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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
M.A. NO. OF 2018
IN
I.A NO. 14870-14871 OF 2018
IN
WRIT PETITION (C) NO. 19 OF 2018
In the matter of:
TEHSEEN POONAWALLA
S/o SARFARAZ POONAWALLA
R/o A-46, SOUTH EX. -II,
TOP FLOOR,
NEW DELHI – 110049 …PETITIONER
VERSUS
1. UNION OF INDIA
THROUGH ITS
SECRETARY, MINISTRY OF
HOME AFFAIRS, NORTH BLOCK,
CABINET SECRETARIAT,
NEW DELHI – 110001 …RESPONDENT NO. 1
2. THE STATE OF MAHARASHTRA
THROUGH CHIEF SECRETARY,
MANTRALAYA,
MUMBAI-400032
MAHARASHTRA …RESPONDENT NO. 2
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AND IN THE MATTER OF:
ADMIRAL MR. LAXMINARAYAN RAMDAS (RETD.)
S/O LATE SHRI C.K. LAXMINARAYAN
R/O "LARA” – RAMU FARM,
VILLAGE BHAIMALA, PO KAMARLE,
ALIBAG-402209, DIST RAIGAD,
MAHARASHTRA
….INTERVENER
AND IN THE MATTER OF:
MS. INDIRA JAISING
SENIOR ADVOCATE
C-65, NIZAMUDDIN EAST,
NEW DELHI …APPLICANT
APPLICATION FOR DIRECTION SEEKING EXPUNGEMENT OF
CERTAIN ADVERSE OBSERVATIONS AGAINST PRESENT
APPLICANT, MADE IN THE JUDGMENT AND ORDER OF THIS
HON’BLE COURT DELIVERED ON 19.04.2018 IN THE ABOVE
CAPTIONED WRIT PETITION, BY INVOKING THE INHERENT
POWER OF THIS HON’BLE COURT UNDER SECTION 151
C.P.C.
TO,
HON’BLE THE CHIEF JUSTICE
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE PRESENT HUMBLE APPLICATION OF THE
APPLICANT ABOVE NAMED
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MOST RESPECTFULLY SHOWETH:
1. That the present application seeking expungement of remarks
is being filed in the matter of a batch of petitions and
intervention applications raising questions regarding the
unnatural circumstances surrounding the death of CBI Judge
B.H. Loya on which this Hon’ble Court after hearing the
counsel representing the appearing parties and after
appreciation of the materials brought on record was pleased to
dismiss vide judgment and order of the Court dated
19.04.2018.
2. That the present applicant represented intervener Admiral
Laxminarayan Ramdas who is a former Chief of Naval Staff of
the Indian Navy and a public spirited person who has won
several honours in service and among the awards he won
during his time in the Indian Navy includes: Vir Chakra, Param
Vishisht Seva Medal, Ati Vishisht Seva Medal and the Vishisht
Seva Medal. The Applicant has been actively involved in the
public sphere being outspoken on matters of public
importance.
3. That the Hon’ble Court was pleased to grant liberty to the
present applicant representing intervener Admiral
Laxminarayan Ramdas vide order dated 22.01.2018 to file
intervention and documents on record which would assist the
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Hon’ble Court in deciding whether the Hon’ble Court should
set up independent investigation into the circumstances of
Judge Loya’s death. Copy of the order dated 22.01.2018
passed in W.P. (C) No. 19 of 2018 by this Hon’ble Court is
annexed herewith as Annexure A-1 Pages [ 30 to 33 ].
4. That during the proceedings of the present matter before this
Hon’ble Court, the Hon’ble Bench had orally observed, during
the course of hearings dated 02.02.2018, 05.02.2018,
09.02.2018, 12.02.2018, 19.02.2018, 05.03.2018, 08.03.2018,
09.03.2018 and 16.03.2018, that the bona fide of the
petitioner(s)/intervener(s) was not being brought into question
and that in the batch of public interest litigation, the issue of
locus was also not going to be looked into and that the matters
at hand (i.e. Writ Petitions and Intervention Applications) would
be dealt solely on merits. Proceeding on this basis, this
Hon’ble Court granted leave to the Petitioners and interveners
to address the Court and make legal and factual submissions,
followed by an opportunity to also make rejoinder submissions.
After the conclusion of arguments, the Hon’ble Court reserved
its judgment on 16.03.2018 and finally pronounced its
reasoned order and judgment on 19.04.2018.
5. That vide its judgment and order dated 19.04.2018, this
Hon’ble Court dismissed the petitions and applications holding
that there is no merit in the petitions, that there is no reason to
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doubt the statements made by the 4 judicial officers, that
Judge Loya died due to natural causes, and that there was no
reasonable suspicion about the cause or circumstances of
death meriting further inquiry. Copy of the judgment and order
of this Hon’ble Court in W.P. (C) No. 19/2018 dated
19.04.2018 is annexed herewith as Annexure A-2 [Pages
34 to 147 ].
6. That ‘PART C’ of the aforesaid judgment – ‘SUBMISSIONS’
deals with the submissions made by the various counsels
during the course of the hearings. Chapter B of ‘PART C’ at
Para 16 of the judgment records that the submissions made by
the undersigned/applicant herein made on behalf of the
intervener/Admiral Ramdas (Retd).
7. That this Hon’ble Court in its considered opinion in the afore-
mentioned judgment and order delivered has noted and made
certain observations/findings especially at Para(s) 74 to 76
and Para 78 (partly) of the said judgment regarding the
conduct of the counsel appearing for the parties and the
nature of submissions made by the counsel for the parties.
The following observations from the judgment are in question
in the in the present application –
“74. The present case is indeed a case in
point. Repeatedly, counsel for the petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence. An aura of good
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faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary. But as the submissions have evolved, it has become clear that the petition is a veiled attempt to launch a frontal
attack on the independence of the judiciary and to dilute the credibility of judicial institutions.
75. We must in this context record what we
have heard during the course of the
submissions. Mr Dave has urged that (i) he
wants to cross-examine the judges; and (ii) he
does not believe the judicial officers.
Aspersions have been cast on the
Administrative Committee of the Bombay High
Court. This court has been called upon to
issue a notice of contempt to the judges on the
Committee at the relevant time. Ms Jaising
has joined the fray by requesting that this
court to issue contempt notices to the
Administrative Committee of the Bombay
High Court. Junior counsel appearing with Mr
Giri went to the extent of urging that the
judicial officers whose statements were
recorded during the discreet inquiry are
suspect. Even the judges of this Bench
hearing the present proceedings, have not
been spared from this vituperative assault on
the judiciary.
76. Mr Prashant Bhushan argued that because two of the judges constituting the present Bench (Justice AM Khanwilkar and Justice DY Chandrachud) were judges of the Bombay High Court, they may have known the judicial officers who have submitted statements or Justice Bhushan Gavai and Justice SB Shukre. If this were to be the test, it
is rather ironical that the petitioners had instituted proceedings before the Bombay High Court each of whose judges were expected to be faced with the same situation. We informed Mr Bhushan that a decision as to whether a judge should hear a case is a
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matter of conscience for the judge. There is absolutely no ground or basis to recuse. Judges of the High Court hear intra court appeals against orders of their own colleagues. References are made to larger Benches when there are differences of view. Judges of the Supreme Court hear appeals
arising from judgments rendered by judges of the High Courts in which they served, either as judges or on appointments as Chief Justices. Maintaining institutional civilities between or towards judges is distinct from the fiercely independent role of the judge as adjudicator. We emphatically clarify that on the well-settled parameters which hold the field, there is no reason for any member of the present Bench to recuse from the hearing. While it is simple for a judge faced with these kinds of wanton attacks to withdraw from a case, doing so would amount to an abdication of duty. There
are higher values which guide our conduct. Though Mr Bhushan ultimately made it clear that he is not filing an application for recusal – and none has been filed – we have recorded what transpired to express our sense of anguish at the manner in which these proceedings have been conducted. Serious attacks have been made on the credibility of two judges of the Bombay High Court. The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt. However, on a dispassionate view
of the matter, we have chosen not to initiate proceedings by way of criminal contempt if only not to give an impression that the litigants and the lawyers appearing for them have been subjected to an unequal battle with the authority of law. We rest in the hope that the Bar of the nation is resilient to withstand such attempts on the judiciary. The judiciary must continue to perform its duty even if it is not to be palatable to some. The strength of the judicial process lies not in the fear of a coercive law of contempt. The credibility of the judicial process is based on its moral authority.
It is with that firm belief that we have not invoked the jurisdiction in contempt.
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78. The hearings commenced on 2 February 2018 and ended on 16 March 2018. The batch of cases was heard on 2 February 2018, 5 February 2018, 9 February 2018, 12 February 2018, 19 February 2018, 5 March 2018, 8 March 2018, 9 March 2018 and 16 March 2018. Having regard to the large volume of
work, we had considered it appropriate to list the hearings at 2 pm on Mondays and Fridays, after the miscellaneous cases had been dealt with. The conduct of the petitioners and the intervenors is, as we have indicated, lacking in bona fides and reveals a misuse of judicial process.”
[Emphasis Supplied]
8. The instant application is made praying for expunging the
above excerpted remarks contained in the said judgment
where this Hon’ble Court has arrived at an erroneous finding
that the “conduct of the petitioners and the intervenors
scandalises the process of the court and prima-facie
constitutes contempt” and “The conduct of the petitioners and
the intervenors is, as we have indicated, lacking in bona fides
and reveals a misuse of judicial process.”. This Hon’ble Court
has neither distinguished between the legal submissions made
by the individual counsel, nor is there any indication in the
judgment in what manner the conduct of the present applicant
was lacking in bona fides. The present applicant is confining
this application only to the submission made by her, for
Intervener Admiral Ramdas (Retd.) during the course of
arguments. A true copy of the intervention application dated
bearing I.A. No. 14870-14871/2018 in W.P. (C) No. 19/2018 is
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annexed hereto as Annexure A – 3 [Pages 148 to 153]. True
copy of the written submissions dated 09.02.2018 on
inconsistencies in documents tendered by the State of
Maharashtra and incorrect procedure by the Police in the
circumstances of the death of Justice B.H Loya’s death is
annexed as Annexure A – 4 [Pages 154 to 164 ]. True copy
of the written submissions dated 09.02.2018 on behalf of the
Applicant is annexed as Annexure A – 5 [Pages 165 to 174 ].
A true copy of the submission in rejoinder dated 09.03.2018 is
annexed and marked Annexure A –6 [Pages 175 to 195].
9. The main submissions of the applicant for expunging the
remarks as excerpted herein above, are as follows :-
9.1 A bare perusal of the Intervention Application and the Written
Submissions of the Applicant will reveal that there is not a
single allegation or averment that can be considered as
constituting prima facie contempt or lacking in bona fides. The
present applicant would most respectfully submit that no
submissions or contentions have been advanced by the
applicant appearing on behalf of intervener Admiral Ramdas
before this Hon’ble Court which would tend to scandalise or
lower the dignity of this Hon’ble Court and all submissions
have been confined to the merits of the case and the legal
principles involved. On behalf of the intervener, the applicant
made legal submissions and constantly tried to uphold the
decorum of the Hon’ble Court and has furthered her
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submissions with a sense of responsibility and only after due
diligence regarding the facts of the case.
9.2 This Hon’ble Court during the course of hearing had clearly
indicated that the question of the locus of the Writ Petitioners
and the interveners shall not be gone into and the parties are
to argue on the merits of the matter. However in the said
judgment this Hon’ble Court has extensively adverted to the
bona fides of the Petitioners/Interveners herein, without giving
an opportunity to argue on the bona fide and locus of the
intervener or of counsel.
9.3 That in particular, this Hon’ble Court had observed that the
applicant herein (counsel for the intervener Admiral Ramdas)
has prayed for issuance of contempt notice against the
members of the Administrative Committee of the High Court of
Bombay which had transferred Special CBI Judge J.T. Utpat
vide order dated 25.06.2014. It is to be noted that Judge J.T.
Utpat had been originally assigned the Sohrabuddin Sheikh
trial when it came to be transferred by this Hon’ble Court vide
its order dated 27.09.2012 in the reported judgment of CBI v.
Amitbhai Anil Chandra Shah [(2012) 10 SCC 545] (at Para
37) and this Hon’ble Court had specifically directed that: “The
Administrative Committee would assign the case to a
court where the trial may be concluded judiciously, in
accordance with law, and without any delay. The
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Administrative Committee would also ensure that the trial
should be conducted from beginning to end by the same
officer” The said direction is binding on the Administrative
Committee of the High Court. It is to be noted that the words
used are “assign the case to a court where the trial may be
concluded”. It is a matter of public record that the case was
“assigned” to Judge Utpat after the above mentioned direction.
It is also a matter of record that Judge Utpat was transferred
from Mumbai to Pune during the hearing of the case before
conclusion of trial. It is also a matter of public record that no
permission was obtained from this Hon’ble court prior to the
said transfer. In the circumstances there is a clear prima facie
case of disobedience of the order of this Hon’ble Court. No
explanation was forthcoming from any one on the merits of the
statement of facts as mentioned herein above. The
abovementioned contention though raised, has not been dealt
with but instead the applicant had been stated to be prima
facie guilty of contempt for raising the issue at all. The
submissions made by the Applicant herein at the bar were well
founded and cannot remotely constitute prima facie contempt
To do so would deny to the counsel for the Intervenor, the right
and duty to raise legal submission as thought fit, and to hold
them prima facie guilty of criminal contempt would have, and
does have, a chilling effect on the ability of counsel to present
the case without fear or favour which they are professionally
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bound to do. The mere raising of a contention of prima facie
contempt by the Administrative Committee cannot in law be
said to be on the part of the counsel, that too when no finding
is rendered on the merits of the contention.
9.4 That in the aforementioned observations of the Hon’ble Court,
the remarks regarding conduct of all the counsels appearing
for the petitioners/interveners amounting to criminal contempt,
appears to give the impression that all counsel made the same
submissions when in fact each submission was separate and
distinct. The role attributed to the present Applicant is that she
made a legal submission that contempt of court action should
be taken against the Administrative Committee of the High
Court and yet there is an observation that the submission are
lacking in bona fides. It is submitted that there is no warrant for
the observation that her actions are lacking in bona fides and
the said observations ought to be expunged. This Hon’ble
Court has erred in making sweeping generalised observations
about all the counsels rather than discussing whether the
submissions of each counsel tantamount to prima facie
contempt. The present application is not required to make any
submission whether the conduct of counsel other than herself
was contemnatious or lacking in bona fides and must not be
deemed to have admitted. Being not relevant to this
application, the same is not being commented upon.
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9.5 That during the course of the proceedings, the present
applicant had filed two written submissions, one based on the
factual points arising from the documents submitted by the
State of Maharashtra and another on the issues of law and
procedural irregularities present in the investigation of the
circumstances of death of Judge Loya. It is most respectfully
submitted that neither the averments made by the present
Applicant in the aforementioned written submissions filed in
Court, nor the oral submissions made by the applicant before
this Hon’ble Court can amount to criminal contempt as will be
noticed after going through the submissions made by the
present applicant. The copy of the written submissions has
been annexed as stated above.
LEGAL PRINCIPLES AND PROCEDURE FOR CONTEMPT
10.1 That the law relating to criminal contempt requires the
conditions under Section 2(c) of the Contempt of Courts Act
1971 to be fulfilled and the said section is reproduced
hereunder:
“(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
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(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”
10.2 That civil contempt is defined under Section 2 (b) of the
Contempt of Courts Act 1971 as follows:
“‘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”
10.3 The main differences existing between civil and criminal
contempt lies firstly in the punitive nature of the proceedings,
standard of proof, the applicability of criminal contempt being
wider than civil contempt etc. In the decision of the Calcutta
High Court reported in Tarit Kanti Biswas, In re, [1917 SCC
OnLine Cal 117 : (1916-17) 21 CWN 1161 : AIR 1918 Cal
988] at Page 1206-1208, Mookerjee, J. explained the
difference between civil and criminal contempt before the
coming into force of the Contempt of Courts Act 1971 as
follows:
“As regards the third question, namely, what is
the true nature of the present proceedings, is it
civil or criminal in character, the matter is of
practical importance from the point of view of
the mode of trial to be adopted. In the case of
Legal Remembrancer v. Moti Lal Ghosh [I.L.R.
41 Cal. 173: s.c. 17 C.W.N. 1253 (1913).], I
had occasion to examine fully the distinction
between a criminal and a civil contempt, which
is of a fundamental character. A criminal
contempt is conduct that is directed against
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the dignity and authority of the Court. A civil
contempt, on the other hand, is failure to do
something ordered to be done by a Court in a
civil action for the benefit of the opposing party
therein. Consequently, in the case of a
criminal contempt, the proceeding is for
punishment of an act committed against the
Majesty of the law, and, as the primary
purpose of the punishment is the vindication of
the public authority, the proceeding conforms,
as nearly as possible, to proceedings in
criminal cases. In the case of a civil contempt,
on the other hand, the proceeding in its initial
stages at least, when the purpose is merely to
secure compliance with a judicial order made
for the benefit of a litigant, may be deemed
instituted at the instance of the party interested
and thus to possess a civil character. But, here
also, refusal to obey the order of the Court
may render it necessary for the Court to adopt
punitive measures against the person who had
defied its authority; at that stage, at least, the
proceedings may assume a criminal character.
In this manner, the dividing line between acts
which constitute criminal and others which
constitute civil contempts may become
indistinct in those cases, where the two
gradually merge into each other. [See Re St.
James' Evening Post [2 Atk. 469 : s.c. 26 E.R.
633 (1742).] , Scott v. Scott [[1913] A.C. 417.] ,
Charlton's case [2 My. and Cr. 316 (1838).] ,
In re Wallace [L.R. 1 P.C. 283 (1866).] , In re
Davies [L.R. 21 Q.B.D. 236 (1888).] , Onslow's
case [L.R. 9 Q.B. 219 : s.c. 12 Cox 350
(1873).] and Skipworth's case [L.R. 9 Q.B. 230
(1873).] ]. A careful scrutiny of the cases in the
books shows, however, that much confusion
exists in the reported decisions as to whether
or not contempt proceedings are civil or
criminal, where the contempt is committed in
relation to a civil proceeding, and it is
consequently desirable to investigate briefly
the true test for differentiation.
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[…] The power to punish for contempt is
inherent in the very nature and purpose of
Courts of Justice. It subserves at once a
double purpose, namely, as an aid to protect
the dignity and authority of the tribunal and
also as an aid in the enforcement of civil
remedies. The power may consequently be
exercised in civil or criminal cases or
independently of both, and either, solely for
the preservation of the authority of the Court or
in aid of the rights of the litigant or for both
these purposes combined. By reason of this
two-fold attribute, proceedings in contempt
may be regarded as; anomalous in their
nature, possessed of characteristics which
render them more or less difficult of ready or
definite classification in the realm of judicial
power. Hence, such proceedings have
sometimes been styled sui generis. That they
are largely of a criminal nature, inasmuch as
the Court has power to convict and punish for
the wrong committed, cannot be disputed, and
yet it must be recognised that, in some
respects, by reason of the end subserved,
they partake of the nature of a civil remedy.
This dual characteristic has given rise to many
controversies, specially when questions have
arisen as to right of appeal from the order
passed, R. v. Barnardo [23 Q.B.D. 305
(1889).] , Barnardo v. Ford [[1892] A.C. 326.] ,
Helmore v. Smith [L.R. 35 Ch. Div. 449
(1886).] , A.G. v. Kissanoe [82 L.R. Ir. 220.] ,
Hunt v. Clarke [68 L.J. Q.B. 490 (492) : s.c. 37
W.R. 724 (1889).] , R. v. Staffordshire [67 L.J.
Q.B. 483 (1888).] , O'Shea v. O'Shea [[1890]
15 P.D. 59.] , Bessette v. Conkey & Co. [194
U.S. 324.] , Re Christensen Engineering Co.
[194 U.S. 458.] , Warden v. Searls [121 U.S.
14.] and Gompers v. Buck's Stove Co. [221
U.S. 418.] the applicability of rules of
evidence, [Celluloid Co. v. Chrolithian Co. [24
Fed. 585.] , Bullock Co. v. Westinghouse Co.
[63 C.C.A. 607 : s.c. 194 U.S. 636.] and Exp.
Could [99 Cal. 360 : s.c. 21 L.R.A. 751 : 37
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Am. St. Rep. 57.] ] the finality of the judgment,
[Fisher v. Hayes [19 Blatch 13 : s.c. 6 Fed.
63.] and Re Mulee [7 Blatch 23 : s.c. 17 Fed.
Cas. 9911.] ], liability for payment of costs, Re
Cornish [9 T.L.R. 196.] , Re Martindale [[1894]
3 Ch. 193, 200.] and Day v. Longhurst [62 L.J.
Ch. 334.] , right of trial by jury [Tinsley v.
Anderson [171 U.S. 101.] , Re Debs [158 U.S.
564.] and Ellenbecker v. Plymouth Court [134
U.S. 31.] ] and other like matters. The difficulty
in each case is to determine when a particular
proceeding assumes the criminal rather than
the civil aspect, or when of both, and, if the
latter, which feature must control. The
question has been repeatedly and elaborately
discussed by the Supreme Court of the United
States. [Ex Kearney [7 Wheaton 38.] , New
Orleans v. Steamship Co. [20 Wallace 387.] ,
In re Chiles [22 Wallace 157.] , Hayes v.
Fisher [102 U.S. 121.] , Warden v. Searls [121
U.S. 14.] , Be Debs [168 U.S. 564.] , O'Neal v.
United States [190 U.S. 36.] , In re
Christenson Engineering Co. [194 U.S. 458.] ,
Bessette v. Conkey & Co. [194 U.S. 324.] ,
Doyle v. London Guarantee [204 U.S. 591.]
and Gompers v. Buck's Stove Co. [221 U.S.
418.] ]. The view deducible from these
decisions is in general agreement with what is
indicated above, namely, a proceeding to
punish for contempt has the essential qualities
of a criminal proceeding, whether the
proceeding is initiated primarily to vindicate the
Court's authority or solely as a coercive and a
remedial measure to enforce the rights of the
litigant or for both these purposes combined.
This must be so, since it necessarily results
from the nature of the power to punish for
contempt that whatever the primary purpose of
such a proceeding may be, it is always within
the power of the Court to make its judgment, in
part, at least, punitive or vindicatory in
character; in other words, where the sole
purpose sought by initiating the proceeding is
to secure the coercive and remedial action of
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the Court against a party, the Court may,
nevertheless, in its discretion, add a
punishment, by way of fine or imprisonment,
for the failure of the person in contempt to
obey its mandate. I think it undeniable that the
proceeding must be regarded from its
inception to the point of judgment as of a
criminal nature, or, at least, potentially so,
since, until the judgment is given, it cannot be
known what its character will be. It is the
judgment, therefore, which must eventually in
any case determine the character of the
proceeding, and this leads to the conclusion
that logically, perhaps, instead of
characterising contempt proceedings as
criminal or remedial according to
circumstances, it is contempt judgments that
should be so classified. In any view, there is
no room for controversy that where, as here,
the contempt consists in an attack upon the
Court, the proceedings, instituted to vindicate
its dignity, are of a criminal nature, even
though the attack has been made in
connection with civil suits or appeals, either
actually decided or pending or about to be
taken up for disposal [Legal Remembrancer v.
Moti Lal Ghosh [I.L.R. 41 Cal. 173 : s.c. 17
C.W.N. 1253 (1913).] ].”
10.4 That it is most respectfully submitted that the order dated
27.09.2012 in aforementioned Civil Appeal No. 1503 of 2012
has been contravened by the Respondent(s) by transferring
Judge Utpat who was overseeing the Sohrabuddin encounter
trial and therefore “wilful disobedience” of this Hon’ble
Court’s orders by the Respondent(s).
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10.5 It is further submitted that the Applicant has a right in law to
bring to the notice of this Hon’ble Court the commission of
contempt by the Administrative Committee of the High Court of
Bombay. In this regard we may advert to the decision of this
Hon’ble Court in D.N. Tania v. Bhajan Lal [(1988) 3 SCC 26]
wherein it was observed that:
“12. Right of appeal is a creature of the statute
and the question whether there is a right of
appeal or not will have to be considered on an
interpretation of the provision of the statute
and not on the ground of propriety or any other
consideration. In this connection, it may be
noticed that there was no right of appeal under
the Contempt of Courts Act, 1952. It is for the
first time that under Section 19(1) of the Act, a
right of appeal has been provided for. A
contempt is a matter between the court and
the alleged contemnor. Any person who
moves the machinery of the court for
contempt only brings to the notice of the
court certain facts constituting contempt of
court. After furnishing such information he
may still assist the court, but it must always
be borne in mind that in a contempt
proceeding there are only two parties, namely,
the court and the contemnor. It may be one of
the reasons which weighed with the legislature
in not conferring any right of appeal on the
petitioner for contempt. The aggrieved party
under Section 19(1) can only be the
contemnor who has been punished for
contempt of court.”
[Emphasis Supplied]
10.6 In this regard we may advert to Rule 3 of the Rules to
Regulate Proceedings for Contempt of the Supreme Court,
1975 (made under Section 23 of the Contempt of Courts Act
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read with Article 145 of the Constitution of India) which
provides any person the opportunity to present a petition to the
Supreme Court to punish for contempt other than the contempt
committed in view or presence or hearing of the Court under
Rule 2:
“3. In case of contempt other than the contempt referred to in Rule 2, the Court may take action –
(a) Suo motu, or
(b) On a petition made by Attorney-General, or Solicitor-General, or
(c) On a petition made by any person, and
in the case of a criminal contempt with the consent in writing of the Attorney-General or the Solicitor-General.”
[Emphasis Supplied]
10.7 It is therefore respectfully submitted that this Hon’ble Court
has the power to punish for contempt under Article 129 of the
Constitution read with Rule 3 of the Rules to Regulate
Proceedings for Contempt of the Supreme Court, 1975
empower this Hon’ble Court to punish the
contemnor(s)/Respondent(s) for wilfully disobeying the
express orders of this Hon’ble Court.
10.8 That the Constitution of India under Article 129 gives the suo
motu power to the Supreme Court to punish for contempt of
itself:
“129. The Supreme Court shall be a court of record and shall have all the powers of such a
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court including the power to punish for contempt of itself.”
10.9 That in an action of the Supreme Court under Article 129,
there is no prescribed period of limitation and this has been
observed by this Hon’ble Court in Subramanian Swamy v.
Arun Shourie [(2014) 12 SCC 344] that the limitation
provided under Section 20 of the Contempt of Courts Act,
1971 finds no application under the suo moto power of the
Supreme Court to punish for contempt under Article 129 of the
Constitution:
“9. It may be observed immediately that the
learned Solicitor General and the learned Senior Counsel for the respondent in the course of arguments agreed that for exercising the suo moto power for contempt under Article 129 of the Constitution of India, the limitation provided in Section 20 of the 1971 Act has no application. There is no challenge before us about the legal position that there are no implied or express limitations on the inherent powers of the Supreme Court of India and, therefore, no limitations can be read into Article 129 of the Constitution.”
10.10 That the submissions of the applicant was non-compliance
with the order of this Hon’ble Court dated 27.09.2012
amounting to civil contempt in that there has been wilful non-
compliance with the direction of this Hon’ble Court. The fact
that Judge Utpat was transferred without the consent of the
Supreme Court has not been denied by the Respondent
State. Hence it submitted that the said submission of initiating
civil contempt against the High Court in its administrative
capacity is prima facie a tenable and credible argument and
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is not fanciful of motivated by any malice or intended to
interfere with the independence of the judiciary.
10.11 The procedure for initiating contempt proceedings is laid
under Section 14, Contempt of Courts Act and requires an
opportunity to be provided to the alleged contemnor to show
why contempt action be not taken against them. The
particular extract of Section 14 (1) is set out below:
“14. Procedure where contempt is in the face of the Supreme Court or a High Court.— (1) When it is alleged, or appears to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the court may cause such person to be detained in custody, and, at any time before the rising of the court, on the same day, or as early as possible thereafter, shall
(a) cause him to be informed in writing of the contempt with which he is charged;
(b) afford him an opportunity to make his defence to the charge;
(c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and
(d) make such order for the punishment or discharged of such person as may be just”
10.12 This Hon’ble Court in A.M Mathur vs. Pramod Kumar Gupta
& Ors. [(1990) 2 SCC 533] this Hon’ble Court has held that
adverse comments against a party or counsel without
providing an opportunity to be heard is unwarranted,
unjustified and deserves to be expunged. This Hon’ble Court,
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while passing the above judgment reiterated the decision in
State of M.P vs. Nandanlal Jaiswal [(1986) 4 SCC 566],
where Bhagwati C.J. observed
“ 43. We may observe in conclusion that Judges should not use strong and carping language while criticising the conduct of parties of their witnesses. They must act with sobriety, moderation and restraint. They
must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do consider- able harm and mischief and result in injustice. Here, in the present case, the observations made and strictures passed by B.M. Lal, J. were totally unjustified and unwarranted and they ought not to have been made”
This Hon’ble Court further held in A.M Mathur supra as under:
“13. Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect; that is, respect
by the judiciary. Respect to those who come before the Court as well to other co-ordinate branches of the State, the Executive and Legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.
14. The Judges Bench is a seat of power. Not only do judges have power to make binding decisions, their decisions legitimate the use of power by other officials. The Judges have the absolute and unchallenged control of the Court domain. But they cannot misuse their authority by intemperate comments,
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undignified banter or scathing criticism of counsel, parties or witnesses.....
15. Learned Judge having held that the High Court has no jurisdiction to entertain the review petition ought not to have commented on the professional conduct of the appellant and that too without an opportunity for him. We regret to note that the observations made and aspersions cast on the professional conduct of the appellant are not only without jurisdiction, but also they are wholly and
utterly unjustified and unwarranted.
16. We therefore, allow the appeal and expunge all the remarks made by B.M. Lal, J. against the appellant in the impugned order.
10.13 This Hon’ble Court in the present case in judgment dated
19.04.2018 has held the applicant guilty of prima facie
criminal contempt, namely of “scandalising the Court”. That
the Hon’ble Court has not afforded the applicant an
opportunity to defend herself against charges of criminal
contempt by not issuing a written notice, informing what
actions of the applicant amounts to criminal contempt prima
facie or otherwise and neither was she given an opportunity
to defend herself against the charge of criminal contempt as
required under Section 14. In fact this Hon’ble Court has held
that “petitioners and interveners” which. would appear to
include the applicant herein are prima face guilty of
committing criminal contempt without issuing individual
written notices to each of the alleged contemnors including
the present applicant.
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10.14 That by not affording an opportunity to the present applicant
to defend herself against charges of contempt, the principles
of natural justice have been violated; in as much as the
applicant has been held to be a contemnor, without her
defence being heard. The adverse observations/findings
made by this Hon’ble Court applicable to all counsels
appearing for the petitioners and interveners has also
resulted in the same observations being recorded against the
applicant – that too without any submissions being forwarded
by the present applicant which would tend to scandalise or
lower the majesty of this Hon’ble Court. Effectively, this
Hon’ble Court has returned a finding of holding the Applicant
prima facie guilty of contempt by not even giving an
opportunity to the Applicant to defend herself in the manner
prescribed by law.
10.15 The judgment of this Hon’ble Court is a Law under Article 141
of the Constitution of India. Even otherwise, in the instant
matter, this Hon’ble Court was dealing with issues that had
wide ranging constitutional ramifications. Such unfounded
and unilateral findings/observations against the Applicant
herein are gravely prejudicial and unfair and hence deserve
to be expunged.
11 Thus in the afore-going circumstances, the Applicant herein is
constrained to file the Application, which is filed bona fide and
deserves to be allowed in the interest of justice.
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12 That the Applicant has no alternative but to approach this
Hon’ble Court for the appropriate remedy.
PRAYER
13 In light of the facts and circumstances mentioned hereinabove,
it is most respectfully prayed that this Hon’ble Court may
graciously be pleased to:
a) Issue appropriate order or direction expunging/deleting
the remarks made against the counsel for present
intervener/applicant herein that the conduct of the
counsel/applicant herein amounted to contempt or prima
facie contempt of court, namely the following:
“74. The present case is indeed a case in
point. Repeatedly, counsel for the petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence. An aura of good faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary […]”
“75. […] Ms Jaising has joined the fray by requesting that this court to issue contempt notices to the Administrative Committee of the Bombay High Court…”
“76. […] The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt…”
“78. […] The conduct of the petitioners and the intervenors is, as we have indicated, lacking in bona fides and reveals a misuse of judicial process.”
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b) Issue appropriate order or direction issuing a clarification
that the counsel for the present intervener/applicant
herein has not furthered any submissions or engaged in
conduct which may amount to contempt of Court if it so
deems fit;
c) Call for High Court of Bombay for the records of the
meeting of administrative committee of the High Court
dated 25.06.2014 to ascertain the reasons for transfer to
Judge Utpat, and to ascertain whether the consent of this
Hon’ble Court was obtained or whether this Hon’ble Court
was kept informed that Judge Utpat was being
transferred;
d) Pass such other order(s) or directions(s) as this Hon’ble
Court may deem fit and proper in the facts and
circumstances of the case and in the interest of justice.
AND FOR THIS ACT OF KINDNESS, THE APPLICANTS
AS IN DUTY BOUND SHALL EVER PRAY.
FILED BY:
MR. SUNIL FERNANDES
Advocate for the Applicant
Drawn On: ___.05.2018
Filed on: ___.05.2018
New Delhi
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