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.Full bench of the Supreme Court issued notice on the appeal challenging right and jurisdiction of Registrar of Supreme Court to decide any petition.
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 R
Issue 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 ]