When the Supreme Court Judge having a duty to protect the Rights of the people, himself violates their Rights and defies the Constitution
When the Supreme Court Judge having a duty to protect the Rights of the people, himself violates their Rights and defies the Constitution
Justice Aniruddha Bose and Justice (retd.)Deepak Gupta of Supreme Court have landed themselves in great trouble for violating the constitutional rights of an accused to be defended by a lawyer and further failing in their duty to inform the accused of his right of access to lawyer and not arranging one for the accused.
This pertains to Contempt of Court Case SMCP 02/2019 Re: Vijay Kurle and Others.
Larger Bench of Supreme Court has overruled their judgment of wrong cognizance and the alleged contemnors have now filed a Writ Petition in Supreme Court, claiming Rupees Five crores as compensation for violation of their fundamental rights.
Sr. Counsel Shri Asim Pandya in his article published in news portal ‘Live-law’ on 16.09.2020 titled as ‘Arrogation Of Unlimited Contempt Power By The Supreme Court- A Hornets' Nest Stirred Up Again’ strongly criticized the conduct of Justice Aniruddha Bose and Deepak Gupta in acting against judicial propriety.
Justice Aniruddha Bose and Justice (Retd.) Deepak Gupta are ex facie guilty of violation of fundamental rights of the victim belonging to minority community, who is one of the alleged contemnors.
It has happened for the first time in the history that the alleged contemnor was sentenced for contempt while he was not present and without having heard his case and without providing the legal aid while his Counsel was not able to argue the case due to technical issue in video conferencing. The illegality is proved when the same judge (Justice Deepak Gupta) had granted 90 days’ time to another contemnor (an affluent person) for hearing on the sentence. The Vijay Mallya’s hearing on sentence is deferred by another bench due to non-appearance of Vijay Mallya.
The petitioner was sentenced for a charge which was dropped by the same bench (Justice Aniruddha Bose and Justice (Retd.)Deepak Gupta) in his earlier order and said charge was not framed against him and he was never called upon to answer the said charge.
Five judge bench in Ramesh Maharaj’s case (1978) 2 WLR 902 had clarified that when fundamental rights of a person are violated by the Judge, by convicting him under contempt without framing the charge, then the government is bound to pay the compensation to the said person for the mistake of the Judge as the Judge is the extended arm of the state. Similar law is applicable for each violation by a Judge.
In this case, since the violation is by the Supreme Court Judge therefore the Union of India i.e. the Modi Government is bound to pay the compensation to the aggrieved persons.The petitioner has prayed for recording a finding that the both of these judges of Supreme Court have acted in willful disregard and defiance of the law laid down by the larger benches Supreme Court and therefore are liable for action under contempt of the Full Bench of the Supreme Court.
Petitioner has sought prosecution under sections 211,220,192,466,471,474 etc. of IPC against the persons involved, including the judges for initiating false and frivolous charge of contempt and for being involved in creation of false evidence.
Law in India provide for seven years’ imprisonment to a Judge who is guilty of sending the accused for a trial in a frivolous case knowing that he is acting contrary to law.
Both the judges have displayed their lack of knowledge of the basic law that as per Rule 10 of the Supreme Court Rules 1975, the trial of contempt proceedings should be conducted by the Attorney General of India, but they had appointed a ‘Private Counsel’ (Siddharth Luthra), instead and thereby causing serious prejudice to the Petitioner and in light of this, the conviction is held to be vitiated as per law laid down in MedichettyRamakistiah Vs. State AIR 1959 AP 659.
In the impugned judgment delivered by Judges Shri Deepak Gupta and Shri Aniruddha Bose on 27.04.2020 convicting the Petitioner, there are around 35 per-incuriam and overruled observations relied upon by the bench of trial court. Many deliberate false, incorrect and wrong observations. Theft, forery of Supreme Court records. This is fit case for setting a world record of highest overruled observations in a single judgment by the Judges of the Apex Court of the country!
That's why the two Judges Shri Deepak Gupta and Shri Aniruddha Bose are being called as 'Mr. Overruled' by the many citizens and the lawyers.
The petitioner had lodged a criminal complaint before Hon’ble President of India and CJI in March 2019 against two sitting judges of the Supreme Court - Shri Rohinton Nariman and Shri Vineet Saran requesting to direct criminal prosecution for offences against administration of justice.
The said complaint was not objected by anyone but a close associate of Justice Rohinton Nariman from Mumbai, Adv. Milind Sathe and Mr. Kaiwan Kalyaniwala, who had written a letter to CJI. During pendency of the said criminal complaint, the very same judges who were themselves ‘accused’ in that complaint, relying on the letter authored by Mr. Milind Sathe and Mr. Kaiwan Kalyaniwala but not disclosing the source from where this letter landed up in their custody, took cognizance of contempt against the petitioner. The said cognizance was against the procedure laid down in P.N.Duda’s case. But the trial court Judge (Retd.) Shri Deepak Gupta and Justice Aniruddha Bose did not accept the objection raised by the Petitioner and instead, took a view that the procedure laid down in P.N.Duda’scase is not binding on the Supreme Court and that the accused Judge can act as a Judge in his own case.
The said view of these two Judges is overruled by the larger Bench in Re: Prashant Bhushan’s case wherein it was made amply clear that the procedure laid down in P.N.Duda’s case is mandatory. It was further clarified that, as the allegations were against the CJI Sharad Bobde, therefore the decision to initiate the contempt against Adv. Prashant Bhushan was taken by Second Senior most Judge Shri N. V. Ramanna.
The effect of cognizance against the procedure laid down in P.N.Duda’s case was that the conviction and sentence is vitiated and a specific law is laid down in Bal Thackrey’s case.
Apart from this, there are around 35 per-incuriam and overruled observations relied upon by the bench of trial court Judges Shri Deepak Gupta and Shri Aniruddha Bose. They truly deserve a mention for setting a world record of highest overruled observations in a single judgment by the Supreme Court Judges.
The gross blunder committed by the two Judges Shri Deepak Gupta and Shri Aniruddha Bose, is that they convicted and sentenced the Petitioner for a charge which was not framed against the petitioner and in fact he was discharged from said charge by the said two Judges.
Secondly, on 04.05.2020 when the matter was listed for hearing on sentencing, the Petitioner Shri. Rashid Khan Pathan was not present and his Counsel was not able to argue the case due to technical difficulties. In such a situation, a notice should have been issued to Shri. Pathan and as per constitutional mandate and as per law laid down by the Supreme Court, it was the duty of the two Judges Shri. Deepak Gupta and Shri Aniruddha Bose to inform Shri. Pathan through such notice about his right to be defended by a lawyer and also to arrange for a lawyer if the appointed lawyer/counsel is not present on a crucial date. More shocking part is that the third respondent appearing in -person made written request to the Court that he wants to appoint lawyer but his request was rejected without any reason and he was asked to argue the case in the absence of his counsel.
The right to be defended by a lawyer and duty of the court in case the lawyer is not available or is not performing his duty to protect the rights of the accused, is explained by this Hon’ble Court in Mohd. Hussain Vs. State (2012) 2 SCC 584, ruled that if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution. Such sentence is set aside. If any accused is undefended then the Judge is duty bound to ask him and provide him the counsel. Supreme Court in Ranjan Dwivedi (1983) 3 SCC 307, ruled that, even if the accused is a lawyer of the Supreme Court he is entitled to be defended by a lawyer at states cost.
In a recent judgment in the case of Lovely vs State Of Himachal Pradesh, 2020 SCC On Line HP .., the conviction of the accused is set aside as the valuable rights of the accused were violated due to absence of his counsel and the court failed to perform its duty to appoint a new counsel to protect the rights of the accused.
6. It is quite apparent from the bare perusal of statements of prosecution witnesses recorded on 8.4.2019 that right of cross-examination vested in petitioner has been closed on account of non-appearance of his counsel, who otherwise had informed the court that he on account of pre-occupation at Nalagarh is unable to come. Though, having taken note of the explanation rendered on record by learned Counsel appearing for the petitioner, court below ought to have adjourned the cross-examination, but otherwise should have provided some legal aid counsel to the petitioner in order to conduct cross-examination of prosecution witnesses on behalf of the petitioner and should not have closed the right of the petitioner.
7. One cannot lose sight of the fact that it is the petitioner, who has suffered on account of non-appearance of the counsel, as a consequence of which his right to cross-examine prosecution witnesses has been closed. Petitioner who is behind the bars even may not be aware that his counsel was not present on the day when prosecution witnesses were being examined, as such, in such like situation, it is duty of the court to ensure that vested right of the accused, who is unable to defend himself/herself is duly protected. Though, Mr. Anirudh Sharma, contends that the counsel as has been named in the order sought to be quashed, was never appointed by the petitioner, but even otherwise, right to cross-examine vested in the petitioner could not have been closed by learned Court below, on account of absence of his counsel, rather, in that situation, court should have provided some legal aid counsel to the accused. By now, it is well settled that it is obligatory for court to grant free legal service to the person, who is otherwise unable to engage a lawyer for himself/herself on account of financial constraints or account of his/her being behind bars. (See: Shri Suk Das and another vs. Union Territory of Arunachal Pradesh (Criminal Appeal no. 725 of 1985, decide don 10.3.1986)[(1986)2 SCC 401].
8. Otherwise also, careful perusal of Ss. 303 and 304 CrPC, provide that a person accused of an offence before court of law or against whom proceedings are initiated under the provisions contained in Code of Criminal Procedure, has a right to be defended by pleader of his choice. If accused is not represented by a pleader or it appears to the court that the person has no sufficient means to engage a pleader, under S.304 CrPC, court is required to assign a pleader for the defence of the accused at the expenses of the State, but, in no situation, accused can be left without there being any legal aid.
Hence it is clear that the two Judges who hold the post of highest Court i.e. Supreme Court were lacking the basic legal knowledge and not having any respect for our constitution and rule of law posing themselves to be law unto themselves. They also committed offences against administration of justice and the CJI was only acting as a mute spectator. This is a great travesty of law and members of Bar and Bench should do their best to keep the highest 'Temple of Justice' clean and in order.
The prayer of the petition filed by Shri Rashid Khan Pathan reads as under;
A) To hear this petition along with the Writ Petition (Civil) No.1053 of 2020 filed by Mr. Prashant Bhushan and other similar Petitions as mentioned in para No. 21 of the petition as similar issues are involved.
B) Record a finding as per law laid down in the case of KantaruRajeevaru v. Indian Young Lawyers Association (2020) 2 SCC 1 and be pleased to refer the questions noted in the present petition to a bench of the appropriate strength in view of Article 145(3) of the Constitution, which predicates that cases involving a substantial question of law as to the interpretation of the Constitution should be heard by a bench of minimum five judges of this Court;
C) To hold that as per law laid down by Full Bench of this Hon’ble Court in Hari Dass Vs. State AIR 1964 SC 1773, the Contempt is a criminal offence. Therefore, in view of the law laid down in catena of decisions and more particularly in R.S.Sherawat (2018) 10 SCC 106, National Fertilizer’s case (2013) 9 SCC 600, Hukum Chand Deswal Vs. Satish Raj Deswal 2020 SCC OnLine SC 438 the Alleged Contemnor is entitled for all the protection available to an accused, and in view of the law laid down in Clough Engineering Ltd. 2009 Cri. L.J. 2177 the procedure adopted by the Court should not be violative of the Constitutional protection available to an accused.
D) Issue an appropriate writ, order or direction declaring that a person facing or convicted for criminal contempt by this Hon’ble Court, including the petitioner herein, would have a right to an intra-court appeal to be heard by a larger and different bench;
E) Issue an appropriate writ, order or direction framing rules and guidelines providing for intra-court appeal against adverse orders in cases of prosecution, conviction in original criminal contempt cases as referred in prayer (a.) above;
F) Alternatively, issue an appropriate writ, order, or direction declaring that the petitions filed against any adverse orders including orders of conviction by Supreme Court in original criminal contempt cases would be heard in open court and said reviews be decided as per Appeal against conviction by following the safeguards and protections available to an accused of a criminal offence and as has been ruled in catena of decisions and more particularly in the cases of Dilip Dahanukar’s Case (2007) 6 SCC 528, Dhondba Vs. State (1974) 1 SCC 162, ShaimaJafari Vs. Irfan (2013) 14 SCC 348, Shaikh Mohd Ali Vs. State (1972) 2 SCC 784;
G) To hold that, as per the Rule 10 of ‘The Rules To Regulate Proceedings For Contempt of the Supreme Court, 1975’ either the Court conducts the proceedings by itself or in case it wishes to take assistance, then it can do so by appointing either of the two Government Law officers i.e. Attorney General or Solicitor General only. This was followed by several Constitution Benches, like in Subramanian Swami’s Case (2014) 12 SCC 344, Re: C. S. Karnan (2017) 2 SCC 757 (1), Supreme Court Bar Association Vs. Union of India (1998) 4 SCC 409, Dr. L.P. Mishra (1998) 7 SCC 379, Re: Vinay Chandra Mishra (1995) 2 SCC 584, Re: PrashantBhushan (22.07.2020);
H) To hold that, as per law laid down by Constitution Bench in Baradkanta Mishra (1974) 1 SCC 574, Three - Judge Bench in Pallav Sheth (2001) 7 SCC 349, and followed in Bal Thackrey (2005) 1 SCC 254, Maheshwar Peri (2016)14 SCC 251 and law laid down by the Constitution Bench in Subramyam Swami (2014) 12 SCC 344, the proceedings even under Article 129 of the Constitution should be conducted as per the provisions of Contempt of Courts Act, 1971. The contrary judgments are either per-incuriam or overruled;
I) To hold that the fundamental rights of the Petitioner as guaranteed under Article 14,19,20,21 of the Constitution are violated because the sentence pronounced against the Petitioner on 04.05.2020 was pronounced in his absence and without hearing him on sentence and without appointing any counsel for defending the rights of the Petitioner when the counsel appearing for him was not in position to argue the case due to technical problems in the network or for whatever reason and therefore fundamental rights of the Petitioner are violated and it is violation of Art. 21 of the Constitution as has been ruled in the cases of Mohd. Hussain Vs. State (2012) 2 SCC 584 and also laid down in the case of Newman Vs. Modern Bookbinders (2000) 1 WLR 2259, Richard Mayberry 1971 SCC OnLine US SC 14, and therefore in view of law laid down by the constitution Bench in the case of Anita Kushwaha’s (2016) 8 SCC 509 the Petitioner is entitled to invoke the jurisdiction under Art. 32 of the Constitution and he is liable to be compensated in view of law laid down in the case of Ramesh Maharaj’s case (1978) 2 WLR 902.
J) To hold that the Petitioner is deprived of his life and liberty without following the due process of law as he is convicted for a charge not framed against him and therefore the Petitioner deserves to be compensated as per law laid down in various judgments as mentioned in the grounds of this Writ Petition;
K) Grant interim compensation of Rupees 5 Crores to the petitioner to be paid by the Respondent No. 2 i.e. Union of India, in view of law laid down in Ramesh Maharaj’s case (1978) 2 WLR 902, where it is ruled that, if any person is convicted for a charge which is not framed by the Judge then it violates the fundamental rights of the alleged contemnor and the State is bound to pay compensation as the Judge is an executive arm of the State here in addition to above the basic fundamental rights of the Petitioner’s right of equal treatment of granting adjournment for hearing on sentence as done in other cases are violated;
L) To hold that, the contempt proceedings are criminal proceedings and the frivolous charge of Contempt is an offence under sec 211, 220 Etc. of IPC as per law and ratio laid down by full Bench in the case of Full Bench of Supreme Court in Hari Dass Vs. State AIR 1964 SC 1773, therefore a person aggrieved by the frivolous charge or any offence against administration of justice by the Judge of the Supreme Court can invoke the provisions of sec. 340 of Cr. P.C. before the larger Bench and the bar under Sec. 195 of Cr.P.C. will not apply in such cases if the offence is alleged to be committed by the Judge of the Bench trying the case as has been ruled in the case of Govind Mehta v. The State of Bihar AIR 1971 SC 1708;
M) To hold that there the proceedings under Sec. 340 of the Cr. P. C. are different and independent than that of the main proceedings.
N) To hold that the court taking cognizance of Contempt against several persons, is bound to pass a reasoned order mentioning specific role of the person and also mentioning specific documents/evidence relied against him as ruled by the Full Bench in Manohar Joshi’s case (1991) 2 SCC 342, M.N. Ojha Vs. Alok Kumar Srivastava (2009) 9 SCC 682 & Birla Corporation Ltd. Vs. Aventz 2019 SCC OnLine SC 682 etc;
O)To direct the Registrar of the Supreme Court to incorporate the directions in P.N. Duda’s case (1988) 3 SCC 167 in the rules framed to conduct the Contempt proceedings similar to the directions given to the High Courts by this Hon’ble Court in the case of BalThackrey (2005) 1 SCC 254;
P) To hold that, in view of the law laid down in Re: C.S.Karnan (2017) 7 SCC 1 and as per ratio laid down in i) Badrakanta Mishra (1973) 1 SCC 446 (ii) Legrand Pvt. Ltd. 2007 (6) Mh.L.J. 146, (iii) New Delhi Municipal Council Vs. M/S Prominent Hotels Limited 2015 SCC Online Del 11910 if any Judge of any Court including Judge of the Supreme Court, despite being shown the binding precedents, deliberately refuses to follow the said legal position and takes a view contrary to the view laid down in binding precedents of Larger Benches or even Co-ordinate Benches, then such a Judge is liable for action under Contempt of Court’s Act and any citizen can file Contempt petition before Hon’ble Supreme Court;
Q) To hold that, the Judges deliberately ignoring earlier binding precedents will be also guilty of;
(i) ‘Judicial adventurism as per law laid down in Dwarikesh Sugar Industries Ltd. (1997) 6 SCC 450
(ii) ‘ Fraud on Power’ as per ratio laid down in Vijay Shekhar (2004) 4 SCC 666
(iii) guilty of Legal Malice or Malice in Law’ as per Kalabharati Advertising Vs. Hemant Vimalnath Narichania (2010) 9 SCC 437 West Bengal State Electricity Board Vs. Dilip Kumar Ray AIR 2007 SC 976 ,Selvi J. Jayalalithaa Vs. State (2014) 2 SCC 401
iv) Guilty of passing order contrary to law with ulterior motive as per sec 219,166 etc of IPC
v) guilty of passing perverse order in contempt of law laid down in Prem Kaur’s case (2013) 14 SCC 653.
While the Petitioner has prayed for clubbing the matter along with the Petition of Senior Advocate Prashant Bhushan, the present writ petition seeks to address wider aspects pertaining to use and misuse of power of Courts to punish under contempt and aims at setting the record straight regarding uniformity in procedure and rules to be followed in cases of contempt of court and declare conclusively the binding nature of precedents in order to eliminate the possibility of erroneous interpretation of ratios laid down by binding precedents.
Download Related Documents :-
1. Copy of writ Petition filed by Rashid Khan Pathan
21.10.202 Download Now
2. Copy of writ Petition filed by Prashant Bhushan
3. Copy of writ Petition filed by Nilesh Ojha
4. Copy of writ Petition filed by Vijay Kurle
Post a Comment