possible means including false and misleading submissions, creating false evidence and using it to be genuine one and giving overruled and per-incuriam judgments. Therefore, Petitioner has sought his prosecution.

4.20.8. In fact it was the duty of Adv. Siddharth Luthra (Sr. Counsel ) to point out this legal position to the Court that the trial of criminal contempt

can be conducted only by Govt Law Officers mentioned in the Rules of Supreme Court. But he has failed to do so and therefore, he is guilty of grossest professional misconduct.

4.20.9. In E.S. Reddi Vs. Chief Secretary, Government of A.P (1987) 3 SCC 258, the duties of Designated Senior Counsel are explained. It is ruled as under;

“10. By virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position akin to a Queen's counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience by the Chief Justice and the Judges of this Court. They thus become leading counsel and take precedence on all counsel not having that rank. A senior counsel though he cannot draw up pleadings of the party, can nevertheless be engaged “to settle” i.e. to put the pleadings into “proper and satisfactory form” and hence a senior counsel settling pleadings has a more onerous responsibility as otherwise the blame for improper pleadings will be laid at his doors.

11. Lord Reid in Rondel v. Worsley has succinctly set out the conflicting nature of the duties a counsel has to perform in his own inimitable manner as follows :

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case.

As an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. By so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him.

12. Again as Lord Denning, M. R. in Rondel v. W would say:

He (the counsel) has time and again to choose between his duty to his client and his duty to the court. This is a conflict often difficult to resolve; and he should not be under pressure to decide it wrongly. . . . When a barrister (or an advocate) puts his first duty to the court, he has nothing to fear. (words in brackets added).

In the words of Lord Dinning:

It is a mistake to suppose that he is the mouthpiece of his client to say what he wants He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is

not a code of law. It is a code of honor. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.”

4.21. FINDINGS IN PARA 90 AND 46 THAT, ONLY SELECT CLASS OF PEOPLE CAN FILE COMPLAINT AGAINST JUDGE OR CRITICIZE THE JUDGMENT IS AGAINST BASIC LAW OF CRIMINAL JURISPRUDENCE AND BINDING PRECEDENT IN BARADKANTA MISHRA(1974)1 SCC 374 , N. NATRAJAN AIR 2003 SC 541, ADDL. SESSIONS JUDGE ‘X’ 2015 1 SCC (LS) 799, A.R. ANTULEY'S CASE (1988) 2 SCC 602, K. VEERASWAMI V. UNION OF INDIA, (1991) 3 SCC 655 WHICH MANDATES THAT, ANYONE CAN SET THE CRIMINAL LAW IN MOTION EVEN IF IT IS AGAINST JUDGES. FURTHER ANY ORDINARY CITIZEN IS PERMITTED TO COMMENT ON THE PERFORMANCE OF THE JUDICIAL PERSONNEL THROUGH OUTSPOKEN OR MARGINALLY EXCESSIVE CRITICISM OF THE INSTRUMENTALITIES OF LAW AND JUSTICE.

4.21.1. Indeed, to criticise the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy. [In Re: S. Mulgaokar vs Unknown (1978) 3 SCC 339]

4.21.2. That, in Para 90 it is observed by the Ld. Trial Court that, Complaint against Judges can be made only by Lawyers with some seniority. Junior lawyer of practice of around 7 years and Non - Advocate citizens are not permitted to file complaint against Judges.

4.21.3. The above observations are per-incuriam. It is basic of criminal jurisprudence that the criminal law can be set in motion by any person.

There is no bar or prohibition in the Act and laws which state that only a particular person(s) can file the complaint.

Relied On – a) N. Natrajan AIR 2003 SC 541, b) K. Veeraswami (1991) 3 SCC 655 (Constitution Bench), c) Additional District & Sessions Judge ‘X’ (2015) 1 SCC 799. 4.21.4. In N. Natrajan AIR 2003 SC 541, it is ruled as under; "Criminal P.C. (2 of 1974), S. 340, S. 195- Complaint under S. 340 at his instance though being stranger, is tenable - In respect of offences affecting administration of justice - Can be lodged even by stranger to proceedings - if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under S. 340, Cr.P.C. For that matter, the wordings of S. 340, Cr.P.C. are significant. The Court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the Court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision. - Complaint under S. 340 at his instance though being stranger is tenable.

It is well settled that in criminal law that a complaint can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. ….

8. Therefore, application by stranger to proceedings alleging that conduct or Public Prosecutor in Bombay Blast case in making contradictory statements would attract provisions of Ss. 192 to 196 and 227, Cr.P.C. can be entertained by Court though complaint is not interested in outcome of the case and is stranger to proceedings." 4.21.5. In Manohar Lal vs Vinesh Anand, (2001) 5 SCC 407, it is ruled that;

“Before adverting to the matter in issue and the rival contentions advanced one redeeming feature ought to be noticed here pertain to Criminal jurisprudence: To pursue an offender in the event of commission of an offence, is to sub- serve a social need Society cannot afford to have a criminal escape his liability, since that would bring about a state of social pollution, which is neither desired nor warranted and this is irrespective of the concept of locus the doctrine of locus- standi is totally foreign to criminal jurisprudence. This observation of ours however obtains support from the decision of this Court in AR Antulay v. Ramdas Sriniwas Nayak & Anr. : 1984 (2) SCC 500. ”

4.21.6. In Baradkanta Mishra(1974)1 SCC 374 it is ruled as under;

‘‘In this country, all courts derive their authority from the people, and hold it in trust for their security and benefit. In this state, all judges are elected by the people, and hold their authority, in a double, sense, directly from them; the power they exercise is but the authority of the people themselves, exercised through courts as their agents. It is the authority and laws emanating from the people, which the judges sit to exercise and

enforce. Contempt against these courts, the administration of their laws, are insults offered to the authority of the people themselves, and not to the humble agents of the law, whom they employ in the conduct of their government."

This shift in legal philosophy will broaden the base of the citizen's right to criticize and render the judicial power more socially valid. We are not subjects of a king but citizens of a republic and a blanket ban through the contempt power, stifling namely, Administration of justice, thus criticism of a strategic institution, forbidding the right to argue for reform of the judicial process and to comment on the performance of the judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law. and justice, may be a tall order. For, change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic government. The judicial instrument is no exception.’’

4.22. COGNIZANCE IS VITIATED AS IT IS PASSED BY IGNORING THE LAW THAT WHEN THE COMPLAINT IS ADDRESSED TO HON’BLE CJI AND HON’BLE CJI HIMSELF DOES NOT THINK IT TO BE CONTEMPTUOUS THEN, THE JUDGE AGAINST WHOM SUCH COMPLAINT IS MADE IS PRECLUDED FROM TAKING COGNIZANCE OF THE CONTEMPT IN VIEW OF THE LAW LAID DOWN IN COURT ON ITS OWN MOTION VS. DSP JAYANT KASHMIRI 2017 SCC ONLINE DEL 7387, AND THEREFORE, PROCEEDINGS AND CONVICTION ARE AGAINST JUDICIAL PROPRIETY VOID-AB-INITIO AND THEREFORE, STAND VITIATED:-

4.22.1. In Court on its own Motion Vs. DSP Jayant Kashmiri 2017 SCC OnLine Del 7387 it is ruled as under;

“All that the letter written by Shri Chhabra to the learned Sessions Judge purports, broadly speaking, to do is to request the superior Court to see and verify as to what is the real situation on the facts and circumstances as disclosed in the letter. It is noteworthy that the learned Sessions Judge did not consider anything objectionable in the letter addressed to him and took no action on the lines on which the learned Magistrate has proceeded.

This important aspect seems to have been ignored by the learned Magistrate. The present application by him to this Court direct, may suggest that he is anxious to discourage approach to his superior Courts with request to scrutinise the proceedings of cases pending and dealt with by his Court, which, if true, seems to us to be somewhat difficult to commend or encourage. An impression of this kind should have been avoided at all costs by the learned Magistrate in the larger interests of our judicial process. The learned Magistrate has perhaps, in his official zeal, adopted too doctrinaire an approach to the matter ignoring the essential and basic purpose of the law of contempt. He seems to have been led away by excessive sensitiveness and he did not deal with the problem in a cool manner behaving experienced judicial officers. Assuming Shri Chhabra, who is a very senior I.A.S. Officer of Haryana, had done something improper in approaching the learned Sessions Judge by means of a letter, it was by no means a fit case for starting

contempt of Court proceedings on its peculiar facts and circumstances

If the learned Magistrate had, instead of approaching this Court for contempt of Court proceedings, looked at the record of the proceedings before him and tried to set right whatever was found wrong or unjust with those proceedings…’

Proceedings by way of contempt being summary, and the Court being both the accuser and the Judge of the accusation, such proceedings have to be initiated in exceptional cases where there is a serious interference with the proceedings of the Court. The jurisdiction for committing for contempt being practically arbitrary and unlimited, must be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the Judges. We are confining ourselves to the category of contempt of Court which unduly interferes with the judicial process because we are only concerned with such category in the case in hand. Administration of justice by an impartial and independent judiciary, which is trained to administer justice objectively, is the basis of our system of jurisprudence, as it is the basis of the jurisprudence of all the civilised societies. Any undue interference with pending proceeding is, therefore, looked at with disfavor and is treated as contempt of the Court. But at the same time, the concept of contempt does not imply that Courts should get unduly touchy and take action in respect of anything that may appear as ignoring their authority. Judicial function is no doubt one of the most

ancient and most persistent functions of Government and the methods employed to fulfil these functions are of central importance in any political system. In our system, there is hierarchy of Courts of law and justice and they are enjoined to function in accordance with and under the law. Illegalities and errors of judgment are subject to supervision by the higher Courts. In certain cases, in the larger interests of justice, the superior Courts can also act suo motu in exercise of the power of superintendence and revision to see that the subordinate Courts keep themselves within the bounds of law. In these circumstances, one would have expected the learned Magistrate to forward his comments to the learned District Magistrate and leave it to that officer or to the learned Sessions Judge to take whatever steps they considered proper and necessary for the purpose of maintaining and preserving the dignity of the Courts of justice subordinate to them. This important aspect seems to have been ignored by the learned Magistrate. The present application by him to this Court direct, may suggest that he is anxious to discourage approach to his superior Courts with request to scrutinize the proceedings of cases pending and dealt with by his Court, which, if true, seems to us to be somewhat difficult to commend or encourage. An impression of this kind should have been avoided at all costs by the learned Magistrate in the larger interests of our judicial process. The learned Magistrate has perhaps, in his official zeal, adopted too doctrinaire an approach to the matter ignoring the essential and basic purpose of the law of contempt. He seems to have been led away by excessive

sensitiveness and he did not deal with the problem in a cool manner behaving experienced judicial officers. Assuming Shri Chhabra, who is a very senior I.A.S. Officer of Haryana, had done something improper in approaching the learned Sessions Judge by means of a letter, it was by no means a fit case for starting contempt of Court proceedings on its peculiar facts and circumstances. The Court in contempt proceedings, has to act with great circumspection, making all allowances for errors of judgment, keeping in view the recognised and known difficulties arising from inveterate practices in Courts, particularly in traffic cases. The facts of the various cases, as disclosed on the record, quite clearly justify the anxiety felt by Shri Chhabra in the interest of proper functioning of his department in approaching the learned Sessions Judge, though it would have been better if the matter had been brought to the notice of the learned Sessions Judge by a formal judicial application. There was, quite clearly, no contumacious conduct on the part of Shri Chhabra, nor could it be said that he tried unduly to interfere with the normal course of judicial process which called for invoking the drastic machinery of proceedings for contempt of Court. It would have been a matter of great satisfaction to us if the learned Magistrate had, instead of approaching this Court for contempt of Court proceedings, looked at the record of the proceedings before him and tried to set right whatever was found wrong or unjust with those proceedings..’’ 4.22.2. In Vishwanath vs E.S. Venkatramaih And Others 1990 Cri.LJ 2179 , it is ruled that, when the matter already came up before higher

authority and higher authority didn’t took suo-motu cognizance of contempt, then it is a relevant consideration for dismissing the contempt proceeding.

It is ruled as under;

“Mr. Badar invited our attention to the Writ Petn. (Civil) No. 126 of 1990 filed before the Supreme Court on behalf of the State Legal Aid Committee, Jammu and Kashmir, through its Chairman Shri Bhim Singh, Advocate, Supreme Court, New Delhi. The full text of the interview is reflected in the petition. Mr. Badar, therefore, contended that Their Lordships of the Supreme Court did not think that the impugned statement amounted to contempt of Court and, therefore, no action was taken for contempt. Mr. Badar, in our view, has rightly contended that had the statement amounted to contempt, than Their Lordships of the Supreme Court could have taken suo motu action on the basis of the material that was placed before them. …”

4.23. PROCEEDINGS AND CONVICTION WERE WITHOUT JURISDICTION FOR NOT DISCLOSING THE FACT THAT, HON’BLE JUSTICE DEEPAK GUPTA HIMSELF IS CO-ACCUSED ALONGWITH JUSTICE ROHINTON NARIMAN IN A CONNECTED CASE AND THEREFORE, DISQUALIFIED TO HEAR THE CASE. THEREFORE, WHOLE PROCEEDING VITIATED AS CORAM- NON-JUDICE AS PER LAW LAID DOWN IN SUPREME COURT ADVOCATE - ON- RECORD (2016) 5 SCC 808, AND DAVINDER PAL SINGH BHULLAR'S CASE (2011) 14 SCC 770:-

4.23.1. That, Justice Deepak Gupta did not disclose the fact that he himself is co-accused alongwith Justice Rohinton Fali Nariman in the connected case.

4.23.2. Whole proceedings and all orders passed by the bench of Ld. Justice Deepak Gupta are vitiated for violation of law laid down in Supreme Court Advocates-on-Record Association (2016) 5 SCC 808, as Ld. Justice Deepak Gupta was disqualified to hear the case as he himself was party and made co-accused in a connected matter in the complaint dated 27.05.2019 i.e. Four months prior to formation of the bench to hear the present matter. [In the complaint by chairman of All India SC, ST & Minority Lawyers Association.]

4.23.3. That, the whole proceeding is vitiated as Justice Deepak Gupta had not disclosed about the crucial fact that he was facing similar case along with Justice Rohinton Fali Nariman dated 27.05.2019 filed by the Chairman of All India S.C.S.T. and Minority Lawyers Association, being case No. PRSEC/E/2019/10201, where specific reference to the complaint by Respondent No. 1, 2 & 3 is taken, and therefore, Justice Deepak Gupta was interested in advancing the cause of protecting Justice Rohinton Fali Nariman and himself by creating a wrong legal position that, no one can attribute motive to the Judges, which is against Constitution Bench judgment. Hence, failure of Ld. Justice Deepak Gupta to disclose this fact fairly before the commencement of hearing on 02.09.2020, renders the whole proceeding and orders null & void and are vitiated as Justice Deepak Gupta is interested in a cause that Judges cannot be prosecuted.

All the orders in the present case are hit by ‘Pinochet’s principle’ as ruled by Constitution Bench in the case of Supreme Court Advocates-on- Record Association (2016) 5 SCC 808.

That, it is basic law that, the Judge is automatically disqualified to hear a case where he is directly or indirectly connected. All the orders passed will stand vitiated. The ‘Coram-Non-Judice’. If despite request for recusal from Contempt proceedings he fail to recuse himself then the facet of rule of law is eroded.

Relied on - a) Supreme Court Advocate on Record Association (2016) 5 SCC 808 ( 5 – Judge Bench ). b) P.K. Ghosh (1995) 6 SCC 744. c) Davinder Pal Singh Bhullar’s case (2011) 14 SCC 770.

4.24. THE JUDGMENT IS VITIATED FOR CONSCIOUS DISREGARD OF ‘RESTATEMENT OF JUDICIAL VALUES 1999’ ADOPTED BY THE FULL COURT OF THE SUPREME COURT AND CONSTITUTION BENCH JUDGMENT IN SUPREME COURT ADVOCATE - ON- RECORD (2016) 5 SCC 808, AND DAVINDER PAL SINGH BHULLAR'S CASE (2011) 14 SCC 770, WHICH MANDATES THAT THE JUDGE CANNOT HEAR A CASE RELATED TO HIS FAMILY MEMBER(S) OR WHERE HE IS INDIRECTLY CONCERNED. BUT LD. TRIAL COURT, IN PARA 51 OF THE JUDGMENT DATED 27.04.2020 HAS TAKEN A VIEW THAT, SHRI JUSTICE ROHINTON FALI NARIMAN CAN HEAR THE CASE RELATED TO HIS FATHER ADV. FALI NARIMAN AS BOTH ARE DIFFERENT ENTITIES.

4.24.1. That, the Trial Court in Para 51 of the Judgment dated 27.04.2020 had observed that, Ld. Justice Rohinton Nariman and his father Adv. Fali Nariman both are independent personality and therefore, Justice Rohinton

Nariman can here a case related with his father. The said para 51 reads thus:

“51. On pages 49-51 of the 1st complaint, the following allegations have been made:-

“III) CHARGE # : - PERSONAL BIAS PROCEEDING VITIATED.

The another illegality is regarding conflict of interest & violation of law laid down by Hon'ble Supreme Court in the case of State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770.

That since last 2 years, Advocate Nedumpatra is posting articles against Advocate Fali S. Nariman. He also filed Writ Petition before Delhi High Court being W.P. (C) No. 2019 of 2019, where he raised the issue of Advocate Fali Nariman practising in Supreme Court where his son Rohington Fali Nariman is a Judge.

Under these circumstances having direct conflict of interest and having prejudice with Advocate Nedumpara, Justice Rohington Fali Nariman was disqualified to hear the case and he should have recused himself from the cases where Advocate Nedumpara is appearing.

But instead of maintaining dignity & sobriety of the Supreme Court the Respondent Judge Rohington Fali Nariman heard the case and brought the dignity & majesty of Hon'ble Supreme Court into disrepute.”

The alleged contemnors have alleged that Shri Nedumpara was posting articles against Shri F. S. Nariman, a senior advocate who happens to be the father of Justice R. F.

Nariman. It is alleged that therefore there was a direct conflict of interest and Justice R.F Nariman was disqualified from hearing the case involving Shri Nedumpara. We fail to see how there is any conflict of interest. Shri F.S. Nariman, Senior Advocate is a doyen of the Indian Bar and a legal luminary in his own right. Justice R.F. Nariman is his son and a Judge of this Court. That however would not create any conflict of interest between Justice Nariman and Shri Nedumpara because Shri F.S. Nariman and Justice R. F. Nariman are two different entities’’

Similar observations are there in para 85 as under; ‘‘85 ...... Further there is an allegation that Justice

Nariman had the knowledge of personal enmity between his father and Shri Nilesh Ojha. The language used is not only objectionable, but by questioning the impartiality, integrity, ability of the Judges and by saying that the judges deliberately acted in a particular manner and raising allegations of malafide against them Shri Rashid Khan Pathan has also committed contempt of Court.

83. One of the reasons given by Shri Rashid Khan Pathan for filing the complaint is that he had filed a complaint against Shri Fali S. Nariman, Senior Advocate of this Court, alleging antinational activities being committed by Shri Fali S. Nariman. In that case, Shri Rashid Khan Pathan was represented by Shri Nilesh Ojha, alleged contemnor no. 3. On this ground, it is averred that Justice Nariman should not have heard the matter. The complaint in question is

stated to have been filed on 19.02.2019. No material has been placed on record to show whether notice, if any, was issued on this complaint ’’

4.24.2. That, the above observations are incorrect, false and unlawful. In fact, the complaint of sedition against Adv. Fali Nariman was filed by Adv. Nilesh Ojha on 20.02.2016 i.e. 3 years back.

This fact is specifically pointed out to both the Ld. Judges [Trial Court] as mentioned in para 37.12 of affidavit filed by alleged contemnor No. 2 The relevant para reads as under;

‘‘37.12. Furthermore, one of the defence of all Respondents is that, the cognizance of Contempt is vitiated due to “judicial bias” as Respondent No. 2 & 3 were persuing case against Adv. Fali Nariman who is father of Ld. Justice Shri. Rohinton Fali Nariman. Respondent No.3 filed police complaint of sedition against Adv. Fali Nariman on 20th February, 2016 i.e. 3 years before for publishing an article to instigate public to demoralise our Indian Army.

In the same case where allegations are made against Adv.Fali Nariman, the signatory of the letter dated 23.03.2019 Mr. Milind Sathe and his associates extended support to the antinational elements who are involved in demoralising our Indian Army.

Needless to mention here that the complaint by Respondent No. 3 against Adv.Fali Nariman got substaintiated after Hon’ble Delhi High Court took a view similar to that of Respondent No.3 on 2nd March, 2016[Kanhaiya Kumar Vs. State 2016 SCC OnLine Del 1362]and since then informant

Adv. Milind Sathe, Adv.Fali Nariman & their associates of ‘Tukde-Tukde gang’ are nursing grudge against the Respondent No. 2 & 3

Thereafter, Respondent No.2 filed another complaint against Adv. Fali Nariman & Mr. P. Chidambaram on 19th February, 2019 to CBI, ED and Bar Council of India. Said complaint which was forwarded by Bar Council of India to Delhi Bar Council. Vide letter D.C. Misc. No. BCI/D/2/53/2019 dated 19.03.2019. Therefore the issue regarding knowledge ofabovsaid issue and their reason for non-recusalby the Ld. Justice Shri. Rohinton Nariman and to prove the issue of ‘Judicial Bias’,while dealing with the case on 27th March,2019,the cross examination of Ld. Justice Rohinton Fali Nariman & Adv. Fali Nariman is also necessary.

That, in view of the Article 20(3) of the Constitution the respondents are not bound to disclose their complete defence. They can surprise the witness by any question to demolish the prosecution case. [Vide:- Clough Engg Ltd Australa Vs. Oil Natural Gas Corporation Mumbai 2009 Cri. L. J. 2177]’’

4.24.3. The observations in para 51 that, Adv. Mathews Nedumpara admitted that, he committed contempt and tendered apology is also an incorrect observation.

The apology was for making Adv. Fali Nariman as a party and not for any contempt as tried to be suggested by both the Ld. Judges. In the affidavit of Mr. Mathews Nedumpara it is clearly mentioned that, some wrong facts are mentioned by Justice Rohinton Fali Nariman in the order dated 12.03.2019.

On the contrary Ld. Justice Nariman accepted said affidavit of Adv. Nedumpara where it is mentioned that, wrong facts are mentioned in the order dated 12.03.2019 by Justice Nariman.

4.24.4. Hence, the findings in judgment dated 27.04.2020 are clear case of fraud on power and amount to legal malice.

4.24.5. That, at the outset the above findings are against the Restatement of Judicial Values, 1999, where it is made mandatory as under;

‘‘Restatement of Values of Judicial Life (1999) – CODE OF JUDICIAL ETHICS

‘‘7. A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.

4. A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.’’

The above “restatement” was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999. All the High Courts in the country have also adopted the same in their respective Full Court Meetings.’’

4.24.6. Hence, both the Ld. Judges [Trial Court] not only twisted the material facts but also taken a view against the binding precedents of Constitution Benches.

4.24.7. In Supreme Court Advocate on Record Association (2016) SCC 808, it is ruled as under;

“22. Lord Wilkinson summarised the principles on which a Judge is disqualified to hear a case. As per Lord Wilkinson: (Pinochet case [R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2), (2000) 1 AC 119 : (1999) 2 WLR 272 : (1999) 1 All ER 577 (HL)] , AC pp. 132 G-H-133 A-C)

“The fundamental principle is that a man may not be a Judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a Judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a Judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a Judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be Judge in his own cause, since the Judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

In my judgment, this case falls within the first category of case, viz. where the Judge is disqualified because he is a Judge in his own cause. In such a case, once it is shown that

the Judge is himself a party to the cause, or has a relevant interest in its subject-matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure….”

24. After so concluding, dealing with the last question, whether the fact that Lord Hoffman was only a member of AICL but not a member of Amnesty International made any difference to the principle, Lord Wilkinson opined that: (Pinochet case [R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2), (2000) 1 AC 119 : (1999) 2 WLR 272 : (1999) 1 All ER 577 (HL)] , AC p. 132H- 133A) even though a Judge may not have financial interest in the outcome of a case, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial….

and held that: (AC p. 135 E-F)

“… If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a Judge who is involved, whether personally or as a Director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions….”

This aspect of the matter was considered in P.D. Dinakaran case [P.D. Dinakaran (1) v. Judges Inquiry Committee, (2011) 8 SCC 380, paras 49 to 53].

25.3. The Pinochet case [R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2), (2000) 1 AC 119 : (1999) 2 WLR 272 : (1999) 1 All ER 577 (HL)] added a new category i.e. that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case.

71. Guidelines on the ethical conduct of the Judges were formulated in the Chief Justices' Conference held in 1999 known as “Restatement of Judicial Values of Judicial Life”. Those principles, as a matter of fact, formed the basis of “the Bangalore Principles of Judicial Conduct, 2002” formulated at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague. It is seen from the Preamble that the Drafting Committee had taken into consideration thirty-two such statements all over the world including that of India. On Value 2 “Impartiality”, it is resolved as follows:

“Principle:

Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.

Application:

2.1. A Judge shall perform his or her judicial duties without favour, bias or prejudice.

2.2. A Judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of

the Judge and of the judiciary.

2.3. A Judge shall, so far as is reasonable, so conduct himself or herself as to minimise the occasions on which it will be necessary for the Judge to be disqualified from hearing or deciding cases.

2.4. A Judge shall not knowingly, while a proceeding is before, or could come before, the Judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the Judge make any comment in public or otherwise that might affect the fair trial of any person or issue.

2.5. A Judge shall disqualify himself or herself from participating in any proceedings in which the Judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the Judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where

2.5.1 the Judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;

2.5.2 the Judge previously served as a lawyer or was a material witness in the matter in controversy; or

2.5.3 the Judge, or a member of the Judge's family, has an economic interest in the outcome of the matter in controversy:

Provided that disqualification of a Judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a

serious miscarriage of justice.”

4.25. ORDER VITIATED IN VIEW OF LAW LAID DOWN BY CONSTITUTION BENCH IN SECRETARY JAIPUR DEVELOPMENT AUTHORITY VS. DAULAT MAL JAIN (1997) 1 SCC 35 FOR VIOLATION OF ARTICLE 14 OF THE CONSTITUTION BY GIVING UNEQUAL TREATMENT TO THE ALLEGED CONTEMNORS BY GIVING ONLY 3 DAYS’ TIME FOR HEARING ON SENTENCE FOR CONTEMPT IN CONTRAST TO A SIMILAR CASE IN WHICH 90 DAYS WERE GRANTED TO SAMEER GAHLOT IN THE CASE OF VINAY SINGH VS. SAMEER GAHLOT 2019 SCC ONLINE SC 1480.

4.25.1. That, the Hon’ble Judge (Retd.) Shri. Deepak Gupta was in a tearing hurry to decide the case and pronounce the sentence as he was about to demit the office on 06.05.2020. Therefore, the Hon’ble Judge gave only 4 days’ time for hearing on sentence and fixed the matter on 01.05.2020 and then on 04.05.2020.

4.25.2. However, the same Hon’ble Judge in the similar situation, in the case of Sameer Gahlot (supra) vide its order dated 15.11.2020 gave around 90 days’ time for hearing on sentence of the contempt.

Needless to mention that, the Senior Judge of said Bench Shri. Ranjan Gogoi, the then CJI was about to retire on 19.11.2019 but the said 3-Judge Bench did not fix the hearing of sentence on contempt before retirement of CJI Ranjan Gogoi and posted the matter after 90 days.

It is a clear violation of Article 14 of the Constitution of India.

4.25.3. Hence, the order dated 04.05.2020 rejecting the adjournment by passing a one line order, without assigning any reason and giving

discriminatory treatment and violating fundamental rights of the respondents is vitiated. Therefore, the Respondent No. 2 is liable to be discharged in view of law laid down in Secretary Jaipur Development Authority vs. Daulat Mal Jain (1997) 1 SCC 35, where it is ruled as under;

“24……Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the same benefit. The rational relationship and legal back-up are the foundations to invoke the doctrine of equality in case of persons similarly situated…...”

4.25.4. In view of law laid down in by Constitution Bench in the case of Mohinder Singh Gill Vs. The Chief Election Commissioner [1978] 2 SCR 272 ,where it is ruled as under; ‘‘While considering the issue held that observing the principles of natural justice is necessary as it may adversely affect the civil rights of a person. While deciding the said case, reliance was placed by the Hon'ble Supreme Court on its earlier judgments in State of Orissa v. Dr. (Miss) Binapani Dei and Ors. (1967 IILLJ 266 SC) wherein the Court held that the procedural rights require to be statutorily regulated for the reason that sometimes procedural protections are too precious to be negotiated or whittled down.’’

4.26.6. In Nanha v. State 1992 SCC OnLine All 871, it is ruled as under;

“36. The argument of the learned State Counsel is that it is open to different Judges to reject or grant bail to accused even if their cases stand on same footing. I am unable to persuade myself to accept this submission of the learned State Counsel. The High Court is one Court and each Judge is not a separate High Court. It will be unfortunate if the High Court delivers inconsistent verdicts on identical facts. If the argument of the learned State Counsel is carried further it would mean that even the same Judge while deciding bail application moved by several accused, whose cases stand on the same footing, is free to reject or grant bail to any one or more of them at his whim. Such a course would be wholly arbitrary.

37. The public, whose interests all judicial and quasi-judicial authorities ultimately have to serve, will get a poor impression of a court which delivers contrary decisions on identical facts. Hence for the sake of judicial uniformity and non- discrimination it is essential that if the High Court granted bail to one co-accused it should also grant bail to another co- accused whose case stands on the same footing. Alexis de Toqueville remarked that a man's passion for equality is greater than his desire for liberty.

38. The preamble of the Constitution states that the people of India gave to themselves the Constitution to secure to all its citizens amongst other things “Equality of status and opportunity.” Thus the principle of equality was regarded as one of the basic attributes of Indian Citizenship.

39. In a recent case of Shrilekha. Vidyarthi v. State of U.P., (1991) 1 SCC 212: AIR 1991 SC 537 (para 21) the Supreme Court laid down:— “We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity. Contrary to the professed ideals in the preamble.”

44. In this connection a reference may be made to the decision of the Supreme Court in Beer Bajranj Kumar v. State of Bihar, AIR 1987 SC 1345 in which the Supreme Court had set aside the order of the Patna High Court, dismissing the writ petition when on identical facts another writ petition had earlier been admitted. The same view was expressed in another case of Sushil Chandra Pandey v. New Victoria Mills, 1982 UPLBEC 211. These decisions lend support to the view I am taking. In Beer Bajranj Kumar's case (supra) the Supreme Court observed: “This, therefore, creates a very anomalous position and there is a clear possibility of two contrary judgments being rendered in the same case by the High Court.”

45. In a very recent case of Har Dayal Singh v. State of Punjab, reported in (1992 Supp (2) SCC 455: AIR 1992 SC 1871) the Hon'ble Surpeme Court has held that when the High Court had acquitted four accused giving reasons to discard testimony of certain witnesses the parity of reasoning should have been extended to the fifth accused also. The Supreme Court, therefore, allowed the appeal and acquitted the fifth accused as well.

46.In the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 : AIR 1991 SC 101 : (1991 Lab IC 91) the Supreme Court observed at page 173:- “There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however, high placed they may be. It is all the more improper and undesirable to expose the precious rights like the right of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy the high seats of power.”

49. In the light of the discussion made in the preceding paragraphs, the view expressed by K.K. Chaubey, J. does not hold ground. Judicial consistency is a sound principle and it cannot be thrown to the winds by the individual view of judges. After all it is settled law that judicial discretion cannot be arbitrarily exercised. Moreover high aspirations of the public from the courts will sink to depths of despair if contrary decisions are given on identical facts. All judicial and quasi-

judicial authorities have not only to serve the public but also to create confidence in the minds of the public. Hence for the sake of uniformity and non-discrimination it is essential that uniform orders should be passed even in bail matters in case of persons who stand on the same footing. If the contrary course is adopted the public will lose confidence in the administration of justice.

51. Thus the Supreme Court upheld the principle of consistency K.K. Chaubey, J. has relied on the observation of the Supreme Court to the effect that Kewal Krishna had been let of on a ridiculously light sentence of two years’ Rigorous Imprisonment and the Supreme Court observed that it would pass proper sentence in case of Ashok Kumar, This observation, according to K.K. Chaubey, J. runs contrary to the principle of consistency. It is noteworthy that the Supreme Court released Ashok Kumar on the period of sentence already undergone by him which was six years and ten months. It is to be noted that the Supreme Court did not specify the period of sentence other than what had been awarded to Kewal Krishna. In a subsequent case of Kallu v. State, 1989 AWC 65, the Supreme Court has specifically upheld the principle of consistency even in the matter of sentence. In Kallu's case (supra) two separate special leave petitions were filed by different accused against the same judgment of the High Court. One of the petition was dismissed by one Bench but the other special leave petition which was heard by another Bench, was partly allowed and the sentence was reduced from seven years’ R.I. to three years’ R.I. The Supreme Court

reviewed its earlier order of dismissal of the first special leave petition and reduced the sentence from 7 years’ R.I. to three years’ R.I. Thus accused whose cases stand on the same footing are entitled to equal, treatment. In Ajai Hasia v. Khalid Muzib Sehravardi, 1981 (2) SCR 79: ((1981) 1 SCC 722 : AIR 1981 SC 487) the Supreme Court held that equality is directly opposed to arbitrariness. In a more recent case of Miss. Mohini Jain, reported in 1992 (4) JT (SC) 292 : ((1992) 3 SCC 666 : AIR 1992 SC 1858) the Supreme Court after considering large number of cases quoted with approval the following passage from the case of Ajai Hasia at page 1866:— “Unfortunately in early stages of evolution of our Constitutional law Art. 14 came to be identified with the doctrine of classification… In Royapa v. State of Tamil Nadu this Court laid bare a new dimension of Art. 14 and pointed out that article has highly activist magnitude and it embodies a guarantee against arbitrariness.”

52. Even though Art. 14 may not apply to judicial pronouncements it would be highly illogical to canvass that the courts of law would insist that the legislature and executive should pursue the path of equality as envisaged under Art. 14 but themselves pass orders creating inequality.”

4.25.7. Constitution Bench in S.G. Jaisinghania vs Union of India [1967] 65 ITR 34 had ruled as under;

“In the context it is important to emphasize that absence of arbitrary power is the first essence of the rule of law, upon

which our whole Constitutional System is based. In a system governed by rule of law, discretion, when conferred upon Executive Authorities, must be confined within the clearly defined limits. Rule of law, from this point of view, means that the decisions should be predictable and the citizen should know where he is, if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is" antithesis to the decision taken in accordance with the rule of law.” Even in a situation where an authority is vested with a discretionary power, such power can be exercised by adopting that mode which best serves the interest and even if the Statute is silent as to how the discretion should be exercised, then too the authority cannot act whimsically or arbitrarily and its action should be guided by reasonableness and fairness because the legislature never intend that its authorities could abuse the laws or use it unfairly. Any action which results in unfairness and arbitrariness results in violation of Article 14 of the Constitution. It has also been emphasized that an authority cannot assume to itself an absolute power to adopt any procedure and the discretion must always be exercised according to law. It was, therefore, obligatory for the Chancellor to have held a proper enquiry in accordance with the principles of natural justice and mere giving of show cause notice requiring the petitioner to submit an explanation does not serve the purpose. The factual position that emerges in the present case is that the report of the Commissioner, Jhansi formed the sole basis for taking action against the Vice-Chancellor.’’

4.25.8. In Arunachalam Swami AIR 1956 Bom 695, it is ruled as under;

“4. Mr. Kavelkar is right when he urges that Article 14 assures to the citizen equality not only in respect of a substantive law but also procedural law, and if any procedure is set up which deprives a citizen of substantive rights of relief and defence the citizen is entitled to complain of this procedure if two persons equally situated the older procedure is still available where these substantive rights of relief and defence were secured.”

4.25.9. In Nand Lal Mishra Vs. Kanhaiya Lal Mishra (1960) 3 SCR 431, it is ruled that, there cannot be double standards one for highly placed and one for the others.

It is ruled as under;

‘‘9. The more objectionable feature in this case is that the Magistrate followed a procedure; which is, to say the least, unjust to the appellant.

The record discloses that presumably the Magistrate was oppressed by the high status of the respondent, and instead of making a sincere attempt to ascertain the truth proceeded to adopt a procedure which is not warranted by the Code of Criminal Procedure, and to make an unjudicial approach to the case of the appellant. In the courts of law, there cannot be a double-standard-one for the highly placed and another for the rest: the Magistrate has no concern with personalities who are parties to the case before him but only with its merits.

10. After carefully going through the entire record, we are satisfied that the appellant was not given full opportunity to establish his case in the manner prescribed by law.

11. In the result, the order of the High Court is set aside and the reference made by the Sessions Judge is accepted and the 'application is remanded to the Court of the Magistrate, First Class, Allahabad, for disposal according to law. Appeal allowed.’’

4.25.10. Hence, the order dated 04.05.2020 is violative of the Article 14 of the Constitution of India and is against the principles of natural justice the binding precedents and therefore it is vitiated.

4.25.11. Needles to mention that, in the connected matter in Suo Moto Contempt Petition (Cri.) No. 01 of 2019 In Re: Mathew Nedumpara, this Hon'ble Court vide its order dated 14.03.2019 granted two weeks’ time to file his say on sentence to Respondent No.4 Mathews Nedumpara.

Hence, the undue haste and unequal treatment makes the order dated 04.05.2020 as null & void.

4.25.12. In Shanti Devi Vs. State (2008) 14 SCC 220, it is ruled that, the undue haste by the Court, in Contempt proceedings with a view to deprive the person to avail his legal remedy to challenge the order, is gross abuse of the process of the Court and is liable to be set aside and cost be provided to appellant.

4.26. FINDINGS OF THE JUDGMENT ARE VITIATED AS BASED ON INCORRECT AND WRONG OBSERVATION THAT, THE ALLEGED CONTEMNORS TILL THE PRONOUNCEMENT OF THE JUDGMENT ON 27. 04. 2020 HAVE NOT RAISED ANY GRIEVANCE

THAT, THEY WERE NOT GIVEN FAIR OPPORTUNITY OF HEARING, WHICH IS AGAINST THE SPECIFIC OBJECTION IN WRITTEN SUBMISSION OF ALLEGED CONTEMNORS DATED 16.03.2020 AND THEREFORE, THIS FINDING IS PERVERSE AND VITIATED AS PER LAW LAID DOWN IN PREM KAUR VS. STATE (2013) 14 SCC 653.

4.26.1. The order dated 04.05 2020 is based on the wrong premise that, till 27.04 2020, the respondents have not raised any grievance that they were not given a proper hearing.

4.26.2. The incorrectness of abovesaid findings can be ex-facie proved from the specific objections raised by the alleged contemnors in their written submissions dated 16.03.2020, wherein they have specifically objected to the threats issued by Justice Deepak Gupta to the Counsel for Respondent 1 during the course of arguments on 02.03.2020, due to which Counsel for Respondents 1 and 2 as well as Respondent 3 (Party-in-person) were reeling under pressure and therefore, they could not argue their case properly. As a result, all the three Respondents were not given a fair hearing thereby violating the principles of natural justice. Hence all three respondents had requested that they should be given a fresh hearing.

4.26.3. That, the Alleged Contemnor No.1 in his Written Submission dated 16.03.2020 has taken a specific objection as under;

‘‘21.Apart from the above issue with great pain I would like to point out the unfortunate incident that happened during hearing on 02.03.2020.

That, Hon’ble Justice Deepak Gupta shouted at my Counsel when he was pointing out the falsity of Ld. Amicus Mr. Siddharth Luthra and also his tendency to rely on overruled, per-incuriam

judgments and to misinterpret and misquote the ratio.

My Counsel is also an officer of the Court and therefore, he cannot be threatened like this.

Because of said threats my Counsel was not in a position to give proper submission and my right to have a fair trial are violated.

allow it to be raised, it may be said that there has been no fair hearing.

Oswald's in his book on Contempt of Court, III Edition, By Robertson, had said about rights and protection of advocates while arguing a case as under;

“An advocate is at liberty, when addressing the Court in regular course, to combat and contest strongly any adverse views of the Judge or Judges expressed on the case during its argument, to object to and protest against any course which the Judge may take and which the advocate thinks irregular or detrimental to the interests of his client, and to caution juries against any interference by the Judge with their functions, or with the Advocate when addressing them, or against any strong view adverse to his client expressed by the presiding Judge upon the facts of a case before the verdict of the jury thereon. An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client's case. It is said that a Scotch advocate was arguing before a Court in Scotland, when one of the Judges, not liking his manner, said to him, "It seems to me, Mr. Blank, that you are endeavoring in every way to show your contempt for the Court." "No," was the quick rejoinder, "I am endeavouring in every way to conceal it.”

of ‘Audi-Alterim-Partem’. This Hon’ble Court in Indirect Tax Practitioner’s Association case (2010) 8 SCC 281 had ruled, Contempt - Voltaire expressed a democrat's faith when he told an adversary in argument: ‘I do not agree with a word you say, but I will defend to the death your right to say it.’ Champions of human freedom of thought and expression, throughout the ages, have realised that intellectual paralysis creeps over a society which denies, in however subtle a form, due freedom of thought and expression to its members.”

23. That, after the said threats ,my Counsel was compelled to wind up his arguments. Ld. Amicus Mr. Siddharth Luthra at around 4.15 P.M. gave additional written submission (52+41=93 pages). Permission sought by my advocate to oral arguments to counter said argument was not accepted. It is settled law that written argument is not substitute to argument and denial of oral hearing is violative of rule ‘Audi-Alteram partem’ and violates the principles of natural justice. Automotive Tyre Manufacturers Assn. (2011) 2 SCC 258.

Therefore, I request that, a fresh hearing be given and it be conducted in a video recording/live telecast as ruled by Constitution Bench in the case of Swapnil Tripathi (2018) 10 SCC 639.

24. That, the present case is very important on the issue of Independence of Bar. Recently, Supreme Court Bar Association (S.C.B.A.) & Supreme Court Advocates on Record Association

(S.C.A.O.R.A.) passed resolution in a similar incident happened with Senior Adv. Shankarnaryan before Hon’ble Justice Arun Mishra.

In the present suo-moto contempt, many advocates of Supreme Court are attending the case. On 3rd February, 2020 around 139 advocates were present to represent Respondents. Therefore, it is least expectation that as being Judge of Highest court in the country, Hon’ble Justice Deepak Gupta should not have acted in such a fashion. Needless to mention here that, every word, every action of a Judge of Supreme Court is viewed seriously and have serious impact on the parties and society. It may be taken as a precedent and followed by the sub-ordinate Judges.

If my submission are wrong then I request this Hon’ble Court to issue me a fresh contempt notice. But if my submission against Mr. Luthra are correct then he should face the consequences as

per law laid down by this Hon’ble Court. No one is above law and there cannot be different standards for different advocates when they commit offences. In Nirankar Nath Wahi (1984) 3 SCC 531 it is ruled as under;

10. We are afraid that these vital aspects were overlooked by the learned Judge when he granted only three days' time to make alternative arrangement for engaging a local senior counsel ….”

27. In view of the above mention submission, I am seeking discharge of my advocate and wants to argue the case ‘In-Person’.

28. With due respect I request that, on any of my written submissions order be passed giving detail reasons on each points raised by me, as mandated by Hon’ble Supreme Court. [Relied on: i) Ashok Agarwal (2014) 3 SCC 602, ii)jhb Bhagabhai Dhanabhai Barad 2019 SCC OnLine Guj 1535]

Further it was submitted that; 12. That, the request made by Respondent No. 2 to summon Hon’ble Justice Rohinton Nariman & Hon’ble Justice Vineet

Saran and its legal position is not disputed by Ld. Amicus Mr. Luthra in his both the written submissions. Said request is still not decided by this Hon’ble Court and straightaway the matter is posted for hearing on discharge applications.

13. In addition to above legal position the Ld. Amicus in his written submission dated 02.03.2020 at the fag end of the hearing take reference of affidavit of Adv. Rohini Amin. As per law it is mandatory that, the respondents should be given opportunity to counter those submissions and if required the Respondent be permitted to cross-examine the new witness relied by Ld. Amicus.[R.S. Sherawat (2018) 10 SCC 106, R.K. Anand (2009) 8 SCC 106 [Para 207, 208, 210]

15. Thereafter, in written argument dated 17.12.2019 Ld. Amicus brought third new charge of consent of Respondent No. 3 to No. 1 & No. 2. at Pg. No. 24 Pt. No. (x) (1) & (2).

4.26.3. The present Petitioner in his Recall Application dated 30.04.2020, had taken the specific ground as under;

“G-18. That, this Hon’ble Court did not comment on the serious objection by Respondent No. 2 in Para 1, 2, 3, 4, 5,

23, 24, 25 of the written arguments dated 16.03.2020 where it is mentioned as under;

‘‘1. That, the brief history of the case is mentioned at Page No. 9 in para 2 to 17 in Written Submission (hereinafter referred as W.S.) by Respondent No.2.

2. That, the defects, illegality and incorrectness of the submissions dated 17.12.2019 by Ld. Amicus is already mentioned in written submission by Respondent No. 1 & 3 filed on 07.01.2020 and by Respondent No. 2 on 03.02.2020.

3. In response to the same Ld. Amicus Mr. Luthra on 02.03.2020 submitted, Additional Written Submissions (52+41= 93 Pages) (hereinafter Addl. W.S.) to clarify his stand on the said issue. He argued orally again. This Hon’ble Court directed me to file my written arguments not exceeding 10 pages. Request on behalf of Respondents to give oral hearing to counter those new submission submitted on 02.03.2020 is not accepted. Needless to mention that, the written submission in no substitute to oral arguments. [Automotive Tyre Manufacture Associations (2011) 2 SCC 258]

4. That, it was expected that, since the discharge application was filed by Respondent No.2 therefore, he should be allowed to argue first then Ld. Amicus to counter it and then, I may be allowed to rebut it. The submission in para 21 at Pg. No.21 of W.S. by Respondent No.2 were neither decided nor ratio laid down by Full Bench in Samar Ghosh’s case (2004) 13 SCC 52 was followed and on 17.12.2019 Ld. Amicus straightaway

started argument on merits by ignoring said ratio and we were asked to counter it. Moreover, on 02.03.2020 Ld. Amicus un-off-sudden at around 4 P.M. gave 93 pages and argued for around one and half hour.

5. With above said objection, I am submitting this short Additional Written Submission.

23. That, there are many more incorrect and misleading submissions in Additional W.S. filed by Ld. Amicus Mr. Luthra on 02.03.2020 and it cannot be commented here due to the restriction of 10 Page only.

24. Hence, it is requested in the interest of justice that, permission be granted to counter that, Additional W.S. filed by Ld. Amicus or it cannot be taken in to consideration in view of principles of ‘‘Audi-Alterim Partem’’.

25. That, I request this Hon’ble Court to consider all the issues raised in my both the affidavits, Discharge Application and Written Arguments filed earlier and this Additional W.S. and pass appropriate order in the interest of justice and equity.’’

4.26.4. Therefore, the order based on incorrect and wrong observation is vitiated. 4.26.5. In Prof. Ramesh Chandra Vs. State MANU/UP/0708/2007 it is ruled the ratio as under;

“Observation by the Chancellor that the petitioner did not lead any evidence in support of denial of the charge is self- contradictory and supports the case of the petitioner, as he

had not been given a chance to lead evidence on the issue. It could be possible for him only if a regular inquiry was conducted. Petitioner's preliminary objections that provisions of Section were not complied with while conducting the inquiry, had been brushed aside by the Chancellor being merely "technical. Such a course was not permissible. We are of the considered opinion that in the facts and circumstances of the case, principles of natural justice, to the extent it required to be observed had not been complied with.

Order and findings are vitiated and liable to be quashed.”

4.27. JUDGMENT IS VITIATED AS IT IS BASED ON INCORRECT FINDING THAT, THE ALLEGED CONTEMNOR NO. 4. ADV. MATHEWS NEDUMPARA ADMITTED THAT, HE HAD COMMITTED CONTEMPT. THE INCORRECTNESS IS EX-FACIE PROVED FROM RECORD AND THEREFORE, THE FINDINGS BASED ON WRONG PREMISE ARE PROVED TO BE NULL AND VOID AS PER LAW LAID DOWN IN NATIONAL FERTILIZER LIMITED VS. TUNCKY (2013) 9 SCC 600, WALCHAND VS. STATE 1996 CR. L. J. 1102:-

4.27.1. In ‘para 51’ of judgment dated 27.04.2020 it is incorrectly mentioned that, Adv. Mathews Nedumpara admitted that, he had committed Contempt of Court. In fact the affidavit reproduced in the order itself says that, he had tendered apology by maintaining that, some of accusations levelled against him in the order dated 12.03.2019 were absolutely wrong.

In fact, by accepting such affidavit without raising any objection, by Ld. Justice Nariman has made it clear that, the complaint of Respondent No. 1

has some substance. But this fact was not considered in the order dated 27.04.2020.’’

4.28. THE ORDER IS VITIATED BEING PER-INCURIAM AS THE OBSERVATIONS AND RATIO IN THE JUDGMENT AND ORDER THAT, THE CHALLENGE TO ORDER WHICH IS WITHOUT JURISDICTION AND BASED ON INCORRECT SUBMISSION AND RESULTING FROM FRAUD PLAYED BY ADV. SIDDHARTH LUTHRA ARE NOT THE GROUNDS FOR RECALL OF ORDER. THIS IS VIOLATIVE OF LAW LAID DOWN BY THE FULL BENCH IN NEW INDIA ASSURANCE 2019 SCC ONLINE SC 1786:-

4.28.1. That, in the above case laws it is made clear that, the recall of order is maintainable, if order is based on incorrect and wrong premise or without jurisdiction or based on fraud played by any of the parties. All of these grounds were taken by Respondents in their Recall applications. But both the Ld. Judges in their order dated 04.05.2020, said that, on these grounds recall is not maintainable.

4.28.2. Hon’ble Full Bench in New India Assurance Ltd. Vs. Krishna Kumar Pandey 2019 SCC OnLine SC 1786 had ruled as under;

“11. But the above contention of the learned Senior Counsel for the respondent is fallacious for two reasons. The first is that Section 362 of the Code is expressly subjected to “what is otherwise provided by the Code or by any other law for the time being in force.” Though this Court pointed out in Davinder Pal Singh (supra) that the exceptions carved out in Section 362 of the Code would apply only to those provisions where the Court has been expressly authorized either by the Code or by any other law but not to the inherent power of the

Court, this Court nevertheless held that the inherent power of the Court under Section 482 Cr.P.C. is saved, where an order has been passed by the criminal Court, which is required to be set aside to secure the ends of justice, or where the proceeding amounts to abuse of the process of Court. In paragraph 46 in particular, this Court held in Davinder Pal Singh as follows:

“46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.”

4.28.3. Hence, the order is vitiated for conscious disregard of the binding precedents.

4.29. JUDGMENT AND ORDER ARE VITIATED FOR NOT DECIDING THE PRELIMINARY OBJECTION FIRST REGARDING MAINTAINABILITY OF CONTEMPT PROCEEDING AND INSTEAD CLUBBING TOGETHER THE HEARING ON PRELIMINARY OBJECTION AND MAIN MATTER. AND

THEREAFTER PASSING THE ORDER BY IGNORING VARIOUS PRELIMINARY OBJECTIONS RAISED BY PETITIONER. THIS IS VIOLATIVE OF FULL BENCH JUDGMENT IN SAMAR GHOSH CASE (2004) 13 SCC 52, ASHOK AGARWAL (2014) 3 SCC 602, II) BHAGABHAI DHANABHAI BARAD 2019 SCC ONLINE GUJ 1535, AND IS A PERVERSE ORDER RESULTING FROM LEGAL MALICE:-

4.29.1. The above judgment mandate for deciding preliminary objection of maintainability of the contempt proceedings first and to decide each point and to consider all the grounds raised with ‘Intellectual reasons’ and not by rubber stamp reasons and also not by ignoring and suppression of any grounds. But both the Ld. Judges had taken a stand that, they would hear preliminary objection and main matter together and passed the order by ignoring, suppressing and twisting the main grounds and binding precedents. This has caused great prejudice to the defence of the respondents.

4.29.2. That, the main grounds in the Discharge Application of alleged contemnor No.2 are as under;

‘‘1. # Ground No. 1 # Cognizance without jurisdiction vitiates the proceedings

2. # Ground No. 2 # Both Ld. Judges disqualified to sign any order as allegations were against them

3.# Ground No. 3 # Parallel Proceedings in Complaint under “In - House – Procedure” is violation of law laid down in “Re : Matter Of Great Public Importance Touching Upon The Independence Of Judiciary”, 2019 SCC Online SC 603

4. # Ground No. 4 # Violation of law laid down in

Additional District And Sessions Judge 'X' Vs. Registrar General, High Court Of Madhya Pradesh (2015) 1 SCC 799

5. # Ground No. 5 # When complaint is given to Hon’ble CJI and when Hon’ble CJI did not find anything objectionable in the said complaint then the Ld. Judges against whom complaint is made cannot take cognizance of contempt [Court On Its Own Motion Vs. Dsp Jayant Kashmiri 2017 SCC Online Del 7387]

6. #Ground 6 # Making complaint against a Judge is not offence under contempt

7. # Ground 7 # Complaint is based on judgments of Hon’ble Supreme Court cannot be called as scandalous

8. # Ground No. 8 # Defective Charge 9. # Ground No. 9 # Charge of giving ‘Scandalous Complaint’ is not maintainable unless it is shown that, the complaint is false

10. # Ground No. 10 # Notice is not in “Form-I” which vitiates the proceedings as it causes prejudice in preparing defence

11. # Ground No. 11 # Vicarious Liability is not permitted in proceedings under Contempt Of Court’s Act

12. # Ground No. 12 # Reliance on letter without disclosing its source vitiates the order taking cognizance 13. # Ground 13 # When Court was not aware of the said

complaint and it was brought to the notice by informant then it does not come under the category of affecting the administration of justice

14. # Ground 14 # The informant is bound to disclose the source of information. The informant had not disclosed from which source of social media they got the copy of Annexure P-1 And P-2. In fact mentioning of source is mandatory for contempt cases.

15. # Ground No. 15 # Order vitiated by reliance on extraneous material and fraudulent contents of letter dated 23rd March,2019’’ 4.29.3. But both the Ld. Judges wrongly summarized in the order dated 27.04.2020 that there were only Five Grounds. The grounds summarized by the Ld. Judges are mentioned as under;

‘‘6. The three alleged contemnors have raised a number of preliminary issues. We may summarise the same as follows:—

(iii) That the Bench of Justice R. F. Nariman and Justice Vineet Saran could not have taken cognizance of the case because the case was not assigned to them by the Chief Justice and that both the Judges acted as Judge in their own cause.

(iv) That the Bench has not suo motu taken notice of the contempt and therefore the Registry cannot treat it as a suo motu petition.

(v) That even in suo motu contempt proceedings the consent of the Attorney General is necessary.

(vi) That the proper procedure of framing a charge is not followed because the defects at the initial stage cannot be cured by later orders/developments.

(vii) That the Judges were bound to disclose the source of information.’’

4.29.4. The important grounds and the citations relied by the petitioner and other alleged contemnors were given a go-by.

4.29.5. That, in Sanyal Committee Report it is made clear that, the Court dealing with contempt is bound to take all defences in the order and then deal it.

In Sanyal Committee Report, ‘Chapter XI, Para11’ reads as under;

“11. In view mainly of the provisions as to appeals, from orders for punishment in contempt cases which we propose to recommend in the next Chapter, we recommend that a provision may be made specifically to the effect that every such order shall state the facts constituting the contempt, the defence of the person charged, the substance of the evidence taken as well as the finding and the sentence.

4.29.6. In Coward v. Stapleton , (1953) 90 CLR 573, it is ruled that ;

considered everything which the witness may fairly wish to urge in his defence. This principle must be rigorously insisted upon as accepted notions of elementary justice.- The request by appellant to examine his witness to prove his defence was refused - The Court overlooked the imperative necessity of deferring the formation of a concluded opinion as to the inference to be drawn from the appellant's words until there could be placed in the scales everything that the appellant might fairly wish to say, not only upon the questions asked of him, but also upon the question whether his purported answers amounted to a contempt of court, and, if so, what the sentence of the court should be.

fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment. (at p580)

12. In these circumstances the order appealed from cannot be affirmed. We must allow the appeal, set aside the order, and direct that the appellant be discharged from prison. There will be no order as

to costs. (at p582)” 4.29.7. That, in Samar Ghosh (2004) 13 SCC 52, it is ruled as under;

“ 5. On the proceedings being initiated complaining of violation of the order dated 11-11-1998 passed by a Division Bench of the Calcutta High Court, the Court, on 5-8-2004, directed notice to issue requiring appearance of the appellants before it on 2-9-2004. On that day, the appellants wanted to argue on the maintainability of the proceedings, as submitted by the learned Senior Counsel for the appellants, but the Court passed the following order:

“Let the matter stand adjourned for 3 weeks. Affidavit of compliance be filed in the meantime.”

6. The insistence on affidavit of compliance being filed before the next date of hearing has pre-empted the right of the appellants to file a response and to show that there was no contempt committed and the proceedings were not maintainable.

7. In our view, insistence on affidavit of compliance being filed without affording an opportunity to show cause against the very initiation of the proceedings cannot be countenanced.’’

4.29.8. In Ashok Agarwal (2014) 3 SCC 602, it is ruled that, all the grounds should be dealt in the judgment as under;

“19. In Dr. L.P. Misra v. State of U.P., AIR 1998 SC 3337; Three Cheers Entertainment Pvt. Ltd. & Ors. v. C.E.S.C. Ltd., AIR 2009 SC 735; and R.S. Sujatha v. State of

Karnataka & Ors., (2011) 5 SCC 689, this Court held that the power under Article 215 of the Constitution can be exercised only in accordance with the procedure prescribed by law.

20. In view of the above, the High Court was required to examine as to whether the proper procedure has been adopted in bringing the petition under Article 215 of the Constitution and as to whether the limitation as prescribed under Section 20 of the Act 1971 was attracted in the case. The High Court did not advert to any of such issue of paramount importance. More so, no reasoning has been given to reach a conclusion that no deliberate attempt was made by the respondents to cause any prejudice to the appellant.

21. Thus, we are of the considered opinion that as both the parties had raised issues on facts as well as on law, the High Court ought to have dealt with the case adverting to all relevant issues, particularly when the appellant had made an allegation that his liberty had been jeopardised by the respondents by interfering with the course of justice by misleading the court.

22. As a result, we set aside the judgment and order impugned and remit the case to the High Court to decide afresh answering all the factual and legal issues raised by the parties. The appeal stands disposed of accordingly.”

4.29.9. That, In AIR 1963 Assam 151, it has been ruled as under;

“No discussion of prosecution evidence in judgment – points for determination not followed by intelligent discussion of pros and cons of case – Evidence not judicially considered such a judgment cannot be called a judgment at all in the eye of law and is certainly not in conformity with either the letter or spirit of section 367 of code.”

4.29.10. In a recent judgment in Prem Kaur Vs. State (2013) 14 SCC 653 it is ruled that the judgment passed by ignoring evidence available and the argument advanced by the parties is a perverse judgment and such judgment stands vitiated. It is ruled as under;

“15. In Excise & taxation officer-cum-Assessing Authority Vs. Gopi Nath & Sons this court held that:

“7. …. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant consideration material or if the finding so outrageously defines logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the findings is rendered infirm in law.”

16. In Triveni Rubber & Plastics V. CCE, this court held that an order suffer forms perversity, if relevant piece of evidence has not been considered or if certain inadmissible material has been taken into consideration or where it can be said that the findings of the authorities are based on no evidence at all or if they are so perverse that no reasonable person would arrived at those findings.

17. In Gaya Din Vs. Hanuman Prasad, this court further added that an order is perverse, if it suffers from the vice of procedural

irregularity.

18. In Rajinder Kumar Kindra Vs. Delhi Admn., the court while dealing with a case of disciplinary proceedings against an employee considered the issue and held as under:

“17. It is equally well settled that where a quasi-judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non- application of mind and stands vitiated. … they disclose total non- application of mind. …The High Court, in our opinion, was clearly in error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence.”

19. This Court in Satyavir Singh Vs. State of U.P., held:

“21. ….‘Perverse’ was stated to be behavior which most of the people would take as wrong, unacceptable, unreasonable and a ‘perverse’ verdict may probably be defined as one that it is not only against the weight of the evidence but is altogether against the evidence. Besides, a finding being ‘perverse’, it could also suffer from the infirmity of distorted conclusions and glaring mistakes.’

21. The trial court did not decide the case giving adherence to the provisions of Section 354 of the Code of Criminal Procedure, 1973. The said provision provide for a particular procedure and style to be followed while delivering a judgment in a criminal case and such format incudes a reference to the points for determination, the

decision thereon, and the reasons for the decision, as pronouncing a final order without a reasoned judgment may not be valid, having a sanctity in the eye of the law. The judgment must show proper application of the minds of the Presiding Officer of the Court, and that there was proper evaluation of all the evidence on record, and the conclusion is based on such appreciation/evaluation of evidence. Thus, every court is duty- bound to state reasons for its conclusions.

22. In State of Punjab V. Jagir Singh this court held as under:

“23. A criminal trail is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trail is guilty of the crime with which he is charged. Crime is the event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.”

4.29.11. In Mukhtiar Singh (1995) 1 SCC 760 it is ruled as under;

“10. We have gone through the judgment of the learned trail Judge and find that the same is far from satisfactory. Both, the order of acquittal as well as the order of conviction, have been made by the

trail court in a most perfunctory manner without even noticing much less, considering and discussing the evidence led by the prosecution case or the arguments raised at the bar. ……….

………….On the plainest requirement of justice and fair trail the least that was expected of the trail court was to notice, consider and discuss, howsoever briefly, the evidence of various witnesses as well as the arguments addressed at the bar. The trail court has not done so. The trail court apparently failed in the discharge of its essential duties. There is no mention in the judgment as to what various witnesses deposed at the trail, except for the evidence of the medical witness. The judgment does not disclose as to what was argued before it on behalf of the prosecution and the defence. The judgment is so infirm that we are unable to appreciate as to how the findings were arrived at. The judgment of the trail court is truly speaking not a judgment in the eyes of law. The trail court appears to have been blissfully ignorant of the requirements of Section 354 (1) (b) Cr. P. C. ……….

………….. A ‘decision’ does not merely mean the ‘conclusion’ – it embraces within its fold the reasons which form the basis for arriving at the ‘conclusions’. The judgment of the trail court contains only the ‘conclusions’ and nothing more. The judgment of the trail court cannot, therefore, be sustained. The case needs to be remanded to the trail court for its fresh disposal by writing a fresh judgment in accordance with law.”

4.29.12. In Niranjan Mondal Vs. State 1978 SCC Online Cal 29 it is ruled as under;

“3…….The judgment is an example of what a judgment not be. It is very unfortunate that the learned Magistrate has not adhered to the elementary principles in delivering a judgment. The provision of S. 354 of Cr. P. C. make it incumbent that the judgment shall contain the point or points for determination, the decision thereon and the reason for the decision. In complete disregard of the same, the learned Magistrate has simply found some persons not guilty and some others guilty without assigning any reason. There is nothing to show that he considered the evidence before him or applied his mind. The Supreme Court has also from time to time directed that all orders passed by the court should be speaking orders giving reasons for the decision after noting the point at issue. There must be expression to show that the court applied its mind at the facts and circumstances germane to the point in issue. The judgment should be self-contained and should show that the learned Magistrate independently applied his mind to the facts of the case and the evidence led therein by the parties and a consideration of the evidence leading to the conclusion to which the learned Magistrate feels persuaded. In this connection reference may be made to the case of Mst. Budhia V. Chhotela reported in AIR 1966 Raj. 122 and the case of Sudhir Chandra Jana V. Amulya Chandra Misra reported in 1969 (2) Crl. LJ. 1079.

4.29.13. In Agyapaul Singh (2017) 5 SCC 235, it is ruled as under;

“5. In that view of the matter, we set aside the impugned order passed by the High Court. The High Court shall grant an opportunity to the appellant to file his reply and on the reply being

filed, the appellant may be heard and only thereafter, the High Court may form an opinion as to whether the court should proceed against the appellant for Contempt of Court.”

6. In the light of what we have stated above, we request the High Court not to insist upon the personal presence of the appellant till the Court passes appropriate orders in the light of the reply furnished by the appellant.”

That, above law is followed by Supreme Court in almost all contempt proceedings. Few examples are as under;

i) Maheshwar Peri (2016) 14 SCC 251 contempt case was dismissed on preliminary objection itself.

ii) Amicus Curiae Vs. Prashant Bhushan (2010) 7 SCC 592. Preliminary objection was decided first and then matter posted for hearing on merits. 4.29.14. Furthermore, if preliminary objection and application for discharge were rejected then, the Respondents would have challenged that order. But both the Ld. Judges in order to frustrate the legal rights of the respondents fixed the hearing of the preliminary objection with merits of the case. They have not commented for not following the abovesaid binding precedents.

4.29.15. Such practice is strongly condemned and prohibited by Seven Judge Bench judgment in A.R.Antuley’s case (1988) 2 SCC 602. Hence, the judgment is vitiated on this ground only.

4.29.16. The act of both the Ld. Judges, by suppression of grounds raised by the petitioner is called as Legal Malice.

4.29.17. Hon’ble Supreme Court in Kalabharati Advertising Vs. Hemant Vimalnath Narichania (2010) 9 SCC 437 had ruled as under;

A. Legal Malice: The State is under obligation to act fairly without ill will or malice in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. Passing an order for an unauthorized purpose constitutes malice in law.’’

4.29.18. In the case of West Bengal State Electricity Board Vs. Dilip Kumar Ray AIR 2007 SC 976 , it is ruled as under;

"Malice in law - A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with the innocent mind: he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of mind is concerned, he acts ignorantly, and in that sense innocently". Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. See S. R. Venkataraman v. Union of India, (1979) 2 SCC 491.’’

4.29.19. In Selvi J. Jayalalithaa Vs. State (2014) 2 SCC 401it is ruled as under; ‘‘26. In Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., AIR 2012 SC 1339, while dealing with the issue, this Court held:

"37….. Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill-feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law.” (See also: Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745).’’

4.30. A] JUDGMENT AND ORDER ARE IN DISREGARD OF BINDING PRECEDENT OF FULL BENCH IN BIYANI DASH (2005) 9 SCC 194, WHERE IT IS RULED THAT, THE ORDER TAKING COGNIZANCE ON ANY INFORMATION BY ANY PRIVATE PERSON WITHOUT CONSENT OF ATTORNEY GENERAL MUST MENTION THAT THE COURT IS TAKING SUO MOTU COGNIZANCE. BUT THE ORDER DATED 27.03.2019 PASSED BY THE BENCH OF LD. JUSTICE ROHINTON FALI NARIMAN DIRECTING ISSUANCE OF SHOW- CAUSE-NOTICE NOWHERE MENTIONS THAT THE COURT IS ACTING SUO MOTU. THEREFORE THE COGNIZANCE IS BAD AND

VITIATED IN VIEW OF ABOVESAID LAW LAID DOWN BY THE FULL BENCH.

B] THE COGNIZANCE OF A LETTER PRIVATELY RECEIVED BY THE BENCH OF LD. JUSTICE ROHINTON FALI NARIMAN IS ILLEGAL AND VITIATEs ENTIRE PROCEEDINGS IN VIEW OF LAW LAID DOWN BY THE CONSTITUTION BENCH & FULL BENCH IN COMPAIGN FOR JUDICIAL REFORMS (2018) 1 SCC 196, BAL THACKERAY (2005) 1 SCC 254, HIGH COURT OF JUDICATURE AT ALLAHABAD V. RAJ KISHORE YADAV1997 (3) SCC 11, DIVINE RETREAT (2008) 3 SCC 542, WHICH MANDATES THAT, THE JUDGE/BENCH OF THE SUPREME COURT WHO RECEIVES ANY LETTER IS BOUND TO PLACE THE LETTER BEFORE CJI FOR APPROPRIATE DECISION. THE INDIVIDUAL JUDGES/ BENCH ARE NOT PERMITTED TO TAKE COGNIZANCE OF THE LETTER EITHER UNDER CONTEMPT LAW AS PER ART. 129 OR UNDER ANY JURISDICTION. AT THE STAGE OF COGNIZANCE OF LETTER THE PROVISIONS OF ARTICLE 129 HAVE NO ROLE. IT COMES IN TO PLAY ONLY AFTER PROCEEDINGS ARE INITIATED. THEREFORE THE CONTRARY VIEW TAKEN BY THE SMALLER BENCH OF LD. JUSTICE DEEPAK GUPTA IN PARA 39 OF THE JUDGMENT DATED 27.04.2020 IS A PER - INCURIAM, NULL & VOID FINDING WHICH VITIATES THE ENTIRE CONTEMPT PROCEEDING BASED ON THE LEGAL PRINCIPLE SUBLATO FUNDAMENTO CADIT OPUS MEANING THEREBY THAT WHEN FOUNDATION IS REMOVED STRUCTURE COLLAPSE AS RULED IN A CONTEMPT CASE IN PROF. Y.C. SIMHADRI, V.C., B.H.U., VARANASI VS. DEEN BANDHU PATHAK, 2001 SCC ONLINE ALL 572 ,KAWAR SINGH SAINI (2012) 4 SCC 307:-

4.30.1. That, Trial Court in para 34 and 35 of the judgment dated 27.04.2020 had observed as under;

‘‘34. As far as the present case is concerned, the order passed by this Court clearly shows that this Court after taking note of the letter sent by the President of the Bombay Bar Association and the President of the Bombay Incorporated Law Society, the annexures attached to this letter and after specifically noting the prayers made in the complaints of Shri Vijay Kurle and Shri Rashid Khan Pathan along with the allegations made in both the complaints was of the view that the allegations levelled against the Members of the Bench were scandalous in nature and therefore, notice was issued to the alleged contemnors and against Shri Nedumpara who has since been discharged. The alleged contemnors are basically urging that the order does not use the word “suo motu”. In our view, that would not make any difference. The relevant portion of the order dated 27.03.2019 reads as follows:

“Given the two complaints filed, it is clear that scandalous allegations have been made against the members of this Bench. We, therefore, issue notice of contempt to (1) Shri Vijay Kurle; (2) Shri Rashid Khan Pathan; (3) Shri Nilesh Ojha and (4) Shri Mathews Nedumpara to explain as to why they should not be punished for criminal contempt of the Supreme Court of India, returnable within two weeks from today.”

When we read the aforesaid order as a whole, it is more than obvious that the Court itself took cognizance of the complaints and the documents thereto as well as the allegations levelled therein.

35. Contempt is basically a matter between the Court and the contemnor. Any person can inform the Court of the contempt

committed. If he is to be arrayed as a party then the contempt will be in his name but when the Court does not array him as a party, the Court can on the basis of the information itself take suo motu notice of the contempt. In the present case, the Court on the basis of the information itself took suo motu note of the contempt and the matter was then placed before Hon'ble the Chief Justice for listing it before the appropriate Bench. The matter has been listed as a suo motu contempt petition right from the beginning and dealt with as such.’’

4.30.2. That, the main case law relied by Respondent was the law laid down by Full Bench in Biyani Dash (2005) 9 SCC 194, Surendra Sharma Vs. Sub- Inspector 1999 SCC OnLine All 1483l, Maheshwar Peri Vs. High Court of Judicature at Allahabad (2016 ) 14 SCC 251, J.R. Parashar (2001) 6 SCC 735, Nandlal Sharma 1984 WLN 161 [D.B.] etc.

4.30.3. Hon’ble Court in clear words explained terms the meaning of action of suo-moto cognizance as action by Chief Justice Only. In the case of Nandlal Sharma vs. Chief Secretary 1984 WLN 161 (DB), it is ruled as under;

“13. We are in respectful agreement with it & hold that Section 15 is not violative of Article 14 of the Constitution. In view of the plain readings of Section 18 (sic)ad with Section 17 & 18 of the Contempt of Courts Act, we are of the opinion (sic)at, unless the proceedings of contempt which are criminal in nature are (sic) initiated by the Court suo moto which means the initiation by the Chief Justice of the High Court or an application, is moved by the Advocate General or private party with the consent of the Advocate General, this Court is not competent to entertain direct application.

Admittedly, none of the requirement mentioned above, has been fulfilled in the present case.

We have, therefore, no hesitation in accepting objections of Shri. Mathur, the learned Addl. Govt. Advocate, and, dismiss the application for initiating the proceeds under the Contempt of Courts Act summarily.”

But the both the Ld. Judges made incorrect and misleading observations to give a go-bye to the binding precedent.

4.30.4. That, Full Bench in Biyani Dash (2005) 9 SCC 194, had ruled that, the mere order of issuance of notice does not mean that the cognizance is suo-moto but such thing should be mentioned specifically in the order.

It is ruled as under;

“3…….

(c)Nowhere in the body of the impugned judgment the High Court has indicated that it was exercising suo motu jurisdiction in regard to the alleged contempt by the appellants.

5. For the reasons stated above, the conviction and sentence imposed on the appellants become unsustainable. Accordingly they are set aside and these appeals are allowed.”

4.30.5. Division Bench of Hon’ble High Court in the case of Surendra Sharma Vs. Sub- Inspector 1999 SCC OnLine All 1483 , ruled that, mere order by the Court issuing Show – Cause – Notice by itself is not sufficient but it should be mentioned in the order that in the Court is acting on its own motion and the cognizance is Suo - Motu.

“5. It cannot be denied that the action may be taken by the High Court on its own motion for committing a criminal contempt, on a motion made by the Advocate General and also at the instance of private person if he obtained consent in writing of the Advocate General, as required under Section 15 (1-b) of the Act. Sri Sharma has submitted that the High Court has taken action on its own motion. We are not satisfied with this submission as it is clear from the order dated 21-8-1998 that the notice to opposite party was to show cause why the proceedings in the criminal contempt of Court may not be initiated. This Court has nowhere said that the Court is satisfied for taking action on its own motion, it was just a notice to the opposite party to come and show cause as to why the proceedings may not be initiated. In response to such a notice he could appear before the Court and satisfy the Court that the proceedings were not legally maintainable at the instance of applicant. So it cannot be said that once, a notice has been issued it will be assumed that the Court has taken action on its own motion. For taking action on its own motion the Court's order must show that the Court was satisfied on the facts of the case for taking action at the instance of private person, though he had not obtained consent in writing of the Advocate General. The matter of contempt is always between the Court and the contemner, the third person normally has no say in the matter, except that he may bring necessary facts to the notice of the Court. In the present case we are satisfied that the present proceedings are not maintainable for committing criminal contempt in absence of consent in writing of the Advocate General.”

4.30.6. The case was registered on the joint complaint of Mr. Milind Sathe and Mr. Kaiwan Kalyaniwalla not on the information of the Court itself. Justice Deepak Gupta in its order dated 02.09.2019 had observed as under;

4.30.7. REGISTRY AT ITS OWN CANNOT DECIDE THE CASE TO BE SUO-MOTO UNLESS THERE IS SPECIFIC ORDER IN THAT REGARD :-

That, it is settled law regarding the cases under Contempt of Courts Act that, the registry at its own cannot decide the title of the case to be suo- moto unless there is a specific order in that regard.

In Maheshwar Peri Vs. High Court of Judicature at Allahabad (2016 ) 14 SCC 251, similar issue was dealt by the bench of this Hon’ble Court of which Ld. Justice Rohinton Nariman was also a member. It was observed as under;

“15. Coming to the factual matrix of the present case, the High Court is clear in its mind that the action under Section 15 of the Act is initiated suo motu by the High Court. To make

it abundantly clear in the impugned order, it is said that the name of the petitioner is not to be shown in the cause list. Apparently, it can only be suo motu because the application filed by the advocates, and which is referred to in the impugned order, is without the consent in writing of the Advocate General. The only application other than by the Advocate General, contemplated under Section 15 of the Act, is the motion made by any person with the consent in writing of the Advocate General. Being a jurisdiction which, when exercised, is fraught with serious consequences, the Parliament has thought it justifiably fit to provide for such safeguards. Thus, the impugned article, having been published on 10.11.2008 and the High Court having initiated the suo motu action only on 28.04.2015, the same is hit by the limitation of one year prescribed under the Act.

16. In that view of the matter, it has become unnecessary for us to deal with the submissions on merits as to whether the contents of the article would constitute criminal contempt or not.”

4.30.8. In the present case, without there being any specific order to register the case as suo-moto the Registry at their own acted to register the case as suo-moto. That, such mistake of the registry needs to be corrected by this Hon’ble Court as done in J.R. Parashar (2001) 6 SCC 735 and in C.S. Karnan (2017) 7SCC 1, Saurashira Vanza’ case 2006 SCC Online Bom CR 783.

In J.R. Parashar Vs. Prashant Bhushan (2001) 6 SCC 735 ,it is ruled as under;

‘‘29. When a matter is listed before the Court, the Court assumes that the formalities in connection with the filing have been scrutinized by the Registry of this Court, that the proper procedure has been followed as it is the duty of the Registry to scrutinize the petition to see whether it is in order before placing it before the Court for consideration. There is no occasion for this Court to assume the task of the Registry before considering the merits of each matter. Had our attention been drawn to the procedural defects, we would have had no hesitation in rejecting the application in limine on this ground alone.’’

4.30.9. In C. S. Karnan (2017) 7 SCC 1 the Registry had registered the case as Civil Contempt Petition which was later clarified in the order that it was a Criminal Contempt.

“59. But one thing appears to be certain. If the abovementioned conduct constitutes contempt, it surely can only be criminal contempt falling under the head of scandalising the Court.”

Hence, the present proceedings cannot be called as ‘Suo-Motu’ proceeding only because the Registry has put the title of the case as Suo-Motu, without there being any order to that effect.

4.30.10. In Antonio Sequeira Coutinho Pereira Vs. Prakash Fadte 2008 SCC OnLine Bom 911, it is ruled as under;

“31. A later three Judge Bench decision of the Hon'ble Supreme Court in its decision reported in 2005 (9) S.C.C. 195 (Bijayini Dash v. Loknath Mishra)9, follows the decision in Bal Thackrey v. Harish Pimpalkhute (supra),

and it is pertinent to note that in this decision, the Supreme Court sets aside a final order on the contempt petition convicting the appellants before it for criminal contempt and sentencing them to one month Simple Imprisonment and fine only on the ground that initiation of contempt was at the instance of a private party and there being no prior consent of the Advocate General, the initiation itself was bad in law. Once the initiation was bad in law, the proceedings themselves did not have legal efficacy and that is how the conviction and sentence was held to be unsustainable and set aside.

32. We are of the view that there is no substance in Shri Kakodkar's contentions that the preliminary objections cannot be decided merely because this contempt petition has been admitted and is placed for hearing and final disposal or that the issue of consent of the Advocate General is of no consequence any more. If that is a mandatory prerequisite, as is stipulated by section 15(1)(b) and conviction and sentences are also vitiated for non-compliance therewith, we are of the view-that the same can be raised even at this stage. It goes to the very root of the matter. There is no question of any party waiving it as that is the mandate in law and must be decided by the Court after hearing both sides. Therefore, we are of the view that the order dated 30.4.01 passed on this contempt petition issuing Rule after recording, prima facie, sat-is faction does not prevent us from deciding and ruling upon the preliminary objection.

35. A perusal of the same would indicate that this Court no

where states that it has acted on its own or that the action initiated is suo moto. It also does not state that its order dated 30.4.01 be read as such. Therefore, this is a case which squarely falls within the requirements stipulated in Bal Thackrey's case and followed in Bijayini Dash's case. In Bijayini Dash's case, the Supreme Court relied on three facts namely, the contempt petition did not state that sanction of the Advocate General was obtained by the petitioners, the show cause notice issued by the High Court though contained an alternate clause as to invoking of Suo Moto contempt jurisdiction by the High Court, the same has been struck off alleging that a criminal contempt was taken at the instance of a private party, and no where in the judgment of the High Court it indicated that it was exercising Suo Moto jurisdiction.

36. In our case, admittedly, there is no consent. Admittedly, this is a criminal contempt petition. Admittedly, the show cause notice does not indicate that Court is acting Suo Moto. Further, the order dated 30.4.01 also does not state so. Pertinently, the order states that the original writ petition and Contempt Petition be heard together. This is enough indication of this Court proceeding at the instance of a private party.

37. It is undisputed before us that the law laid down in Bal Thackrey's case was only with regard to initiation of proceedings for Contempt Suo Moto, That Suo Moto proceedings are initiated after information is placed before the Court for initiation of Suo Moto action. That is how such

information derived must be dealt with and the procedural requirements in that regard prevailing in Delhi High Court were upheld in P.N. Duda's case so also Bal Thackrey's case after appropriate clarifications were issued. P.N. Duda's case has not diferred with or distinguished or overruled in any manner in Bal Thackrey's case. The Supreme Court has in Para 21 and 22 of the Judgment in Bal Thackrey's case does not merely hold that there should be a prayer or alternate relief with regard to taking Suo Moto action in the petition and when such a prayer is made, the petition can be treated as a Suo Moto petition even if instituted by a private party.”

4.30.11. In J.R. Parashar (2001) 6 SCC 735 it is ruled that, when Court itself is not aware of the contempt and it is brought to the notice by a third person then such information has to be verified from the office of Attorney General.

“28. Of course, this Court could have taken suo motu cognizance had the petitioners prayed for it. They had not.

…………. In any event the power to act suo motu in matters which otherwise require the Attorney General to initiate proceedings or at least give his consent must be exercised rarely. Courts normally reserve this exercise to cases where it either derives information from its own sources, such as from a perusal of the records, or on reading a report in a newspaper or hearing a public speech or a document which would speak for itself. Otherwise sub-section (1) of Section 15 might be rendered otiose .

21. The underlying rationale of clauses (a), (b) and (c) appears to be that when the Court is not itself directly aware of the contumacious conduct, and the actions are alleged to have taken place outside its presence, it is necessary to have the allegations screened by the prescribed authorities so that the Court is not troubled with frivolous matters. The Sanyal Committee which had been set up in 1961 to consider and suggest reforms to the existing law of contempt and whose recommendations formed the basis for the present Act, explained the need for this screening ..” 4.30.12. Furthermore, The procedure as suggested in Sanyal Committee Report and set out in above judgment of S.K. Sarkar’s case (supra) to take opinion of Attorney General in case of such nature is followed by Constitution Bench of this Hon’ble Court in Subramanian Swamy Vs. Arun Shourie (2014) 12 SCC 344 para 4 & 5 are self-explanatory, where before issuing notice the opinion of Attorney General is called.

4. It is pertinent to notice here that the then Chief Justice of India obtained opinion of the Attorney General for India in the matter. The then Attorney General, Shri Soli Sorabjee in his opinion dated 27-8-1990 noted that the editorial had, prima facie, overstepped the limits of permissible criticism and the law of contempt, as was existing in the country, did not provide for truth as defence and, therefore, he opined that an explanation was called for and a notice could be issued for that purpose. In his view, the question whether the contempt of a Commission or Commissioner appointed under the 1952 Act tantamounts to contempt of the High Court or Supreme Court of which the Commissioner is member needs

to be authoritatively settled by the Supreme Court in view of the reoccurrence of the issue.’’

4.30.13. The same procedure is followed by this Hon’ble Court in P. C. Sethi (1979) 4 SCC 797, it is ruled as under;

Contempt of court - Attorney-General on direction of Court filing report finding no contempt or violation of Court's order - Petition disposed of -No point of law raised - Hence not printed.

4.30.14. In Suo Motu Vs S.B. Vakil, Advocate, High Court Of Gujrat LAWS (GJH) 2006 7-5, it is ruled as under;

“6.. In a leading decision of the Court of Appeal in Balogh v. Crown Court at St Albans (supra), Lord Denning expressed as under:

“As I have said, a judge should act of his own motion only when it is urgent and imperative to Act immediately. In all other cases he should not take it on himself to move. He should leave it to the Attorney General or to the party aggrieved to make a motion in accordance with the rules in RSC Ord 52. The reason is so that he should not appear to be both prosecutor and judge; for that is a role which does not become him well.”

13. In Balogh v. Crown Court at St Albans (supra), following pertinent observations have been made by Lawton U:

“The fact that Judges, whether of the High Court or the Crown Court, have this summary jurisdiction does not mean that they should use it whenever opportunity offers. It is an unusual jurisdiction which has come into being to protect the

due administration of justice. In Blackstone's words, it applies to any conduct which ‘demonstrates a gross want of that regard and respect, which when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.’ In my judgment this summary and draconian jurisdiction should only be used for the purpose of ensuring that a trial in progress or about to start can be brought to a proper and dignified end without disturbance and with a fair chance of a just verdict or judgment. Contempts which are not likely to disturb the trial or affect the verdict or judgment can be dealt with by a motion to commit under RSC Ord. 52, or even by indictment.”

4.30.15. The order rule of Balogh’s case was also appreciated by Full Bench in In Re:Vinay Chandra (1995) 2 SCC 584 it is ruled as under;

‘‘9 …………Instead, the learned Judge probably thought that it would not be proper to be a prosecutor, a witness and the judge himself in the matter and decided to report the incident to the learned Acting Chief Justice of his Court...... (See Balogh v. Crown Court at St. Albans [1975] QB 73 [1974] 3 All ER 283). "

4.31. JUDGMENT AND ORDER ARE VITIATED FOR PRONOUNCING THE SENTENCE AGAINST THE LAW LAID DOWN BY THE FULL BENCH IN SUKH DAS (1986) 2 SCC 401 BY DECIDING THE CASE WITHOUT GRANTING TIME TO THE ALLEGED CONTEMNORS FOR MAKING ARRANGEMENT OF A LAWYER OF HIS CHOICE AND THEREBY VIOLATING THE CONSTITUTIONAL RIGHT TO BE DEFENDED BY A LAWYER OF

HIS CHOICE:-

4.31.1. That, the Respondent No.3 [Petitioner] was arguing the case in person. After conviction, he in his adjournment application in para 7, has taken a specific ground that, he needs to avail the services of Counsel.

In Balogh Vs St. Albans Crown Court [1975] 1 QB 73 it is ruled as under;

“This appellant asked for legal representation and I am of opinion that the judge should have tried to find him counsel, although he was, as the judge said, “an articulate and highly intelligent person,” who knew that he was being charged with a serious contempt, was given an opportunity to defend himself on that charge, and seems to have shown himself in no mood to listen to warnings or to offer apologies.

The fact that judges, whether of the High Court or the Crown Court, have this summary jurisdiction does not mean that they should use it whenever opportunity offers. It is an unusual jurisdiction which has come into being to protect the due administration of justice. In Blackstone's words, it applies to any conduct which demonstrates a gross want of that regard and respect, which when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.”: see Commentaries, p. 285.”

4.31.2. Even otherwise it was the duty of the both the Ld. Judges (Shri. Justice Deepak Gupta & Shri. Justice Anirudhha Bose) to have ensured that, the Accused [Petitioner] should not be undefended and that, he should be provided with the services of a Counsel/Lawyer, when the case is

regarding conviction and sentencing under Contempt, which is a criminal offence and if this is not done, such conviction is vitiated in view of the law laid down in Suk Das Vs. Union Territory of Arunachal Pradesh (1986) 2 SCC 401, where it is ruled as under;

‘‘ It is obvious that in the present case the learned Additional Deputy Commissioner did not inform the appellant that he was entitled to free legal assistance nor did he inquire from the appellant whether he wanted a lawyer to be provided to them at State cost. The result was that the appellant remained unrepresented by a lawyer and the trial ultimately resulted in his conviction. This was clearly a violation of the fundamental right of the appellant under Article 21 and the trial must accordingly be held to be vitiated on account of a fatal constitutional infirmity, and the conviction and sentence recorded against the appellant must be set aside.’’

“In Khatri & Ors. v. State of Bihar & Ors., [1981] 2 S.C.R. 408, we ruled that the Magistrate or the Sessions Judge before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. We deplored that in that case where the accused were blinded prisoners the Judicial Magistrate failed to discharge obligation and contented themselves by merely observing that no legal representation had been asked for by the blinded prisoners and hence none was provided. We accordingly directed "the Magistrates and Sessions Judges

in the country to inform every accused who appear before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State" unless he is not willing to take advantage of the free legal services provided by the State. We also gave a general direction to every State in the country "...... to make provision for grant of free legal service to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situations," the only qualification being that the offence charged against an accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and that the needs of social justice require that he should be given free legal representations. It is quite possible that since the trial was held before the learned Additional Deputy Commissioner prior to the declaration of the law by this Court in Khatri &Ors. v. State of Bihar(supra), the learned Additional Deputy Commissioner did not inform the appellant that if he was not in a position to engage a lawyer on account of lack of material resources he was entitled to free legal assistance at State cost nor asked him whether he would like to have free legal aid. But it is surprising that despite this declaration of the law in Khatri &Ors. v. State of Bihar &Ors. (supra) on 19th December 1980 when the decision was rendered in that case, the High Court persisted in taking the view that since the appellant did not make an application for free legal assistance, no unconstitutionality was involved in not providing him legal representation at State cost.

4.31.3. In Privy Council Appeal No. 7 of 1976 [3-Judge Bench] in the case of Ramesh Maharaj Vs.The Attorney General, it was the case where the appellant who was a practicing member of the bar was punished under contempt without giving/framing specific charge against him and without allowing him to consult his lawyer.

It is observed as under; “Advocate – The appellant was advocate – he was punished under Contempt without opportunity to consult lawyer. It is very unfortunate conduct on the part of subordinate Judge.” Their Lordship think it unfortunate that in this case the learned Judge, in his discretion, refused the appellant’s request for an opportunity of consulting Dr. Ramsahoye, a senior member of the Bar who no doubt would have given the appellant excellent advice and also perhaps have persuaded the learned Judge from following into error.

4.31.4. THE RIGHT TO BE DEFENDED BY A LAWYER IS A FUNDAMENTAL RIGHT.

This Hon’ble Court in Ranjan Dwivedi (1983) 3 SCC 307 ruled that, even if the accused is a lawyer of the Supreme Court, he is entitled to be defended by a lawyer at State’s cost.

4.31.4.1. In Ajmal Kasab's case (2012) 9 SCC 1, this Hon'ble Court had given directions that, it is the duty of the Judge to inform the accused that he has a right to be defended by a lawyer and if the accused is unable to get the services of lawyer, then the lawyer should be provided at State’s cost.

4.31.4.2. In Union of India vs. Hari Ram 2003 Cr.L.J. 4302 it is ruled that, the opportunity to be defended by lawyer of choice of the accused is

a constitutional mandate.

Not providing the opportunity offends the provisions of Section 303 of Cr.P.C. and Article 20 and 14 of the Constitution. Such trial and conviction is vitiated.

In Nasia Pradhan vs. The State 1970 Cr.L.J. 396 it is ruled that, when the accused is undefended due to absence of Counsel, then it will lead to inadequate defense of accused and entire trial and conviction would get vitiated for accused not having got proper and fair trial.

4.32. THE CONVICTION OF PETITIONER IS VITIATED BECAUSE ONE OF THE GROUNDS FOR CONVICTION IN PARA 92 OF THE JUDGMENT THAT HE SUPPORTED THE STAND TAKEN BY THE ALLEGED CONTEMNORS NO. 1 AND 2 DURING THE COURSE OF THE PROCEEDING, IS VIOLATIVE OF THE BASIC PRINCIPLES OF CRIMINAL JURISPRUDENCE AS RULED IN J.R.PARASHAR (2001) 6 SCC 735, WHICH MANDATES THAT, THERE CANNOT BE VICARIOUS LIABILITY IN CONTEMPT AND THE CHARGE OF SUPPORTING THE STAND OF OTHER CONTEMNORS DURING THE PROCEEDING CAN BE TRIED BY A SEPARATE PROCEEDING BY ISSUING A FRESH CONTEMPT NOTICE IF A CASE IS MADE OUT ON THE BASIS OF REPLY AFFIDAVIT:-

4.32.1. That, in para 93 of judgment dated 27.04.2020, it is mentioned that, though the Petitioner, Adv. Nilesh Ojha is not a signatory of the complaint but as being National President of Indian Bar Association he never refuted the act of Adv. Vijay Kurle. Second ground is taken that, Adv. Nilesh Ojha during his argument supported alleged contemnor No. 1 & 2.

It is a wrong legal position. This issue is already settled by Nine - Judge

Bench of Supreme Court The Minister Vs. Deobora Bhatnagar 1990 SCC OnLine SC 53, where it is ruled that, there is no vicarious liability in criminal cases and based on this principle no action under Criminal Contempt can lie. In Shamkant Tukaram Naik Vs. Smt. Da yanabai Shamsan Dighodkar 1989 Mh.L.J.857 it is ruled as under;

‘‘Contempt of Courts Act (70 of 1971), SS. 2(b), 8 and 9 – Absence of provision for punishing aiding or abetting contempt – Proceedings in contempt are quasi-criminal in nature and in the absence of provision penalising act of vicarious liability it would not be permissible to punish such contempt.

In my view Section 9 makes it abundantly clear that it is only such disobedience that is made punishable as contempt of Court which is made specifically punishable under the Act. There is no provision in the Contempt of Courts Act like section 34 or section 114 of the Penal Code, 1860 with the aid of which respondents Nos. 2 and 2-A can be punished for aiding or abetting respondent No. 1. These are quasi-criminal proceedings and unless there is a specific provision which penalises an act of vicarious liability, it would not be permissible to punish such a contempt.

10. In my judgment, the provision of Section 8 will have no application to the facts of the case and would not assist respondents Nos. 2 and 2-A in their defence. All that section 8 provides is that if any defence is available as a valid defence in any proceedings for contempt of Court, the same would continue to be available despite any of the provisions of the Act. We are not considering any defence which would be available as defence to the present contempt

proceedings and we are not concerned whether such a defence is available to respondents Nos. 2 and 2-A in any other proceedings by reason of any of the provisions of this Act. The first limb of the arguments on behalf of respondents Nos. 2 and 2-A must be negatived. However, on the second limb of the arguments, it must be held that the same is not devoid of merit. However, having regard to the fact that in a number of cases contempts are committed by parties other than the ones against whom judgment, decree or directions or orders of the Court are passed or other than the ones who have given an undertaking to the Court which has the effect of bringing the courts into disrepute, it would, in my view, be appropriate for the concerned authorities to consider appropriate amendments to the Act so as to bring within the compass of the Act contempts with the aid of provisions of Sections 34 and 114 of the Penal Code.’’

4.32.2. Same law is recently ruled by Supreme Court in Shiv Kumar Jatia Vs State 2019 SCC OnLine SC 1090, where it is ruled as under;

‘‘29. By applying the ratio laid down by this Court in the case of Sunil Bharti Mittal2 it is clear that an individual either as a Director or a Managing Director or Chairman of the company can be made an accused, along with the company, only if there is sufficient material to prove his active role coupled with the criminal intent. Further the criminal intent alleged must have direct nexus with the accused. Further in the case of Maksud Saiyed vs. State of Gujarat & Ors.3 this Court has examined the vicarious liability of Directors for the charges levelled against the Company. In the aforesaid judgment this Court has held that, the Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company, when the

accused is a Company. It is held that vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the Statute. It is further held that Statutes indisputably must provide fixing such vicarious liability. It is also held that, even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.’’

4.32.3. Law regarding arraigning any person in a Contempt Petition on the basis of his endorsement, abetement, agreement to send scandalous letter, is very well decided in following two judgments

i) Housing Development Finance Corporation Ltd. 2016 SCC OnLine Bom 15943

ii) In Re : C.S. Karnan (2017) 7 SCC 1.

Where it is ruled that, proceedings if any can be only against signatory of the letter.

4.32.4. Housing Development Finance Corporation Ltd. Vs. Suresh Chandra Vs. Parekh 2016 SCC OnLine Bom 15943 it is ruled as under;

“2. It is alleged that a joint letter has been issued by Respondent Nos. 1 and 2 in which there are some scandalous allegations have been made against the judges and advocates of this Hon'ble Court. It is obvious that though her name has appeared in the correspondence, which has been made at the instance of Respondent No. 1. We, therefore, do not see any reason to prosecute Respondent No. 2 - Mrs. Neela Sureshchandra Parekh under the Contempt of Courts Act. Contempt Notice against her is discharged.”

4.32.5. In Re : C.S. Karnan (2017) 7 SCC 1, the Alleged Contemnor

Justice Karnan named one Adv. Mr. Mathews and another Petitioner Mr. Bijoy about some enquiry against Judges but Constitution Bench never summoned said Adv. Mr. Mathews or Mr. Krishna Adhikary.

Para 32 of the said judgment is relevant;

‘‘32. At this juncture, this Court received a very interesting communication, from the Registrar General of the High Court of Calcutta. Justice Karnan had addressed the above communication (dated 14-3-2017) to the Registrar General of the High Court of Calcutta. The same is extracted below: Dated 14-3-2017

“To The Registrar General, High Court, Calcutta Respected Sir, On 9-3-2017, one Mr Mathew, Advocate, his Cell No. 9820535428, came to my residence voluntarily and insisted on me to sign an order which was already prepared in my name. In the said order, I was required to give notice to the Hon'ble Judges as named below: 1. The Chief Justice of India, Mr Justice “… J.S.K. …” and Justice Mr “… D.M. …”, on the basis of a suicide note written by former Chief Minister of Arunachal Pradesh, which I totally deny and simultaneously directed my personal security officer to send out the said advocate from my residence. Accordingly, he was sent out. The copy of the writ petition and the order prepared by the abovementioned advocate Mr Mathew is enclosed herewith. A detailed enquiry

may be conducted on this issue and have the report submitted to the Hon'ble Judges as mentioned above for necessary investigation and appropriate action.”

(emphasis supplied)

The aforesaid communication was endorsed by the Registrar General of the Calcutta High Court to the Supreme Court, along with its enclosures. The enclosures contained the text of a writ petition filed in the name of Bijoy Krishna Adhikary, and also, the alleged draft order, which Justice Karnan claims, he was asked to sign.’’

4.32.6. That, the observation that, Respondent No. 3 supported the complaints of Respondent No. 1 & 2 is at the outset misleading observation.

Respondent No. 3 in his Interim Application No. 252707/2019 had specifically mentioned in prayer as under;

‘‘dd.) To record a finding that, the ground taken in the Complaint filed by Respondent No.1 Vijay Kurle and Rashid Khan Pathan with allegations for sanction to prosecute Justice Rohinton Fali Nariman and Justice Vineet Saran, if are well founded and substantiated then as per the law laid down by Hon’ble Chief Justice of India shri. Ranjan Gogoi in the case of Re: Lalit Kalitha 2008 (1) GLT 800; Subramanyam Swamy Vs. Arun Shourie, AIR 2014 SC 3020; Re: C.S.Karnan (2017) 7 SCC 1, no case of Contempt is made out (at Pg 321.)’’

4.32.7. Furthermore, even if Alleged Contemnor No. 3 (Petitioner) is

alleged to have supported Alleged Contemnor No. 1 & 2, then the Court has to issue fresh Contempt notice to Alleged Contemnor No. 3 (Petitioner) because it, was not the charge against him in the first notice and order dated 09.12.2019.

4.32.8. The charge against him was only of consent which was falsified from order dated 02.09.2019 and also from the affidavit filed by Alleged Contemnor No. 1 & 2.

Therefore, in view of law laid down in J. R. Parashar (2001) 6 SCC 735, ruled that, the Court cannot punish Respondent No. 3[Petitioner] for the charge which he was not called to answer. It is ruled as under;

‘‘38. ………..We are conscious that the respondent No. 3 has said before us that she stood by the comments made even if they were held to be contumacious. At the same time, we are also aware that when the statement was made, the respondent had not been called on formally to defend herself against this charge. The prescribed procedure will have to be followed.

4.33. THE COGNIZANCE OF LETTER DATED 23.03.2019 WAS TAKEN FOR ISSUING SHOW CAUSE NOTICE FOR CONTEMPT WITHOUT DISCLOSING THE SOURCE OF THE SAID LETTER IN THE ORDER AS TO HOW IT REACHED THE BENCH. THIS IS

AGAINST THE LAW LAID DOWN BY CONSTITUTION BENCH IN SUBRAMANYAM SWAMI’S CASE (2014) 12 SCC 344, WHICH MANDATES THAT, IN CONTEMPT PROCEEDINGS NO DOCUMENT CAN BE TAKEN ON RECORD WITHOUT FOLLOWING THE PROCEDURE GIVEN IN THE LAW OF PLEADING:-

4.33.1. That, both the Ld. Judges in their judgment dated 27.04.2020 said that, any Judge need not to disclose the source of information and can take any letter, document on the record and use it in the order without disclosing its source.

To support this logic they relied on irrelevant para 79 of C. K. Daphtary Vs. O.P. Gupta (1971) 1 SCC 626, which deals with the issue related with petitioner and not with the Judge.

4.33.2. In Ram Lakhan Sharma (2018) 7 SCC 670, it is prohibited for any Judge to import his personal knowledge, documents, information.

4.33.3. In Murat Lal 1917 SCC OnLine Pat 1 it is ruled that, the Judge has to examine himself as a witness if he bring some documents on record from his own sources.

4.33.4. In Radhagobind Das’s case 1953 Cr.L.J 1906 it is ruled as under;

“A Court can be approached in one way only, that is, by a judicial application in proper form. Any instance of approach with reference to a pending case in any other manner must be immediately reported to the High Court.”

24. The contemner no. 3, Sri S.N. Patnaik, is also guilty of the offence of contempt of Court in having forwarded this letter to the Trying Magistrate simultaneously while transferring

the case for trial.”

23. I am, therefore, definitely of the view that the letter expressing the opinion of a superior Officer of the position of the Deputy Secretary to the Government (Enforcement) of Orissa that it is a spectacular case in which a large quantity of clothes was hoarded by the accused by fabricating a false account of sale, with the endorsement of the District Magistrate “Show this to S.D.M. Sadar for needful”, and further containing similar endorsement of the Sub-divisional Magistrate, when it reaches the Trying Magistrate, is bound to embarrass him and has a definite tendency of seriously affecting the fair trial of the case. The contemner No. 1, in having forwarded this letter to the Sub-divisional Magistrate when it is manifest from the contents of the letter that the filing of the case was at least imminent if cognisance had not already been taken with the endorsement, as quoted above, knowing that the Sub-divisional Magistrate was to exercise a judicial discretion under Section 204 of the Cr PC, in taking cognisance of the case and that it is quite likely that the Sub- divisional Magistrate may himself try the case, “has undoubtedly committed the offence of contempt of Court.”

4.33.5. In Kamlakar Bhavsar 2002 ALL MR (Cri.) 2640 Hon’ble Court had ordered enquiry under section 340 of Cr.PC for bringing documents on record without disclosing its source. The order of the Court did not disclose as to who brought the document on record. Hon’ble Division Bench issued ‘Show Cause Notice’ to all concerned including advocates for the party who is going to be benifitted because of such bringing of documents on record. It is ruled as under;

“Summary procedure for fabricating false evidence– Trial court passing order relying on dying declaration not produced by the prosecution – Trial Judge without clarifying anywhere as to who produced the dying declaration directly taking it on record – Held, order set aside – High Court issued show cause notice to Advocate for accused, Additional public Prosecutor for State, PSI, Special. Judicial Magistrate calling explanation as to why they should not be tried summarily for giving false evidence or fabricating false evidence.

34. All these circumstances i.e. the manner in which Exhibit 40 came on record, roznama, original medical case papers, putting questions to doctor and P.W. 7, in the cross- examination with reference to the dying declaration, when dying declaration was not before the Court at all, getting their admission in favour of the accused, critical condition of Mina right from the stage of admission and her immediate death at 10.10 a.m. and giving of fitness certificate by Dr. Pawar (P.W.

5) when he was not attached nor concerned with the burns ward, casualty ward or emergency ward. Whatever that may be are the circumstances that justify the submissions of Mr. Singhal that the dying declaration Exhibit 40 is forged and fabricated so also endorsement of the doctor thereupon. Non- explanation by the Court as to from whose custody the dying declaration came on record is also a serious factor which throw serious doubt about the genuineness of the dying declaration.

56. The learned APP, Mr. Singhal also submitted that this

Court should take action against all those who were concerned for fabrication of the dying declaration including the Judge of the Trial Court, we have given consideration to the submissions regarding this prayer. The only contention of the respondents-accused through their Advocate was that there is no forgery or fabrication. We are disagreeing with the same and rejecting the same. There is more than sufficient material on record to hold that the dying declaration, Exhibit 40 is forged and fabricated in all respects. So far as taking action is concerned it is true that the Trial Court committed serious lapses in that regard, however, it cannot be held that the Trial Court was a party to the conspiracy of fabrication of the dying declaration, it could be a bonafide mistake on the part of the Trial Court.

57. However so far as Additional Public Prosecutor (Mr. B.A. Pawar), defence lawyer (Mr. B.J. Abhyankar), Dr. Narayan Manohar Pawar Civil Hospital, Nashik, PS1 Ramesh' Manobar Patil - Yeola City Police Station is concerned, action is required to be taken and also against Mr. P.V. Baviskar, Special Judicial Magistrate.

Issue show cause notice to Mr. B.J. Abhyankar, Advocate for the accused, Mr. B.A. Pawar, Additional Public Prosecutor, Dr. Narayan Manohar Pawar, Civil Hospital, Nashik, PSI Ramesh Manohar Patil, Yeola Police Station, and Mr. RS. Baviskar, Special Judicial Magistrate, Nashik, why action under Section 344 of the Criminal Procedure Code should not be taken against them and they should not be summarily tried

for knowingly and willfully giving false evidence or fabricating false evidence with an intention that such evidence should be used in Trial Court, or in the alternative why they should not be prosecuted for offences under Sections 193, 196, 466, 471 and 474 read with 109 of Indian Penal Code. Show cause notice returnable on 12.12.2002 before the regular Division Bench.

All the papers of the Trial Court and the papers produced by the Medical Officer of Nashik should be kept in seal in the custody of the Registrar of this Court. Issue show cause notice to Mr. B.J. Abhyankar, Advocate for the accused, Mr. B.A. Pawar, Additional Public Prosecutor, Dr. Narayan Manohar Pawar, Civil Hospital, Nashik, PSI Ramesh Manohar Patil, Yeola Police Station, and Mr. RS. Baviskar, Special Judicial Magistrate, Nashik, why action under Section 344 of the Criminal Procedure Code should not be taken against them and they should not be summarily tried for knowingly and willfully giving false evidence or fabricating false evidence with an intention that such evidence should be used in Trial Court, or in the alternative why they should not be prosecuted for offences under Sections 193, 196, 466, 471 and 474 read with 109 of Indian Penal Code. Show cause notice returnable on 12.12.2002 before the regular Division Bench.

All the papers of the Trial Court and the papers produced by the Medical Officer of Nashik should be kept in seal in the custody of the Registrar of this Court.”

4.33.6. That, the Respondents in their written arguments pointed out the

above legal position and also pointed out the ‘para 6’ of the Constitution Bench judgment in Subramanyam Swami’s case (2014) 12 SCC 344, where it is ruled that, in the Contempt proceeding it is not permissible to take the documents on record against the law of pleadings. It is ruled as under;

“6. Respondent Arun Shourie submitted his reply affidavit on 13.10.1990. We shall refer to his defence and objections at an appropriate place little later. Suffice, however, to note at this stage that in the counter affidavit, the Respondent prayed that, in view of the sensitive nature of the facts, he would choose to refrain from setting out those facts in the affidavit but would prefer to put them in the form of a signed statement in a sealed cover for the perusal of the Court which may be treated as an integral part of the counter affidavit. The Court, however, on 04.03.1991 rejected his prayer and observed that the procedure suggested by the Respondent was not an acceptable procedure and was inconsistent with recognized form of the pleadings. The Respondent was granted liberty to withdraw the sealed cover from the Court. He was given an opportunity to file additional affidavit.’’

But both the Ld. Judges did not refer or mention the above case laws relied by the Alleged Contemnors and have taken a view which is contrary to the law laid down by the Larger Bench.

4.33.7. Hon’ble High Court in the matter of Konda Sesha Reddy and others Vs. Muthyala China Pullaiah and another 1958 SCC OnLine AP 57, ruled as under ; ‘‘15……It would indeed be a travesty of all known principles of

justice, if Judges and Magistrates are allowed to use their knowledge gained otherwise than by the means allowed to them by law in judging the truth of a case. Here, even before the complainant was examined, the Magistrate admits that he had knowledge of the facts and was obviously using that knowledge. The learned Sessions Judge was perfectly right in disapproving of the procedure.’’

4.33.8. In Baboolal and Others Vs. Nathmal and Another AIR 1956 Raj 123, it is ruled as under;

“The Ld. Civil Judge has certainly remarked that according to his information, a rocord was maintained and the formalities required by the law of registration were complied with. But he has not disclosed any source of his information and in the absence of any documentary evidence, we cannot place reliance on his personal knowledge whose source has not been disclosed – We, therefore ,allow the plaintiff’s appeal, set aside the decree of the Civil Judge and restore that of the trial Court.”

4.33.9. In State of Kerala Vs. Aboobacker ,2006 (3) KLJ 165, it is ruled as under;

‘It is really unfortunate that the trial Judge was more influenced by her personal predilections and other extraneous considerations than the proved circumstances in this case to justify the extreme penalty imposed by her on the accused. Most of the factors which influenced the Court below were irrelevant, having regard to the tests laid down by the Apex court.

A Judge cannot import into the case his own knowledge or belief of particular facts.”

4.33.10. Hon’ble High Court in the case of Mulpuru Lakshmayya Vs. Sri Rajah Varadaraja Apparow Bahadur Zemindar Garu MANU /TN/ 0473/ 1912, ruled as under;

“The Judge acted illegally in importing his own private knowledge in deciding the question. There is no doubt that a Judge is not entitled to rely on specific facts not proved by the evidence in the case but known to him personally or otherwise. It is quite clear that a Judge may use, and cannot help using, his general knowledge and experience in determining the credibility of evidence adduced before him and applying it to the decision of the specific facts in dispute in the case.

It may be necessary to provide that when a fact is known to the Judge in this way, he should make a note of it in writing during the course of the trial and read it out to the parties so that the parties might be aware that the Court has knowledge of that fact and so that arguments and comments might be based and explanations offered by both sides on such fact so stated by the Judge as known to him before the Judge decides on the rights and liabilities of the parties.”

4.33.11. That, even other wise procedure and rules framed by the Supreme Court and published in ‘Handbook on Practice And Procedure and Office Procedure’ it is clear that, if any letter is received, then it shall not be assigned to any Judge except on order from the Registrar assigned by the Chief Justice of India. It mandates for placing the letter before the Judge nominated for scrutiny of the letters as per their grevience.

4.33.12. Needless to mention that, all over the world there are specific Acts and law made for prohibiting the jury to take any information by researching on internet etc. because it is against the concept of fair trial against the accused.

The Supreme Court of South Australia found two jurors in a criminal case guilty of contempt in 2016 after they contravened the trial judge’s direction by researching trial matters online and discussing the information they found with other jurors. (Registrar of Supreme Court of South Australia V S [2016] SASC 93.)

It is ruled as under; ‘‘21. For so long as criminal trials continue to be conducted on the premise that accused persons are tried solely on the evidence presented in court, it will continue to be fundamental to the achievement of a fair trial that jurors not conduct their own research on people or matters relevant to the trial. The widespread availability and usage of the internet, and search engines such as the one operated by Google, mean that information about accused people is often readily and widely accessible.

22. Such conduct by jurors also has the very real potential, which was realised in this case, to cause a mistrial and hence occasion delay, expense and inconvenience affecting not only the accused, but also the administration of justice more generally.

24. In Attorney-General v Dallas, a juror, after learning through an internet search that the accused who was facing assault charges had earlier been accused of rape, told her

fellow jurors this information. She was sentenced to six months imprisonment for contempt of court. The juror had carried out her own internet research despite being well aware of repeated directions by the trial judge not to do so.

23. For these reasons, considerations of general deterrence weigh heavily in determining the appropriate penalty for contempt by a juror in conducting their own research. In some cases, such conduct will warrant a term of imprisonment. Attorney-General v Fraill[2] is an example of such a case. In that case, despite warnings from the trial judge in similar terms to the one given here, a juror used the internet to research the defendants and also used Facebook to contact the partner of one of the defendants and answer a question that the partner had about the charges. The juror, and partner of one of the defendants, were found guilty of contempt. The juror was imprisoned for eight months.

25. In both of these cases, the Court’s referred to the seriousness of the contempts involved given their threat to the integrity of trial by jury, and the consequential virtual inevitability of custodial sentences.

20. Such conduct potentially undermines the integrity of the jury system and the administration of justice more generally. The trial process is designed to ensure that an accused is tried only on the information presented in court. It is fundamental to the notion of a fair trial that this occur, not least so that the accused knows what evidence or information has been presented to the jury, and thereby has an opportunity to challenge or address that evidence or

information. The Court goes to great lengths to ensure, so far as it can, that this objective is achieved. It is to the achievement of this objective that many of the rules of evidence and directions given by a trial judge are directed.

30. In respect of each defendant, I convict them of contempt and order that a fine of $3,000 be imposed.’’

The Victorian Court of Appeal in the case of Benbrika Vs. R (2010) 29 VR 593, 644 observed as under;

“In recent years, there have been occasions when jurors have engaged in inappropriate conduct with the potential to compromise a trial. Internet searches relating to information that is both inadmissible at trial, and prejudicial to the accused, may necessitate a discharge of the jury or, failing that, on appeal an order for a new trial. In general, these cases have involved internet searches of a kind that bear specifically upon the evidence in the trial, and the particular circumstances and history of the accused.’’

4.34. ORDER IS AGAINST THE BASIC LAW OF CONTEMPT PROCEEDINGS AS RULED IN TAMILNAD MERCANTILE BANK SHAREHOLDERS WELFARE ASSOCIATION VS. S.C. SEKAR (2009) 2 SCC 784, RE: S. MULGAONKAR AIR 1978 SC 727,WHERE IT IS RULED THAT, IF TWO VIEWS ARE POSSIBLE THEN THE VIEW FAVORABLE TO THE ALLEGED CONTEMNOR SHOULD BE ACCEPTED AND BENEFIT OF DOUBT, IF ANY, SHOULD BE GENEROUSLY GIVEN AGAINST THE JUDGE AND IN FAVOUR OF THE ALLEGED CONTEMNOR. HERE THE VIEW FAVOURABLE TO THE PETITIONER SUPPORTED BY PROOFS AND COURT’S OWN ORDER IS REJECTED ON THE BASIS OF

PROBABILITIES, AND THEREFORE, CONVICTION AND SENTENCE IS NULL AND VOID:-

4.34.1. That, the defence of the petitioner is further strengthened by the order dated 02.09.2019 and 09.12.2019 where it is clarified that, there is no connivance between Respondent No. 3 (Petitioner, Adv.Nilesh Ojha)

with Alleged Contemnor No.1 (Vijay Kurle), Alleged Contemnor No. 2 (Rashid

Khan Pathan) and Alleged Contemnor No. 4 (Mathews Nedumpara). On the said ground.

4.34.2. On the said grounds, Respondent No. 4 Mathews Nedumpara was discharged. Under these circumstances, as a rule the petitioner was entitled to be discharged and he should have been discharged.

[Please See : Lalu Prasad Yadav (2017) 8 SCC 1, Sheetla Sahai (2009) 8 SCC 617.] 4.34.3. In a recent judgment in the case of Hukum Chand Deswal Vs. Satish Raj Deswal 2020 SCC OnLine SC 438, it is ruled as under; ‘‘It would rather be hazardous to impose sentence for contempt on the authorities in exercise of the contempt jurisdiction on mere probabilities. If two interpretations are possible a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. …Similarly, in R.N. Dey & Ors. vs. Bhagyabati Pramanik & Ors.6, this Court expounded in paragraph 7 as follows: “7. We may reiterate that the weapon of contempt is not to be used in abundance or misused.’’ 4.34.5. In Ismail Amir Shaikh Vs. State of Maharashtra 1984 SCC OnLine Bom 165, it is ruled as under;

“39. From what we have mentioned above it is clear that accused No. 1 who is the only appellant before us, is being acquitted by us on grounds which are common to all the accused. In such a case it is open to this Court by exercising its revisional jurisdiction to review the case of the non-appealing accused also, if this is done and since we have held that the whole prosecution case is hopelessly improbable, the other non-appealing accused are also entitled to acquittal.

41. In the result this appeal is allowed. The order of convictions and sentence recorded by the learned Additional Sessions Judge of Greater Bombay in Sessions Case No. 466 of 1981 as against accused No. 1, is set aside. In exercise of the powers of this Court in revision, we also set aside the orders of convictions and sentences even in so far es they relate to accused Nos. 2 and 3.”

4.34.6. Similar law is laid down by Hon’ble Supreme Court in many judgments. [Please see - Mohinder Singh (2004) 12 SCC 311]

4.34.7. In Tamilnad Mercantile Bank Share Holders Welfare Association vs. S.C. Sekar (2009) 2 SCC 784, it is ruled as under;

“52. If two views are possible, as held by this Court, a contempt petition would not lie.”

4.34.8. In Re: S. Mulgaonkar AIR 1978 SC 727, it is ruled that, the benefit of any doubt should generously be given against the Judge and in favor of the alleged Contemnor.

“28. The second principle must be to harmonise the constitutional values of free criticism, the fourth estate

included, and the need for a fearless curial process and its presiding functionary, the judge. A happy balance has to be struck, the benefit of the doubt being given generously against the judge, ...... ’’

The first rule in this branch of contempt power is; a wise economy of use by the Court of this branch of its jurisdiction. The Court should be willing to ignore, by a majestic liberalism, trifling and venial offenses - the dogs may bark, the caravan will pass. The court will not be prompted to act as a result of an easy irritability. Secondly, to criticize the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy. Free people are the ultimate guarantors of fearless justice. Such is the cornerstone of our Constitution; such is the touchstone of our Contempt power. The third principle is to avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice and the community's confidence in that great process. The former is not contempt, the latter is, although overlapping spaces abound. The last guideline for the judges to observe in this jurisdiction is not to become hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude. The law of contempt must adjust competing values, be modified, in its application by the requirements of a free society and by shifting emphasis on paramount public interest in a given situation. Ultimately,

he concluded by saying that freedom is what Freedom does and Justice fails when Judges quail and for sure his plea is not for judicial pachydermy, but for dignified detachment which ignores ill- informed criticism in its tolerant stride, but strikes when offensive excesses are established.”

4.34.9. Furthermore, Full Bench in Prof. Ramesh Chandra Kapse (1996) 1 SCC 206 had made it clear that, when parties have denied that, there was no consent then, the Court cannot draw any conclusion of consent between the parties without allowing them to lead the evidence.

4.34.10. Same law is laid down by Full Bench in R. K. Anand’s Case (2009)8 SCC 106.

4.34.11. But the Ld. Trial Court has drawn the conclusion against their own orders and against the binding precedents and therefore, the conviction and sentence is vitiated.

4.35. SENTENCE IS VITIATED AS THE APPLICATION FOR RECUSAL OF JUSTICE DEEPAK GUPTA MOVED BY THE PETITIONER WAS REJECTED BY CRYPTIC ORDER WITHOUT MENTITIONING REASONS. THIS IS AGAINST THE LAW LAID DOWN BY CONSTITUTION BENCH IN SUPREME COURT ADVOCATE ON RECORD ASSOCIATION (2016) 5 SCC 808, WHERE IT IS RULED THAT, PASSING A REASONED ORDER ON RECUSAL APPLICATION BY THE LD. JUSTICE DEEPAK GUPTA WAS NECESSARY:-

4.35.1. That, in the order dated 04.05.2020 the both the Ld. Judges rejected the application for recusal by making an incorrect statement in the order that there is only one ground for recusal taken in the application. In fact there were 23 grounds on which recusal was sought.

4.35.2. Furthermore, no reason is given for not accepting the request for recusal.

That, it is mandatory to give reason for not recusing from the case. Constitution Bench in Supreme Court Advocates on Records Association (2016) 5 SCC 808 it is ruled as under;

‘‘77. The above principles are universal in application. Impartiality of a Judge is the sine qua non for the integrity institution. Transparency in procedure is one of the major factors constituting the integrity of the office of a Judge in conducting his duties and the functioning of the court. The litigants would always like to know though they may not have a prescribed right to know, as to why a Judge has recused from hearing the case or despite request, has not recused to hear his case. Reasons are required to be indicated broadly. Of course, in case the disclosure of the reasons is likely to affect prejudicially any case or cause or interest of someone else, the Judge is free to state that on account of personal reasons which the Judge does not want to disclose, he has decided to recuse himself from hearing the case.’’ 4.36. A] SENTENCE VITIATED FOR INCORRECT AND WRONG OBSERVATION/FINDINGS IN THE ORDER REJECTING RECUSAL APPLICATION MOVED BY PETITIONER . THE ORDER STATES THAT THAERE IS ONLY ONE GROUND RAISED FOR SEEKING RECUSAL WHEN IN FACT THERE ARE 23 GROUNDS. THE REFUSAL TO RECUSE ON INCORRECT AND WRONG PREMISE MAKES THE ORDER AS PERVERSE AND THE SUBSEQUENT SENTENCE BECOMES NON- EST AS PASSED BY THE CORAM-NON-JUDICE AS PER LAW LAID DOWN IN P.K. GHOSH (1995) 6 SCC 744. B] ORDER ON RECUSAL APPLICATION IS PASSED JOINTLY BY THE

BENCH AND NOT BY THE THAT JUDGE (JUSTICE GUPTA ) WHOSE RECUSAL WAS SOUGHT. THIS VIOLATION OF LAW LAID DOWN BY HON’BLE SUPREME COURT IN SUPREME COURT ADVOCATES- ON-RECORD ASSOCIATION VS. UNION OF INDIA (2016) 5 SCC 808 THEREBY VITIATING THE ORDER. 4.36.1. That, the Petitioner had moved an application on 03.05.2020 for recusal of Ld.Justice Deepak Gupta. That, this application was not allowed to be argued. Justice Deepak Gupta got visibly irritated and straightaway passed the order rejecting the application.

The said application for Recusal was rejected capriciously without assigning any reason.

The order reads as under;

This is an application filed by Contemnor No.3-Nilesh Ojha for recusal of one of (Deepak Gupta, J.). The only ground taken is that the Bench is in a hurry to decide the matter. The main Contempt Petition was heard at length and disposed of on 27.04.2020. After the judgment was pronounced, the case was fixed on 01.05.2020 for hearing the contemnors on sentence. The contemnors filed applications for recall of the judgment and, therefore, the matter was listed today. One of us (Deepak Gupta, J.) is to demit office on 06.05.2020 and, therefore, the matter had to be heard and we see no ground for one of us to recuse. The application is accordingly rejected.’’

4.36.2. This is also an incorrect and wrong observation by the both the Ld. Judges. The above Interim Application was based on 23 grounds.

The main ground in para 8 is as under;

‘‘8. That, the other factors which creates a doubt in my mind to the effect that, I will not get the fair trial at the hands of the bench headed by Ld. Justice Deepak Gupta are as under;

i) While passing the order dated 27.04.2020 objections and submissions in written arguments dated 16.03.2020 submitted as per the order of the Court are ignored. In my submission, I have pointed out the discrimination to restrict our submission to only 10 pages while accepting 93 pages from Mr. Luthra.

ii) The specific prayer to lead evidence and summon witness was neither rejected nor accepted and straightaway the final order was passed.

iii) The Counsel for Respondent No. 1 was threatened and insulted by Ld. Justice Deepak Gupta and warned to not to point the illegalities in the submission by Amicus Mr. Siddharth Luthra. The Counsel was threatened to be sent behind bar. This happened on 02.03.2020 when Ld. Counsel was arguing the case. The specific written submission of Respondent No.1 in this regard submitted on 16.03.2020 as per order dated 02.03.2020 are not taken in the order.

Our submission in this regard is not mentioned properly. ix) The basic principle of law is that, ‘no one can be Judge in his own case’, and the Judge against whom complaint is made cannot sign the order of issuing notice of Contempt as done in Amicus Curiae Vs. Adv. Prashant Bhushan (2010) 7 SCC 592 (Full Bench), and laid down in other binding precedents Re: C.S.Karnan (2017) 7 SCC

1 , Sukhdev Singh Sodhi’s case 1954 SCR 454, Deepak Kumar Prahladka Vs. Chief Justice Prabha Shanker Mishra (2004) 5 SCC 217, etc. are ignored and not even mentioned in the order and a contrary view is taken against Larger Bench judgments.

x) Many binding precedents given in written arguments are not taken in the order and a contrary view is taken. Such practice is deprecated by Full Bench in Dwarikesh Sugar Industries Ltd. (1997) 6 SCC 450 observing that it is a judicial adventurism.

The ratio laid down in Medical Council VS. G.C.R.G. Memorial Trust (2018) 12 SCC 564 that, ‘Judges should not think what pleases the prince has the force of law’ is ignored.

xi) The findings in final order dated 27.04.2020 is against their own order 02.09.2019 where clear finding is given that, there is no material to connect Adv. Mathews Nedumpara with Respondent No. 1,2 & 3. Then vide order dated 09.12.2019 it is made clear that, there is no connivance between Respondent No. 2 & 3. But without there being any new material, Hon’ble Court gave a contradictory finding that, respondent No. 1, 2, 3 & 4 are in connivance with each other. This is not permissible for the same bench to take such a view.’’

4.36.3. That, the grievance of Petitioner, for which he had sought the recusal of Ld. Justice Deepak Gupta was that, parties and their Counsel were not able to argue properly on 02.03.2020 since they were under pressure

after Justice Deepak Gupta had issued threat to the Counsel for Alleged Contemnor No.1. This was stated by Alleged Contemnor No. 1 in his Written Submission dated 16.03.2020. The Ld. Trial Court has neither rejected this statement nor referred it in the judgment.

Further, Justice Deepak Gupta had taken incorrect things on the record and he had not acted as per the binding precedents. Despite the fact that Respondent 3 had brought to the notice of the both the Ld. Judges, all the judgments of Larger Benches applicable to this case, said judgments/ratio were either not taken on record or misinterpreted, disrespected and ignored without assigning any reason. The order is passed against the law laid down by binding precedents and also against the material on record and even against the findings/ observations made by the Hon’ble bench in earlier order whereby the Respondent/alleged contemnor No. 4 Shri. Mathews Nedumpara was discharged. It was apparent that Justice Deepak Gupta wanted to decide the case in undue haste by violating the fundamental rights of the respondents. Therefore, there was no possibility of Respondent No.3 getting justice if the bench headed by Justice Deepak Gupta continued to hear the matter.

But once again, the said application was rejected by making incorrect observations.

4.36.4. Under these circumstances, the order dated 04.05.2020 is a serious offence against the Hon’ble Supreme Court, as it eroded the facet of rule of the law.

In P.K. Ghosh Vs. J.G. Rajput (1995) 3 SCC 744, it is ruled as under;

“Judicial Bias: Judge should have recused himself from hearing the contempt petition.

Contempt of Courts Act - Constitution of Bench - Objection as to hearing of Contempt petition by a particular Judge - Failure to recuse himself is highly illegal - order vitiated.

In the fact and circumstances of this case, we are afraid that this facet of the rule of law has been eroded. We are satisfied that B. J. Shethna, J., in the facts and circumstances of this case, should have recused himself from hearing this contempt petition, particularly when a specific objection to this effect was taken by the appellants in view of the respondent's case in the contempt petition wherein the impugned order came to be made in his favour. In our opinion, the impugned order is vitiated for this reason alone.

4.36.5 Furthermore, the irritation of Justice Deepak Gupta is sufficient to vitiate the further proceedings. Relied on Anil Kumar Das v. Sukumar De 1962 (1) CRI.L.J. 194, where it is ruled as under; “Criminal P.C. (5 of 1898) -Transfer of case - What transpires after giving intimation for transfer can be a ground for transfer- If Judge feels irritated when a party makes clear his intention to apply for transfer from the Court- it will be a good ground for transfer as there is every likelihood of the subsequent trial before him being not impartial and in any case the party will have reasonable apprehension for such a fear- Case should be transferred.

It often happens that Judges feel irritated when a party makes clear his intention to apply for transfer from the

Court. But Judges must realise that it is a statutory right given under Sec. 526(8) to a party and that they should not by their conduct display any irritation when a party exercises his statutory right.”

4.36.6. Full Bench of this Hon'ble Court in Vijay Shekhar Vs. Union of India (2004) 4 SCC 666 had ruled that, if any order passed by the Court by ignoring material on record or considering extraneous factors then it is a case of fraud on power by the Judge.

It is ruled as under;

“9. This Court in Express Newspapers Pvt. Ltd. & Ors. v. Union of India & Ors. (AIR 1986 SC 872) at para 118 has held thus :

"Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab, (1964) 4 SCR 733 : (AIR 1964 SC 733).

A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order

is made for a purpose other than that which finds place in the order.The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown, 1904 AC 515, 'that there is a condition implied in this as well as in other instruments which create powers, namely, that the power shall be used bona fide for the purpose for which they are conferred'. It was said by Warrngton, C.J. in Short v. Poole Corporation, (1926) 1 Ch 66 that :

"No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative."

In Lazarus Estates Ltd. V. Beasley, (1956) 2 QB 702 at Pp. 712-13 Lord Denning, LJ. said:

"No judgment of a Court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."

(emphasis supplied)

See also, in Lazarus case at p.722 per Lord Parker, C.J.:

"'Fraud' vitiates all transactions known to the law of however high a degree of solemnity."

All these three English decisions have been cited with approval by this Court in Pratap Singh's case."

10. Similar is the view taken by this Court in the case of Ram Chandra Singh v. Savitri Devi and Ors. (2003) 8 SCC

319 wherein this Court speaking through one of us (Sinha, J.) held thus:

"Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata."

4.36.7. That, the application for recusal (I.A No. 48502 of 2020) was decided without hearing the Petitioner.

4.36.8. That, as per law laid down by the Constitution Bench in Supreme Court Advocates-on-Record Vs. UOI (2016) 5 SCC 808, the order on

recusal has to be passed by the ‘said Judge only’ and order should be a reasoned order as to why the said judge did not recuse from the case. There was no role of the other Ld. Judge Shri. Anirudha Bose in the said order. But the order rejecting Recusal Application was signed jointly by was passed jointly by Ld. Judge Shri Deepak Gupta and Ld. Judge Shri. Anirudha Bose.

4.36.9. In Supreme Court Advocates-on-Record Vs. UOI (supra), it is ruled as under;

“60. In my respectful opinion, when an application is made for the recusal of a Judge from hearing a case, the application is made to the Judge concerned and not to the Bench as a whole. Therefore, my learned brother Justice Khehar is absolutely correct in stating that the decision is entirely his, and I respect his decision.

61. In a detailed order pronounced in Court on its Own Motion v. State [Court on its Own Motion v. State, Cri M No. 11677 of 2007 in WP (Cri) No. 796 of 2007, order dated 29- 11-2007 (Del)] reference was made to a decision of the Supreme Court of the United States in Jewell Ridge Coal Corpn. v. Local No. 6167, United Mine Workers of America [Jewell Ridge Coal Corpn. v. Local No. 6167, United Mine Workers of America, 89 L Ed 2007 : 325 US 897 : 1945 SCC OnLine US SC 133 (1945)] , wherein it was held that a complaint as to the qualification of a Justice of the Supreme Court to take part in the decision of a cause cannot properly be addressed to the Court as a whole and it is the responsibility of each Justice to determine for himself the propriety of withdrawing from a case.

77. The above principles are universal in application. Impartiality of a Judge is the sine qua non for the integrity institution. Transparency in procedure is one of the major factors constituting the integrity of the office of a Judge in conducting his duties and the functioning of the court. The litigants would always like to know though they may not have a prescribed right to know, as to why a Judge has recused from hearing the case or despite request, has not recused to hear his case. Reasons are required to be indicated broadly. Of course, in case the disclosure of the reasons is likely to affect prejudicially any case or cause or interest of someone else, the Judge is free to state that on account of personal reasons which the Judge does not want to disclose, he has decided to recuse himself from hearing the case.’’

4.37. ORDER INCLUDES AN OBSERVATION THAT WRIT JURISDICTION IS NOT AVAILABLE IN A CASE OF CONVICTION UNDER CONTEMPT BY THE SUPREME COURT IN ITS ORIGINAL JURISDICTION. THIS OBSERVATION IS AGAINST THE LAW LAID DOWN BY CONSTITUTION BENCH IN ROOPA HOORA’S CASE (2001) 4 SCC 388,A. R. ANTULEY'S (1988) 2 SCC 602, MADHAV HAYAWADANRAO HOSKOT VS. STATE (1978) 3 SCC 552:-

4.37.1. In order dated 04.05.2020 both the Ld. Judges observed that, the writ is not maintainable against the wrong order of conviction or refusal to discharge under Contempt or any violation of fundamental rights of the person affected by the wrongful orders of the Supreme Court.

It is against the binding precedents of Constitution Benches.

4.37.2. In M. S. Ahlawat Vs. State (2000) 1 SCC 27 & Supreme Court Bar Association Vs. Union of India (1998) 4 SCC 409, the wrongful order of the Smaller Benches of 2 Judges in Contempt jurisdiction under Article 129 were corrected by Larger Benches of 3 Judges in writ jurisdiction. Said ratio is appreciated and approved in para 42 to 47 by the Constitution Bench judgment in Rupa Ashok Hurra Vs. Ashok Hurra (2001) 4 SCC 388. It is ruled as under;

‘‘42. The concern of this Court for rendering justice in cause is not less important than the principle of finality of its judgment. We are faced with competing principles — ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principles of natural justice or giving scope for apprehension of bias due to a Judge who participated in the decision-making process not disclosing his links with a party to the case, or on account of abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice — a concept which is not disputed but by a few. We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious

consideration to the question, we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in the public interest that a final judgment of the final court in the country should not be open to challenge, yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and would cause perpetuation of irremediable injustice.

43. It may be useful to refer to the judgment of the Supreme Court of the United States in Ohio Power Co. case [1 L Ed 2d 683 : 353 US 98 (1957)] . In that case the Court of Claims entered judgment for refund of tax, alleged to have been overpaid, in favour of the taxpayer. On the application of the Government a writ of certiorari against that judgment was declined by the Supreme Court of the United States in October 1955. The Government sought rehearing of the case by filing another application which was dismissed in December 1955. A second petition for hearing was also rejected in May 1956. However, in June 1956 the order passed in December 1955 was set aside sua sponte (of its own motion) and that case was ordered to be heard along with two other pending cases in which the same question was presented. In those two cases the Supreme Court held against the taxpayer and, on the authority of that judgment, reversed the judgment of the Court of Claims. Four learned members of the Court, in per curiam opinion, rested the decision “on the ground that interest in finality of the decision must yield where the interest of justice so required”. Three learned Members, dissented and held that denial of

certiorari had become final and ought not to be disturbed. Two learned Members, however, did not participate.

44. This Court in Harbans Singh case [(1982) 2 SCC 101 : 1982 SCC (Cri) 361] on an application under Article 32 of the Constitution filed after the dismissal of the special leave petition and the review, reconsidered its judgment. In that case, among others, the petitioner and another person wereconvicted under Section 302 IPC and sentenced to death. In the case of one of the remaining two convicts, the Supreme Court commuted the death sentence to life imprisonment. While staying the death sentence of the petitioner, A.N. Sen,

J. in his concurring opinion, noticed the dismissal of the petitioner's special leave, review petitions and the petition for clemency by the President and observed: (SCC pp. 107-08, para 20) “20. Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this Court under Articles 32 and 136 of the Constitution, I am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice.” 43. In Antulay case [(1988) 2 SCC 602 : 1988 SCC (Cri) 372

: AIR 1988 SC 1531] the majority in the seven-Judge Bench

of this Court set aside an earlier judgment of the Constitution Bench in a collateral proceeding on the view that the order was contrary to the provisions of the Act of 1952; in the background of that Act without precedent and in violation of the principles of natural justice, which needed to be corrected ex debito justitiae.

45. In Supreme Court Bar Assn. case [(1998) 4 SCC 409] on an application filed under Article 32 of the Constitution of India, the petitioner sought declaration that the Disciplinary Committees of the Bar Councils set up under the Advocates Act, 1961, alone had exclusive jurisdiction to inquire into and suspend or debar an advocate from practising law for professional or other misconduct and that the Supreme Court of India or any High Court in exercise of its inherent jurisdiction had no such jurisdiction, power or authority in that regard. A Constitution Bench of this Court considered the correctness of the judgment of this Court in Vinay Chandra Mishra, Re [(1995) 2 SCC 584] . The question which fell for consideration of this Court was: whether the punishment of debarring an advocate from practice and suspending his licence for a specified period could be passed in exercise of power of this Court under Article 129 read with Article 142 of the Constitution of India. There an errant advocate was found guilty of criminal contempt and was awarded the punishment of simple imprisonment for a period of six weeks and was also suspended from practice as an advocate for a period of three years from the date of the judgment of this Court for

contempt of the High Court of Allahabad. As a result of that punishment all elective and nominated offices/posts then held by him in his capacity as an advocate had to be vacated by him. Elucidating the scope of the curative nature of power conferred on the Supreme Court under Article 142, it was observed: (SCC p. 431, para 47) The plenary powers of the Supreme Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which the Supreme Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. It is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Supreme Court to prevent ‘clogging or obstruction of the stream of

justice’. In spite of the width of power conferred by Article 142, the Constitution Bench took the view that suspending the advocate from practice and suspending his licence was not within the sweep of the power under the said article and overruled the judgment in Vinay Chandra Mishra case [(1995) 2 SCC 584] .

46. In M.S. Ahlawat case [(2000) 1 SCC 278 : 2000 SCC (Cri) 193] the petitioner, who was found guilty of forging signatures and making false statements at different stages before this Court, was inflicted punishment under Section 193 IPC in Afzal v. State of Haryana [(1996) 7 SCC 397 : 1996 SCC (Cri) 424] . He filed an application under Article 32 of the Constitution assailing the validity of that order. Taking note of the complaint of miscarriage of justice by the Supreme Court in ordering his incarceration which ruined his career, acting without jurisdiction or without following the due procedure, it was observed that to perpetuate an error was no virtue but to correct it was a compulsion of judicial conscience. The correctness of the judgment was examined and the error was rectified.’’

4.37.3. Constitution Bench in A.R. Antulay Vs. R.S. Nayak (1988) 2 SCC 602 ruled that;

‘‘48. According to Shri Jethmalani, the doctrine of per incuriam has no application in the same proceedings. We are unable to accept this contention. We are of the opinion that this Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty. It can do so in exercise of its inherent

jurisdiction in any proceeding pending before it without insisting on the formalities of a review application. Powers of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision of the Constitution if the Court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner. See the observations in Prem Chand Garg v. Excise Commissioner, U.P. Allahabad, [1963] Supp. 1 S.C.R. 885.’’

4.37.4. Furthermore, the case here is not of order passed by the Supreme Court in litigation between the parties, but it is a case of conviction by the 2 Judge Benches acting as a Trial Court in original jurisdiction.

4.37.5. In Madhav Hayawadanrao Hoskot vs. State of Maharashtra (1978) 3 SCC 544,, Justice Shri. V.R. Krishna Iyer observed as under;

"11. One component of fair procedure is natural justice. Generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on a collegiate basis.

In short, a first appeal from the Sessions Court to the High Court, as provided in the Criminal Procedure Code, manifests this value upheld in Article 21.

" The legal position was declared as under :

"Where the prisoner seeks to file an appeal or revision, every facility for exercise of that right shall be made available by the Jail Administration;

These benign prescriptions operate by force of Article 21 (strengthened by Article 19(1)(d) read with sub-article (5) from the lowest to the highest court where deprivation of life and personal liberty is in substantial peril."

4.37.6. Similar recommendations are included by ‘ Sanyal Committee’in

‘Chapter XI’ ‘Para 1’, where it is specifically mentioned that, in every system of law of any civilized state, there is always a right of appeal against any sentence of imprisonment and the Contempt is no exception to the right of Appeal.

‘‘1. The feature of the law of contempt which has given rise to consideration criticism relates to the non-applicability as of right of a sentence passed for criminal contempt. It is urged that much of criticism against the large power of the court to punish contemners will disappear if a right of appeal is provided. In an earlier chapter, we have pointed out how judge, like other human beings, are not infallible and inasmuch as any sentence of imprisonment for contempt involves a fundamental question of liberty, it is only proper that there should be provision for appeal as a matter of course. As the Shaw-cross committee observe: ‘’ ...... in every system of law of any civilized state, there is always a right of appeal against any sentence of imprisonment. There is no justification whatsoever for making any exception to this universally recognised principle in the case of sentences for contempt.’’

4.37.7. In Tamilnad Mercantile Bank Vs S.C. Sekar (2009) 2 SSC 784, it is ruled that, in proceedings under the contempt the appeal is fundamental and human right. Technically if there is no provision of appeal then the

aggrieved person cannot be left without remedy. Excess to justice is a human right and in certain situations it is a fundamental right.

It is ruled as under;

46. We will, however, proceed on the assumption that no appeal was maintainable. An aggrieved person cannot be left without a remedy. Access to justice is a human right. In certain situations it may also be considered to be a fundamental right. (See Tashi Delek Gaming Solutions Ltd. v. State of Karnataka, [ (2006) 1 SCC 442 ] and Arunima Baruah v. Union of India, [(2007) 6 SCC 120]._

47. Concededly this Court has the jurisdiction to entertain a special leave petition. When the entire matter is before us this Court in exercise of its jurisdiction under Article 136 read with Article 142 of the Constitution of India may pass such orders which would do complete justice to the parties. [See - T. Vijendradas v. M. Subramanian, (2007) 8 SCC 751 ]._

49. It is also well settled that even an irregular order can be set aside by the same court or by a higher court. In Isaacs v. Robertson, [(1984) 3 All. E.R. 140], it has been held:

"Their Lordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are `void' in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are `voidable' and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions `void' and `voidable'

respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in Marsh v. marsh [1945] AC 271 at 284 and MacFoy v. United Africa Co. Ltd. [1961] 3 ALL ER 1169, [1962] AC 152; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall in a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceeding to have them set aside. The case that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind: what they do support is the quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make. The judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of rules of natural justice. The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to orders made by a

court of unlimited jurisdiction in the course of contentions litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it on application to that court; if it is regular it can only be set aside by an appellate court on appeal if there is one to which an appeal lies."

4.37.8. Constitution Bench in Anita Khushwha & Ors.Vs. Pushap Sudan (2016) 8 SCC 509 had ruled that;

“42. Now if access to justice is a facet of the right to life guaranteed Under Article 21 of the Constitution, a violation actual or threatened of that right would justify the invocation of this Court's powers Under Article 32 of the Constitution. Exercise of the power vested in the court under that Article could take the form of a direction for transfer of a case from one court to the other to meet situations where the statutory provisions do not provide for such transfers. Any such exercise would be legitimate, as it would prevent the violation of the fundamental right of the citizens guaranteed Under Article 21 of the Constitution.’’

4.38. JUDGMENT AND ORDER BOTH ARE PASSED AGAINST THE ‘LAW OF PER-INCURIAM’ AS LAID DOWN IN SANDEEP BAFNA’S CASE (2014) 16 SCC 623, CENTRAL BOARD OF DAWOODI BOHRA (2005) 2 SCC 673 ,WHICH MANDATES TO FOLLOW THE EARLIER VIEW OF CONSTITUTION BENCHES IN BATHINA REDDY AIR 1952 SC 149 AND TO IGNORE SUBSEQUENT JUDGMENT OF CO-ORDINATE BENCH IN C.K. DAPHTARI’S CASE (1971) 1 SCC 626, AND ALSO TO FOLLOW EARLIER CONSTITUTION BENCH JUDGMENT IN BARADKANTA MISHRA (1974) 1 SCC 374 ABOUT APPLICABILITY OF CONTEMPT

OF COURTS ACT,1971 AND TO IGNORE SUBSEQUENT CONTRARY FINDINGS IF ANY, BY A BENCH OF CO-EQUAL STRENGTH IN SUPREME COURT BAR ASSOCIATION VS. UNION OF INDIA(1998) 4 SCC 409:-

4.38.1. That, both the Ld. Judges in Para 12 of the order dated 27.04.2020 had observed that, C.K.Daphtary (1971) 1 SCC 626, is not per- incuriam.

4.38.2. That, the judgment in C.K.Daphtary (1971) 1 SCC 626 is per incuriam because it ignored the earlier Constitution Bench judgment in Bathina Ramakrishna Reddy AIR 1952 SC 149 , where it is ruled as under;

“12. Scandalous News published against a Judge...... If the allegations were true obviously it would be to the benefit of the public to bring these matters in to light”

4.38.3. That, para 23.4, 23.5 and 24 of written submission dated 16.03.2020 by Respondent No. 3 reads as under;

‘‘23.4. In Lal Bahadur Gautam (2019) 6 SCC 441, it is ruled that, the reliance on the judgment of repealed act amounts to reliance on overruled judgment by the advocate and is misconduct. [Please see para 13.1 to 13.11 of W.S by Respondent No. 3.]

But Ld. Amicus in his W.S. dated 02.03.2020 had again relied on C.K. Daphtary 1971 (1) SCC 626 & D.C. Saxena (1996) 5 SCC

216 case to fortify that, the truth is not a defence.

Needless to mention here that, the judgment of C.K. Daphtary & Dr. D.C. Saxena (supra) is per-incuriam as it overlooked the earlier binding constitution Bench judgment in Bathina Reddi AIR

1952 SC 149. This thing was explained in (2003) 4 SCC (Jour) 12, the article by Shri. T.R. Andhyarjuna former Solicitor General of India.

After Amendment 2006, the truth is allowed as a defence and the subsequent Constitution Bench in Subramanyam Swami (2014) 12 SCC 344, Re: C.S. Karnan (2017) 7 SCC 1, had ruled that, truth is a valid defence if motive of Judge is alleged. Hence, C.K. Daphtary & D.C. Saxena’s cases are impliedly overruled.

C.K. Daphtary is not shown as overruled in case treatment given in legal software therefore, it cannot be treated as overruled. In para 10.20 it is further submission of Ld. Amicus the ratio in C.K. Daphtary should be followed by ignoring view of Larger Benches and also the amendment in the Act.

If this is not a misconduct then what will be the misconduct. This thing needs serious consideration by this Hon’ble Court.

23.5. Needless to mention that, it is settled law that, misinterpretation of any judgment of Supreme Court is Contempt of Court. [Somabhai Patel (2001) 5 SCC 65, Promotee Telecom (2008) 11 SCC 579] Citing overruled judgments is gross professional misconduct. [Nalinikanta Muduli (2004) 7 SCC19] If overruled judgments are cited to mislead the Court then it is a

gross contempt. [D.S.P. Jayant Kasmiri 2017 SCC OnLine Del 7387]

24. Under these circumstances, it is humbly submitted that, the notice be discharged and appropriate compensation be granted to the Respondent No. 3 and appropriate action be taken against Ld. Amicus Mr. Siddharth Luthra as mentioned in the W.S. filed by Respondent No. 1 to 3.’’

4.39. IMPOSING SUBSTANTIAL SENTENCE IS NOT PERMISSIBLE WHERE A COMPLAINT WAS MADE BY BAR ASSOCIATION AGAINST A JUDGE REGARDING HIS INCAPACITY ALONGWITH OTHER ALLEGATIONS. THIS CAN AT THE MOST BE CALLED AS ‘TECHNICAL CONTEMPT’ AS RULED BY THE CONSTITUTION BENCH IN BRAHMA PRAKASH SHARMA’S CASE AIR 1954 SC 10 AND ALSO AS PER THE PROVISIONS OF SECTION 13 OF THE CONTEMPT OF COURTS ACT, 1971 AS MANDATED BY THE CONSTITUTION BENCH IN BARADKANTA MISHRA’S CASE (1974) 1 SCC 374.

4.39.1. That, if for the sake of argument we take the case against Respondents as mentioned in the order dated 27.02.2020 on its face value, then it is a case of complaint by a President of Bar Association with allegations of incapacity, malafides and contempt of binding precedents of the Hon’ble Supreme Court by Justice Rohinton Fali Nariman.

In such cases initiation of contempt proceeding is barred and it can at the most be only a technical contempt.

Constitution Bench in Bramha Prakash Sharma’s case AIR 1954 SC 10, had made the law clear that, such cases needs to be dropped.

The only portion of the resolution to which prima facie objection can be taken is that which describes these officers as thoroughly incompetent in law and whose judicial work does not inspire confidence. These remarks are certainly of a sweeping nature and can scarcely be justified – However , what is material is the nature and extent of the publication and whether or not it was likely to have an injurious effect on the minds of the public or of the judiciary itself and thereby lead to interference with the administration of justice - on the materials before us, it is difficult to say that the circumstances under which the representation was made by the appellants was calculated to have such effect. There might have been some remote possibility but that cannot be taken note of. We are clearly of the opinion that the contempt, if any, was only of a technical character, and that after the affidavits were filed on behalf of the appellants before the High Court, the proceedings against them should have been dropped. AIR 1950 All 556 (FB), Reversed.

20. With regard to Kanhaya Lal, the allegations are that he does not record the evidence in cases tried by him properly, that in all criminal matters transferred to his court, where the accused are already on bail, he does not give them time to furnish fresh sureties with the result that they are sent to jail, and lastly, that he is not accommodating to lawyers at all. So far as the other officer is concerned, one serious allegation made is, that he follows the highly illegal procedure of hearing two cases at one and the same time, and while he records the evidence in one case himself, he allows the Court Reader to do the thing in the other. It is

said also that he is short-tempered and frequently threatens lawyers with proceedings for contempt. Some of these complaints are not at all serious and no judge, unless he is hypersensitive, would at all feel aggrieved by them. It is undoubtedly a grave charge that the Revenue Officer hears two cases simultaneously and allows the Court Reader to do the work for him. If true, it is a patent illegality and is precisely a matter which should be brought to the notice of the District Magistrate who is the administrative head of these officers. 21. As regards the first part of the resolution, the allegations are made in general terms that these officers do not state facts correctly when they pass orders and that they are discourteous to the litigant public. These do not by any means amount to scandalising the court. Such complaints are frequently heard in respect of many subordinate courts and if the appellants had a genuine grievance, it cannot be said that in ventilating their grievances they exceeded the limits of fair criticism.

22. The only portion of the resolution to which prima facie objection can be taken is that which describes these officers as thoroughly incompetent in law and whose judicial work does not inspire confidence. These remarks are certainly of a sweeping nature and can scarcely be justified. Assuming, however, that this portion of the resolution is defamatory, the question arises whether it can be held to amount to contempt of court. - where the question arises as to whether a defamatory statement directed against a judge is calculated to undermine the confidence of the public in the capacity or

integrity of the judge, or is likely to deflect the court itself from a strict and unhesitant performance of its duties, all the surrounding facts and circumstances under which the statement was made and the degree of publicity that was given to it would undoubtedly be relevant circumstances. - No doubt, there was publication as is required by the law of libel, but in contempt proceedings, that is not by any means conclusive. What is material is the nature and extent of the publication and whether or not it was likely to have an injurious effect on the minds of the public or of the judiciary itself and thereby lead to interference with the administration of justice. On the materials before us, it is difficult to say that the circumstances under which the representation was made by the appellants was calculated to have such effect. There might have been some remote possibility but that cannot be taken note of. We are clearly of the opinion that the contempt, if any, was only of a technical character, and that after the affidavits were filed on behalf of the appellants before the High Court, the proceedings against them should have been dropped.’’

4.39.2. Constitution Bench in Baradkanta Mishra Case(1974)1 SCC 374 it is ruled as under;

‘49. Scandalization of the Court is a species of contempt and may take several forms. A common form is the vilification of the Judge. When proceedings in contempt are taken for such vilification the question which the Court has to ask is whether the vilification is of the Judge as a judge. (See Queen v. Gray), [(1900) 2 QB 36, 40] or it is the

vilification of the Judge as an individual. If the latter the Judge is left to his private remedies and the Court has no power to commit for contempt. If the former, the Court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt. Secondly, the Court will have also to consider the degree of harm caused as affecting administration of justice and, if it is slight and beneath notice, Courts will not punish for contempt. This salutary practice is adopted by Section 13 of the Contempt of Courts Act, 1971. The jurisdiction is not intended to uphold the personal dignity of the Judges. That must rest on surer foundations. Judges rely on their conduct itself to be its own vindication. 71. As early as 1892, the Privy Council in The matter of a Special Reference from the Bahama Islands [1893 AC 138, 149] had to upset a sentence of indefinite imprisonment imposed by the Chief Justice of Bahamas on one Mr Moseley for two “letters to the editor” full of snub and sarcasm about Yelverton, Esq., Chief Justice. In these there was cynical reference to the Chief Justice's incompetence and imprudence, couched in stinging satire. The Judicial Committee held: “(a) That the letter signed ‘Colonist’ in The Nassau Guardian though it might have been made the subject of proceedings for libel was not, in the circumstances, calculated to obstruct or interfere with the course of justice or the due administration of the law, and therefore did not constitute a contempt of Court.” 91. The Court being the guardian of people's rights, it has been held repeatedly that the contempt jurisdiction should be

exercised “with scrupulous care and only when the case is clear and beyond reasonable doubt”, [vide R. v. Gray.]’’

4.39.3. In Rajesh Singh’s case (2007) 14 SCC 126 it is ruled that, if Court initiate proceedings under contempt on technical issues then it will erode the confidence of the public in the judiciary.

A] “Contempt of Courts Act , 1971 - Misuse of Contempt jurisdiction by High Court - some Judges are showing over sensitiveness with a tendency to treat even technical violations or unintended acts as contempt. It is possible that it is done to command respect. But Judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of 'power'. The power of Judiciary lies, not in punishing for contempt, but in the trust, confidence and faith of the common man. It should be remembered that exercise of such power, results in eroding the confidence of the public, rather than creating trust and faith in the judiciary. The purpose of the power to punish for criminal contempt is to ensure that the faith and confidence of the public in administration of justice is not eroded. Such power, vested in the High Courts, carries with it great responsibility. Care should be taken to ensure that there is no room for complaints of ostentatious exercise of power. Supreme Court set aside the order of the High Court in contempt petition No.5 of 2000 and acquit and exonerate the appellant of all charges.”

21…..Three acts, which are misuse of exercise of such power are :

(i) punishing persons for unintended acts or technical violations, by treating them as contempt of court; (ii) frequent summoning of Government officers to court (to sermonize or to take them to task for perceived violations); and (iii) making avoidable adverse comments and observations against persons who are not parties.

“21 It should be remembered that exercise of such power, results in eroding the confidence of the public, rather than creating trust and faith in the judiciary.”

“20. This Court has repeatedly cautioned that the power to punish for contempt is not intended to be invoked or exercised routinely or mechanically, but with circumspection and restraint. Courts should not readily infer an intention to scandalize courts or lowering the authority of court unless such intention is clearly established. Nor should they exercise power to punish for contempt where mere question of propriety is involved. In Rizwan-ul-Hasan v. The State of Uttar Pradesh (1953 SCR 581), this Court reiterated the well- settled principle that jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. Of late, a perception that is slowly gaining ground among public is that sometimes, some Judges are showing oversensitiveness with a tendency to treat even technical violations or unintended acts as contempt. It is possible that it is done to uphold the majesty of courts, and to command respect. But Judges, like everyone else, will have to earn respect. They

cannot demand respect by demonstration of 'power'. Nearly two centuries ago, Justice John Marshall, the Chief Justice of American Supreme Court warned that the power of Judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man. The purpose of the power to punish for criminal contempt is to ensure that the faith and confidence of the public in administration of justice is not eroded. Such power, vested in the High Courts, carries with it great responsibility. Care should be taken to ensure that there is no room for complaints of ostentatious exercise of power. Three acts, which are often cited as examples of exercise of such power are : (i) punishing persons for unintended acts or technical violations, by treating them as contempt of court; (ii) frequent summoning of Government officers to court (to sermonize or to take them to task for perceived violations); and (iii) making avoidable adverse comments and observations against persons who are not parties. It should be remembered that exercise of such power, results in eroding the confidence of the public, rather than creating trust and faith in the judiciary. Be that as it may.” Also Relied on – i. S. Abdul Karim (1976)1 SCC 975

ii. Shambhu Nath Jha (1972) 1 SCC 573

4.40. JUDGMENT VITIATED FOR DISREGARD OF THE CONSTITUTION BENCH JUDGMENT IN BARADAKANTA MISHRA CASE [(1975) 3 SCC 535, T. B. HAWKINS 1948 SCC ONLINE MP 36

WHICH MANDATE THAT, WHEN COURT IS NOT AWARE OF THE SAID COMPLAINT AND IT IS BROUGHT TO THE NOTICE OF THE COURT BY AN INFORMANT, THEN IT DOES NOT COME UNDER THE CATEGORY OF INTERFERING IN THE ADMINISTRATION OF JUSTICE. FURTHER, NO SENTENCE UNDER CONTEMPT CAN LIE WITHOUT PROVING THE HARM CAUSED. THIS RESTRICTION IS ALSO THERE IN THE STATUTE IN SECTION 13 OF THE CONTEMPT OF COURTS ACT,1971:-

4.40.1. That, the complaint by alleged contemnor No.1 and 2 were neither addressed to nor sent to Learned Judges Shri. Rohinton Fali Nariman & Shri. Vineet Saran. Hon’ble CJI did not find anything objectionable in the said complaints.

4.40.2. Two prominent Bar Association of Supreme Court Bar Association (SCBA) and Supreme Court Advocate On Record Association (SCAORA) did not fiund anything objectionable in it.

4.40.3. Only Petitioner’s Rival Mr. Milind Sathe alongwith Mr. Kaiwan Kalyaniwalla who are from Mumbai found it objectionable and sent the said letter dated 23.03.2019 against alleged contemnors only with an ulterior motive to settle personal scores.

4.40.4. Hon’ble Justice Hidatullah in T. B. Hawkins Vs. D. P. Mishra 1948 SCC OnLine MP 36 (DB) had ruled that, the act of bringing such things such thing to the notice of the Court and Contempt action are not permissible. It is ruled as under;

“44. …………….. the comments might well have been unnoticed by the Courts concerned if the applicants had not brought this matter to this Court. In view of this I am of opinion that though the comment might well have been avoided, it does

not affect the administration of justice & in any event not in a substantial way. I recall the words of Fry L.J. which I have quoted elsewhere:

‘Although I think the para, is technically a contempt of court, & does tend to prejudice the minds of the public against the defts. (applicants here) nevertheless I think the application is of a somewhat trifling & trumpery character. I can hardly imagine any person of much intelligence being influenced by this para., & I cannot think it is in point of fact in any way likely to prejudice the trial of the cause, &, therefore, I think it is a case which the defts. (applicants here) might properly & ought rightly to have passed over without bringing it to the attention of the Court.”

47. I, therefore, hold that there is no case in which to take action & that being so, there is no force in the applications & they must be dismissed. No question of issuing a notice to non- applicant 1 in Hawkins' case arises & the application in that behalf is also dismissed.”

4.41. SENTENCE IS VITIATED IN VIEW OF LAW LAID DOWN IN SHANTI DEVI’S CASE (2008) 14 SCC 220, AS IT WAS PASSED WITH UNDUE HASTE AND WITHOUT GRANTING ADJOURNMENT AND ALLOWING THE RESPONDENTS REASONABLE TIME TO AVAIL THE LEGAL REMEDIES OF RECALL, REVIEW, WRIT ETC:-

4.41.1. The order dated 04.05.2020 of rejecting the application for adjournment to avail remedies under recall, review, writ etc., without assigning any reasons and without considering the binding precedents and

straightaway pronouncing the sentence, has violated the fundamental rights of Respondent 3 and is therefore vitiated and liable to be set aside.

4.41.2. In Kranti Mohan Guruprasad Mehra and Another Vs. Fatehchand Vasuram Behal AIR 1982 Bom 263, it is ruled as under;

“Litigants should be given interim stay of the order for approaching higher courts for urgent reliefs if their application is rejected by the Court.

Every litigant who is aggrieved by the order of the court of the first instance has a legitimate right to move the higher Court to ask for redress and therefore, a reasonable opportunity should normally be given in that behalf to all the litigants – denying a short period of two weeks for the defendants to move this court appears to be rather harsh and certainly unjustified apart from being not quite fair. This principle is essential to be preserved so as to in still a sense of confidence in the system of administration of justice.”

4.41.3. Hon’ble Supreme Court in Shanti Devi Vs. State (2008) 14 SCC 220 had observed as under;

‘‘15. …….The dates speak of the haste with which the orders were passed in the contempt petition which had the effect of ensuring that Respondent 2 obtained possession of the shop room before the appellant could take any steps before the higher forum against the said orders.

……..The costs imposed by the impugned judgment and the contempt proceedings are also quashed.’’

4.42. INCORRECT OBSERVATION IN PARA 39 OF THE JUDGMENT THAT, THE BENCH OF LD. JUSTICE ROHINTON NARIMAN ACTED IN DEFERENCE/LINE WITH THE RULE OF CHIEF JUSTICE OF INDIA IS MASTER OF ROASTER AND DIRECTED THE REGISTRY TO PLACE THE MATTER BEFORE CJI. IN FACT IN THE ORDER DATED 27.032019 IT IS MENTIONED BY THE JUSTICE ROHINTON NARIMAN AND JUSTICE VINEET SARAN THAT THEY ARE RECUSING FROM THE CASE AS ALLEGATIONS ARE AGAINST THEMSELVES.

4.42.1. That, in judgement dated 27.04.2020, it is wrongly mentioned that, Justice Rohinton Nariman placed the matter before CJI in deference to the rule of ‘Master of Roster’.

The said para 39 reads as under;

‘‘39. ………………. Even so, the Bench in deference to the principle of master of the roster, after taking cognizance of the scandalous allegations made in the complaints of the alleged contemnors and issuing notice to them directed that the matter be placed before Hon'ble the Chief Justice for listing before an appropriate Bench. This, in our view, is the proper procedure. ……………………..’’

4.42.2. The incorrectness of above observation is ex-facie proved from last para of the judgment dated 27.03.2019 passed by the Justice Rohinton Fali Nariman where it is ruled that, due to serious allegations against them they are recusing. The para reads thus;

‘‘Given the serious nature of the allegations levelled against this Bench, the Chief Justice of India to constitute an

appropriate Bench to hear and decide this Contempt petition case.’’

4.43. THE OBSERVATION IN THE JUDGMENT AND ORDER THAT, WHEN JUDGMENT IS PER-INCURIAM THEN IT CANNOT BE SET-ASIDE IN RECALL APPLICATION IS AGAINST THE MANDATE OF THE LAW LAID DOWN BY CONSTITUTION BENCH IN PARA 48 OF A.R. ANTULEY’S CASE (1988) 2 SCC 602:-

4.43.1. That, both the Ld. Judges in their order dated 04.05.2020 had observed that, even if their judgment is per-incuriam and against the binding precedents, then also the said points can be raised in review petition if required and not in the recall application. And straightaway pronounced the sentence. The relevant para of the order dated 04.05.2020 reads as under;

‘‘These three applications have been filed by all the three contemnors seeking recall of the judgment dated 27.04.2020. The main ground taken is that our judgment is contrary to the judgment rendered in Bal Thackrey vs. Harish Pimpalkhute and Others(2005) 1 SCC 254, and some other judgments. It is urged that the judgment is per incuriam and not as per the law laid down by this Court. It is also urged that notice could not have been issued by the Bench comprising of Hon. R.F. Nariman and Vineet Saran, JJ., and the matter should have been first dealt with by the Chief Justice on the administrative side. We have in our judgment dealt with all these contentions. A long hearing was given to the contemnors and after hearing them the judgment was reserved on 02.03.2020. Till 27.04.2020 when the judgment was pronounced no grievance

was raised that the contemnors have not been given a proper hearing. We find that all the grounds raised in the three recall applications are virtually identical and in all the applications correctness of our judgment is questioned on many grounds. No recall application can lie on these grounds and the proper remedy for the contemnors is to file a review petition, if so advised. We, therefore, reject all the three recall applications as being not maintainable without expressing any opinion on the grounds raised therein. The contemnors if so advised, can file review petition in accordance with law.

Mr. Nilesh Ojha prayed that he may be granted liberty to file a writ petition. In our view no writ petition can lie to challenge our judgment and, therefore, this prayer is rejected.

………………

We, therefore, sentence all the three contemnors namely Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan, to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-. In default of payment of fine, each of the defaulting contemnors shall undergo further simple imprisonment for a period of 15 days.’’

4.43.2. It is clear disregard of the law laid down by Seven-Judge Bench in A.R. Antuley’s case (1988) 2 SCC 602, where it is ruled as under;

“48. According to Shri Jethmalani, the doctrine of per incuriam has no application in the same proceedings. We are unable to accept this contention. We are of the opinion that this Court is not powerless to correct its error which has the effect

of depriving a citizen of his fundamental rights and more so, the right to life and liberty. It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application. Powers of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision of the Constitution if the court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner. See the observations in Prem Chand Garg v. Excise Commissioner [AIR 1963 SC 996 : 1963 Supp (1) SCR 885] .”

4.43.3. In National Fertilizer Limited Vs. Tuncky (2013) 9 SCC 600, this Hon’ble Court recalled its own order passed for pronouncing conviction under contempt.

4.43.4. In Municipal Corpn. of Greater Mumbai v. Pratibha Industries Ltd. (2019) 3 SCC 203 it is ruled as under;

“13. Also, in M.M. Thomas v. State of Kerala [M.M. Thomas

v. State of Kerala, (2000) 1 SCC 666] , this Court has held as follows: (SCC pp. 672-73, para 14)

“14. The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records

correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra [Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 : (1966) 3 SCR 744] , a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record.”

“215. High Courts to be courts of record.—Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.”

It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record. This has been recognised in several of our judgments.

4.43.5. In State Vs. Mamta Mohanty (2011) 3 SCC 436 it is ruled as under; “57….This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate

the same. While dealing with a similar issue, this Court in Hotel Balaji & Ors. v. State of A.P. ., AIR 1993 SC 1048 observed as under:

"...To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter (A.M.Y. at page 18: `a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors’’

4.43.6. That, the above principle is followed by this Hon’ble Court in a recent judgment where it has recalled its own order suo-moto. This Hon’ble Court in Birla Institute of Technology Vs. State (2019) 15

SCC 586 vide its order dated 9th January 2019, has ruled as under;

“5. The judgment dated 7-1-2019 shall not be given effect to till the matter is reheard finally by the appropriate Bench. The Registry is directed to list this matter for rehearing before the appropriate Bench comprising of Hon'ble Mr Justice Abhay Manohar Sapre and Hon'ble Ms Justice Indu Malhotra as early as possible.”

4.43.7. In Ravindra Narayan Joglekar Vs. Encon Exports Pvt. Ltd 2008 ALL MR (Cri.) 2032, it is ruled as under;

‘‘…..It is settled law that in case the order passed by the Court is patently contrary to the provisions of law, the same

cannot be allowed to remain in force as it can result in great prejudice and irreparable loss to the parties. Plain reading of the order dated 17th April, 2006 would apparently disclose that the same was passed on the basis of uncontested submissions made on behalf of the petitioner therein and without adjudicating the issue as to whether the offence in question was extraditable offence or not. An order totally contrary to the provisions of law, if allowed to remain in force, is bound to cause irreparable injury to the aggrieved party. No amount of technicalities can abstain this Court from exercising its plenary jurisdiction to do the needful to wreck the wicked wrong. In the circumstances, the said order cannot be allowed to remain in force and hence, the petitioner is entitled for recall of the said order.’’

4.43.8. That, in Indian Bank Vs. Satyam Fibers (1996) 5 SCC 550 it is ruled as under;

‘‘Section 151 C.P.C. - Power of Court to recall its judgment or order - where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order- The judiciary in India also possesses inherent power, specially under Section 151 CPC to recall its judgment or order.

22. The judiciary in India also possesses inherent power, specially under Section 151 CPC to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings the Court may

direct the affected party to file a separate suit for setting

aside the Decree obtained by fraud. Inherent power are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the construction of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court's business.

23. Since fraud affects the solemnity, regularly and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.’’

4.43.9. The mistake of the court can be rectified by exercising inherent powers. This Hon’ble Court in Om Prakash Marwaha Vs.. Jagdish Lal Marwaha, (2009) 1 SCC 510, relying upon Jang Singh v. Brij Lal, AIR 1966 SC 1631, held that, a litigant should not suffer on account of the lapse made by an officer of the Court. Applying the well-known maxim actus curiae neminem gravabit, that an act of court should do no harm to a litigant, this Court held that, the mistake should be rectified by the Court and the parties be relegated to the position on the date when the mistake occurred. Madhya Pradesh High Court in Khoobchand Jain Vs. Kashi Prasad, AIR 1986 MP 66 and this Court in Arjun Prasad Smt.

Ameer Jahan Begum, 2007 (8) ADJ 726 and Matter Under Article 227 No. 7036 of 2015 State of U.P. Vs. Saifi Abdul Hasan (decided on 11.12.2015) also held that, if due to mistake committed by Court case, the was dismissed in default, then order can be recalled.

4.43.10. In a recent judgment dated 04.06.2020 in Court on its Own Motion Vs. Harmeet Singh, Nazir, Court of ACJ (SD), Budhlada, Mansa, 2020 SCC OnLine P and H 703, the High Court of Punjab and Haryana has suo motu recalled its previous order dated 03.06.2020 in the contempt proceedings, upon finding that there was a lapse on its part in complying with the provisions of law regarding framing of charges.

4.33.11. That, even other wise rocedure and rules framed by the Supreme Court and published in ‘Handbook on Practice And Procedure and office procedure’ it is clear that, if any letter is received then it shall not be assigned to any Judge except order from the Registrar and the documents cannot be added in the paper book without following the

procedure..

4.44. THE JUDGMENT IS VITIATED FOR DISREGARD OF FULL BENCH OF THE SUPREME COURT IN RE: MULGAONKAR (1978) 3 SCC 339 FOR NOT CONSIDERING THE CIRCUMSTANCES UNDER WHICH THE COMPLAINT WAS MADE AND ALSO FOR NOT CONSIDERING THE CONTENTS OF FULL COMPLAINT. THE COMPLAINT WAS MADE FOR PREVENTING DISREGARD OF BINDING PRECEDENTS AND UPHOLDING THE RULE OF LAW. BUT IT WAS STAMPED AS FALSE AND ILLEGAL BY QUOTING SELECT PARAS DIVORCED FROM THE ACTUAL FACTS AND THE REASONS FOR MAKING SAID ALLEGATIONS. THEREFORE THE FINDINGS ARE PERVERSE AND VITIATED.

4.44.1. The Ld. Trial Court did not consider the circumstances under which the complaint by Alleged Contemnor No. 1 Adv. Vijay Kurle and No. 2 Shri. Rashid Khan Pathan was made. In fact, it was bounden duty of the learned Trial Court to see the full complaint and the surrounding circumstances under which it was made. Full Bench of the Supreme Court in Re: Mulgaonkar (1978) 3 SCC 339 has approved the ratio laid down in the judgment of The King v. Nicholes (1911) 12 C.L.R. 280 where it is ruled that, the allegations about integrity of a Judge, an imputation of want of impartiality to a Judge based on the conduct of a Judge during hearing is not a contempt of Court - if it were a fair comment, would, so far from being a contempt of Court, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel – The Court hearing the Contempt motion which is in reference to that comment, and the question were whether that comment was calculated to bring the Court into contempt, it would be necessary to consider the whole of the article carefully. 4.44.2. The above law is followed in many cases.

4.45. OTHER ILLEGALITIES IN THE JUDGMENT DATED 27.04.2020 AND ORDER 04.05.2020. A. INCORRECT OBSERVATION IN PARA 63 B. MISINTERPRETATION IN PARA 40 C. PRESUMPTION ON WRONG PREMISE IN PARA 42 THAT, ALLEGED CONTEMNOR NO.1 HAD SENT THE COPY OF COMPLAINT TO JUSTICE ROHINTON NARIMAN D. MISINTERPRETATION AND TWISTING OF THE ACTUAL ISSUE IN PARA 43

E. WRONG OBSERVATION IN PARA 12 ABOUT ALLEGED CONTEMNORS SUBMISSION F. WRONG OBSERVATION IN PARA 35

4.45.1. In Para 63 it is observed by the Ld. Trial Court that, the allegations against the two Ld. Judges are false and no supportive material has been given by the alleged contemnors in their Reply to prove their allegations against Justice Rohinton Nariman.

It is a false, incorrect and misleading observation.

The reply filed and in the written submission dated 16.03.2020 it is specifically mentioned by all the alleged contemnors (No. 1 to 3) that, if preliminary objection is decided and the court wishes to proceed for, then the respondents were ready to give proofs in support of their allegations against the Judges. The said written submissions are not discussed.

The incorrectness of the observation is also proved from the order dated 09.12.2019 where it is made clear that;

“..only after going through the contents of the letter sent by alleged contemnors, this court after hearing the parties will decide whether contempt has been committed or not…”

But without hearing the parties, without deciding the preliminary objections, without asking and permitting the alleged contemnors to give proofs, the conclusions were drawn by ignoring material and written arguments in record and mentioning the incorrect facts in the judgment. Hence, it is a perverse judgment as ruled in Prem Kaur’s case (2013) 14 SCC 653.

The conclusions drawn are also against the binding guidelines of Full Bench in R.K. Anand’s case (2009) 8 SCC 106, where it is ruled that, the court has to give notice to the alleged contemnor to produce evidence in support of his defence and court cannot draw conclusion against the submissions in affidavit. Same law is laid down by Full Bench in Manohar Joshi’s case (1991) 2 SCC 342, Rajeev Dawar (2018) 12 SCC 487.

4.45.2. In Para 40 it is observed by the Ld. Trial Court that, the observations in Divine Retreats Case (2008) 3 SCC 542 are passed in a PIL therefore not applicable to the cognizance of contempt.

The judgment in Divine Retreat (2008) 3 SCC 542, itself mentions that, the procedure of taking cognizance of letter should be followed either in PIL or in any other jurisdiction then it is judicial impropriety and also highly illegal to mention that, it will not apply to the contempt jurisdiction when the similar law for contempt is already laid down by Full Bench in Bal Thackrey’s Case (2005) 1 SCC 254.

In Sunil Goyal Vs. Additional District Judge,2011(2) I.L.R. (Raj.)530, in a case of similar nature it is ruled that, the Judge refusing to follow Supreme Court’s binding precedents on the grounds that, the judgment of Hon’ble Supreme Court is passed in another jurisdiction, then the Judge is guilty of violation of binding precedents and departmental action should be taken against such a judge.

It is ruled as under;

“The wrong interpretation or distinction of a judgment of Hon'ble Supreme Court and this Court in a cursory manner by subordinate court and refusal to follow it on the ground that it is given in a different jurisdiction amounts to disobedience of the order of Hon'ble Supreme Court and this Court, therefore, the impugned

order passed by first appellate court is contemptous. It also shows that legal knowledge or appreciation of judgment of Hon'ble Apex Court, of the first appellate court is very poor. The distinction made by first appellate court that Hon'ble Apex court has passed the order in S.L.P. is also not proper. The Apex Court, under Article 136 of the Constitution of India may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. Learned first appellate court has also committed an illegality in making a distinction for not following the judgments of this Court on the ground that the orders have been passed in second appeal whereas it was dealing first appeal. First appellate court has distinguished the judgment of Hon'ble Apex Court delivered in M/s. Atma Ram Properties(P) Ltd. Vs. M/s. Federal Motors (P) Ltd.(supra) on the ground that the said judgment relates to Delhi Rent Control Act, whereas present case is under the provisions of Rajasthan Rent Control Act, and further that Hon'ble Apex Court has passed the order in Special Leave Petition.

When this Court relied upon a judgment of Hon'ble Apex Court, then there was no reason for the first appellate court for not relying upon the said judgment and in observing that the judgment of Hon'ble Apex Court in Atma Ram Properties(P) Limited Vs. Federal Motors (P) Limited(supra) is on Delhi Rent Control Act and the same has been passed in S.L.P. ……

From the above, it reveals that first appellate court deliberately made a distinction and did not follow the ratio laid down by Hon'ble Apex Court in Atma Ram's case and this Court in Madan Bansal and Datu Mal's cases. ”

Above said judgment of in Sunil Goyal is upheld by Supreme Court in Smt. Prabha Sharma Vs. Sunil Goyal (2017) 11 SCC 77, where it is ruled as under;

4.45.3. WRONG INTERPRETATION/PRESUMPTION WITHOUT ANY PROOF: IN PARA 42 IT IS OBSERVED BY THE LD. TRIAL COURT THAT, ALLEGED CONTEMNOR NO.1 VIJAY KURLE HAD SENT COPY OF HIS COMPLAINT TO ALL JUDGES INCLUDING BENCH OF JUSTICE R. F. NARIMAN: -

It is an incorrect and false observation. In fact, Shri. Vijay Kurle had never sent the copy of complaint to Justice Nariman and the order dated 27.03.2019 passed by Justice Nariman nowhere states that Adv. Vijay Kurle had sent the copy of complaint to him. The findings are therefore perverse.

4.45.4. In R.S. Sujata (2011) 5 SCC 689, it is ruled that, in the proceedings under contempt if presumption that a document was received by the addressee, is to be drawn then it should be kept in mind that, every presumption is rebuttable and in such a fact-situation, the appellant ought to have been given time to rebut this presumption and lead evidence to prove that the person did not receive the said document as alleged by the opposite parties, and it was necessary to do so in the present case. Law does not permit imposing any punishment in contempt proceedings on mere probabilities. The court cannot punish the alleged contemnor without any foundation and merely on conjectures and surmises.

4.45.5. MISINTERPRETATION AND TWISTING OF THE ACTUAL ISSUE :-

In Para 43 of judgment dated 27.04.2020, it is observed by the Ld. Trial Court that, the source of information for taking cognizance was the letter sent by Bombay Bar Association along with the complaints of alleged contemnor nos. 1 and 2. Therefore, the plea raised by the Respondents that the Judge should disclose the source has no merit.

It is complete misinterpretation and twisting of the actual issue to underplay the specific objection raised by the alleged contemnors.

The specific objection was regarding the point as to how the letter dated 23.03.2019 sent by Bombay Bar Association & Bombay Incorporated Law Society had reached the Bench of Ld. Justice Rohinton Fali Nariman as there is no ‘Inward/Outward’ number, no order or endorsement by the

Registrar, as is made mandatory in the “ Supreme Court Handbook of Practice and Procedure ” and also as per law laid down in Bal Thackeray's case (supra) and Divine Retreat's case (supra).

That, the Annexure 1 at Page No. 268 of the Supreme Court’s Handbook on Practice and Procedure 2017 is titled as under;

“Compilation of guidelines to be followed for entertaining Letter/Petitions Received”

Based on Full Court decision dated 01.12.1988 and subsequent modifications).

No petition involving individual/ personal matter shall be entertained as a PIL matter except as indicated hereinafter.

All letter-petitions received in the PIL Cell will first be screened in the Cell and only such petitions as are covered by the above mentioned categories will be placed before a Judge to be nominated by Hon'ble the Chief Justice of India for directions after which the case will be listed before the Bench concerned.

If a letter-petition is to be lodged, the orders to that effect should be passed by Registrar (Judicial) (or any Registrar nominated by the Hon'ble Chief Justice of India), instead of Additional Registrar, or any junior officer.

To begin with only one Hon'ble Judge may be assigned this work and number increased to two or three later depending on the workload.

Submission Notes be put up before an Hon'ble Judge nominated for such periods as may be decided by the Hon'ble Chief Justice of India from time to time.

If on scrutiny of a letter petition, it is found that the same is not covered under the PIL guidelines and no public interest is involved, then the same may be lodged only after the approval from the Registrar nominated by the Hon'ble the Chief Justice of India.

4.45.6. IN PARA 12 IT IS OBSERVED BY THE LD. TRIAL COURT THAT, THE ALLEGED CONTEMNOR CONTENTED THAT THE JUDGMENTS IN SUKHADEV SINGH SODHI 1954 SCR 454 IS OVERRULED:-

It is an outright incorrect observation. The petitioner never said so. On the contrary petitioner relied upon the ratio laid down in the judgment of Sukhdev Singh Sodhi's case 1954 SCR 454 for 2 grounds.

i) The framing of charge is mandatory as mentioned in Re: Pollard & Ibrahim Parekh's case which is made the law of the land Sukhadev Singh's case.

ii) The judge against whom allegations are made is disqualified to hear the case of contempt.

4.45.7. IN PARA 35 IT IS OBSERVED BY THE LD. TRIAL COURT THAT, IT HAS GONE THROUGH ALL THE WRITTEN ARGUMENTS AND PLEADINGS AND IT IS SEEN THAT, NO MATERIAL IS PLACED ON RECORD TO SUPPORT THE DEFENCE OF TRUTH:-

The incorrectness of this observation is proved from the written submission dated 16.03.2020 where it is specifically mentioned that, Justice Deepak Gupta on 02.03.2020 had asked Respondents that, they have to prove their allegations to which Respondents said that, they were ready to give proofs

and evidences and that the list of witnesses was already given to the court and a request was made to issue summons to those witnesses.

But there is no reference, denial or acceptance of abovesaid fact. The specific submission in written arguments dated 16.03.2020 are ignored and not even commented upon. Hence, the findings are wrong.

4.46. THE SENTENCE IS VITIATED FOR PASSING ORDER AGAINST LAW LAID DOWN IN RAM PHAL (2009) 3 SCC 258, AND FOR VIOLATION OF ARTICLE 14 AND ARTICLE 21 OF THE CONSTITUTION FOR REJECTING THE APPLICATION FOR ADJOURNMENT WITHOUT MENTIONING THE GROUNDS TAKEN IN THE APPLICATION AND WITHOUT ASSIGNING ANY REASON FOR REJECTING THE APPLICATION WHICH AMOUNTS TO GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 4.46.1. That, both the Ld. Judges in vide order dated 27.04.2020 found alleged contemnor No. 1, 2 and Petitioner guilty under Contempt and fixed the matter on 01.05.2020 for hearing on sentence.

4.46.2. The application for adjournment being I.A. No. 48483 of 2020 was rejected without even mentioning as to what are the grounds in the said application and even without hearing the applicant.

The specific ground in Para No. 2 for adjournment was as under;

‘‘2. That, as per the law laid down in Modi Telefibres Ltd. And Others Vs. Sujit Kumar Choudhary and Others (2005) 7 SCC 40, the order finding guilty under contempt and calling say on sentence is appealable.

As per the law laid down in Rupa Hurra Vs. Ashok Hurra (2002) 4 SCC 388, the order passed by a 2 Judge Bench of Supreme Court is appealable before a larger Bench.

In M.S.Ahlawat Vs. State (2000) 1 SCC 278, a 3 Judge Bench of this Court considered the challenge of conviction by a 2 Judge Bench of this Court.

3. That, the order passed under Contempt are to be treated as order passed by a Criminal Court and the alleged contemnor is entitled for all protection available to an accused. [R.S. Sherawat Vs. Rajeev Malhotra 2018 SCC Online SC 1347]

5. That, the order passed by 2 Judges of Hon’ble Supreme Court in Contempt is appealable by way of Writ before 3 Judge Bench. [M.S.Ahlawat Vs. State (2000) 1 SCC 278, Rupa Hurra Vs. Ashok Hurra and Another (2002) 4 SCC 388 ] 6. Order not accepting discharge is appealable [Anil Kumar Dubey Vs. Pradeep Kumar Shukla 2017 SCC Online Chh 95] 10. That, the Supreme Court in Santa Singh V. State of Punjab A.I.R. 1976 S.C. 2386, (1976) 4 SCC 190, has observed as under; “This new provision in Section 235 (2) is in

consonance with the modern trends in penology and sentencing procedures…Moreover, it was realized that sentencing is an important stage in the process of administration of criminal justice – as important as the adjudication of guilt – as it should not be consigned to a subsidiary position as if it were a matter of not much consequence. It should be matter of some anxiety to the Court to impose an appropriate

punishment on the criminal and sentencing should, therefore, receive serious attention of the Court.”

11. That, in para 4, it is stated as under; “We have set out a large number of factors which go into the alchemy which ultimately produces an appropriate sentence and full and adequate material relating to these factors would have to be brought before the court in order to enable the Court to pass an appropriate sentence. This material may be placed before the court by means of affidavits, but if either party disputes the correctness or veracity of the material sought to be produced by the other, an opportunity would have to be given to the party concerned to lead the evidence for the purpose of bringing such material on record. The hearing on the question of sentence, would be rendered devoid of all meaning and content and it would become an idle formality, if it were confined merely to hearing oral submissions without any opportunity being given to the parties and particularly to th e accused, to produce material in regard to various factors bearing on the question of sentence, and if necessary, to lea d evidence for the purpose of placing such material before th e Court.”

12. That, in the current overwhelming situation of COVID Pandemic, where all Courts nationwide including the Apex Court, have taken radical measures like:

A. Allowing hearing of only urgent matters

B. Deferring hearings of non-urgent matters

C. Restricting movement of advocates and litigants within court premises D. All the major courts started hearing only the most urgent matters via video conferencing E. Supreme Court on 23.03.2020 invoked its plenary power to extend limitation period of appeals after taking suo motu cognizance of the situation and difficulties that might be faced by litigants in filing their petitions/suits/appeals and all other proceedings.

F. Supreme Court on 31.03.2020 ordered all the St ates to consider releasing some inmates on parole to reduce overcrowding due to corona virus outbreak. G. Hon’ble Bombay High Court on 27.03.2020 directed to continue all interim orders till 30.04.2020 and also ordered that orders for decree for eviction, dispossession, demolition already passed by any court/Tribunal/Authority shall also remain in abeyance till then. With Governments of all countries and Institutions across the globe facing this unprecedented crisis, the measures were altered and tightened gradually as the world witnessed the rapid spread of COVID 19 Pandemic and several lakhs human lives it has claimed till date. 13. That, in an alarming situation like the present one, where every person, every Government, every instrumentality, every Organisation/Institution is grappling with the challenge to deal with the Pandemic and curb its

demonic killing of thousands and lakhs of people and throwing everyone out of their comfort zones, leaving common citizens with no option but to sit indoors as much as possible and carry out bare minimum activities to save one’s life. The complete lockdown announced by Central Government as well as State Government, to which we have seen repeat extensions as the Pandemic refuses to subside. Respondent 3 states that Maharashtra State, where is resides at present is leading the Country in numbers of COVID patients and deaths due to corona infection.

14. That, in the light of all above factors, Respondent 3 is anxious and has serious reservations over the hearing fixed on 01.05.2020 which is regarding a crucial matter of sentencing which would have strong bearing on the Respondent. 15. Given the adverse circumstances prevailing in the Country, the Respondent 3 humbly prays that; a) Adjourn the hearing to such a date after the restrictions currently imposed due to COVID 19 Pandemic are eased and situation is reasonably normal. Respondent 3 is not in a position to mention any specific period for which he requests adjournment, as no person or any State Government or any International Organisation is in a state to predict or conclusively state a date when the COVID 19 Pandemic would be over or be under control.

b) For further adjournment if my Recall Application is not allowed by granting me time to challenge the said order before larger Bench as per law laid down in M.S.Ahlawat Vs. State (2000) 1 SCC 278 and Rupa Hurra Vs. Ashok Hurra and Another (2002) 4 SCC 388. c) The hearing be fixed on such a date and be conducted in such a manner which ensures that Respondent 3 is able to put his case across effectively and his interests are not jeopardized due to technological issues.

4.46.3. But both the Ld. Judges on 04.05.2020, without hearing the petitioner, have passed a one line order as under;

“Interim Application No. 48483 of 2020

This is an application for adjournment. We find no reason to adjourn the matter. The application is rejected.”

4.46.4. That, the order without assigning any reason is not permissible. In Ram Phal Vs. State (2009) 3 SCC 258 it is ruled as under;

“Constitution of India - Several issues raised in support of relief sought-Without examining any of issues, High Court by cryptic and non-reasoned order dismissed petition-It is not the way to dispose of petition-Giving of reasons required by ordinary man's sense of justice-Impugned order set aside- Matter remitted to High Court.” 4.46.5. In Union of India (UOI) Vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148, it is ruled as under ;

“Reasoned Order- It is a settled legal proposition that so judicial order must be supported by reasons, recorded in it. The person who is adversely affected must know why his application has been rejected. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide: State of Orissa v. Dhaniram Luhar MANU/SC/0082/2004 : AIR 2004 SC 1794; State of Uttaranchal and Anr. v. Sunil Kumar Singh Negi MANU/SC/7315/2008 : AIR 2008 SC 2026; The

Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Ors. MANU/SC/0155/2010 : AIR 2010 SC 1285; and Sant Lal Gupta and Ors. v. Modern Cooperative Group Housing Society Limited and Ors. MANU/SC/0859/2010 : (2010) 13 SCC 336). (Para 33) ”

4.46.6. In Dhanuben Patel Vs. ONGC 2014 SCC OnLine Guj 15949, it is ruled as under;

“REASONED ORDER: The Court cannot lose sight of the fact that a losing litigant has a cause to plead and a right to challenge the order if it is adverse to him. Opinion of the Court alone can explain the cause which led to passing of the final order. Whether an argument was rejected validly or otherwise, reasoning of the order alone can show. To evaluate the submissions is obligation of the Court and to know the reasons for rejection of its contention is a legitimate expectation on the part of the litigant. Another facet of providing reasoning is to give it a value of precedent which can help in reduction of frivolous litigation.

B] "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed: "Failure to give reasons amounts to denial of justice." "Reasons are live links between the mind of the decision- taker to the controversy i n question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, rende

r it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review i n adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him.

Absence of reasoning did not find favour with the Supreme Court. The Supreme Court also stated the principle that powers of the High Court were circumscribed by discussed and declared by judicial decision and it cannot transgress the limits on the basis of whims or subjective opinion varying from Judge to Judge. That even when the petition under Article 226 is dismissed in limini, it is expected of the High Court to pass a speaking order,may be briefly.

"reason is the heartbeat of every conclusion, and without the same it becomes lifeless."

4.46.7. In Bhagabhai Dhanabhai Barad MANU/GJ/0398/2019 it is ruled as under;

‘‘Reasoned Order – Any Order should be with intellectual reasons on each point- Any Judge or quasi judicial authority is bound to pass a reasoned order Reasons in support of decisions must be cogent, clear and succinct.

"adequate and intelligent reasons must be given for judici al decisions".

A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process.

The Apex Court further held that a litigant who approaches the Court with any grievance is entitled to know the reasons for grant or rejection of his prayer.

It further held that insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done, but it must also appear to be done, as well. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi- judicial or even administrative power. Insistence on reason is a requirement for both judicial accountability and transparency. If a judge or a quasi judicial authority is not candid enough about his/her decision-making process, then, it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

Since the requirement to record reasons emanates from th e broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, MANU/UKWA/0114/2001 : 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires "adequate and intelligent reasons must be given for judicial decisions".

The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter b y a reasoned or speaking order. This has been uniformly applied by courts in India and abroad.

"the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained."

To sub-serve the purpose of justice delivery system, therefore, it is essential that the Courts should record reasons for its conclusions, whether disposing of the case at admission stage or after regular hearing.

The requirement of recording reasons is applicable with greater rigour to the judicial proceedings. The orders of th e court must reflect what weighed with the court of granting or declining the relief claimed by the applicant. In this regard we may refer to certain judgments of this Court."

Considering these decisions and also noticing that the combined order impugned, passed below Exh. No s. 3 and 4 of the Criminal Appeal No. 4 of 2019 lacks completely reasons and is a cryptic, non-speaking order, therefore,

cannot stand to leg nor can it be sustained. The applicatio n, which had been tendered on the part of respondent No. 1 even though contains requirements of respondent No. 1 and also has conveyed the details as would be required to be placed before the Court concerned, however, that which is obligatory on the part of the Court can have no other substitute and the appellate Court while dealing with such application, when has totally failed in its duty in giving reasons, this Court would be failing in its duty if it does n ot interfere and quash the said order.

Reasons being the soul of any order, this opaqueness on account of absence of reasons, it not checked, it may give impetus to the arbitrariness and to trade on extraneous grounds. Our democracy based on rule of law, favours the reasoned order and decisions based on facts and hence, to upkeep the objectives of judicial accountability and transparency, this Court is required to interfere with the order impugned.

Resultantly, the petition is allowed. The order of the appellate Court dated 07.03.2019 passed below Exhs. 3 an d 4 in Criminal Appeal No. 4 of 2019 is quashed and set aside. Considering the fact that this order would leave a void.

32. Considering these decisions and also noticing that the combined order impugned, passed below Exh. Nos. 3 and 4 of the Criminal Appeal No. 4 of 2019 lacks completely reasons and is a cryptic, non-speaking order, therefore, cannot stand to leg nor can it be sustained. The application,

which had been tendered on the part of respondent No. 1 even though contains requirements of respondent No. 1 and also has conveyed the details as would be required to be placed before the Court concerned, however, that which is obligatory on the part of the Court can have no other substitute and the appellate Court while dealing with such application, when has totally failed in its duty in giving reasons, this Court would be failing in its duty if it does n ot interfere and quash the said order.’’

4.47. COGNIZANCE IN CONTEMPT AND NOTICE ISSUED AGAINST THE PROCEDURE LAID DOWN BY BINDING PRECEDENTS OF HON’BLE SUPREME COURT IS NULLITY. [M/S PROMINENT HOTELS LIMITED 2015 SCC ONLINE DEL 11910 (PARA 22.2), IN RE: CHIEF SECRETARY GOVT. OF WEST BENGAL 2003 SCC ONLINE CAL 490 (PARA 19)]:-

4.47.1. In present case the Ld. Trial Court refused to follow the procedure laid down by this Hon’ble Court in P.N.Duda’s case (1988) 3 SCC 167 by observing in para 16 that, it is not the procedure prescribed under the Rules.

4.47.2. Needless to mention that, as per Article 141 of the Constitution the law declared by the Hon’ble Supreme Court is the law of the land.

4.47.3. In New Delhi Municipal Council Vs. M/S Prominent Hotels Limited 2015 SCC Online Del 11910 had ruled as under;

‘‘22.2. In East India Commercial Co. Ltd. v. Collector of Customs, Calcutta, AIR 1962 SC 1893, Subba Rao, J. speaking for the majority observed reads as under: ‘‘31. This raises the question whether an administrative tribunal can ignore the law declared by

the highest Court in the State and initiate proceedings in direct violation of the law so declared under Art. 215, every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that Court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate Courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate Courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest Court in the State is binding on authorities, or tribunals under its superintendence, and that they cannot ignore it either

in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings, contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction."

(Emphasis supplied)’’ 4.47.4. In Re: Chief Secretary Govt. of West Bengal 2003 SCC OnLine Cal 490 it is ruled as under;

‘‘19. These observations of the Constitution Bench of the Supreme Court still hold the field. Having regard to those observations of the Supreme Court and also having regard to the Constitutional provisions, this Court is of the view that the directions which were given by the learned Judge in the order dated 29th September, 2003, prima facie, cannot be sustained. The ambit of fundamental right granted under the Constitution can only be reasonably restricted by valid law made by the State. The directions by the learned Single Judge restricting the fundamental right of the citizens are, therefore, prima facie, untenable in law. (See the decision of Supreme Court in Byoe Emmanuel v. The State of Kerala, reported in AIR 1987 Supreme Court 748 at paragraph 15.) Even laws made by State can only reasonably restrict such right in the interest of public order. [See Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, AIR 1973 SC 87, at paragraph

33]’’

4.48. FRAUD ON COURT, SERIOUS CRIMINAL OFFENCES AGAINST ADMINISTRATION OF JUSTICE AND GROSS CONTEMPT BY ADV. SIDDHARTH LUTHRA WHO WAS APPOINTED AS AN AMICUS CURIAE, AND WHO MISGUIDED THE COURT BY GIVING WRONG LEGAL POSITION AND RELIED ON OVERRULED AND PER-INCURIAM JUDGMENTS, SUPPRESSED THE IMPORTANT DOCUMENTS/COMMUNICATION FROM COURT, CREATED FALSE EVIDENCES AND USED IT TO BE GENUINE ONE TO FRUSTRATE THE LEGAL RIGHTS OF THE PETITIONER AND THE COMPLAINANTS I.E. ALLEGED CONTEMNOR NO. 1 AND 2 BEFORE LD. TRIAL COURT.:-

4.48.1. That, Mr. Siddharth Luthra was appointed as an Amicus Curiae. The role of Amicus is to place the correct legal position before the Court and true facts. He is a designated Senior Counsel and therefore, his duty is more than any other advocate.

But Mr. Siddharth Luthra has repeatedly abused the process of Court by giving overruled and per-incuriam Judgments and putting false and incorrect facts deliberately.

The details of his misconduct are capsulized in the following paragraphs.

4.48.2. That, during the course of hearing Hon’ble Justice Deepak Gupta had put a specific question to Ld. Amicus Mr. Luthra that, when the letter dated 23rd March, 2019 by Mr. Milind Sathe was addressed to Hon’ble CJI then how it had reached to the Bench of Ld. Judge Shri. Rohinton Fali Nariman. In answer to this Ld. Amicus Mr. Luthra had incorrectly replied that, the said letter was assigned by Hon’ble CJI to Justice Rohinton Nariman.

In fact it was never assigned by Hon’ble CJI to the Bench headed by Ld. Justice Rohinton Fali Nariman.

The incorrectness of this submission can be seen from the Court record and also from the order dated 27th March, 2019 where it is mentioned that, the letter is received by the Bench on 25th March, 2019. There is no mention in the order that the said letter was assigned by Hon’ble CJI. There is no order available on record to indicate that, the said letter was assigned by Hon’ble CJI.

Moreover, the prayer of the said letter dated 23rd March, 2019 is regarding refusal of sanction by Hon’ble President of India, which is not the jurisdiction of two Ld. Judges. There is no prayer for any Suo-Moto Contempt action nor is anything prayed from two Ld. Judges. Therefore there is no question of the said letter being acted upon by two Ld. Judges.

Furthermore, Hon’ble CJI could have never assign the said letter to the same Judge against whom complaint under “In-House-Procedure” is given. The procedure adopted by ‘Full Court’ of Hon’ble Supreme Court, itself bars it in addition to the law of Judicial Bias. It is basic law that, ‘no one can be Judge in his own case’.

4.48.3. In Additional District and Sessions Judge 'X'(2015) 1 SCC (LS) 799 it is ruled as under;

“53. It is essential for us to record a finding even on the last contention advanced at the hands of the learned counsel. We say so, because according to the learned counsel for the petitioner, it would not be proper, in the facts and circumstances of this case, to reinitiate the process expressed in the "in-house procedure", through the Chief Justice of the High Court. It seems to us, that there is merit in the instant

contention. Undoubtedly, the Chief Justice of the High Court has adopted a position, in respect of some aspects of the matter, contrary to the position asserted by the petitioner. Truthfully, even though these facts do not have any direct bearing on the allegations levelled against respondent no. 3, yet when examined dispassionately, the fact of the matter is that the Chief Justice of the High Court, personally perceived certain facts differently. These facts are personal to the Chief Justice of the High Court, namely, whether attempts were made by the petitioner to meet the Chief Justice of the High Court, and whether he declined such attempts. In the above view of the matter, we are of the considered view, that it may not be appropriate, in the facts and circumstances of the present case, to associate the Chief Justice of the High Court with the investigative process. It is not as if, there is any lack of faith, in the Chief Justice of the High Court. It is also not as if, there is any doubt in our mind, about the righteousness of the Chief Justice of the High Court. The issue is that of propriety. To the credit of the Chief Justice of the High Court, we may also observe, that he may have adopted the present procedure, just for the reasons indicated above, namely, to keep himself out of the fact finding process, so as to arrive at a fair and just decision. But that is inconsequential. We are accordingly further satisfied in concluding, that following the "in-house procedure" strictly by associating the Chief Justice of the concerned High Court, would not serve the contemplated purpose, insofar as the present controversy is concerned.

55. In view of the consideration and the findings recorded hereinabove, we may record our general conclusions as under:

(i) The "in-house procedure" framed by this Court, consequent upon the decision rendered in C. Ravichandran Iyer's case (supra) can be adopted, to examine allegations levelled against Judges of High Courts, Chief Justices of High Courts and Judges of the Supreme Court of India.

(iii) Even though the said procedure, should ordinarily be followed in letter and spirit, the Chief Justice of India, would have the authority to mould the same, in the facts and circumstances of a given case, to ensure that the investigative process affords safeguards, against favouritism, prejudice or bias.

(iv) In view of the importance of the "in-house

procedure", it is essential to bring it into public domain. The Registry of the Supreme Court of India, is accordingly directed, to place the same on the official website of the Supreme Court of India. 4.48.4. In Sudakshina Ghosh Vs. Arunangshu Chakraborty (Uday) 2008 SCC OnLine Cal 34, it is ruled that even Chief Justice cannot act against the rules framed by the Court. It is ruled as under;

“20. Keeping in mind the aforesaid decision of the Hon'ble Supreme Court, this Court has no hesitation to hold that the Rules which have been framed by this High Court regarding distribution of its business, should be followed strictly and the administrative decision of the Hon'ble Chief Justice regarding distribution of its business cannot override the said Rules.”

4.48.5. Moreover, the communication with Dy. Registrar is self- explanatory to prove that, the letter dated 23.03.2019 was not assigned by Hon’ble CJI and on the date of cognizance i.e. on 27th March, 2019 the said letter dated 23.03.2019 was not accompanied with any annexures. The complaint dated 20.03.2019 (P-1) and 19.03.2019 (P-2) were not on the record of the two Judges on 27.03.2019 when the show cause notice was issued.

[Please see - Page No. 9 Para 13,14,15,16, of Reply Affidavit dated 23.10.2019] filed by alleged contemnor No.2 which is neither disputed nor denied by Ld. Amicus Mr. Luthra. Despite this position, Mr. Luthra has made such incorrect and misleading statements.

4.48.6. Needless to mention that, being Amicus Curiae, it was duty of Mr. Luthra to fairly state and comment on the factual and legal position whether

it may be in favor of any party or not. The time honored phrase ‘Don’t see who is right, See what is right’. It is settled law that, the grounds/objections raised by the Petitioner and alleged contemors which are neither disputed nor denied or traversed by Ld. Amicus Curiae will lead to only one conclusion that there is nothing to say against those grounds and Hon’ble Court is bound to draw adverse inference against Ld. Amicus and positive inference in favour of alleged contemnor.

4.48.7. When all the illegalities and contempt committed by Amicus Mr. Siddharth Luthra were brought to the notice of Ld.Trial Court, Mr. Siddharth Luthra, did not bother to withdraw his contemptuous and incorrect submissions. Rather he had taken a stand that, since the judgments of Pritam Pal Singh case is not shown as overruled in the Lexis Nexis software therefore, these cannot be treated as overruled.

4.48.8. That, the alleged contemnor No. 1, 2 and Petitioner in their written submission dated 16.03.2020, had pointed out the malafides of Amicus Mr. Siddharth Luthra.

4.48.9. The submissions of Petitioner in ‘Written Submission’ dated 16.03.2020 are as under;

‘‘5. The next ground is that, if any such letter, telegram is received by any Judge, then it is his duty to direct registry to place it before Hon’ble CJI as he is only the ‘‘Master of Roaster’’. Either it may be under PIL, Contempt or any other jurisdiction. If any cognizance is taken by any Judge/Bench against this procedure then such cognizance and all orders are vitiated.

(i) Devine Retreat Centre (2008) 3 SCC 542 [Vol. 1 Page No. 148] [Para 71,72,73], (ii) A. V. Amarnathan 1998 SCC OnLine Kar 664 [Vol. 1 Page No. 178] [Para 45, 43- A], (iii) Bal Thackeray (2005) 1 SCC 254 [Vol 1 Page No. 205] [Para 17], (iv) Gokul Dairy 2002 SCC OnLine All 3 [Vol. 1 Page No. 201] [Para 7], (v) Campaign For Judicial Accountability And Reforms (2018) 1 SCC 196 (5 J) [Vol. 6 Page No.1] [Para 10] Ld. Amicus did not disputed this position by any counter case law. That, none of the judgments cited by Ld. Amicus says that, the individual judges can take cognizance of letter received by them. Ld. Amicus in order to mislead this Hon’ble Court in para

‘17.11 & 17.12’, made incorrect submissions that the Divine retreat’s case (supra) deals only with the PIL and setting criminal law in motion and does not deal with the contempt. In fact in Divine Retreat (2008) 3 SCC 542 it is clearly mentioned that, it is for all jurisdiction of the Court. Furthermore, in Sukhdev Singh Sodhi’s (supra) it is made clear that, the order passed in contempt jurisdiction has to be treated as an order passed by a criminal Court. Hence, looking from any angle the proceedings are vitiated. The submission of Ld. Amicus is nothing but a gross attempt to misguide the court by giving wrong legal position deliberately.

7.1. Ld. Amicus in his W.S. dated 02.03.2020 at Pg. No. 19 para 10.34 incorrectly said that, the judgments of 3- Judge

Bench in Pallav Sheth (supra) only deals with provisions of section 20 of the Contempt Act.

The incorrectness of this submission is clear from para 30, 31 of Pallav Sheth (supra). Where it is clearly mentioned that, the proceedings under Article 129 including has to be conducted as per provisions of Contempt of Court’s Act. and it dealt with procedure and punishment aspect also.

7.2. Ld. Amicus in para 10.35 also misquoted the ratio in Maheshwar Peri (2016) 14 SCC 251. The para 10 of said judgment proves incorrectness of the submission by Ld. Amicus Mr. Luthra.

8. FRAMING OF FORMAL CHARGE IS MANDATORY EVEN IF THE ALLEGED CONTEMNOR ACCEPTS THAT HE HAS COMMITTED CONTEMPT:-

In Ebrahim Mammojec Parekh Vs. Emperor ILR 4 Rang 257 (AIR 1926 Rangoon 188) (Vol. 2 Page 706) ruled as under;

‘‘Nevertheless we cannot avoid the conclusion that, what the Privy Council laid down in Pollard's case [1868] 2 P. C. 106=5 Moor. P.C (N.S.) 111 and repeated in Chang Hang Kiu's case [1909] A. C. 312=78 L. J. P. C. 89=100 L. T. 310=21 Cox. C.C. 778=25 T.L.R. 381 was intended to be a general principle which must be applied in all cases of contempt, however, gross and that even if a witness has in evidence, given immediately before the proceedings for contempt, admitted the contempt, and even if the contempt which he has admitted is a gross contempt, nevertheless he cannot be punished for that contempt unless the specific offence charged against him has

been distinctly stated and unless he has had an opportunity of answering the charge.”

The above law is made mandatory in Sukhdev Singh Sodhi 1954 Sur 454 (Vol No.1 Page No. 342) (Para 21) [Also relied by Ld. Amicus in para 10.5 of W.S. dated 02.03.2020]

The said law is also cited with approval in C.K. Daphatary’s case. In para 82 it is made clear that, distinct charge should be there.

After Amendment specific provision is made in sec. 15 (3) of the Contempt of Courts Act, which mandates that, specific charge should be framed. [J.R. Parashar’s case (2001) 6 SCC 735,The Editor Blitz 1979 ILR 25 (Bom) (DB), Nandlal Thakkar 2012 SCC OnLine Guj 470].

The Above legal position is recently ruled in R.S. Sherawat (2018) 10 SCC 574 (Vol No.1 Page 752). The relevant para 23 is relied by the Respondent No. 3. Where it is ruled as under;

This ground was taken at Page No. 170 para 18.14 of Written Submission of Respondent No.3.

In Sahdeo Singh (2010) 3 SCC 705 in Para 36 & 37 the defect of not framing correct charge in notice is specially mentioned. Please see para 18.4 of affidavit dated 25.10.2019 filed by Respondent No. 2. It is ruled by this Hon’ble Court that, the proceedings are vitiated

for not framing charge. But Ld. Amicus in reply to this legal position in para 17.46 of Additional W.S. dated 02.03.2020 made incorrect and misleading submission by misquoting the ratio in the case of R.S. Sherawat (supra) & Sahdeo (supra) (‘by omitting the word charge’) This itself proves the conduct of Ld. Amicus Mr. Siddharth Luthra to deliberately mislead the Court.

11. That, there is no evidence against Respondent No. 3. Then also Ld. Amicus on 09.12.2019 asked this Hon’ble Court to direct him to file affidavit regarding his consent which was not the charge. It is violation of my fundamental right guaranteed under article 20(3). [Clough Engineering Ltd. 2009 Cri. L.J. 2177]. Even otherwise as per law laid down by this Hon’ble Court and more particularly in National Fertilizer’s case (2013) 9 SCC 600 [Vol. 5 Pg. No. 877], when there is no evidence available against Respondent then the contempt proceeding cannot be decided on the basis of reply filed by the Respondent but the complainant/prosecution should be asked to produce evidence first or proceedings has to be dropped. It is ruled as under;

‘‘35. In Chhotu Ram v. Urvashi Gulati [(2001) 7 SCC 530 : this Court in paras 2 and 3 of the judgment held as under: (SCC pp. 532-33)

“2. As regards the burden and standard of proof, the common legal phraseology ‘he who asserts must prove’ has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the ‘standard of proof’, be it noted that a proceeding under the extraordinary

jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.

3. Lord Denning (in Bramblevale Ltd., In re [1970 Ch 128 : (1969) 3 WLR 699 : (1969) 3 All ER 1062 (CA)] ) lends concurrence to the aforesaid and the same reads as below: (Ch p. 137 A-B & E : All ER pp. 1063 H-1064 B)

A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. … Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt.”

18. The case laws related with duty, responsibility and action against Amicus Mr. Siddharth Lutha are mentioned in para 13.1 to 13.11 of W.S. by Respondent No. 3.

19. The Ld. Amicus gave many contrary versions in his Additional W.S. filed on 02.03.2020. In para 10.59 it was submitted that, letter dated 20.03.2019 was authored by Respondent No. 1, On the contrary in para

10.76 it is mentioned that, said letter was authored by Respondent No. 3. In para 17.33 and 20.11 it is the case of Ld. Amicus that the complaint dated 20.03.2013 was sent by Respondent No. 1.

However, in para 10.75 & 10.60 he created a contrary story that, Respondent No. 3 admitted that, he sent the complaint dated 20.03.2019. The Ld. Amicus made a false submission in order to misled the court in para 10.75 of Additional W.S. as under;

“It is submitted that apart from the admission made by the Respondent No. 3 in the discharge application dated 17.09.2019, the Respondent No. 3 in his written submission at pg. 134 has stated as under;

“In the present case charge nowhere states that the complaint filed by me is false or s distorted version is mentioned.”

Apart from own contrary version the falsity and incorrectness of Ld. Amicus is ex-facie clear from record.

The submission at Pg. 134 of W.S. of Respondent No. 3 is the part of para 16.8 which starts from Pg. 132 and it is the reproduction of version of Respondent No. 1, but Ld. Amicus once again tried to frame Respondent No. 3 by giving false and misleading submission divorced from the context it was made.

The falsity of submission of Ld. Amicus Mr. Luthra is ex-facie clear from the para 16.8 at pg. 132 of W.S. which starts as under;

‘‘16.8. Respondent No. 1 in his Discharge Application had taken a specific ground No. 2 in Para 5 at Page No.12 that on

this ground alone the proceedings under Contempt needs to be dropped. The said Para 5 ground No. 2 reads as under;

6# GROUND NO. 2 # CHARGE OF GIVING ‘SCANDALOUS COMPLAINT’ IS NOT MAINTAINABLE UNLESS IT IS SHOWN THAT, THE COMPLAINT IS FALSE.”

At pg. 134 para 16.9 read as under; “16.9. In said ground Respondent No. 1 relied on various judgment of this Hon‘ble Court and more particularly in para 5.2 relied on Constitution Bench judgment in Subramanyam Swami‘s case.”

It is worth to mention that, Respondent No. 3 nowhere said that, he wanted to retract any statement made in his earlier discharge application. It is a camouflage by Ld. Amicus to cover up his mistakes.

20. Hence it is ex-facie clear that, Ld. Amicus Mr. Siddharth Luthra first made incorrect statement in first W.S. and when his falsity was pointed out by Respondent No. 1 to 3 then after perceiving adverse atmosphere he instead of tendering apology again created false evidence to save himself and frame Respondent No. 3 anyhow. This proved the allegations of Respondents against Ld. Amicus. This as a serious offence under Section 192, 211 r/w 120 (B) of IPC.

21. Without prejudice to the abovesaid submission is it worth mention here that, as per mandates of the section 15 (3) of Act, and more particularly as per law laid down in J.R.

Parashar (2001) 6 SCC 735, if Ld. Amicus is of the view that, the affidavits, reply filed by me endorsed the alleged contemptuous act of Respondent No. 1 & 2 or any new charge is required to be taken in to consideration then the proper procedure is to initiate new contempt proceedings by issuing proper notice and mentioning said charge. It is ruled as under;

“38……...We are conscious that Respondent 3 has said before us that she stood by the comments made, even if they were held to be contumacious. At the same time, we are also aware that when the statement was made, the respondent had not been called on formally to defend herself against this charge. The prescribed procedure will have to be followed.

39. For the aforementioned reasons, while dismissing the proceedings initiated on the basis of the petition against all three respondents, we direct that notice in the prescribed form be issued to Respondent 3 as to why Respondent 3 should not be proceeded against for contempt for the statements in the three paragraphs of her affidavit set out earlier in this judgment.”

22. But Ld. Amicus did not adopted this procedure of asking new notice against Respondents because submission by Ld. Amicus are itself false, misleading and baseless. The Respondent No. 3 request this Hon’ble Court to decide this issue by either issuing fresh notice to the Respondent No. 3 or by initiating action against Ld. Amicus Mr. Siddharth Luthra for giving false, misleading and incorrect evidence to frame Respondent No. 3.

23. It is further submission of Ld. Amicus Mr. Luthra in para 13.7 that since judgments in C. K. Daphtary (supra), Pritam

Pal (supra), Zahira Shaikh (supra) etc are not per- incuriam or overruled because legal software is not showing them as overruled. He wanted to suggest this Hon’ble court to ignore views of larger benches.

Full Bench in C.N. Rudramurthy (1998) 8 SCC 275 had ruled that, when view taken by higher benches is on record then the Supreme Court need not re-examine a case which had by implication be declared incorrect. The other contrary view by Smaller Benches stands impliedly overruled. If provisions of Act explained then no contrary view is permissible by Smaller Benches.

In K.S. Subramaniyam (1976) 3 SCC 677 it is ruled that, the opinion of Larger Benches is binding.

23.1. Pritam Pal’s case (supra) is considered and contrary view is taken by Full Bench in Bal Thackeray (2005) 1 SCC 254. But Ld. Amicus is not ready to accept the view of Full Bench.

23.2. Needless to mention here that, the judgment of Pritam Pal’s case (supra) was considered by ‘‘Natchiappan Committee’’ and subsequently the Contempt of Court’s Act, 2006 came in to force.

23.3. After amendment truth/justification was allowed as defence and Constitution Bench in Subramanyam Swami (2014) 12 SCC 344. Further in para 17 it is once again made it clear that, the provisions of Section 12, 13, 15 of Contempt of Court’s Act, 1971 are applicable to Supreme Court.

23.4. In Lal Bahadur Gautam (2019) 6 SCC 441, it is ruled that, the reliance on the judgment of repealed act amounts to

reliance on overruled judgment by the advocate and is misconduct. [Please see para 13.1 to 13.11 of W.S by Respondent No. 3.]

But Ld. Amicus in his W.S. dated 02.03.2020 had again relied on C.K. Daphtary 1971 (1) SCC 626 & D.C. Saxena (1996) 5 SCC 216 case to fortify that, the truth is not a defence.

Needless to mention here that, the judgment of C.K. Daphtary & Dr. D.C. Saxena (supra) is per-incuriam as it overlooked the earlier binding constitution Bench judgment in Bathina Reddi AIR 1952 SC 149. This thing was explained in (2003) 4 SCC (Jour) 12, the article by Shri. T.R. Andhyarjuna former Solicitor General of India.

Secondly, in para 39 of P.N. Duda’s case it is made clear that, after new Act, 1971 the judgment of C.K. Daphtary’s case is of no assistance. Same view is taken in para 17 of Biman Basu’s case (2010) 8 SCC 673. But it is the submission of Ld. Amicus in para 10.37 of Additional Written Submission that since the judgment of C.K. Daphtary is not shown as overruled in case treatment given in legal software therefore, it cannot be treated as overruled. In para 10.20 it is further submission of Ld. Amicus the ratio in C.K.

Daphtary should be followed by ignoring view of Larger Benches and also the amendment in the Act.

If this is not a misconduct then what will be the misconduct. This thing needs serious consideration by this Hon’ble Court.

4.48.10. The submission of alleged contemnor No. 2 in Written Submission dated 16.03.2020 reads thus;

‘‘20. None of the case laws relied by Ld. Amicus deal with the action in the complaint made by the Respondent. The case laws of scandalous publication is different and not applicable to the cases under complaint against Judges.

Relied on: Harihar Shukla 1976 Cr. L.J. 507 (para 17). [Please see Para 53 of W.S. by Respondent No. 2]

21. The next contention of Ld. Amicus in para 10.58, of his

Additional W.S. is that, even if the allegations are true then also the Respondent No. 1 & 2 are not permitted to pray for prosecution against Supreme Court Judge and the prayer itself is contemptuous. To support this proposition he relied on para 59 of D.C. Saxena’s case (1996) 5 SCC 216. On similar issue he relied on C.K. Daphtary’s case (1971) 1 SCC 626 to say that truth, justification cannot be a defence.

The above judgment and ratio and the submission are overruled in view of 2006 amendment in the act and Constitution Bench judgments in Re: C.S. Karnan (2017) 7 SCC 1, Subramanian Swamy (2014) 12 SCC 344 relied by me in discharge application and in W.S.

22. That, the additional written arguments by Ld. Amicus Mr. Luthra makes it clear that my allegations against him are correct and he need to be prosecuted for misguiding the Court. The concluding Para 69 in W.S. by Respondent No. 2 may kindly be taken in to consideration.

4.48.11. CITING OVERRULED PER-INCURIAM JUDGMENTS TO MISLED THE COURT IS GROSS PROFESSIONAL MISCONDUCT AND IS ALSO CONTEMPT OF COURT:-

4.48.11.1. In a similar case in Lal Bahadur Gautam Vs. State (2019) 6 SCC 441, “Hon’ble Justice Arun Mishra” while condemning the misconduct of a Counsel observed in “para 10” that, relying on judgments

of repealed act amounts to giving overruled judgment. [Please see:- Para 10 to15]

4.48.11.2. Hon’ble Supreme Court in State Of Orissa Vs. Nalinikanta Muduli (2004) 7 SCC 19 (Vol. 5 Page 776), had ruled as under;

“6………It is a very unfortunate situation that learned counsel for the accused who is supposed to know the decision did not bring this aspect to the notice of the learned single Judge. Members of the Bar are officers of the Court. They have a bounden duty to assist the Court and not mislead it. Citing judgment of a Court which has been overruled by a larger Bench of the same High Court or this Court without disclosing the fact that it has been overruled is a matter of serious concern. It is one thing that the Court notices the judgment overruling the earlier decision and decides on the applicability of the later judgment to the facts under consideration on it - It was certainly the duty of the counsel for the respondent before the High Court to bring to the notice of the Court that the decision relied upon by the petitioner before the High Court has been overruled by this Court. Moreover, it was duty of the learned counsel appearing for the petitioner before the High Court not to cite an overruled judgment -We can only express our anguish at the falling standards of professional conducts.”

4.48.11.3. In Hindustan Organic Chemicals Ltd. Vs. ICI India Ltd.2017 SCC Online Bom 74 (Vol. 5 Page 780), it is ruled as under;

“DUTY OF ADVOCATES TO NOT TO MISLED THE COURT EVEN ACCIDENTALLY – THEY SHOULD COME BEFORE COURT BY PROPER ONLINE RESEARCH OF CASE LAW BEFORE ADDRESSING THE COURT.

I have found counsel at the Bar citing decisions that are not good law.

The availability of online research databases does not absolve lawyers of their duties as officers of the Court. Those duties include an obligation not to mislead a Court, even accidentally. That in turn casts on each lawyer to carefully check whether a decision sought to be cited is or is not good law. The performance of that duty may be more onerous with the proliferation of online research tools, but that is a burden that lawyers are required to shoulder, not abandon. Every one of the decisions noted in this order is available in standard online databases. This pattern of slipshod research is inexcusable.”

4.48.11.4. Hon’ble High Court in Court on its Own Motion Vs. D.S.P. Jayant Kashmiri 2017 SCC OnLine Del 7387had ruled that, giving overruled judgment to misled the Court is Contempt of Court. Here Ld. Amicus Mr. Luthra despite having full knowledge that, the judgments relied by him are overruled decided wilfully to rely on the same and therefore he can not take defence of any bonafide mistake.

It is ruled as under;

‘‘68. Therefore, unless the intention was to mislead the court, erroneous citing of an overruled judgment may not ipso facto

and per se be considered contumacious.’’

4.48.11.5. In Shiv Kumar Vs. Hukam Chand (1999) 7 SCC 467(F.B) it is ruled as under;

“13. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts- involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle or conceal it On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes this knowledge.”

4.48.11.7. In Heena Nikhil Dharia Vs. Kokilaben Kirtikumar Nayak and Ors. 2016 SCC OnLine Bom 9859, it is ruled as under; “35. Wholly unrelated to any preliminary issue or the question of limitation, or to any estate, partition or administration action, is the decision of AM Khanwilkar J (as he then was) in Chandrakant Govind Sutar v. MK Associates 2003 (1) Mh. LJ 1011 Counsel for the petitioner raised certain contentions on the

maintainability of a civil revision application. Khanwilkar J pronounced his judgement in open Court, finding for the petitioner. Immediately thereafter, counsel for the petitioner brought to the court's notice that certain relevant decisions on maintainability had not been placed. He requested that the judgement be not signed and instead kept for re-hearing on the question of maintainability. At that fresh hearing, petitioner's counsel placed decisions that clinched the issue against the petitioner. The civil revision application was dismissed. The counsel in question was A.S. Oka, now Mr. Justice Oka, and this is what Khanwilkar J was moved to observe in the concluding paragraph of his judgement:

‘9.While parting I would like to make a special mention regarding the fairness of Mr. Oka, Advocate. He conducted the matter with a sense of detachment. In his own inimitable style he did the wonderful act of balancing of his duty to his client and as an officer of the Court concerned in the administration of justice. He has fully discharged his overriding duty to the Court to the standards of his profession, and to the public, by not withholding authorities which go against his client. As Lord Denning MR in Randel v. W. (1996) 3 All E. R. 657 observed:

“Counsel has time and again to choose between his duty to his client and his duty to the Court. This is a conflict often difficult to resolve; and he should not be under pressure to decide it wrongly. Whereas when the Advocate puts his first

duty to the Court, he has nothing to fear. But it is a mistake to suppose that he (the Advocate) is the mouthpiece of his client to say what he wants. The Code which obligates the Advocate to disregard the instructions of his client, if they conflict with his duty to the Court, is not a code of law — it is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.”

This view is quoted with approval by the Apex Court in Re. T.V. Choudhary, [1987] 3 SCR 146 (E.S. Reddi v. Chief Secretary, Government of AP).

36. The cause before Khanwilkar J may have been lost, but the law gained, and justice was served.

37. Thirteen years ago, Khanwilkar J wrote of a code of honour. That was a time when we did not have the range, width and speed of resources we do today. With the proliferation of online databases and access to past orders on the High Court website, there is no excuse at all for not cross- checking the status of a judgement. I have had no other or greater access in conducting this research; all of it was easily available to counsel at my Bar. Merely because a judgement is found in an online database does not make it a binding precedent without checking whether it has been confirmed or set aside in appeal. Frequently, appellate orders reversing reported decisions of the lower court are not themselves reported. The task of an advocate is perhaps more onerous as a result; but his duty to the court, that duty of fidelity to the law, is not in any lessened. If anything, it is higher now.

38. Judges need the Bar and look to it for a dispassionate guidance through the law's thickets. When we are encouraged instead to lose our way, that need is fatally imperiled.”

4.48.11.8. In Lal Bahadur Gautam Vs. State (2019) 6 SCC 441 it is ruled as under; “10. Before parting with the order, we are constrained to observe regarding the manner of assistance rendered to us on behalf of the respondent management of the private college. Notwithstanding the easy access to information technology for research today, as compared to the plethora of legal Digests which had to be studied earlier, reliance was placed upon a judgment based on an expressly repealed Act by the present Act, akin to relying on an overruled judgment. This has only resulted in a waste of judicial time of the Court, coupled with an onerous duty on the judges to do the necessary research. We would not be completely wrong in opining that though it may be negligence also, but the consequences could have been fatal by misleading the Court leading to an erroneous judgment.

11. Simply, failure in that duty is a wrong against the justice delivery system in the country. Considering that over the years, responsibility and care on this score has shown a decline, and so despite the fact that justice is so important for the Society, it is time that we took note of the problem, and considered such steps to remedy the problem. We reiterate the duty of the parties and their Counsel, at all

levels, to double check and verify before making any presentation to the Court. The message must be sent out that everyone has to be responsible and careful in what they present to the Court. Time has come for these issues to be considered so that the citizen’s faith in the justice system is not lost. It is also for the Courts at all levels to consider whether a particular presentation by a party or conduct by a party has occasioned unnecessary waste of court time, and if that be so, pass appropriate orders in that regard. After all court time is to be utilized for justice delivery and in the adversarial system, is not a licence for waste.

12. As a responsible officer of the Court and an important adjunct of the administration of justice,the lawyer undoubtedly owes a duty to the Court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client as observed in State of Punjab & Ors. vs. Brijeshwar Singh Chahal & Ors., (2016) 6 SCC 1: “34.…relationship between the lawyer and his client is one of trust and confidence. As a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as mouthpiece of his client…..”

13. The observations with regard to the duty of a counsel and the high degree of fairness and probity required was noticed in D.P. Chadha vs. Triyugi Narain Mishra and others, (2001) 2 SCC 221: “22. A mere error of judgment or

expression of a reasonable opinion or taking a stand on a doubtful or debatable issue of law is not a misconduct; the term takes its colour from the underlying intention. But at the same time misconduct is not necessarily something involving moral turpitude. It is a relative term to be construed by reference to the subject matter and the context wherein the term is called upon to be employed. A lawyer in discharging his professional assignment has a duty to his client, a duty to his opponent, a duty to the court, a duty to the society at large and a duty to himself. It needs a high degree of probity and poise to strike a balance and arrive at the place of righteous stand, more so, when there are conflicting claims. While discharging duty to the court, a lawyer should never knowingly be a party to any deception, design or fraud. While placing the law before the court a lawyer is at liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to persuade an exposition which would serve the interest of his client so long as the issue is capable of that resolution by adopting a process of reasoning. However, a point of law well settled or admitting of no controversy must not be dragged into doubt solely with a view to confuse or mislead the Judge and thereby gaining an undue advantage to the client to which he may not be entitled. Such conduct of an advocate becomes worse when a view of the law canvassed by him is not only unsupportable in law but if accepted would damage the interest of the client and confer an illegitimate advantage on the opponent. In such a situation the wrong of the intention and impropriety of the conduct is more than apparent. Professional

misconduct is grave when it consists of betraying the confidence of a client and is gravest when it is a deliberate attempt at misleading the court or an attempt at practicing deception or fraud on the court. The client places his faith and fortune in the hands of the counsel for the purpose of that case; the court places its confidence in the counsel in case after case and day after day. A client dissatisfied with his counsel may change him but the same is not with the court. And so the bondage of trust between the court and the counsel admits of no breaking.

24. It has been a saying as old as the profession itself that the court and counsel are two wheels of the chariot of justice. In the adversarial system, it will be more appropriate to say that while the Judge holds the reigns, the two opponent counsel are the wheels of the chariot. While the direction of the movement is controlled by the Judge holding the reigns, the movement itself is facilitated by the wheels without which the chariot of justice may not move and may even collapse. Mutual confidence in the discharge of duties and cordial relations between Bench and Bar smoothen the movement of the chariot. As responsible officers of the court, as they are called – and rightly, the counsel have an overall obligation of assisting the courts in a just and proper manner in the just and proper administration of justice. Zeal and enthusiasm are the traits of success in profession but overzealousness and misguided enthusiasm have no place in the personality of a professional.

26. A lawyer must not hesitate in telling the court the correct position of law when it is undisputed and admits of no exception. A view of the law settled by the ruling of a superior court or a binding precedent even if it does not serve the cause of his client, must be brought to the notice of court unhesitatingly. This obligation of a counsel flows from the confidence reposed by the court in the counsel appearing for any of the two sides. A counsel, being an officer of court, shall apprise the Judge with the correct position of law whether for or against either party.”

14. That a higher responsibility goes upon a lawyer representing an institution was noticed in State of Rajasthan and another vs. Surendra Mohnot and others, j(2014) 14 SCC 77: “33. As far as the counsel for the State is concerned, it can be decidedly stated that he has a high responsibility. A counsel who represents the State is required to state the facts in a correct and honest manner. He has to discharge his duty with immense responsibility and each of his action has to be sensible. He is expected to have higher standard of conduct. He has a special duty towards the court in rendering assistance. It is because he has access to the public records and is also obliged to protect the public interest. That apart, he has a moral responsibility to the court. When these values corrode, one can say “things fall apart”. He should always remind himself that an advocate, while not being insensible to ambition and achievement, should feel the sense of ethicality and nobility of the legal profession in his bones.

We hope, that there would be response towards duty; the

hallowed and honoured duty.”

4.48.11.9. In P. V. R. S. Manikumar v. Krishna Reddy 1999 Cri.L.J 2010 it is ruled as under; ‘‘28. The counsel is endowed with noble duties. He has not only got duty towards his client, but also to his colleague. He has not only got duty towards the Court, but also towards society. Therefore, he should see the case of his client conducted fairly and honestly. The Advocates are responsible to the Court for the fair and honest conduct of the case. In matters of this kind, they are bound to exercise an independent judgment and to conduct themselves with a sense of personal responsibility.

29. According to the Supreme Court in Hari Shankar Rastogi

v. Girdhari Sharma, AIR 1978 SC 1019 : (1978 Cri LJ 778), the Bar is not different from the Bench. They are the two sides of the same coin. Bar is an extension of the system of justice; lawyer is an officer of the Court. He is a master of an expertise, but more than that, kindful to the Court and governed by high ethics. The success of judicial process often depends on the service of the legal profession.

30. Normally, in dealing with the application for quashing, etc., while interim orders, the Court naturally takes the facts and grounds contained in the petition at their face value and the oral submission made by the counsel before this Court. Therefore, it may not be fair and proper on the part of the counsel to betray the confidence of the Court by making statements which are misleading.

31. Mr. N. R. Elango, the learned Government Advocate, who was asked to assist in this matter as Amicus Curiae, has cited the judgment of the Supreme Court in P. D. Khandekar v. Bar Council of Maharashtra, AIR 1984 SC 110, wherein it has been held that the members of the legal profession should stand free from suspicion and that nothing should be done by any member of the legal fraternity which might tend to lessen any decree of confidence of the public in the fidelity, honesty and integrity of the profession.

32. As the Apex Court would point out, giving a wrong legal advice cannot be said to be unethical, but giving an improper legal advice cannot be said to be ethical. When a client consults with a lawyer for his advice, the client relies upon his requisite experience, skill and knowledge as a counsel. In such a situation, the counsel is expected to give proper and dispassionate legal advice to the client for the protection of his interests.’’

4.48.11.10. In Promotee Telecom Engineers Forum Vs. D.S. Mathur, Secretary, Department of Telecommunications (2008) 11 SCC 579 it is ruled as under;

“Contempt of Courts Act (70 of 1971), Wrong or Misinterpretation of Supreme Court judgment is Contempt Of Court. The respondent took completely wrong view and adopted wholly incorrect interpretation.

4.49.ADV. MILIND SATHE AND MR. KAIWAN KALYANIWALLA ARE GUILTY OF CONTEMPT AND OTHER OFFENCES AGAINST ADMINISTRATION OF JUSTICE FOR GIVING THE LETTER DATED 23.03.2019 PRIVATELY TO LD. JUSTICE ROHINTON

FALI NARIMAN.:-

4.49.1. The documentary proofs and undisputed facts on record including written communication by/with Dy. Registrar of the Supreme Court makes it clear that, the letter dated 23.03.2019 written by Adv. Milind Sathe & Mr. Kaiwan Kalyaniwalla was not received by the Bench by any legal mode and not as per Supreme Court ‘Practice and Procedure Hand Book’ (Page No. 268).

Considering the personal relations between Adv. Milind Sathe and Justice Rohinton Nariman since long and the photographs of the year 2016 Bombay Bar Association’s function (stolen from Supreme Court record but copy available) it is clear that, the said communication was privately given by Adv. Milind Sathe to Justice Rohinton Nariman.

4.49.2. That, it is settled legal position of the law that, if in a pending case if any party sends a letter or forwards a letter to the Court hearing the case and if the said lettercontains any allegation touching the merits of the case being heard before the Bench, then the person sending the letter is guilty of gross Contempt for undue interference in the Court of law.

Relied on: i) Court On Its Own Motion Vs. H.C. Aggarwal 1995 SCC OnLine Del 95 ii) State Vs. Ravi Parmar (2007) 1 SCC 80 (Para 38) iii) Radhagobind Das 1953 Cri.L.J. 1906 (Para 37,8,21,22,23,24, 31,32, 42, 43) iv) Jawand Singh Hukam Singh 1959 Cri.L.J. 1469 (Para 72,73)

4.50. AS PER THE LAW LAID DOWN IN KAMLAKAR BHAVSAR 2002 ALL MR CRI. 2640 , GOVIND MEHTA AIR 1971 SC 1708, IT

REQUIRES INVESTIGATION THROUGH CBI AS TO HOW THE LETTER DATED 23.03.2019 REACHED THE BENCH OF JUSTICE ROHINTON FALI NARIMAN, BECAUSE, THE RECORD SHOWS THAT IT WAS NEITHER FORWARDED BY THE CJI NOT IT WAS FORWARDED BY THE REGISTRAR BY ANY ORDER AS MANDATORILY REQUIRED AS PER ‘ANNEXURE -I’ AT PAGE NO. 268 OF THE SUPREME COURT RULES AS PUBLISHED IN 'HANDBOOK ON PRACTICE AND OFFICE PROCEDURE’ AND ALSO DUE TO THE FACT THAT THE SOURCE OF SAID LETTER AS TO HOW IT REACHED THE BENCH IS NOT MENTIONED IN THE ORDER TAKING COGNIZANCE ON 27.03.2019.

4.51. CONVICTION AGAINST PETITIONER IS VITIATED IN VIEW OF LAW AND RATIO LAID DOWN IN M/S. CHETAK CONSTRUCTION LTD. VS. OM PRAKASH & ORS. [AIR 1998 SC 1855 ], WHERE IT IS RULED THAT IF THE ALLEGATIONS AGAINST THE JUDGE ARE NOT DENIED BY THE PARTIES BEFORE THE JUDGE THEN THE REFERENCE OF CONTEMPT BY THE JUDGE BASED ON REMARKS WHICH ARE NOT BASED ON OBJECTIVE CONSIDERATIONS AND ONLY CONTAIN GENERAL OBSERVATIONS AND IRRELEVANT MATTERS ARE CONJECTURAL IN NATURE. SUCH ALLEGATIONS NEED TO BE DISAPPROVED AND IN SUCH CASE NO CASE FOR CONTEMPT MADE OUT BY THE SAID JUDGE. THEREFORE, SUGGESTION FOR INITIATING CONTEMPT PROCEEDINGS BY SUPREME COURT ON REFERENCE TO IT BY THE JUDGE, INVOLVED IN THE CONTROVERSY NEEDS TO BE REJECTED.

4.51.1. M/S. Chetak Construction Ltd. Vs. Om Prakash & Ors. AIR 1998 SC 1855 ,it was ruled as under;

“ Articles 215 and 129-Contempt of court-Jurisdiction- The order of the learned single Judge radiates more heat than light.

-Exercise of Appellant filed an affidavit before the Single Judge of the High Court that he had learnt that the Single Judge purchased a flat from the respondent and let it out Appellant requested the single Judge to decide whether or not to hear the appeal-Respondent did not deny the said allegation in his counter affidavit- Appellant filed a further application making the same allegation supported by documentary evidence requesting the Judge to recuse or relieve himself from hearing the appeal and transfer the same to any other Judge of the High Court- Single Judge discontinued hearing the appeal but made certain remarks reflecting his feelings against the appellant and his lawyers- Single Judge also suggested initiating of contempt proceedings by Supreme Court on reference to it against the appellant and certain lawyers- Held: in the circumstances of the case, although the Single Judge rightly discontinued hearing the appeal, his remarks which are not based on objective considerations and contain general observations and irrelevant matters are conjectural in nature and were disapproved- No case for contempt made out by Single Judge-Hence, suggestion for initiating contempt proceedings by Supreme Court on reference to it by Single Judge, rejected.”

The observations are conjectural in nature and are not backed by any proof of factual accuracy cannot be dismissed as wholly untenable. It was open to the learned Judge to have enquired

into the matter and take appropriate action. He did not do so. He let the matter rest. Why then was it suddenly made a part of the impugned order? Paragraph 12 of the order in our opinion conceals more than what it reveals. We do not wish to carry this aspect any further and say nomore.

A Judge should not allow his judicial position to be compromised at any cost. This is essential for maintaining the integrity of the institution and public confidence in it. The credibility of this institution rests on the fairness and impartiality of the Judges at all levels. It is the principle of highest importance, for the proper administration of justice, that judicial powers must be exercised impartially and within the bounds of law. Public confidence in the judiciary rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. Judges must always ensure that they do not allow the credibility of the institution to be eroded. We must always remember that justice must not only be done but it must also be seen to be done.

In the instant case, the learned single Judge, having been apprised of the facts and circumstances of the case, rightly did not continue to hear the appeal and in doing so he acted in a manner expected of the Judge.

However, while technically recusing himself, the learned Judge appears to have given vent to his feelings and made

comments, which we say with respect to the learned Judge, were uncalled for and unwarranted - those betray objective consideration and to an extent demonstrates subjective predilections. It is subversive of judicial sobriety. The order of the learned single Judge radiates more heat than light.

We are unable to appreciate or fathom the reasons for the `general' observations made by the learned Judge in paragraphs 14 and 15 of the impugned order (supra). Generalisations are best avoided. We are at a loss to understand the necessity to refer to certain "pamphlets", unconnected with the case and to make one of those pamphlets concerning a sitting Judge of this Court (since retired) a part of the judicial record when it had no relevance to the instant case. In doing so, there appears to be something more than what meets the eye. Reference made is totally out of context what some lawyer had been doing in the past, was hardly of any consequence for deciding the merits of the application - IA No. 6079/96 - which was being heared by the learned single Judge and was disposed of by the impugned order. The only question before the learned single Judge was : whether on the facts, as disclosed in the application and supported by documentary evidence, the learned single Judge should have continued to hear the appeal or recused himself?

The facts contained in the application (I.A. No. 6079/96) to which reference has been made above supported by documentary evidence, should have made the learned Judge to himself, decline to hear the appeal by a simple order irrespective of the question whether the disclosed facts could

have made any difference in the ultimate order to be made by him in the appeal.

It would bear repetition to emphasis that justice must not only be done but also be seen to be done. In the established facts and circumstances of the case, it cannot be said that the request of the appellant to the learned single Judge to recuse himself from hearing the appeal on merits was a wholly unjustified request. Even if it be assumed and we have no reason no to so assume, that there was no such connection between respondent No.3 and the learned single Judge as to influence his ultimate judgment in the appeal pending before him but when certain facts were brought to his notice, which could give rise to a reasonable and not fanciful apprehension that the trial may not be fair, the learned single Judge should have recused himself from the appeal in keeping with the highest traditions of the judiciary. Discretion, after all, is better part of valor. We find the reference/ `direction' untenable and the order devoid of any legal sanctity. We, accordingly set aside the same.

In the course of the impugned "reference" the learned single Judge has also suggested that contempt proceedings be initiated against some of the lawyers who appeared before him besides the appellant. On the basis of what we have noticed above, we find no cause to have been made out to institute contempt proceedings, as suggested. We may notice here that even on an earlier occasion, the learned single Judge (Vyas, J.) had in the same appeal (Misc. Appeal No. 143 of 1994) made a reference to this court for taking action

against Shri Girish Desai, senior advocate, representing the appellant besides his instruction counsel and the company secretary of the appellant under the Contempt of Courts Act. On 12.2.96, this court declined to proceed against them for contempt of court. Contempt of court jurisdiction is a special jurisdiction. It has to be used cautiously and exercised sparingly. It must be used to uphold the dignity of the courts and the majesty of law and to keep the administration of justice unpolluted, where the facts and circumstances so justify. "the corner stone of the contempt law is the accommodation of two constitutional values - the right of free speech and the right to independent justice. The ignition of contempt action should be - substantial and malafide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel," (See 1974 (1) SCC 374). Long long ago in Queen Vs. Grey (1900 2 Q.B. 36 at 40) it was said that `judges and courts are alike open to criticism and if reasonable argument is offered against any judicial act as contrary to law or to the public good, no court could or would treat it as contempt of court.' Therefore, contempt jurisdiction has to be exercised with scrupulous care and caution, restraint and circumspection. Recourse to this jurisdiction, must be had whenever it is found that something has been done which tends to effect the administration of justice or which tends to impede its course or tends to shake public confidence in the majesty of law and to preserve and maintain the dignity of the court and the like situations. `The respect for judiciary must rest on a more surer foundation than recourse to contempt jurisdiction.' We have given our careful

consideration to the facts and circumstances of the case but are not persuaded to initiate contempt proceeding as suggested by the learned single Judge either against the lawyers or the appellant for this "action" in making request to the learned Judge to reuse himself from the case. The reference to that extent is also declined.

On the basis of what we have said above, we set aside the impugned order/direction/reference.

The learned Judge at Jabalpur, to whom the appeal shall be assigned by the learned Chief Justice, shall decide the appeal on its own merits uninfluenced by any observations made by the learned single Judge (Mr. Justice R.D. Vyas) in the impugned order.

Nothing said hereinabove shall also be construed as any expression of opinion on the merits of the appeal.

The appeal and the reference are disposed of in the terms indicated above with no orders as to cost.

5. CONCLUDING PARAGRAPH - That, from the material available on record and legal position set out in the above paragraphs it is ex-facie clear that:-

i) The Cognizance of the letter dated 23.03.2019 by the Bench of Ld. Justices Shri. Rohinton Nariman & Shri. Vineet Saran was against the binding precedents for taking cognizance in their own case and not placing the information before Hon’ble CJI and not framing the specific charge in the order as mandated in Section

15(3) of the Act as ruled in a) Bal Thackrey’s (2005)1 SCC 254, b) Campaign For Judicial Accountability and Reforms (2018) 1 SCC 196, c) Divine Retreat Ventre (2008) 3 SCC 542, d) Supreme Court Advocate On Record Association (2016) 5 SCC 808, e) Re: C.S.Karnan (2017) 7 SCC 1,f) J. R. Parashar (2001)

6 SCC 735, g) The editor Blitz 1979 ILR 25 (Bom) (DB).

ii) When these objections were brought to the notice of both the Ld. Judges of the Ld. Trial Court, in written arguments by the petitioner, then, instead of following the law laid down by binding precedents and by Constitution Benches, the Ld. Judges Shri. Justice Aniruddha Bose & Ld. Shri. Justice Deepak Gupta & Amicus Curiae Adv. Siddharth Luthra acted in utter disregard and wilful defiance of the binding precedents and have taken a view exactly contrary to the law laid down in binding precedents and relied on overruled, per-incuriam judgments to convict the petitioner and therefore, the fundamental constitutional rights of the petitioner are violated.

iii) Adv. Siddharth Luthra has created false evidences and used it to be genuine one to frustrate the legal rights of the petitioner and complainants i.e. Respondent No. 1 and 2 before Ld. Trial Court.

6. That, the present petitioner has not filed any other petition in any High Court or the Supreme Court of India on the subject matter of the present petition.

7. [III] PRAYERS:- It is therefore, humbly prayed for; a) To appoint Attorney General as an Amicus Curiae to assist this Hon’ble Court as per Rule 10 of “The Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975”.

b) To record a finding that, in view of the law laid down by Full Bench in Mahadev Haskot (1978) 3 SCC 552, the person convicted under Contempt by the Supreme Court in original jurisdiction is entitled for one appellate jurisdiction as a matter of right and said appeal be heard by the larger Benches in Writ jurisdiction as done in M.S. Ahlawat Vs. State (2000) 1 SCC 27 & Supreme Court Bar Association case (1998) 4 SCC 409, which is subsequently upheld by Constitution Bench in Roopa Hoora (2001)4 SCC 388, and therefore, the bench convicting the alleged contemnor is bound to stay the sentence as per law laid down by Full Bench in Hari Nath Sharma (1995) 4 SCC 251 and followed in Gaurav Nagpal’s Case 2005 (3) LAWS (P&H) 48.

And the Writ challenging the conviction under contempt on original side of the Supreme Court needs to be admitted as it is a statutory right of the convict as ruled in Dilip Dahanukar’s Case (2007) 6 SCC 528.

And further be pleased to direct the Supreme Court registry to make appropriate rules in that regard. c) To record a finding that, as per Constitutional mandate and law declared by the Hon’ble Supreme Court in Dhondba Vs. State (1974) 1 SCC 162, Shaima Jafari Vs. Irfan (2013) 14 SCC 348, Shaikh Mohd Ali Vs. State (1972) 2 SCC 784, and the catena of judgments, the petition challenging the conviction is liable to decided only after perusing the records of the Trial Court and by way of a reasoned order considering all the grounds and legal position raised and cannot be decided summarily. d) To record a finding that, the conviction of the Petitioner was for a charge which is contrary and against the order of the same bench

dated 02.09.2019 and 09.12.2019 and therefore, the writ petition challenging the conviction for a charge of contempt which was not distinctly framed and served upon the Petitioner is liable to be admitted and allowed as per law laid down in R. S. Sherawat (2018)10 SCC 574, and Full Bench in Bhupesh Deb Gupta VS. State (1979) 1 SCC 87. e) To record a finding that, as per law laid down in Re: Pollard 1868 LR 2 PC 106, Ebrahim Parekh ILR 4 Rang 257, which is made mandatory to all courts in India by the Full Bench and Constitution Bench and also as per Section 15(3) of the Contempt of Courts Act, 1971, the Judge/Bench taking cognizance is bound to mention the specific charge in the order taking cognizance of Contempt and said charge is required to be reproduced in the notice issued in ‘‘FORM – I’’ as per law laid down in J.R.Parashar (2001) 6 SCC 735, Full Bench in Nagar Mahapalika 1966 SCC OnLine SC 1, Jayantilal Hiralal 1932 SCC OnLine Bom 121 etc. and registry be directed to incorporate appropriate rules in that regard. f) To record a finding that, as per law laid down by Constitution Bench in Baradkanta Mishra (1974) 1 SCC 574, Three - Judge Bench in Pallav Sheth (2001) 7 SCC 349, and followed in Bal Thackrey (2005) 1 SCC 254, Maheshwar Peri (2016)14 SCC 251 and law laid down by the Constitution Bench in Subramyam Swami (2014) 12 SCC 344, the proceedings even under Article 129 of the Constitution have to be conducted as per the provisions of Contempt of Courts Act, 1971 but the Ld. Trial Court,[ CORAM- Shri. Justice Deepak Gupta and Shri. Justice Anirudhha Bose] misinterpreted and refused to follow the abovesaid legal position by placing reliance upon the opinion of the author of a law book

and therefore it is an act of grossest judicial impropriety. g) To record a finding that, the guidelines given by Justice Rangnathan in concurring Judgment in P.N.Duda’s case are to be treated as the view of the bench and is a binding law in view of Article 141 of the Constitution and cannot be said to be obiter in view of law laid down in Kaikhosrou Kavasji Framji Vs. Union of India (2019) SCC OnLine SC 394 and also due to the fact that the said guidelines are held to be as valid and legal by the Full Bench in Bal Thackrey’s Case (2005) 1 SCC 254, and therefore the observations in the impugned judgment are wrong, per-incuriam and against the judicial propriety. h) To record a finding that, the contempt proceedings are quasi- criminal in nature and the court taking cognizance of Contempt against several persons is bound to pass a reasoned order mentioning specific role of the person and documents/evidence relied against him as ruled by the Full Bench in Manohar Joshi’s case (1991) 2 SCC 342, M.N. Ojha Vs. Alok Kumar Srivastava (2009) 9 SCC 682 & Birla Corporation Ltd. Vs. Aventz 2019 SCC OnLine SC 682 etc. i) To record a finding that, the order directing appointment of Adv. Siddharth Luthra as an amicus Curiae was against the Rule 10 of ‘The Rules To Regulate Proceedings For Contempt of the Supreme Court, 1975’ which mandates that either the Court conducts the proceedings by itself or in case it wishes to take assistance, then it can do so by appointing either of the two Government Law officers i.e. Attorney General or Solicitor General only. This was followed by several Constitution Benches, like in Subramanian Swami’s Case (2014) 12 SCC 344, Re:

C.S.Karnan (2017) 2 SCC 757 (1), Supreme Court Bar Association Vs. Union of India (1998) 4 SCC 409, Dr. L.P. Mishra (1998) 7 SCC 379, Re: Vinay Chandra Mishra (1995) 2 SCC 584. Therefore, the conviction in trial conducted by a private counsel, violating fundamental rights and safeguards of the Petitioner and causing great prejudice, is vitiated as has been ruled in Medichetty Ramakistiah Vs. State (supra) and R.S. Sujatha v. State of Karnataka & Ors., (2011) 5 SCC 689, as the proceedings are conducted against the rules of the Supreme Court by the Private Counsel. j) To record a finding that, if any Judge of any Court including Supreme Court, despite being shown the binding precedents, deliberately refuses to follow the said legal position and takes a view contrary to the view laid down in binding precedents of Larger Benches or even Co-ordinate Benches, then such a Judge is liable for action under Contempt of Court’s Act and any citizen can file Contempt petition before Hon’ble Supreme Court as per law laid down in (i) Re: C.S.Karnan (2017) 7 SCC 1 (ii) Badrakanta Mishra (1973) 1 SCC 446 (iii) Legrand Pvt. Ltd. 2007 (6) Mh.L.J. 146, (iv) New Delhi Municipal Council Vs. M/S Prominent Hotels Limited 2015 SCC Online Del 11910.

k) Record a finding that the Petioner is deprived of his life and liberty without following the due process of law and the fundamental rights of the Petitioner as guaranteed under Article 19,20,21 of the Constitution are violated by the Ld. Trial Court and therefore the Petitioner deserves to be compensated as per law laid down in various judgments.

l) Grant interim compensation of Rupees 5 Crores to the petitioner to be paid by the Respondent No. 2 i.e. Union of India, in view of law laid down in Ramesh Maharaj’s case (1978) 2 WLR 902 where it is ruled that, if any person is convicted for a charge which is not framed by the Judge then it violates the fundamental rights of the alleged contemnor and the State is bound to pay compensation as the Judge is an executive arm of the State. m) Direct all the authorities in Country to not to follow the law and ratio laid down in the said judgment dated 27.04.2020 and 04.05.2020 passed in Re: Vijay Kurle & Ors. In SMCP (Cri) No. 02 of 2019. n) To call for the record and proceedings and after hearing the parties be pleased to set aside the conviction and sentence of the petitioner as per order dated 27.04.2020 and 04.05.2020, passed in S.M.C.P. [Crl.] 02/2019 in the case between In: Re Vijay Kurle and Others. o) Stay the operation, execution, application and use of the judgement dated 27.04.2020 and 04.05.2020 as an interim relief. p) To record a finding that, since the ratio of the judgment of Pritam Pal Singh 1992(1) SCALE 416, is considered and overruled by the Larger Three -Judge Bench in Bal Thackrey’s case (Supra) therefore, reliance on the said ratio of the judgment and other impliedly overruled judgments by Amicus Curiae Adv. Siddharth Luthra by taking a stand that since these are not shown as overruled in a ‘Case Treatment of software Lexis-Nexis’ and compelling the court to rely upon the opinion of the author to reject the law laid down by the Full Bench and Constitution Benches of this Hon’ble Court, is grossest Contempt of Full Bench and

Constitution Bench Judgments of the Hon’ble Supreme Court. q) Direction to Registry to incorporate the detailed rules for Contempt proceedings as done by Allahabad High Court by referring and in accordance with the ratio laid down and law declared by various binding precedents such as (i) R.K.Anand (2009) 8 SCC 106 (ii) R. S. Sherawat 2018 SCC OnLine SC 1347. r) To take suo-moto cognizance of offences under section 211, 192, 193, 120[B] and 34 etc. of IPC, as ruled by the Full Bench in Hari Dass Vs. State AIR 1964 SC 1773 against all concerned including Adv. Milind Sathe, Mr. Kaiwan Kalyaniwalla and others, for bringing frivolous proceedings against the Petitioner under contempt by creating false and misleading evidences and using it to be genuine ones and direct the CBI to investigate the allegations regarding offences and after getting the report from the CBI and after hearing the parties, be pleased to take appropriate action against the guilty as per law laid down in Sarvepelli Radhakrishnan 2019 SCC OnLine SC 51, State Vs. Kamlakar Bhavsar 2002 ALL MR (Cri) 2640, Govind Mehta Vs. State Of Bihar (1971) 3 SCC 329, K.Rama Reddy 1998(3) ALD 305. s) Take the note of various misdeeds and grossest professional misconduct by Adv. Siddharth Luthra as mentioned in para 4.46 (4.46.1 to 4.46.11) and pass appropriate orders for striping off his designation as a Senior Counsel as done in the case of R.K. Anand Vs. Delhi High Court (2009) 8 SCC 106, and clarified in the case of Indira Jaisingh Vs. Supreme Court of India (2017) 9 SCC 766. t) To direct the Registrar of the Supreme Court to incorporate the directions in P.N. Duda’s case (1988) 3 SCC 167 in the rules framed

to conduct the Contempt proceedings.

FOR WHICH ACT OF KINDNESS, THE PETITONER AS IN DUTY BOUND SHALL EVERY PRAY.

Date- 21.07.2020

Mr. Nilesh C. Ojha

Petitioner