IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL … · 1 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)

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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

Bar & Bench (www.barandbench.com)

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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


21

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


22

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,


23

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,


24

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.


25

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.


26

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.”


27

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


Documents

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL … · 1 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)