Justice K.K.Tated's wrong order stayed by the Supreme Court and he again committed the contempt of the Supreme Court.
Justice K.K.Tated's wrong order stayed by the Supreme Court and he again committed the contempt of the Supreme Court by repeating same illegal order to grant unwarranted relief to an undeserving accused in a high profile case.
On 12.10.2020 Supreme Court stayed the illegal interim order passed on 28.09.2020 by the Bench of Justice K.K. Tated and Justice N.R.Borkar granting unwarranted protection to an accused in a high profile case. The order was without mentioning any reason as to why the Bench is satisfied to grant the protection to the accused and what is the urgency when the accused were granted bail by the Court.
But instead of respecting said judgment of the Supreme Court the Bench of Justice K.K. Tated on 14.10.2020 again passed the similar illegal order granting unwarranted relief to another absconded accused whose case is not assigned to the bench of Justice Tated as per the present roster and the said accused was directed to surrender by the Supreme Court and whose application for extention of time was rejected by the Supreme Court. The said case is also a high profile case where the accused is involved in committing an extortion of Rs. 50 Crores by creating forged documents reagarding the property worth around Rupees 10,000 Crores and giving threats for filing false cases and claims if said amount is not paid .
Earlier many times Justice Tated acted in wilful disregard and defiance of Supreme Court judgments and binding precedents of the Bombay High Court.
Justice Tated with Justice N. J. Jamadar conducted a criminal contempt against a poor senior citizen without following the guidelines of Full Bench of Supreme Court in Bal Thackrey's case and sentenced the said poor ‘senior citizen’ without framing any charge of contempt by relying on the overruled judgment in Pritampal's case and sent said poor ‘senior citizen’ in to jail for one day by acting contrary to the law. The said case was initiated at the behest of mighty, rich corporate.
Two complaints for sanction for criminal prosecution under sec.220,211,219,218,192,193,466,471,474,167 r/w 120(B),34 etc of IPC are filed before Hon’ble President of India and the complainant is going to file criminal case as he got the deemed sanction to prosecute Justice K.K.Tated and Justice N. J. Jamadar.
The judgment of two judge Bench in Pritam Pal's case is overruled by the three Judge Bench in Bal Thckrey's case(2005) 1 SCC 254 . Furthermore Bombay High Court in Suresh Subhashrao Bhoyer Vs. Shri Manohar S/O. Narayan Bhagat, 2012(5) ALL MR 230 had also refused to follow the said Pritam Pal’s judgment by following observations;
“ 4. The judgment in the matter of Pritam Pal's case(Pritam Pal Vs. High Court of Madhya Pradesh, Jabalpur, 1992 SCW 681) dated 19.2.1992 was rendered by two Honourable Lordships of the Supreme Court, while the judgment in the matter of Pallav Sheth (Pallav Sheth Vs. Custodian and others, AIR 2001 SC 2763 )was by the three Honourable Judges of the Supreme Court. Consequently, no astrologer is required to comment that the later judgment rendered by the Supreme Court by the three Honourable Judges on 10.8.2001 will only hold the field. The submissions vociferously advanced needs only to be discarded. ”
The judgment passed by Justice K.K.Tated and N.J. Jamadar shows that their level understanding of law is very poor and it is affecting the poor and helpless litigants. It is shocking that the Judge of a high court who is supposed to protect the fundamental rights of the citizen is himself involved in violating the fundamental rights of the citizen either due to lack of basic legal knowledge or due to corruption in term of law laid down in R.R. Parekh’s case (2016) 14 SCC 1. It is high time that the Chief Justice should not assign him any judicial work to save the dignity of the Bombay High Court.
In R.R. Parekh’s case (2016) 14 SCC 1 it is ruled that, when any Judge passes an order in wanton breach of the mandatory procedure then such order itself is a proof that, the said Judge acted with an ulterior motive. No further proofs of corruption are required to remove the Judge from his post.
Mumbai: The illegalities, ignorance of law, lack of proper legal knowledge and acumen to understand the case law and misuse of power by Justice K.K.Tated is again in discussion in the legal fraternity when the three Judge Bench of the Supreme Court headed by Justice Dr. D. Y. Chandrachud on 12.10.2020 stayed the unlawful and highly illegal order of interim protection granted by the Bench of Justice K.K.Tated.
BRIEF HISTORY OF THE CASE:
On 28.09.2020, a petition filed by accused P. Suresh Kumar being Cri. Criminal Writ Petition (St.) No. 2306 of 2020 came for hearing before the Bench of Justice K.K. Tated and Justice N.R.Borkar.
Mr. Mukul Rohatgi represented the Accused petitioner and Mr. Shyam Deewan represented the complainant i.e. Respondant No.2. Actually the assignment of the Criminal Writ Petition is with another Bench of Justice S. S. Shinde but vide order dated 22.09.2020 Justice Shinde recused from the case.
The reason for recusal by Justice S.S. Shinde was that Adv. Nilesh Ojha is also appearing as a Counsel for Respondent No. 2.
On 28.09.2020 when the said matter came for hearing, the Bench of Justice Tated straigaway granted the interim protection to the accused without there being any urgency and without mentitioning any reason.
Said order dated 28.09.2020 in the case of P. Suresh Kumar vs. State of Maharashtra in Criminal Writ Petition (St.) No. 2306 of 2020 is stayed by the three Judges Bench of the Hon’ble Supreme Court vide its order dated 12.10.2020 in M/s Neeharika Infrastructure Pvt. Ltd. Vs. The State of Mahashtra in SLP (Crl.) No. 4819 of 2020.
Normally Supreme Court never interfere in the interim orders passed by the High Court, but when there is a patent illegality then the Suprme Court stays the operation of such illegal orders.
The said order dated 12.10.2020 passed by the Supreme Court reads thus;
“d. In the meanwhile, no coercive measures shall be adopted against the Petitioners in respect of the FIR No. 367/2019 dated 19.09.2019, registered at Worli Police Station, Mumbai, Maharashtra (subsequently transferred to Economic Offence Wing, Unit IX, Mumbai and has been numbered as C.R. No. 82/2019).”
It has been submitted that since the second, third and fourth respondents were protected by an interim stay of arrest by the Sessions Court, there was no occasion to seek a blanket direction of the High Court restraining the investigating officer from taking coercive measures and such an application is an abuse of the process. It has been urged that the High Court passed an order directing that no coercive measures would be adopted without any reasons being indicated.
Supreme Court time and now had warned the Judges in the country that any order should be a reasoned order and the reasons should be the intelligent reasons and not the rubber stamp reasons or frivolous reasons. The orders of the court must reflect what weighed with the court of granting or declining the relief claimed by the applicant . There should be application of judicial mind and not the mechanical mind. If any order is without reason then it is vitiated.[Bhagabhai Dhanabhai Barad MANU/GJ/0398/2019 Dhanuben Patel Vs. ONGC 2014 SCC OnLine Guj 15949Union of India (UOI) Vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148]
SECOND SIMILAR ILLEGAL ORDER IN ANOTTHER CASE EVEN AFTER STAY BY THE SUPREME COURT:
Despite Supreme Court staying the unreasoned and illegal order dated 28.09.2020, the Bench of Justice K.K.Tated again on 14.10.2020 in an another high profile case in the matter of Sagar Suryavanshi Vs. State being Criminal Writ petition No. 2413 of 2019 passed the similar unreasoned order and granted similar protection to an accused without there being any urgency. Justice Tated did not took the note of written objection of the counsel for Complainant that the said accused Sagar Suryavanshi is absconded and his prayer to extend the time to surrender is rejected by the Supreme Court.
The more objectionable part in this case is that, the matter was not placed before the bench of Justice S. S. Shinde and no recusal order is passed. Surprisingly the matter was straightaway entertained by the bench of Justice Tated. Which is against the roster of judicial assignment. Hence the order is also without jurisdiction and contempt of the law laid down by the Full Bench in the case of State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1, where it is ruled that ;
“ (1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocated cases to the benches so constituted.
(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.
..(6) That the puisne Judges cannot "pack and choose" any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.
(7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.
We, therefore. hold that all observations, comments, insinuations, allegations and orders made by the learned Judge in connection with and relating to the disposed of Writ Petition No. 2949/96 in the impugned order, are illegal, misconceived and without jurisdiction. The same are quashed and are hereby directed to be expunged from the record
LAW FOR ACTION UNDER CONTEMPT AGAINST HIGH COURT JUDGE:
Seven Judge Constitution Bench in Re: C.S. Karnan (2017) 7 SCC 1, ruled that even a common man can file contempt petition against a Judge even if he is a Judge of Constitutional Court and Court is bound to examine said Contempt Petition. The identity of a person alleged to have committed Contempt is inconsequential before the Court hearing contempt petition. Justice Karnan was sentenced to six months imprisonment.
In Legrand Pvt. Ltd . 2007 (6) Mh.L.J.146, it is ruled as under;
‘‘9(c). If in spite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in Section 2(b) of the Contempt of Courts Act, 1971.’’
In Badrakanta Mishra (1973) 1 SCC 446, it is ruled as under;
‘‘15. The conduct of the appellant in not following the previous, decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of Contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of Contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly the deliberate and malafide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court, generally, but is also likely to subvert the Rule of Law 'and engender harassing uncertainty and confusion in the administration of law.’’
In Rabindra Nath Singh –Vs- Pappu Yadav case (2010 (3) SCC (Cri) 165 Hon’ble Supreme Court held that the High Court committed contempt of Court in passing the order to help the accused despite contrary orders of the Supreme Court and not following the guidelines of Supreme Court in the concerned matter.
That, in Superintendent of Central Excise Vs. Somabhai Ranchhodhbhai Patel (2001) 5 SCC 65, it is ruled that, the level of judicial officer's understanding can have serious impact on other litigants. "We do not know whether present is an isolated case of such an understanding. We do not know what has been his past record. In this view, we direct that a copy of the order shall be sent forthwith to the Registrar General of the High Court of Gujarat"
Misinterpretation of Supreme Court judgment is contempt. It is ruled as under;
“(A) Contempt of Courts Act (70 of 1971), S.2 –Misinterpretations of judgment of Hon’ble Supreme Court.
…..The officer is holding a responsible position of a Civil Judge of Senior Division. Even a new entrant to judicial service would not commit such mistake assuming it was a mistake.
What we have said above, however, is not the end of the matter. It cannot be ignored that the level of judicial officer's understanding can have serious impact on other litigants. There is no manner of doubt that the officer has acted in a most negligent manner without any caution or care whatsoever. Without any further comment, we would leave this aspect to the disciplinary authority for appropriate action, if any, taking into consideration all relevant facts. We do not know whether present is an isolated case of such an understanding. We do not know what has been his past record. In this view, we direct that a copy of the order shall be sent forthwith to the Registrar General of the High Court of Gujarat.’’
In Sunil Goyal Vs. Additional District Judge,2011(2) I.L.R. (Raj.)530, it is ruled that the Judge is not permitted to make a deliberate distinction of the judgment of the binding precedent in a cursory manner with an intention to not to follow the ratio laid down. It was ruled by as under;
“The wrong interpretation or distinction of a judgment of Hon'ble Supreme Court and this Court in a cursory manner by subordinate court amounts to disobedience of the order of Hon'ble Supreme Court and this Court, therefore, the impugned order passed by first appellate court is contemptous. It also shows that legal knowledge or appreciation of judgment of Hon'ble Apex Court, of the first appellate court is very poor. …the ratio laid down by the Hon'ble Apex Court was binding on first appellate court under Article 141 of the Constitution of India. Learned court below failed to take into consideration that judgments of this Court were relating to cases decided under the provisions of Rajasthan Rent Control Act and judgment of Hon'ble Apex Court in Atma Ram Properties(P) Limited Vs. Federal Motors (P) Limited(supra) was relied upon. When this Court relied upon a judgment of Hon'ble Apex Court, then there was no reason for the first appellate court for not relying upon the said judgment and in observing that the judgment of Hon'ble Apex Court in Atma Ram Properties(P) Limited Vs. Federal Motors (P) Limited(supra) is on Delhi Rent Control Act and the same has been passed in S.L.P. ……From the above, it reveals that first appellate court deliberately made distinction and did not follow the ratio laid down by Hon'ble Apex Court in Atma Ram's case and this Court in Madan Bansal and Datu Mal's cases. ”
Above said judgment of Hon’ble High Court in Sunil Goyal Vs. Additional District Judge,2011(2) I.L.R. (Raj.) 530 is upheld by Supreme Court in Smt. Prabha Sharma Vs. Sunil Goyal (2017) 11 SCC 77, where it is ruled as under;
“Article 141 of the Constitution of India - disciplinary proceedings against Additional District Judge for not following the Judgments of the High Court and Supreme Court - judicial officers are bound to follow the Judgments of the High Court and also the binding nature of the Judgments of this Court in terms of Article 141 of the Constitution of India. We make it clear that the High Court is at liberty to proceed with the disciplinary proceedings and arrive at an independent decision.
In M.P. Dwivedi AIR 1996 SC 2299, while punishing a Judge under contempt it is ruled that the Judge cannot be allowed to take a defence that he was not aware of the law laid down by the Supreme Court. It is held as under;
‘A ) VIOLATION OF GUIDELINES LAID DOWN BY SUPREME COURT BY JUDGE – THEY ARE GUILTY OF CONTEMPT.
21. Contemner 7, B.K. Nigam, was posted as Judicial Magistrate First Class, Alirajpur, at the relevant time. … it is stated that the contemner was apprised about the decisions of this Court and he is reported to have stated that “… the Supreme Court decision has no application there and that the police has the right to transport the accused as they want, with or without handcuffs”. The contemner has filed two affidavits in response to the notice. …………
………….In the second affidavit dated 18-9-1993 the contemner has tendered his unconditional and unqualified apology for the lapse on his part …. The contemner has submitted that he is a young judicial officer and that the lapse was not intentional.
22. We have carefully considered the two affidavits of the contemner as well as the affidavits of Shri Betulla Khan and Shri Girdhari Lal Vani, Advocates. We would assume that on 8-2-1993 the contemner did not make the statement about the judgments of this Court having no application there and the police having the right to transport the accused as they want, with or without handcuffs. But the contemner, being a judicial officer, is expected to be aware of law laid down by this Court in Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526 ] and Sunil Gupta v. State of M.P. [(1990) 3 SCC 119 ] Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526 ] was decided in 1980, nearly 13 years earlier. In his affidavits also he does not say that he was not aware of the said decisions. Apart from that, there were provisions in Regulation 465 of the M.P. Police Regulations prescribing the conditions in which undertrial prisoners could be handcuffed and they contain the requirement regarding authorisation for the same by the Magistrate. It appears that the contemner was completely insensitive about the serious violations of the human rights of the undertrial prisoners in the matter of their handcuffing inasmuch as when the prisoners were produced before him in court in handcuffs, he did not think it necessary to take any action for the removal of handcuffs or against the escort party for bringing them to the court in handcuffs and taking them away in handcuffs without his authorisation. This is a serious lapse on the part of the contemner in the discharge of his duties as a judicial officer who is expected to ensure that the basic human rights of the citizens are not violated. Keeping in view that the contemner is a young judicial officer, we refrain from imposing punishment on him. We, however, record our strong disapproval of his conduct and direct that a note of this disapproval by this Court shall be kept in the personal file of the contemner. We also feel that judicial officers should be made aware from time to time of the law laid down by this Court and the High Court, more especially in connection with protection of basic human rights of the people and, for that purpose, short refresher courses may be conducted at regular intervals so that judicial officers are made aware about the developments in the law in the field.’’
LAW OF PASSING REASONED ORDER
In Bhagabhai Dhanabhai Barad MANU/GJ/0398/2019 it is ruled as under;
‘‘Reasoned Order – Any Order should be with intellectual reasons on each point- Any Judge or quasi judicial authority is bound to pass a reasoned order Reasons in support of decisions must be cogent, clear and succinct adequate and intelligent reasons must be given for judicial decisions".
A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process.
The Apex Court further held that a litigant who approaches the Court with any grievance is entitled to know the reasons for grant or rejection of his prayer.
It further held that insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done, but it must also appear to be done, as well. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi- judicial or even administrative power. Insistence on reason is a requirement for both judicial accountability and transparency.
If a judge or a quasi judicial authority is not candid enough about his/her decision-making process, then, it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, MANU/UKWA/0114/2001: 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires "adequate and intelligent reasons must be given for judicial decisions".
The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authorityconcerned must apply its mind and dispose of the matter by a reasoned or speaking order. This has been uniformly applied by courts in India and abroad.
"the orderly functioning of the process of reviewrequiresthat thegrounds upon which the administrative agency acted be clearly disclosed and adequately sustained."
To sub-serve the purpose of justice delivery system, therefore, it is essential that the Courts should record reasons for its conclusions, whether disposing of the case at admission stage or after regular hearing.
The requirement of recording reasons is applicablewithgreater rigour to the judicial proceedings. The orders of the court must reflect what weighed with the court of granting or declining the relief claimed by the applicant. In this regard we may refer to certain judgments of this Court."
Considering these decisions and also noticingthat the combined order impugned, passed below Exh. Nos. 3 and 4 of the Criminal Appeal No. 4 of 2019 lacks completely reasons and is a cryptic, non-speaking order, therefore, cannot stand to leg nor can it be sustained. The application, which had been tendered on the part of respondent No. 1 even though contains requirements of respondent No. 1 and also has conveyed the details as would be required to be placed before the Court concerned, however, that which is obligatory on the part of the Court can have no other substitute and the appellate Court while dealing with such application, when has totally failed in its duty in giving reasons, this Court would be failing in its duty if it does not interfere and quash the said order.
Reasons being the soul of any order, this opaqueness on account of absence of reasons, it not checked, it may give impetus to the arbitrariness and to trade on extraneous grounds. Our democracy based on rule of law, favours the reasoned order and decisions based on facts and hence, to upkeep the objectives of judicial accountability and transparency, this Court is required to interfere with the order impugned.
In Dhanuben Patel Vs. ONGC 2014 SCC OnLine Guj 15949, it is ruled as under;
“REASONED ORDER: The Court cannot lose sight of the fact that a losing litigant has a cause to plead and a right to challenge the order if it is adverse to him. Opinion of the Court alone can explain the cause which led to passing of the order. Whether an argument was rejected validly or otherwise, reasoning of the order alone can show. To evaluate the submissions is obligation of the Court and to know the reasons for rejection of its contention is a legitimate expectation on the part of the litigant. Anotherfacet of providing reasonings is to give it a value of precedent which can help in reduction of frivolous litigation.
"The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed: "Failure to give reasons amounts to denial of justice."
In Union of India (UOI) Vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148, it is ruled that;
“Reasoned Order- It is a settled legal proposition that judicial order must be supported by reasons, recorded in it. The person who is adversely affected must know why his version has been rejected. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected.
EARLIER CRIMINAL OFFENCES AND GROSS VIOLATION OF FUNDAMENTAL RIGHTS OF THE SENIOR CITIZEN BY JUSTICE K.K.TATED:
Charge# 1: Conviction of poor senior citizen Shri. Sureshchandra Parekh under criminal contempt without mentitioning specific charge and passing order against binding precedent of Supreme Court and High Court:
1.1. That on 31st January, 2019 JUSTICE K.K.TATED and Justice N.J. Jamadar delivered the judgment in Housing Development Finance Corporation Ltd Vs. Sureshchandra Parekh 2019 SCC OnLine Bom 138.
1.2. The said case was conducted against the Rule 6 ( c ) of CHAPTER XXXIV of Bombay High Court 'RULES TO REGULATE PROCEEDINGS FOR CONTEMPT UNDER ARTICLE 215 OF THE CONSTITUTION OF INDIA AND THE CONTEMPT OF COURTS ACT, 1971, mandates that the State of Maharashtra should be a mandatory party .
6 …(c) In every Petition for criminal contempt, the State of Maharashtra shall be made a Respondent.
1.3. But in this case State was not made a party respondent and the conduct of case was left at the hand of a private counsel for petitioner and on this ground alone the conviction is illegal and it also shows the lack of basic legal knowledge on the part of Justice Tated. Such illegal conviction is set aside in AIR 1959 AP 659 .
1.4. That as per scheme of Contempt of Courts Act, a private person or the subordinate court, is only an informant and does not have the status of a litigant. But This rule was violated and the charge of the case was left to the hands of private parties. Which is contempt of law laid down by the Constitution Bench of Hon’ble Supreme Court in Supreme Court Bar Association (1998) 4 SCC 409, where it is ruled as under;
Moreover, a case of contempt of court is not stricto senso a cause or a matter between the parties inter se. It is a matter between the court and the contemner. It is not, strictly speaking, tried as an adversarial litigation. The party, which brings the contumacious conduct of the contemner to the notice of the court, whether a private person or the subordinate court, is only an informant and does not have the status of a litigant in the contempt of Court case.”
“ ……. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties.
1.5. That in Kishor M. Gadhave Patil Vs. State 2016 (5) Mh.L.J.75.it is ruled as under;
Contempt generally and criminal contempt certainly is a matter between the Court and the alleged Contemnor. No one can compel or demand as of right initiation of proceedings for contempt. Certain principles have emerged.”
2. Wilful Contempt of Full Bench of the Suprme Court's judgment in Bal Thackrey's case (2005) 1 SCC 254 by not framing the specific charge and by taking a view against law laid down by the full bench of the Supreme Court:
2.1. That during the said proceeding Ld. Amicus Curiae raised the specific objection that since no charges are framed the proceedings are vitiated.
The relevant para reads as under;
18. The learned Amicus Curiae urged that a serious procedural defect occurred in the instant proceedings as the inquiry has not been conducted in the manner prescribed by Rule 1049 of the the Contempt of Courts (Bombay High Court) Rules, 1994. Rule 1094 reads as under:—
“1049.(a) Any person charged with contempt, may file an Affidavit in support of his defence on the date fixed for his appearance or on such other date as may be fixed by the Court in that behalf.
(b) If such person refuses to plead guilt to the charge, his plea shall be recorded and the Court may, in its discretion, convict him thereon.
(c) If such person refuses to plead or does not plead, or claims to be tried or the Court does not convict him on his plea of guilt, it may determine the matter of the charge either on the Affidavits filed or after taking such further evidence as it deems fit.”
19. The learned Amicus Curiae laid emphasis on the provisions of Clause (b) above and urged that the failure to frame a formal charge and record the plea of respondent No. 1 vitiates the entire proceeding. Since no formal charge was framed, it cannot be said that respondent No. 1 was given an effective opportunity of hearing.
2.2. To counter the arguments of the Amicus Curiae the Bench of Justice Tated taken a stand which is against the binding precedents. It was observed in the said order as under;
“ Even on a legal premise, the aforesaid Rule does not, in terms, warrant a formal charge to be framed. Moreover, even under Section 464 of the Code of Criminal Procedure, any error or omission to frame a charge does not vitiate the trial, if there is no failure of justice.
21 In this context, a useful reference can be made to a recent Full Bench judgment of this Court of this Court in case of Bombay High Court on its own Motion Vs. Ketan Tirodkar wherein, the nature of contempt proceedings and the procedure therefor were explained in the following words :-
"6 Pertinently these very materials were referred to in a notice to show cause addressed to the respondent which has been duly served. Upon its receipt, there is absolutely no iota of doubt that the respondent is aware of what he has to meet. In fact, he has not questioned the procedure adopted, particularly insofar as issuance and service of a show cause notice. He was aware of the charge that he has to meet and, therefore, he purports to deal with it by filing affidavits-in- reply.
7. …The power of this Court to punish for contempt is not restricted or trammeled by ordinary legislations. This Court derives the same from Article 215 of the Constitution of India. The inherent power thus derived is elastic, unfettered and not subjected to any limit. In Pritam Pal and later cases, it has been adequately and amply clarified by the Hon'ble Supreme Court that so long as the gist of the specific allegations is made clear or otherwise the contemnor is aware of the specific allegations, it is not always necessary to formulate the charge in a a specific allegation. The procedure under the Rules, therefore, does not offend the principles of natural justice. The Judge has to remain in full control of the hearing of the case and he must be able to take steps to restore order as early and quickly as possible. The degree of precision with which the charge may be stated depends upon the circumstances of each case. The time factor is crucial. Dragging of contempt proceedings means a lengthy interruption to the proceedings which, at times, paralyzes the Court and indirectly impedes the speed and efficiency with which justice is administered. So long as the contemnor's interests are adequately safeguarded by giving him an opportunity of being heard in his defence, then, the procedure followed cannot be faulted. This is the summary of the salutary principles laid down by the Hon'ble Supreme Court and at the same time, it has cautioned that the power should be used sparingly. We have, but gone by this prescription alone." 22 The full Bench of this Court has observed in clear and explicit terms that so long as the gist of the specific allegations is made clear or otherwise the contemnor is aware of the specific allegations, it is not always necessary to formulate the charge. The degree of precision with which the charge may be stated, varies according to the circumstances of the case and so long as the contemnor's interests are adequately safeguarded by giving him an effective opportunity of hearing, the procedure followed cannot be faulted at.
23 In the backdrop all the facts, elaborately narrated above, it becomes abundantly clear that respondent No.1 was provided an effective opportunity of hearing in all its facets, namely, adequate opportunity to put-forth his defence, representation by a competent advocate and even financial assistance to meet the travelling expenses. Thus, we are not persuaded to accede to the submission of the learned Amicus Curiae that the proceedings are vitiated on account of breach of procedure prescribed in Rule 1049 of Rules 1994 24 ..”
2.3. The above observations are in direct conflict with the binding precedent of Full Bench in Bal Thackrey’s case where judgement in Pritam Pal’s case is also overruled. But Justice Tated and N. J.Jamadar ignored the full Bench judgment and relied on overruled judgment in Pritam Pal's case. It is a gross contempt and also an offence under sec 220,211 of IPC.
2.4. That, the similar order about ‘non-framing of charge and acting against Rules of Contempt laid down by the Supreme Court ’ taken by Division Bench of Bombay High Court is already quashed by Full Bench of Hon’ble Supreme Court in Bal Thackeray Vs. Harish AIR 2005 SC 396, where, while passing strictures against High Court it is ruled as under;
“21. A perusal of record including the notices issued to the appellant shows that the Court had not taken suo motu action against the appellant. In contempt petitions, there was no prayer for taking suo motu action for contempt against the appellant. The specific objection taken that though suo motu action could be taken under Section 15 of the Act on any information or newspaper but not on the basis of those contempt petitions which were filed in regular manner by private parties, was rejected by the High Court observing that being Court of Record it can evolve its own procedure, which means that the procedure should provide just and fair opportunity to the contemner to defend effectively and that the contemner has not expressed any prejudice or canvassed any grievance that he could not understand the charge involved in the proceeding which he had been called upon to defend. It is, however, not in dispute that the charge against the appellant was not framed.
22. In these matters, the question is not about compliance or non-compliance of the principles of natural justice by granting adequate opportunity to the appellant but is about compliance of the mandatory requirements of Section 15 of the Act.
As already noticed the procedure of Section 15 is required to be followed even when petition is filed by a party under Article 215 of the Constitution, though in these matters petitions filed were under Section 15 of the Act. ...... The petitions were vigorously pursued and strenuously argued as private petitions. The same were never treated as suo motu petitions. In absence of compliance of mandatory requirement of Section 15, the petitions were not maintainable.
24. For the foregoing reasons we set aside the impugned judgment and allow the appeals. Fine, if deposited by the appellant shall be refunded to him.
25. Before parting, it is necessary to direct framing of necessary rule or practice direction by the High Courts in terms of Duda's case. Accordingly, we direct Registrar-General to send a copy of this judgment to the Registrar-Generals of the High Courts so that wherever rule and/or practice direction on the line suggested in Duda's case has not been framed, the High Courts may now frame the same at their earliest convenience.”
2.5. That, the view taken by Justice Tated is against the binding precedent in Ebrahim Mammojec Parekh Vs. Emperor ILR 4 Rang 257 (AIR 1926 Rangoon 188), which is upheld by the Full Bench of the Supreme Court, it is ruled as under;
“JUDICIAL COMMITTEE OF 5 - JUDGES – Contempt – Even if it is a gross contempt and the person admitted said contempt then also the person cannot be punished without framing specific charge against him and giving opportunity to answering the said charge – The provisions of Criminal Procedure Code stating about no-necessity in summary proceedings to frame charges is not applicable to the Contempt Proceedings – In Contempt proceedings framing of charge is must – Sentence in Contempt set aside.
The matter of the learned Judge's alleged failure to frame a specific charge and to give appellant an opportunity of answering that charge is more difficult. As we have already said the learned Judge recorded that the learned advocate, who is now appearing for appellant but who was at that time appearing for the plaintiffs in the suit, drew his attention to the fact that appellant should be given an opportunity to show cause before action was taken against him, and it seems clear that if appellant had actually been called on to show cause the learned Judge would at that time have stated that that procedure had been followed. We are constrained therefore to find that appellant was not formally called upon to show cause against the proposed order of commitment.If, therefore, the principle stated in Pollards' case  2 P. C. 106=5 Moor. P.C (N.S.) 111 must be applied we shall be bound to set aside the order as having been illegally made. The facts of this case are clearly different from those in Pollard's case  2 P. C. 106=5 Moor. P.C (N.S.) 111. There the alleged contempt had always been denied. Here it cannot be donied; but, on the contrary, it was repeatedly admitted by appellant during his examination as a witness. Nevertheless we cannot avoid the conclusion that, what the Privy Council laid down in Pollard's case  2 P. C. 106=5 Moor. P.C (N.S.) 111 and repeated in Chang Hang Kiu's case  A. C. 312=78 L. J. P. C. 89=100 L. T. 310=21 Cox. C.C. 778=25 T.L.R. 381 was intended to be a general principle which must be applied in all cases of contempt, however, gross and that even if a witness has in evidence, given immediately before the proceedings for contempt, admitted the contempt, and even if the contempt which he has admitted is a gross contempt, nevertheless he cannot be punished for that contempt unless the specific offence charged against him has been distinctly stated and unless he has had an opportunity of answering the charge.
We have considered whether the principle embodied in S. 535 of the Code of Criminal Procedure could be applied to the case, but we have come to the conclusion that it ought not to be applied because although a formal charge may in certain circumstances be dispensed with in regular criminal cases, where evidence is taken and the depositions of the witnesses show for what offence the accused is being tried, we are of opinion that a formal charge is essentially necessary in summary proceedings for contempt, where possibly no evidence to establish the offence may be recorded and where in the absence of a formal charge the person alleged to be in contempt may not know exactly what particular conduct of his is alleged to have amounted to contempt.
The recent case or of Bason v. Skone A. I. R. 1926 Cal. 701=53 Cal. 401 as authority for the proposition that the jurisdiction of the Court in contempt ought not to be invoked in cases where the matter is one which can be dealt with adequately in a Magistrate's Court and where there is no necessity for the matter being dealt with immediately. This is the principle laid down in Davies case  1 K. B. 32 where it was said that: “the summary remedy is not to be resorted to if the ordinary methods of prosecution can satisfactorily accomplish the desired result, namely, to put an efficient and timely check upon such malpractices.” That principle is part of the common law of England which has been held by the Privy Council in Surendra Na Banerjee v. Chief Justice of Bengal  10 Cal. 109=10 I. A. 171=4 Sar. 474 (P. C.) to be applicable in the jurisdiction of the High Courts in India for contempt, and it is clearly binding on us.”The learned Judge's order that appellant do stand committed of contempt for 30 days and be kept in prison and fed on jail diet is set aside, and appellant will be released forthwith.”
2.6. The above law is made mandatory to all Courts in India in the case of Sukhdev Singh Sodhi 1954 SCR 454 where it is ruled as under;
“21. ………………….All that is necessary is that the procedure is fair and that the contemnor is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. This rule was laid down by the Privy Council in In re Pollard (LR 2 PC 106 at 120) and was followed in India and in Burma in In re Vallabhdas (ILR 27 Bom 394 at 399)and Ebrahim Mamoojee Parekh v. King Emperor (ILR (4) Rang 257 at 259-261)
In our view that is still the law.”
2.8. That, in R.S. Sherawat Vs. Rajeev Malhotra (2018) 10 SCC 574, it is ruled that, the proceedings are vitiated for not framing of charge. It is ruled as under;
‘‘23. As a matter of fact, the appellant ought to succeed on the singular ground that the High Court unjustly proceeded against him without framing formal charges or furnishing such charges to him ’’
3. That the necessity for framing charge under sec 15(3) of the Contempt of Courts Act is explained in J.R. Parashar (2001) 6 SCC 735 where it is ruled that the Supreme Court has to conduct contempt proceeding as per section 15 of the contempt of Courts Act,1971 which mandates for distinct and specific charge. It is further ruled that, the Court cannot punish the contemnor for the charge which was not served in the notice. For any new charge fresh notice is required to be issued.It is ruled as under;
‘‘22. The actual proceedings for contempt are quasi- criminal and summary in nature. Two consequences follow from this. First, the acts for which proceedings are intended to be launched must be intimated to the person against whom action is proposed to be taken with sufficient particularity so that the persons charged with having committed the offence can effectively defend themselves. It is for this reason Section 15 requires that every motion or reference made under this section must specify the contempt of which the person charged is alleged to be guilty. The second consequence which follows from the quasi-criminal nature of the proceeding is that if there is reasonable doubt on the existence of a state of facts that doubt must be resolved in favour of the person or persons proceeded against. In addition this Court has framed Rules under, inter-alia, Section 23 of the Act providing in detail for the procedure to be followed by the Court and its Registry on the one hand and the complainant/respondent on the other.”
4. The law laid down in J.R. Parashar’s case is further upheld by Full Bench in Bal Thackrey’s case (2005) 1 SCC 254.
5. In The Editor for Blitz Publications Vs. The State 1979 ILR Bombay 25 (D.B.) it is ruled as under;
‘‘A] Contempt of Court Act, 1971 – Section 15(3) – In all proceedings including Suo-Moto proceedings the notice given must indicate the specific contempt which the person charged is alleged to be guilty of. The notice ought to have indicated in clear terms in what way the Editor had committed contempt as defined in the Act. Notice defective.
The article ‘No Money Then No Justice?’ does not prejudice or interfere with the due course of Justice. The article is an article pleading for the course of justice. Notice discharged.
6. That, there are many such illegal orders passed by Justice Tated and already application for sanction to prosecute him is filed before the President of India and the Complainant is soon going to file the complinat for prosecution of Justice Tated and others under sec. 218,219,220,211, 192,193,466,167,471,474,120(B) and 34 of IPC
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