Challenge to Contempt proceedings under Writ should be heard by Larger Bench of which earlier Judges are not members.
The procedure followed in M. S. Ahlawat’s case and SCBA’s case (1998) 4 SCC 409 by the Constitution Bench mandates that the challenge to Contempt proceedings under Writ should be heard by Larger Bench of which earlier Judges are not members.
Writ Petition challenging the order under contempt passed by the Supreme Court should be placed before the Larger Bench of which earlier Judges including Justice Arun Mishra are not a member.
This is not a refrence by smaller Bench to larger Bench but Appeal by Prashant Bhushan challenging the proceeding against him initiated by the bench of a Supreme Court as a Trial Court.
Allowing the appeal to be heard by the same officer who had passed the basic order would tantamount to reducing the appellate jurisdiction into that of review.[ Mohd. Chand Vs State of U.P. 2012 SCC ON Line All 967]
The earlier judgment dated 05.08.2020, passed in the Writ Petition of the Prashant Bhushan being W.P. (C) No. 792of 2020 by the same Bench whose order was challenged is null and void as passed by the coram-non-judice.
The recent controversy about Registry deleting the case from the Bench of Justice D.Y. Chandrachud and indicating that the matter shall be placed before the Bench of Justice Arun Mishra raises a serious question of the legal position which required to be followed in such cases.
The nature of the case :-
The case against Adv. Prashant Bhushan is scandalising the Court. Which is defined under section 2 (c) of the Contempt of Court’s Act, 1971. It is a criminal contempt. [see : Baradkanta Mishra (1974) 1 SCC 374, Subramanian Swamy (2014) 12 SCC 344, Re: C.S. Karnan (2017) 2 SCC 757].
The Status of Alleged Contemnor :-
(i) Contempt of Court is a criminal proceeding and offence within the meaning of section 211 of I.P.C. If the charge under contempt is frivolous then the Complainant is liable for prosecution under section 211 of I.P.C. [Hari Das AIR 1964 SC 1773 (F.B.)]
[The contarary views are per-incuriam as passed against binding precedent of Full Bench in Hari Das case AIR 1964 SC 1773].
(a) 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.
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."
B) 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.’’
But the Larger Bench of Supreme Court entertained & partly allowed appeal against conviction under contempt in the case of M.S. Ahlawat Vs. State (2000) 1 SCC 278.
(c) The abovesaid procedure is having its roots in the ratio laid down by Full Bench in Madhav Hoskot Vs. State (1978) 3 SCC 544 .
(d) Similarly the wrong sentence passed by the Three-Judge Bench in Re: Vinay Chandra (1995) 2 SCC 584 was set aside by the Larger Five Judge Bench in Supreme Court Bar Association Vs. Union of India (1998) 4 SCC 409.
(e) The abovesaid two appellate order again got approved by the Constitution Bench in Roopa Hoora Vs. Ashok Hoora (2001) 4 SCC 388 [Para 42 to 47].
That among verious protections given to an accused the basic Protection is that he entitled for one impartial Appellate Jurisdiction.
In section 479 of Cr.P.C. there is specific bar for the same Judge/Bench to hear the appeal.
Section 479 of Cr.P.C. reads thus;
“479. Case in which Judge or Magistrate is personally interested. No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.
The above procedure was followed by the Supreme Court in contempt proceedings.
In Afzal Vs. state AIR 1996 SC 2326 the two judge bench (Coram :- K.RAMASWAMY,
G.B. PATTANAIK) convicted the S.P. under contempt and perjury.
The challenge to the said order was heard by the larger Three Judge Bench (Coram :- Dr. A.S. Anand, CJ, S. Rajendra Babu, R.C. Lahoti) in M.S. Ahlawat Vs. State (2000) 1 SCC 278. No. Judge who passed the order under challenge was there in the Appellate Bench.
In Re: Vinay Chandra (1995) 2 SCC 584 the Three Bench (Coram :- Kuldip Singh, J.S. Verma and P.B. Sawant) convicted the lawyer under contempt.
The challenge to said order in Writ was heard by the Constitution Bench in Supreme Court Bar Association Vs. Union of India (1998) 4 SCC 409 (Coram :- S.C. Agrawal, G.N. Ray, A.S. Anand, S.P. Bharucha, S. Rajendra Babu)
Hence it is clear that the Supreme Court in contempt appeals against orders passed by the Supreme Court , has followed the practice of Constitution Larger Benches excluding the Judges which were member of the smaller Benches whose order is challenged.
In Mohd. Chand Vs State of U.P. 2012 SCC ON Line All 967 it is ruled as under
“ 8. The right to appeal is not an inherent right but is only a statutory right. It can not be availed of unless it has been provided under the statute. Section 56 of the Act provides for an appeal against the order of the Collector. The object of providing a statutory appeal is to test the correctness of the order and that too by a superior authority/Court.
9. The appeal is only removal of the cause of action from an inferior court to superior court for deciding the soundness of the decision of the inferior court.
10. The officer who has passed the order as inferior court or authority can not legally test the correctness of his own decision while exercising the powers of the superior court in appeal.
11. In the event the appeal against the inferior court or authority is allowed to be heard by the same officer who has passed the order impugned in appeal, it would make the appeal illusory and nugatory frustrating the purpose of its filing.
12. The appeal is conceptually different from a review. The review is reconsideration of the subject by the same judge to cure an error which may be apparent on record while an appeal is re-hearing of the matter by a superior Court/authority to test correctness of the decision of the lower court/authority. Allowing the appeal to be heard by the same officer who had passed the basic order would tantamount to reducing the appellate jurisdiction into that of review. Therefore, also no person should normally hear the appeal against his own order.
13. One of the fundamental principles of natural justice is that no man can be a judge in his own cause. The above principle is not confined to its literal interpretation to mean that if a person is a party in a litigation he can not sit and decide the same as a Judge but may also be extended in cases where he has some interest in the litigation or in any party to the litigation and even to cases where he happens to be a witness of one of the parties. The said principle would also be attracted in a case where a Judge may not be a party to the cause of action in any manner aforesaid but has delivered the order/judgment which is to be tested in appeal.
14. There is another famous dictum based upon the principle of natural justice enshrined by Lord Hewart, C.J., which says “Justice should not only be done but should manifestly and undoubtedly be seen to be done” *
15. Thus, it is cardinal that in the matter of dispensation of justice certain rules have to be observed which manifestly ensure that justice has been done and for that purpose it is essential that veracity of the judgment ought not to be allowed to be tested by the same person in appeal rather it should be tested by another person.
16. Earlier as per the practice prevalent in the High Courts of India in the absence of any specific prohibition in law a practice prevailed of including judges in Bench against whose judgment the appeal is to be heard but slowly this practice was given up and fell in desuetude. In R. Vishwanathan v. Abdul Wajid AIR 1963 SC 1 while dealing with the issue of the practice of having judges making a reference to the larger Bench as a member of the larger Bench, it was observed that it is desirable that a judge should not take part in the determination of appeal against his own decision unless the statute expressly authorizes him to do so. The principle is that one who has made the decision having a judicial flavour should not participate in appeal arising from such a decision.
17. In view of the aforesaid facts and circumstances and the principles of law I am of the opinion that the Commissioner has manifestly erred in law and acted against the settled principles of natural justice by deciding the appeal against his own order passed as an inferior authority.”
The CIT Bombay City Vs. R.H.Pandi (1974) 2 SCC 627 it is ruled as under ;
“ 6………. Cursus curiae est lex curiae . The Practice of the Court is the law of the Court.See Broom’s Legal Maxims at p.82. Where a practice has existed it is convenient to adhere to it because it is the practice.”
Conclusion:- Therefore the Writ Petition filed by Adv. Prashant Bhushan should be heard by the Larger Bench of at least Five Judges excluding the Three Judges Shri. Arun Mishra, Shri. Bhushan Gavai and Shri Krishna Murari.
The earlier judgment dated 05.08.2020, passed in the Writ Petition of the Prashant Bhushan being W.P. (C) No. 792of 2020 by the same Bench whose order was challenged is null and void as passed by the coram-non-Judice.