Prashant Bhushan placed reliance on wrong legal position and on per-incuriam judgment of smaller Bench in Re: Vijay Kurle’s case
Bhushan placed reliance on wrong legal
position and on per-incuriam judgment of smaller Bench in Re: Vijay Kurle’s
case 2020 SCC OnLine SC 407.
larger Full Bench view in in Raj Kishore Yadav 1997 (3) SCC 11, Bal
Thackrey(2005) SCC 254 rules for dropping of contempt proceeding and show cause
notice where suo motu cognizance of the criminal contempt other than committed
on the face of the court, is taken (even
in tagged/connected matters), without
first placing it before the Chief Justice.
Supreme Court in M. S. Mani (2001) 8
SCC 82 made it clear that the subsequent action does not cure the initial
defect so as to convert the incompetent contempt motion into a maintainable
one. Which is upheld by the Full Bench in Bal Thackrey’s case.
Supreme Court can discharge Prashant Bhushan
by dropping the contempt proceedings against
him even though he has relied on per-incuriam judgment of Re: Vijay
Therefter if court thinks it fit, subject to the
principles of double jeopardy, can take fresh cognizance on the basis of
averments in the reply affidavit as per J.R.Parashar’s case (2001) 6 SCC
Prashant Bhushan’s fresh application filed in the Supreme
Court on Thursday points to a procedural lacuna in the case, which was not
discussed adequately during Wednesday’s
hearing. In his new application, Bhushan pointed out the
distinction between his first and second tweet.
The first tweet regarding the
Chief Justice of India S. A. Bobde on a bike was posted on June 29, and was the subject of
Mehak Maheshwari’s petition, which got converted into the suo
motu contempt case. Bhushan’s second tweet dated June
27 is regarding ‘destruction of democracy’ by last 4 CJIs which was,
mysteriously published in the Times of India on the morning of July
22, based on which the Supreme Court-issued notice to Bhushan. Bhushan took
objection for joint trial stating that the second tweet constitutes a
separate cause of action and that the court having taken cognizance of the
second tweet is required to initiate it as a separate proceeding. Bhushan’s
counsel, Dushyant Dave made this point orally during the hearing on Wednesday.
In his application, Bhushan took the objection that the
proceedings regarding the second tweet are required to be placed before the CJI
who is the master of the roster for allocation of benches.
Maheshwari’s petition was placed before Justice N.V. Ramana,
as the CJI, as master of the roster, could not have dealt with it
administratively, because it concerned a tweet about him. Since no one can be a
Judge in his own case. As second in seniority, Justice Ramana assigned the case
to a Three Judge Bench of Justice Arun Mishra.
Bhushan, while taking objection for cognizance of second tweet,
has cited the Supreme Court’s judgment in Vijay Kurle 2020
SCC On Line SC 407 . In this case, after taking cognizance and
issuing notice to Kurle and others in a pending contempt matter against an
advocate , bench of Justice Rohinton
Nariman placed the matter before the CJI for allocation of the
The cognizance of second tweet is against the Full Bench judgment
of Supreme Court in Raj Kishore Yadav 1997 (3) SCC 11, Divine Retreat
(2008) 3 SCC 542 & Constitution Bench in Campaigne For Judicial 2019
(5) SCALE 588, Bal Thackery (2005) 1 SCC 254 and therefore vitiate the
The observations of two Judge Bench in Re: Vijay Kurle that the
Judge can take cognizance as per Art. 129 of the constitution without first
placing the letter before CJI. It was further held by smaller bench that the
law laid down in P.N. Duda's case are not binding to the Supreme Court. The
said view is a wrong view and is per incuriam as it is against
the Full Bench judgment of Supreme Court in Rajiv Kishore (1997) &
Constitution Benches where it is ruled that while taking cognizance
of any new case under contempt, the provisions of Art. 129 have no
role but the law and practice of Chief
Justice is the only Master of Roaster, has to be followed.
Based on said principle Full Bench in Bal Thackrey’s case set
aside the conviction under contempt alleged to be suo motu. [See: Prof. Y.C. Simhadri,. Vs. Deen Bandhu
Pathak, 2001 (4) AWC 2688 further approved by Full Bench Smt. Maya Dixit And Others vs State Of U.P.
, 2010 SCC OnLine All 1740]
Non-supply of relevant documents is against the principles of
natural justice and procedure laid down by Full Bench in Mohammed Ramzan
Khan (1991) 1 SCC 588 andis followed by the Constitution
Benches in Re: C. S. Karnan (2017)
7 SCC 1, Subramanyam Swami (2014) 12 SCC 344.
Adv. Prashant Bhushan has the Constitutional
right to remain silent and not to file detailed reply till the conclusion of
all stages in contempt procceding before final hearing and he can demolish the
contempt case against him by cross-examining the witnesses. In Contempt
proceedings the accused has the benefit of presumption of innocence and an
opportunity of demolishing the prosecution case without exposing himself to
Fertilizer Limited Vs. Tuncky (2013) 9 SCC 600, Clough Engineering
Ltd. (2009) 3 Mh. L.J. 553, Jai Chaitnya Das 2015 (3) AKR 627]
Mr. Bhushan can even call Justice Ramanna,
former CJIs Gogoi, Khehar, Deepak Mishra etc. in to witness box to prove his
allegations of bias and others. [Suo Motu Vs. Santy George 2020 SCC OnLine
Ker 563, R. Vishwanathan Vs. Rukn AIR 1963 SC 1 [Relevant para is
para 110] where Chief Justice and other two Judges were cross examined to
prove bias, Murat Lal Vs. Emperor 1917 SCC OnLine Pat 1, Woodward Vs.
Waterbury 155 A. 825 Judge of the Supreme court cross examined for his
observation in order which were not supported by the material available on
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