Wednesday, June 10, 2020

Gujrat High Court has committed Contempt of Supreme Court while taking suo motu cognizance against Sr. Adv. Yatin Oza

Adv. Nilesh Ojha
National President
Indian Bar Association

Indian Bar Association's National President Adv. Nilesh Ojha in a press release has strongly criticized the Gujarat High Court for initiating illegal Contempt proceedings against Sr. Adv. Yatin Oza, President of Gujrat High Court Bar Association.

It was stated that the judgement is ex-facie illegal on following main grounds :-
I)  Suo - moto cognizance not by Chief Justice and therefore vitiated as against rules laid down by Full Bench of Supreme Court in Bal Thackeray's case (2005) 1 SCC 254.

II) Reliance on per- incuriam judgment in Re : Vijay Kurle in SMCP (Cri) No. 02 of 2019 by observing that no one can attribute motive to the Judge which is against binding precedent of Constitution Bench of Seven Judges in Re : C.S.Karnan (2017) SCC, Subramanyam Swami (2014) SCC

III) The order taking cognizance is itself suffered from inherent defect of Judge using his own documents without disclosing the source which is not permissible as per law laid down in Murat Lal 1917 SCC ONLINE Pat 1 , Subramanyam Swami (2014) SCC (para 6).

IV) Searching on internet and taking note of earlier contempt proceedings is highly illegal and reflect personal prejudice & bias on the part of Judge taking cognizance and therefore cognizance is vitiated, in view of law laid down by Constitution Bench in Baradkanta Mishra (1974) 1 SCC 374, Davinder Pal Singh Bhullar (2011) 14 SCC 770, Registrar of Supreme Court (2016) SASC 93, Benbrika vs. R (2010) 29 VR 593, 644.

V) Unilateral injunction like gag order is beyond the preview of Contempt Court as ruled in Tamilnad (2009) 2 SCC 784.

VI) That, even Hon’ble Chief Justice cannot assign the case against the rules framed by the High Court.

In AIR 2007 SCW 2182 similar issue was dealt by Hon’ble Supreme Court.
In the case of Pandurang Vs. State (1986) 4 SCC 436 had ruled that;
“If any matter is heard by a court which had no competence to hear the matter then the judgment passed becomes nullity, being a matter of total lack of jurisdiction. The right of any party cannot be taken away except by amending the rules of High Court. So long as the rules are in operation it would be arbitrary and discriminatory to deny him his right regardless of whether it is done by a reason of negligence or otherwise. Deliberately it cannot be done. Even if the decision is right on merit, it is by a forum which is lacking in competence. Even a right decision by a wrong forum is no decision. It is non existent in the eyes of law. And hence a nullity.
  It is further observed by this Hon’ble Court that;
“We wish to add that the registry of the High Court was expected to have realized the position and ought not to have created such a situation which resulted in waste of Court time, once for hearing the appeal and next time, to consider the effect of the rules. No court can afford this luxury with the mountain of  arrears every court carrying these days”

 Hon’ble Supreme Court in P. N. Duda’s case (1988) 3 SCC 167 directed that, the title of the contempt proceeding should be “In Re (the alleged contemner) ”
It is ruled as under;

54. ……….The form of a criminal miscellaneous petition styling the informant as the petitioner and certain other persons as respondents is inappropriate for merely lodging the relevant information before the Court under rule 3(a). It would seem that the proper title of such a proceeding should be " In re .. (the alleged contemner)" (see: Kar v. Chief Justice, [1962] 1 SCR 320 though that decision related to an appeal from an order of conviction for contempt by the High Court).
11. In B.K.Kar Vs. The Chief Justice AIR 1961 SC 1367it is ruled as under;

“In Sou-motu proceedings the Court or Judges are not interested parties and therefore they should not be made parties – The proper title should be “In Re……. (So and So) that is the person who is proceeded against for contempt.” – The same title should be followed in Appeal.

The learned Additional Solicitor General who has put in an appearance for a limited purpose has raised a point that in such matters it is not at all necessary to make the Chief Justice and the Judges of the High Court parties. He points out that in England in all contempt matters the usual title of the proceeding is "in re........................ (so and so)", that is the person who is proceeded against for contempt. The same practice, according to him, is followed in appeals. We must, however, point out that in appeals preferred to the Privy Council from convictions for contempt by the High Courts in India as well as in appeals before this Court, the Chief Justice and the Judges of the High Court concerned have been made respondents. In Ambard v. Attorney-General for Trinidad & Tobago (1) we find that the Attorney General was made a party to the appeal. The question raised by the learned Additional Solicitor General is of some importance and we think it desirable to decide it.

In every suit or appeal persons who claim relief or against whom relief has been given or persons who have or who claim the right to be heard must undoubtedly be made parties. That is because they have an interest in the decision or the result of that case. But where Judges of a High Court try a person for contempt and convict him they merely decide a matter and cannot be said to be interested in any way in the ultimate result in the sense in which a litigant is interested. The decision of Judges given in a contempt matter is like any other decision of those Judges, that is, in matters which come up before them by way of suit, petition, appeal or reference. Since this is the real position we think that there is no warrant for the practice which is in vogue in India today, and which has been in vogue for over a century, of, making the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter. We may point out that it is neither necessary nor appropriate to make the Chief Justice and the Judges of a High Court parties to a legal proceeding unless some relief is claimed against them. In a contempt matter there is no Question of a relief being claimed against the Chief Justice and the Judges of the High Court. The present practice should, therefore, be discontinued and instead, as in England, the title of such proceedings should be "in re............ (the alleged contemner).”

Constitution Bench of Hon’ble Supreme Court in Supreme Court Bar Association Vs. Union of India (1998) 4 SCC 409, had ruled as under;
“……As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties.

Moreover, a case of contempt of court is not stricto sensor 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.”
But abovesaid directions are violated by the registry and the title is made as under;
“Suo Motu Vs. Yatin Narendra Oza.. ”
Hence the title is also illegal.

Senior Advocate Yatin Oza
Gujrat High Court Advocates Association

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