Supreme Court issues Contempt notice to Bombay Court Judge
Supreme Court issues Contempt notice to Bombay Court Judge
Supreme Court set
aside the order of Supreme Court Registrar
and issued Contempt notice to the Judge of Mumbai Court.
Contempt notice served
upon contemnor Judge A. P. Khanorkar of Borivali, Mumbai and he marked
his appearance through his advocate.
Supreme Court in many
cases and recently in the case of Johra Vs. State of
Haryana (2019)2SCC324, had ruled that the principle of natural
justice demands that the party to the proceedings must be heard by the Court
before passing any order in relation to the subject matter of such proceedings.
But the registrar of the Supreme Court are routinely passing ex party orders
and dismissing their petitions without hearing the applicant and petitioners
and they are also quoting the irrelevant provisions, citations and
giving illogical reasons.
The Bench will also
consider the ratio of judgment of Constitution Bench in Re: C.S.
Karnan’s case regarding rights of the citizen to file
contempt petition against any Judge of all the Courts.
New Delhi : 25th JAN
2021: Full bench
of the Supreme Court headed by Justice Rohinton Nariman with Justices Navin
Sinha & MR. K.M. Joseph issued contempt notice to
Metropolitan Magistrare A. P. Khanorkar, of 68TH Court,
Borivali, Mumbai.
1.1. The
Miscellaneous Application No. 1813/2020 in D. No. 7745 of 2020 was filed by
Manubhai Patel, who sought contempt action against Magistrate for acting
against the binding directions of the Supreme Court and passing unlawful
orders.
1.2. The
Registrar (Judicial –II) of the supreme Court refused to register the Contempt
Petition as not maintainable by giving irrelevant and illogical reasons. The
contempt petition was dismissed by the Registrar.
1.3. The
petitioner therefore filed the Miscellaneous Application for appropriate
direction to the registry and sought declaration on the jurisdiction of the
Registrar and the rights of the citizen to file contempt petition against a
Judge.
The prayers of the said
MA are as under;
“A) The
order dated 18/08/2020 passed by the Registrar (J-II) be set aside and thereby
pass directions for registering and listing of the Contempt Petition
Diary No. 7745 of 2020 before this Hon’ble Court;
B)
To hold that as per law laid down by the Constitution Bench of five judges
in Jaswant Sugar Mills Ltd., Meerut vs. Lakshmichand and Ors.,
AIR 1963 SC 677 and followed in P. Surendran vs State By Inspector Of Police (2019) 9 SCC 154, the
Registrar of the Supreme Court cannot refuse to register any
Petition/Application and cannot decide the maintainability of it because the
maintainability of any Petition/ Application can be decided only by the Court.
C)
To hold that as per law laid down by the Constitution Bench of
Seven Judges in Re: C.S. Karnan (2017) 7 SCC 1, even
a common man can file contempt petition against a Judicial
officer 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.”
1.4. The
Bencht after perusal of the record decided to proceed on contempt petition
which was dismissed by the registrar. The Bench passed the order of issue of contempt
notice.
“ UPON perusing papers the Court made the following
O R D E RIssue notice in the Misc. Application as well as in the Contempt Petition, returnable in three weeks. Personal presence of the alleged contemnor is dispensed with for the time being ”
1.5. After the order passed by the Supreme Court the registry served notice upon the contemnor judge.
1.6. The similar illegality is committed by the said Magistrare, in another case under sec 340 of Cr. P.C. filed by another Real Estate Developer from Kandivali Shri Surendra Mishra and said builder Shri Mishra had also filed an Appeal before sessions Court Dindoshi pointing out the illegalities. The said Judge is in habit of ignoring the binding precedents to help the accused. As per law the Sessions Judge while passing the order on appeal can forward a reference against the said Magistrate as has been done in Chief Judicial Magistrate R. A. Khan’s case 1993 Cr. L J 816, said advocate for petitioner Shri Nilesh Ojha.
Adv. Nilesh C. Ojha
1.12. In recent case Shrirang Waghmare’s case (2019) 9 SCC 144, it is ruled as under;
“9. …. a judge must decide the case only on the basis of the facts on record and the law applicable to the case. If a judge decides a case for any extraneous reasons then he is not performing his duty in accordance with law.”
“The Judicial Officer
concerned did not live upto the expectations of integrity, behaviour and
probity expected of him. His conduct is as such that no leniency can be shown and
he cannot be visited with a lesser punishment.”
1.13. Supreme
Court in case of R. R. Parekh V. High Court of Gujarat in Civil Appeal
no. 6116-6117/2016 punished Ld. Magistrate for passing the order to
help an accused and held:
“The punishment must
be proportionate to the misconduct established. Having due regard to the nature
of the misconduct which has been found to be established and the totality of
circumstances we are of the view that the punishment of dismissal should stand
substituted by an order of compulsory retirement.”
1.14. In New Delhi Municipal Council
, 2015(152)DRJ407, it is ruled as under:
22. Consequences
of the Trial Court disregarding well settled law - If the Trial Court
does not follow the well settled law, it shall create confusion in
the administration of justice and undermine the law laid down by the
constitutional Courts - It is immaterial that in a previous litigation the
particular petitioner before the Court was or was not a party, but if a
law on a particular point has been laid down by the High Court, it must be
followed by all authorities and tribunals in the State - and they cannot ignore
it either in initiating proceedings or deciding on the rights involved in such
a proceeding - 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 . The consequence of the Trial Court not following the well
settled law amounts to contempt of Court.
Whichever class they
may belong to, a contemnor cannot build an argument to the effect that the
disobedience is of a general direction and not of a specific order issued inter
se parties.
Such distinction, if
permitted, shall be opposed to the basic rule of law.
1.15. In Sunil
Goyal Vs. Additional District Judge,2011(2) I.L.R. (Raj.)530, it is ruled as
under;
“The wrong interpretation
or distinction of a judgment of Hon'ble Supreme Court and this Court 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.
Above
said judgment of Hon’ble High Court 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.
2. PENAL PROVISIONS AGAINST JUDGES
FOR PASSING WRONG ORDERS:
2.1. In the case of Anverkhan Mahamad
khan Vs. Emperor 1921 SCC OnLineBom 126 it is ruled as under;
Indian Penal Code Section 218 – The gist of the section is the
stiffening of truth and the perversion of the course of justice in cases where
an offence has been committed.
It is not necessary even to prove the intention to screen any
particular person. It is sufficient that he know it to be likely that justice
will not be executed and that someone will escape from punishment.
2.2. Indian Penal Code 219 ruled as under;
“Public servant in judicial
proceeding corruptly making report, etc., contrary to law.— Whoever,
being a public servant, corruptly or maliciously makes or pronounces in any
stage of a judicial proceeding, any report, order, verdict, or decision which
he knows to be contrary to law, shall be punished with imprisonment of either
description for a term which may extend to seven years, or with fine, or with
both”.
2.3. In (Justice) MRS. NIRMAL YADAV
Versus C.B.I 2011(4) RCR(Criminal)
809, it is ruled thus;
" It has been
observed by Hon'ble Supreme Court "Be you ever so high, the law is above
you.” Merely because the petitioner has enjoyed one of the highest
constitutional offices( Judge of a High Court ), she cannot claim any special
right or privilege as an accused than prescribed under law. Rule of law has to
prevail and must prevail equally and uniformly, irrespective of the status of
an individual. Taking a panoptic view of all the factual and legal issues, I
find no valid ground for judicial intervention in exercise of inherent
jurisdiction vested with this Court. Consequently, this petition is dismissed.
The petitioner Justice Mrs. Nirmal Yadav, the
then Judge of Punjab and Haryana High Court found to have taken bribe to decide
a case pending before her- CBI charge sheeted - It is also part of
investigation by CBI that this amount of Rs.15.00 lacs was received by Ms.
Yadav as a consideration for deciding RSA No.550 of 2007 pertaining to plot
no.601, Sector 16, Panchkula for which Sanjiv Bansal had acquired interest. It
is stated that during investigation, it is also revealed that Sanjiv Bansal
paid the fare of air tickets of Mrs. Yadav and Mrs. Yadav used matrix mobile
phone card provided to her by Shri Ravinder Singh on her foreign visit. To
establish the close proximity between Mrs. Yadav, Ravinder Singh, Sanjiv Bansal
and Rajiv Gupta, CBI has given details of phone calls amongst these accused
persons during the period when money changed hands and the incidence of
delivery of money at the residence of Ms. Nirmaljit Kaur and even during the
period of initial investigation - the CBI concluded that the offence punishable
under Section 12 of the PC Act is established
against Ravinder Singh, Sanjiv Bansal and Rajiv Gupta whereas offence
under Section 11 of the PC Act is established
against Mrs.Justice Nirmal Yadav whereas offence punishable under Section 120-B of the IPC read with Sections 193, 192, 196, 199 and 200 IPC is also established against Shri
Sanjiv Bansal, Rajiv Gupta and Mrs. Justice Nirmal yadav
B) In-House procedure 1999 , for enquiry
against High Court and Supreme Court Judges - Since the matter pertains
to allegations against a sitting High Court Judge, the then Hon'ble Chief
Justice of India, constituted a three members committee comprising of Hon'ble
Mr.Justice H.L. Gokhale, the then Chief Justice of Allahabad High Court,
presently Judge of Hon'ble Supreme Court, Justice K.S. Radhakrishnan, the then
Chief Justice of Gujarat High Court, presently, Judge of Hon'ble Supreme Court
and Justice Madan B.Lokur, the then Judge of Delhi High Court, presently Chief
Justice Gauhati High Court in terms of In-House procedure adopted by Hon'ble
Supreme Court on 7.5.1997. The order dated 25.8.2008 constituting the
Committee also contains the terms of reference of the Committee. The
Committee was asked to enquire into the allegations against Justice Mrs. Nirmal
Yadav, Judge of Punjab and Haryana High Court revealed, during the course of
investigation in the case registered vide FIR No.250 of 2008 dated 16.8.2008 at
Police Station, Sector 11, Chandigarh and later transferred to CBI. The
Committee during the course of its enquiry examined the witnesses and recorded
the statements of as many as 19 witnesses, including Mrs.Justice Nirmal Yadav (petitioner),
Ms. Justice Nirmaljit Kaur, Sanjiv Bansal, the other accused named in the FIR
and various other witnesses. The Committee also examined various documents,
including data of phone calls exchanged between Mrs. Justice Nirmal yadav and
Mr.Ravinder Singh and his wife Mohinder Kaur, Mr.Sanjiv Bansal and Mr.Ravinder
Singh, Mr.Rajiv Gupta and Mr. Sanjiv Bansal. On the basis of evidence and
material before it, the Committee of Hon'ble Judges has drawn an inference that
the money delivered at the residence of Hon'ble Ms.Justice Nirmaljit Kaur was
in fact meant for Ms.Justice Nirmal Yadav.
Report of Committee of Judges was served
upon the petitioner for her response by Hon'ble Chief Justice of India. "
2.4. Recently Bombay High Court also took cognizance of similar
conduct of a Vikram A.Jadhav, Civil Judge Junior Division & Judicial
Magistrate First Class, Chiplun, District Ratnagiri in Contempt Petition NO.
127 OF 2019 vide its order dated 3rd December, 2020, for passing unlawful
orders by ignoring the binding precedents for ulterior purposes. It
was directed that the Civil Judge's performance should be monitored for a
year by the concerned Principal District and Sessions Judge with
the hope that the errant judge "will exercise his judicious mind" in the future
The petitioner, advocate Yogesh Waman Athavale, urged the High Court
that the Civil Judge, Junior Division and Judicial Magistrate First Class,
Chiplun, District Ratnagiri had been willfully and consistently
ignoring and not following the binding precedents cited by him in
various cases and he should be punished under contempt.
On examining the orders of the Civil judge,
Justices Shinde and Bisht concluded that prima facie the petitioner's allegations against
judge appeared to be right. The Bench observed,
"Common sense would prompt the conclusion that respondent No.1 ought
to have carefully gone through the decisions and the ratio laid down therein
and then would have formed opinion about applicability or otherwise of the
same. Unfortunately, it is clear that exercise was not properly undertaken and
orders came to be passed in oblivion of the pronouncements/ provisions."
The High Court found that one of the
order was tellingly silent on authoritative precedents. In another case, while the
judgments relied on by petitioner were referred to, there was "no clarity as to how
those judgments were distinguishable and not applicable to the case in question."
"This is not the way of differentiating the authorities vis-a-vis
the facts and circumstances of the case in hand", the High Court said.
[the detail article is available on Bar and Bench ]
Copy of the Contempt Notice issued by the Supreme Court Registry Download Now
Copy of the Order passed by the Supreme Court Download Now
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