∆     Petition filed against Senior Advocate Siddharth Luthra seeking action under Contempt and Perjury.

∆     Advocate Siddharth Luthra may face prosecution under sec. 409,109,120(B) of I.P.C., for the attempt of misappropriation of Supreme Court funds in conspiracy with others.

                                Adv. Nilesh Ojha

                                 National President

                               Indian Bar Association

                               Adv. Vijay Kurle

                    Maharashtra &Goa State President

                         Indian Bar Association

                         Rashid Khan Pathan

                               National Secretary

                     Human Rights Security Council

Writ Petitions filed by Adv. Nilesh Ojha, National President of Indian Bar Association, Adv Vijay Kurle , State President of India Bar Association and Shri Rashid Khan Pathan, National secretary of Human Right Council, for setting aside the order dated 27.04.2020 and 04.05.2020 passed by the 2 – Judge Bench of Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose.

Action sought against Adv. Siddharth Luthra for his grossest professional misconduct of providing overruled judgments and for misguiding the court by submitting wrong legal position. Further, Mr. Luthra is also said to be guilty of creating false evidences and using the said evidences as genuine ones.

 

             Accused Sr. Adv. Siddharth Luthra

Having gone through the copy of the aforementioned petition and the recent judgment dated 22.07.2020 of Three Judge Bench in Adv. Prashant Bhushan’s case, it is amply clear that the cognizance by smaller Bench of Justice Rohinton Nariman was highly illegal. The other smaller Bench of Justice Deepak Gupta has also committed gross illegalities – which was partially covered in my earlier two articles. It is now writ large that the three Respondents in Re: Vijay Kurle and others were in fact persecuted, solely with the intention to silence their voices who had exposed the incompetency and illegal acts of Justice Rohinton Nariman.

Moreover, A three-Judge Bench vide the judgment dated 22.07.2020 in Re: Prashant Bhushan (2020 SCC OnLine SC 588 ) has impliedly overruled the judgment dated 26.04.2020 in Re: Vijay Kurle and others, passed by smaller bench headed by Justice (Retd.) Deepak Gupta.

As mentioned earlier, the case of Re: Vijay Kurle and others reveals the wanton abuse of power by Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose in appointing a Private Counsel as ‘Amicus Curiae’ instead of the Attorney General/Solicitor General of India as mandated by Rule 10 of ‘The Rules to Regulate proceedings for Contempt of the Supreme Court, 1975’. As per the SAID Rules, the Bench has a choice of appointing either Attorney-General or Solicitor General (none other than these two officers) as an ‘Amicus Curiae’ in the Contempt Cases.

The order appointing  an ineligible Adv. Siddharth Luthra as an Amicus and entitling him to claim fee from the government is misappropriation of public funds and is an offence under Sec. 409, 120 (B), 109 & 34 of I.P.C. on the part of Justice Deepak Gupta, Justice Aniruddha Bose and Adv. Siddharth Luthra.

Adv. Siddharth Luthra is guilty of misappropriation of funds of the Supreme Court by joining the conspiracy since he allowed himself to be appointed as an Amicus as against Supreme Court Rules in a contempt of court matter. 

Law is clear that the trial under Contempt, if conducted by a Private Counsel, instead of a Government Law Officer, is against the Supreme Court Rules and therefore stands vitiated.

The Prayer clause of the said Writ Petition is reproduced below for ready reference.

Also a copy of Writ Petition is attached for perusal.

:- PRAYERS:- It is therefore, humbly prayed for; 

A) To appoint Attorney General as an Amicus Curiae to assist this Hon’ble Court as per Rule 10 of “The Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975”.

B) To record a finding that, in view of the law laid down by Full Bench in Mahadev Haskot (1978) 3 SCC 552, the person convicted under Contempt by the Supreme Court in original jurisdiction is entitled for one appellate jurisdiction as a matter of right and said appeal be heard by the larger Benches in Writ jurisdiction as done  in M.S. Ahlawat Vs. State (2000) 1 SCC 27 & Supreme Court Bar Association case (1998) 4 SCC 409, which is subsequently upheld by Constitution Bench in Roopa Hoora (2001)4 SCC 388, and therefore, the bench convicting the alleged contemnor is bound to stay the sentence as per law laid down by Full Bench in Hari Nath Sharma (1995) 4 SCC 251 and followed in Gaurav Nagpal’s Case 2005 (3) LAWS (P&H) 48.

And the Writ challenging the conviction under contempt on original side of the Supreme Court needs to be admitted as it is  a statutory right of the convict as ruled in Dilip Dahanukar’s Case (2007) 6 SCC 528.  

And further be pleased to direct the Supreme Court registry to make appropriate rules in that regard.

C) To record a finding that, as per Constitutional mandate and law declared by the Hon’ble Supreme Court in Dhondba Vs. State (1974) 1 SCC 162, Shaima Jafari Vs. Irfan (2013) 14 SCC 348, Shaikh Mohd Ali   Vs. State (1972) 2 SCC 784, and the catena of judgments, the petition challenging the conviction is liable to decided only after perusing the records of the Trial Court and by way of a reasoned order considering all the grounds and legal position raised and cannot be decided summarily.  

D) To record a finding that, the conviction of the Petitioner was for a charge which is contrary and against the order of the same bench dated 02.09.2019 and 09.12.2019 and therefore, the writ petition challenging the conviction for a charge of contempt which was not distinctly framed and served upon the Petitioner is liable to be admitted and allowed as per law laid down in R. S. Sherawat (2018)10 SCC 574, and Full Bench in Bhupesh Deb Gupta VS. State (1979) 1 SCC 87.

E) To record a finding that, as per law laid down in Re: Pollard 1868 LR 2 PC 106, Ebrahim Parekh ILR 4 Rang 257, which is made mandatory to all courts in India by the Full Bench and Constitution Bench and also as per Section 15(3) of the Contempt of Courts Act, 1971, the Judge/Bench taking cognizance is bound to mention the specific charge in the order taking cognizance of Contempt and said charge is required to be reproduced in the notice issued in ‘‘FORM – I’’ as per law laid down in J.R.Parashar (2001) 6 SCC 735, Full Bench in Nagar Mahapalika 1966 SCC OnLine SC 1, Jayantilal Hiralal 1932 SCC OnLine Bom 121 etc. and registry be directed to incorporate appropriate rules in that regard.

F) To record a finding 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 have to be conducted as per the provisions of Contempt of Courts Act, 1971 but the Ld. Trial Court,[ CORAM- Shri. Justice Deepak Gupta and Shri. Justice Anirudhha Bose] misinterpreted and refused to follow the abovesaid legal position by placing reliance upon the opinion of the author of a law book and therefore it is an act of grossest judicial impropriety.

G) To record a finding that, the guidelines given by Justice Rangnathan in concurring Judgment in P.N.Duda’s case are to be treated as the   view of the bench and is a binding law in view of Article 141 of the Constitution and cannot be said to be obiter in view of law laid down in Kaikhosrou Kavasji Framji Vs. Union of India (2019) SCC OnLine SC 394 and also due to the fact that the said guidelines are held to be as valid and legal by the Full Bench in Bal Thackrey’s Case (2005) 1 SCC 254, and therefore the observations in the impugned judgment are wrong, per-incuriam and against the judicial propriety.

H) To record a finding that, the contempt proceedings are quasi- criminal in nature and the court taking cognizance of Contempt against several persons is bound to pass a reasoned order mentioning specific role of the person and 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.

I) To record a finding that, the order directing appointment of Adv. Siddharth Luthra as an amicus Curiae was against the Rule 10 of ‘The Rules To Regulate Proceedings For Contempt of the Supreme Court, 1975’ which mandates that 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. Therefore, the conviction in trial conducted by a private counsel, violating fundamental rights and safeguards of the Petitioner and causing great prejudice, is vitiated as has been ruled in Medichetty Ramakistiah Vs. State (supra) and R.S. Sujatha v. State of Karnataka & Ors., (2011) 5 SCC 689, as the proceedings are conducted against the rules of the Supreme Court by the Private Counsel.

J) To record a finding that, if any Judge of any Court including 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 as per law laid down in (i) Re: C.S.Karnan (2017) 7 SCC 1 (ii) Badrakanta Mishra (1973) 1 SCC 446 (iii) Legrand Pvt. Ltd. 2007 (6) Mh.L.J. 146, (iv) New Delhi Municipal Council Vs. M/S Prominent Hotels Limited 2015 SCC Online Del 11910.

K) Record a finding that the Petioner is deprived of his life and liberty without following the due process of law and  the fundamental rights of the Petitioner as guaranteed under Article 19,20,21 of  the Constitution are violated by the Ld. Trial Court and therefore the Petitioner deserves to be compensated as per law laid down in various judgments.

L) 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.

M) Direct all the authorities in Country to not to follow the law and ratio laid down in the said judgment dated 27.04.2020 and 04.05.2020 passed in Re: Vijay Kurle & Ors. In SMCP (Cri) No. 02 of 2019.

N) To call for the record and proceedings and after hearing the parties  be pleased to set aside the conviction and sentence of the petitioner as per order dated 27.04.2020 and 04.05.2020, passed in S.M.C.P. [Crl.] 02/2019 in the case between In: Re Vijay Kurle and Others.

O) Stay the operation, execution, application and use of the judgement dated 27.04.2020 and 04.05.2020 as an interim relief.

P) To record a  finding  that,  since  the ratio of the judgment  of Pritam Pal Singh 1992(1) SCALE 416, is considered and overruled by the Larger Three -Judge Bench in Bal Thackrey’s case (Supra) therefore, reliance on the said ratio of the judgment and other impliedly overruled judgments by Amicus Curiae Adv.  Siddharth Luthra by taking a stand that since these are not shown as overruled in a ‘Case Treatment of software Lexis-Nexis’ and compelling the court to rely upon the opinion of the author to reject the law laid down by the Full Bench and Constitution Benches of this Hon’ble Court, is grossest Contempt of Full Bench and Constitution Bench Judgments of the Hon’ble Supreme Court.

Q) Direction to Registry to incorporate the detailed rules for Contempt proceedings as done by Allahabad High Court by referring and in accordance with the ratio laid down and law declared by various binding precedents such as (i) R.K.Anand (2009) 8 SCC 106 (ii) R. S. Sherawat 2018 SCC OnLine SC 1347.

R) To take suo-moto cognizance of offences under section 211, 192, 193, 120[B] and 34 etc. of IPC, as ruled by the Full Bench in 

Hari Dass Vs. State AIR 1964 SC 1773 against all concerned including Adv. Milind Sathe, Mr. Kaiwan Kalyaniwalla and others, for bringing frivolous proceedings against the Petitioner under contempt by creating false and misleading evidences and using it to be genuine ones and direct the CBI to investigate the allegations regarding offences and after getting the report from the CBI and after hearing the parties, be pleased to take appropriate action against the guilty as per law laid down in Sarvepelli Radhakrishnan 2019 SCC OnLine SC 51, State Vs. Kamlakar Bhavsar 2002 ALL MR (Cri) 2640, Govind Mehta Vs. State Of Bihar (1971) 3 SCC 329, K.Rama Reddy 1998(3) ALD 305.

S) Take the note of various misdeeds and grossest professional misconduct by Adv. Siddharth Luthra as mentioned in para 4.46 (4.46.1 to 4.46.11) and pass appropriate orders for striping off his designation as a Senior Counsel as done in the case of R.K. Anand Vs. Delhi High Court (2009) 8 SCC 106, and clarified in the case of Indira Jaisingh Vs. Supreme Court of India (2017) 9 SCC 766.

T) 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.

http://indianbarassociation.co.in/wp-content/uploads/2020/07/Copy-of-Writ-Petition-1.pdf

Best Regards

                          Adv. Vivek Ramteke

                                 Chairman

                       All India SC,  ST & Minority

                         Lawyers Association

The order passed by the Three Judge Bench in the recent Suo Motu Contempt case against Adv. Prashant Bhushan has OVERRULED the order passed by 2-Judge Bench in the Suo Motu contempt case Re: Vijay Kurle and others.

                        

The Three Judge bench headed by Justice Arun Mishra, in their order dated 22.07.2020 have followed to a T the procedure laid down in the Supreme Court Rules as well as the binding precedents of the Supreme Court unlike the order passed by the Bench of Justice Rohinton Nariman and Justice Vineet Saran that has thrown all the laws/rules/binding precedents out of the window. The Bench of Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose had further perpetuated the illegalities committed by the Bench of Justice Rohinton Nariman instead of paying heed to the written and oral submissions of the alleged contemnors in Re: Vijay Kurle and others.

The order passed by the three Judge Bench on 22.07.2020 in the matter of Prashant Bhushan has vindicated the arguments put forth by all three alleged contemnors in Re: Vijay Kurle and others.

Lord Buddha had said –

Three things cannot be long hidden: The Sun, the Moon and the Truth.

The procedure followed by the Three Judge Bench in Prashant Bhushan’s case, now proves that the legal position pointed out by the three alleged contemnors in Re: Vijay Kurle’s case was correct. The judgment dated 27.04.2020 and 04.05.2020 passed by the Bench of Justice (Retd.) Deepak Gupta now stands overruled.

Full Bench in C. N. Rudramurthy's case (1998) 8 SCC 275, had ruled that, when view taken by the Larger Benches is on the record then the Supreme Court cannot re-examine a case which has by implication been declared incorrect. The other contrary view by Smaller Benches stands impliedly overruled.

Full Bench in The CIT Bombay City Vs. R.H.Pandi (1974) 2 SCC 627 had ruled that “…. Cursus curiae est lex curiae . The Practice of the Court is the law of the Court. . ”

A comparative analysis of Re: Vijay Kurle vis-à-vis Re: Prashant Bhushan (both being cases of Suo Motu cognizance by Supreme Court) is presented in the ATTACHED PDF, which clearly shows the stark illegalities committed by the two judge Bench of Justice (Retd.) Deepak Gupta vis-à-vis accurate compliance with Supreme Court Rules and binding precedents by the three judge Bench headed by Justice Arun Mishra:

The order passed by the Bench headed by Justice Arun Mishra on 22.07.2020 has immensely helped regain the confidence in judiciary, which had taken a severe beating due to orders passed by Justice Rohinton Nariman,Justice Deepak Gupta and Justice Aniruddha Bose in the matter of Re: Vijay Kurle and others.

Hail the Justice.

                 

           Regards

                          Adv. Vivek Ramteke

                                 Chairman

                       All India SC,  ST & Minority

                         Lawyers Association

Wanton abuse of power by Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose in appointing a Private Counsel as ‘Amicus Curiae’ instead of the Attorney General/Solicitor General of India as mandated by Rule 10 of the Supreme Court Rules, 1975.

Adv. Siddharth Luthra guilty of misappropriation of funds of the Supreme Court by joining the conspiracy by allowing himself to be appointed as an Amicus as against Supreme Court Rules in a contempt of court matter

⮚    As per the Rules, Bench had a choice of appointing either Attorney-General or Solicitor General as an Amicus Curiae in the Contempt Cases.

⮚    The order appointing  an ineligible Adv. Siddharth Luthra as an Amicus and entitling him to claim fee from the government is misappropriation of public funds and is an offence under Sec. 409, 120 (B), 109 & 34 of I.P.C. on the part of Justice Deepak Gupta, Justice Aniruddha Bose and Adv. Siddharth Luthra.

           

                          Adv. Vivek Ramteke

                                 Chairman

                       All India SC,  ST & Minority

                         Lawyers Association

                             Mursalin Shaikh

                                    Secretary

                   Supreme Court & High Court 

                        Litigants Association of India

⮚    Law is clear that the trial under Contempt if conducted by a private counsel instead of Govt. Law Officer, is against the Supreme Court Rules and therefore stands vitiated.

⮚    Court record shows that Justice Deepak Gupta threatened Counsel for Respondent No. 1 and warned him not to raise any objection against illegalities  and offences committed by Mr. Siddharth Luthra.

Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose are being prosecuted by the Chairmn of Supreme Court and High Court Litigant’s Association of India (SCHCLAOI) , under Sec. 409, 420, 219, 218, 120 (B) & 34 of I.P.C. for conspiracy, abetment & attempt to misappropriate the Supreme Court funds by siphoning through co-conspirator Sr. Adv. Siddharth Luthra.

             Accused Sr. Adv. Siddharth Luthra

1.1            In a similar case of criminal breach of trust , Justice Soumitra Sen of Calcutta High Court  was dismissed. In another case of misappropriation of Court Funds, charge-sheet is filed by C.B.I. against six-Judges of Allahabad High Court.

1.2   Recently, Jusice S. N. Shukla was chargesheeted and his entire judicial work was withdrawn for passing an order to give undue advantage to an undeserving person by ignoring binding precedents of the Supreme Court. A Judge cannot think in terms of "what pleases the Prince has the force of law”. He is expected to be guided by the established norms of judicial process and decorum. While setting aside the said illegal order it is observed by the Supreme Court in the case reported as Medical Council (2016) SCC   as under;

“A Judge cannot think in terms of "what pleases the Prince has the force of law".

A Judge should abandon his passion. He must constantly remind himself that he has a singular master "duty to truth" and such truth is to be arrived at within the legal parameters. No heroism, no rhetorics.

We strongly deprecate the tendency of the courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.

A person who conceived the idea of paving the path of his own desire, moving according to his design, proceeding as per his whim and marching ahead with brazenness abandoning any sense of prudence cannot be leniently dealt with. It is the duty of the Court to take stringent action, for he has polluted the purity attached to the justice dispensation system and sullied the majesty of law.”

BRIEF FACTS OF THE CASE :-

2.1 That the Bench of Justice Deepak Gupta and Justice Aniruddha Bose, in a Suo-Motu Criminal Contempt Case No. 02 of 2019 in the case of Re: Vijay Kurle, vide order dated 30.09.2019 had appointed Sr. Adv. Siddharth Luthra as Amicus Curiae.

The order dated 30.09.2019 reads thus;

“We appoint Shri Siddharth Luthra, Senior Advocate, as Amicus Curiae to assist the Court. He is also permitted to appoint one junior Advocate of his choice to assist him. ”

The order dated 27.04.2020 reads thus;

“2. …….

On the same date, we appointed Shri Siddharth Luthra, learned Senior Counsel, as amicus curiae to assist the Court”

2.2. That, both the Ld. Judges in the order dated 27.04.2020 had admitted that, the proceeding under Contempt has to be conducted as per the Rules. It reads thus;

“17. This Court has framed rules in this regard known as the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 ( for short ' the Rules' ) …….

19. These Rules have been framed by the Supreme Court in exercise of the power vested in it under Section 23 of the Contempt of Courts Act, 1971 and they have been notified with the approval of Hon'ble the President of India.

29. Therefore, the only requirement is to follow a procedure which is just, fair and in accordance with the rules framed by this court.”

 2.3. However as per Rule 10 of ‘The Rules to Regulate proceedings for Contempt of the Supreme Court, 1975’ the Suo- Moto contempt proceedings can be conducted by the Bench itself or with the assistance only two Government law offices i.e. either Attorney General of India or Solicitor General of India are permitted to assist the Court.

2.4.  In S.K. Sundaram vs Unknown 2001 (2) SCC 171while dealing with the  objection relating to the appointment of Shri Harish N. Salve, learned Solicitor General of India as Amicus to assist the court observed that;

“ As per Supreme Court of India Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975". Rule 10 says: "The Court may direct the Attorney General or Solicitor General to appear and assist the Court."

2.5 This rule and procedure of appointing Attorney General as Amicus in Contempt cases is   followed by the Constitution Benches of the Supreme Court.  Such as:

       i.            Re: C.S. Karnan (2017) 2 SCC 757 (1), (Seven Judge Bench)

      ii.            Subramanian Swamy Vs. Arun Shourie (2014) 12 SCC 344 (Five  Judge Bench)

     iii.            Supreme Court Bar Association Vs. Union of India (1998) 4 SCC409  (Five Judge Bench)

       iv.  Dr. L.P Mishra (1998) 7 SCC 379 (Full                

Bench)

      v.            Re: Vinay Chandra Mishra (1995) 2 SCC 584 (Full Bench)

2.6 Constitution Bench in Subramanian Swamy Vs. Arun Shourie (2014) 12 SCC 344 para 4 & 5 had followed the procedure of calling for an opinion of Attorney general even before issuing show cause notice for contempt in suo-motu contempt under Art. 129 of the Constitution. The Bench had issued notice to Attorney General to assist the Court.

2.7  Supreme  Court in P. C. Sethi (1979) 4 SCC 797,  ruled as under;

Contempt of court - Attorney-General on direction of Court filing report finding no contempt or violation of Court's order - Petition disposed of.

2.8 In P. N. DUDA (1988) 3 SCC 167 it is observed that, when Attorney General and Solicitor General were ‘party respondent’ in the case, therefore the Court had no option but to call First Additional Solicitor General as an Amicus Curiae. It was observed that in the first place the role of the Attorney General/Solicitor General is more akin to that of an amicus curiae to assist the court.

     “ Attorney General and Solicitor General of India in respect    of this Court occupy positions of great importance and       relevance. Attorney General, though unlike England is not     a member of the Cabinet yet is a friend of the Court, and in   some respects acts as the friend, philosopher and guide of     the Court. (See Art. 76 of the Constitution).  ”

2.9 The role of Government law officer and its status is always at a different footing and can never be equated with a Private Counsel. The Attorney General cannot be on the same footing with that of a private advocate like Siddharth Luthra. [Deepak Agarwal Vs. Keshav Kaushik (2013) 5 SCC 277, O. P. Chakravarty 1971 Cr. L. J.]

2.10  In Dr. Janardan Prasad Gupta  Vs.   Dr. O.P. Chakarvarty, 1974 SCC OnLine All 358, it is ruled that;  

“ The Advocate-General holds a high status and is supposed to act impartially in coming to a conclusion whether or not he should move the Court under Section 15 ……....

An ordinary citizen cannot belong to that group. Contempt proceeding  dismissed. “

2.11 Nine Judge Bench of Supreme Court of US in Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787,   had ruled as under;  

            “ Contempt – Court’s right to appoint private Special Prosecutor - the t court could appoint a private attorney to prosecute a contempt case only when the government declined. ”

2.12   In Re: P.C. Sen, Chief Minister Of ... vs Unknown, 1966 CriLJ 883,  the Advocate General was first asked and only after no response from him the private Counsel was appointed as an Amicus Curiae. 

2.13 In Suo Motu Vs S.B. Vakil, Advocate, High Court Of Gujrat LAWS (GJH) 2006 7-5, it is ruled that the court should not act suo moto except in extreme urgency and should leave it to the Attorney General to make a motion in accordance with the rules .

2.14 In The CIT Bombay City Vs. R.H.Pandi (1974) 2 SCC 627 it is ruled as under;

“ 6………. Cursus curiae est lex curiae . The Practice of the Court is the law of the Court. …. ”

2.15   The Supreme Court in many judgments and more particularly in the case of R.S. Sujhata (2011) 5 SCC 689, had ruled that, any deviation from rules framed by the Court in contempt proceeding is fatal to the case and vitiates the Contempt Proceedings. Thus, the trial itself suffered from material procedural defect and stood vitiated. The impugned judgment and order, so far as the conviction of the appellants in contempt proceedings are concerned, is liable to be set aside.”

2.16 In Suo Motu Vs. Nandlal Thakkar, Advocate 2013 Cri. L.J. 3391 (D.B) it is ruled as under;

 ‘‘  ….. Since we  have  relied  upon  the  decision  in J.R.  Parashar's case (supra) we also looked into the Supreme Court Rules regulating proceedings for contempt of the Supreme Court, 1975.

11.  In a very recent pronouncement of the Supreme Court in the case of Anup Bhushan Vohra (supra), which has been referred to earlier, the Supreme Court has quoted with approval the view in Muthu Karuppan's case (supra) and has once again reiterated that any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt.

2.17 The main reason for acting against the Rules of Supreme Court by appointing an ineligible Private Counsel instead of an Attorney General of India is very clear. If the Attorney General of India had appeared, he would not have worked under the influence of the interested parties including Justice Nariman who were likely to be affected if trial was conducted as per law. The fear was that the Attorney General might have asked for the prosecution of Justice Rohinton Nariman for forgery of Supreme Court Records and   misuse of power for passing order in his own case and also in the case related to his father Adv. Fali Nariman.  Also the offences by Adv. Milind Sathe and Mr. Kaiwan Kalyaniwalla by giving letter privately to Justice Rohinton Nariman with false allegations etc. would have been exposed and would have possibly investigated been by the C.B.I.

2.18 Therefore, Justice Deepak Gupta and others had hatched this conspiracy and such illegal appointment was done and an incompetent Adv. Siddharth Luthra who joined the conspiracy, tried his level best to save Justice Rohinton Nariman, Adv. Milind Sathe and Mr. Kaiwan Kalyaniwalla from serious offences against administration of justice. Mr. Luthra  overtly helped the Bench of Justice Deepak Gupta to  convert the prosecution into persecution by relying on the overruled and per incuriam judgments, destroying the documents from Court records and causing disappearance of evidences etc.

Therefore, it is also an offence under Sec. 218, 211,219,  220 r/w 120(B), 34  etc. of I.P.C.

3. The trial conducted by a Private Counsel instead of Govt. Law Officer, is vitiated as it causes serious prejudice to the fundamental rights of the accused:-

3.1 That, the trial conducted by a private counsel instead of Govt. Law Officer is declared as vitiated causing serious prejudice to the fundamental rights of the accused. In such cases retrial is ordered. Which cause a great loss of public money.  In Medichetty Ramakistiah Vs. State AIR 1959 AP 659 it was ruled that;

 ““Judge committed grave illegality in allowing the prosecution to be conducted by a private counsel and not by the Public Prosecutor. It is in violation of the express and mandatory provisions of the Code - the irregularity in the conduct of the trial has caused prejudice to the accused and has occasioned a failure of justice. The appeal need not be heard on merits because an objection taken by the learned counsel for the appellants as to the manner in which the trial was conducted must prevail and there should be a retrial of the case - The convictions and sentences are set aside- Re- Trial ordered.

4. Duty of the Judge to act as per rules: -

4.1 It is well settled that if manner of a particular act is prescribed under any Statute, the act must be done in that manner or not at all. Therefore, when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. ( AIR 1999 SC 1281 (Babu Verghese v. Bar Council of Kerala) “Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all”.

4.2   That the court at its own cannot bypass the rule and give the status or substitute of Attorney General to a Private Counsel.  In Anurag Kumar Singh  Vs. State of Uttarakhand and Ors. (2016) 2 SCC (LS) 656 it is ruled as under;

Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The judge must choose the lawful act, and he is precluded from choosing the unlawful act. Discretion, on the other hand, assumes the lack of an obligation to choose one particular possibility among several.[12]

4.3 Supreme Court in Bangalore Medical Trust v. B.S. Muddappa and Ors. and it has been observed:

“  When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly.”

4.4   But Justice Deepak Gupta & Justice Aniruddha Bose have illegally appointed of Adv. Siddharth Luthra as an Amicus Curiae. The order against the Rules without any lawful reason makes both the judges liable for prosecution under Sec. 219, 166, etc. of I.P.C.

In R. R. Parekh’s Case (2016) 14 SCC 1, it was ruled that, such a Judge needs to be removed from the judiciary. It was held that;

“A judge passing an order against provisions of law is said to have been actuated by an oblique motive or corrupt practice - breach of the governing principles of law or procedure by a Judge is indicative of judicial officer has been actuated by an oblique motive or corrupt practice - No direct evidence is necessary - A charge of misconduct against a Judge has to be established on a preponderance of probabilities - The Appellant had absolutely no convincing explanation for this course of conduct - Punishment of compulsory retirement  directed.”

5. APPOINTING AN UNDESERVING PERSON AS AMICUS AND MAKING HIM ELGIBLE TO GET FEE FROM SUPREME COURT AS PER  CHAPTER XIV RULE 15 (II) OF SUPREME COURT RULES IS AN OFFENCE UNDER SEC. 409, 420, 109 R/W 120(B), 34 OF I.P.C.

5.1 Another serious aspect of the abovesaid illegality is the fee payable/paid to Adv. Siddharth Luthra for his appointment as an Amicus Curiae.

5.2 As per Supreme Court’s ‘Handbook on Practice and Procedure and Office Procedure, 2017’ the Chapter XIV Rule 15 (ii) (a) (b) (c) reads as under;

“15. (ii)

(a)   The advocate appointed as Amicus curiae by the Court or from the panel of advocates at the cost of the state shall be entitled to fee at the rate of Rs. 6,000 /- at the admission hearing stage and Rs. 10,000/- at the final disposal stage or at the regular hearing stage, as fixed by the Chief Justice, or as may be ordered by the Court, whereof a certificate in the Form No. 10 shall be issued.

(b)  …………

(c)   The State concerned shall pay the fee specified in the certificate within three months from the date of presenting the claim before it, supported by the certificate. ”

5.3   That the total appearances of the two advocates (Mr. Luthra and one Junior advocate) and the amount to be paid to them in the case as per rules may run in lakhs of rupees. It is a clear case of misappropriation of public funds and providing benefits to the undeserving person by misuse of the power of a Supreme Court Judge.    

5.4   In Rakesh Kumar Chhabra Vs. State of H.P., 2012 CrLJ 354(HP), when an accused had misused his power to extend a favour to an undeserving person out of  public funds, then such a person is guilty of misappropriation. When the accused increased the marks of certainr persons for pecuniary benefits during the course of preparation final record for appointment as physical education teacher, it was held that the offence alleged is clearly made out.

5.5 The next most essential ingredient for proof of criminal breach of trust is 'misappropriation with a dishonest intention'. Word 'dishonesty' as defined in Section 24, IPC means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another. So offence is complete when misappropriation or conversion of the property has been made dishonestly. Even temporary misappropriation falls within the ambit of the offence under Section 409. 

5.6 In Anup Singh Vs State 2017 SCC On Line Del 8333, in case related with misappropriation of the property of the court, destroying documents from the court record it is ruled that

“ Criminal Breach of trust by the Court officer  - Sections 120-B, 109, 201 and 409 of the Indian Penal Code, 1860 : -

     Penal Code, 1860 — S. 405 — Criminal breach of trust — Scope of — Held, criminal breach of trust consists of any of the positive acts, namely, misappropriation, conversion, use, or even the disposal of property in violation of the mandate of law prescribing the   mode in which the entrustment is to be discharged

     Essentials ingredients for bringing home a charge under S. 109 are (a) Abetment of an offence, either by instigation, conspiracy or aiding; (b) The commission of the act abetted, in consequence of abetment; (c) There must not be any express provision, in the Penal Code, 1860 for the punishment of such abetment

5.7   In Superintendent & Rememberancer ... vs S. K. Roy  1974 SCR (3) 348, it is ruled that ;

“ To constitute an offence under section 409 1. P. C. it is not required that misappropriation must necessarily take place after the creation of a legally correct entrustment or dominion over property. The entrustments may arise in "any manner whatsoever". That manner may or may not involve fraudulent conduct of the accused. Section 409 1. P. C. covers dishonest misappropriation in both types of cases, … a public servant who, as a result of it, becomes charged with a duty to act in a particular way, or at least honestly. We convict the respondent under section 409 I.P.C  ”

6. On perusal of order dated 27.04.2020, it is obvious that Justice Deepak Gupta, Justice Aniruddha Bose and Sr. Advocate Siddharth Luthra have invented many insane laws. Around 35 offences u. sec 192, 193, 167, 211, 220,201, 218, 219,166, 409, 466, 471, 474, 124-A, 123, 120(B), r/w 34 of IPC , including destroying/theft  of Court records, creating false evidences and using these to be genuine ones, refusal to follow Constitution Bench judgment, ignoring evidences to save accused Justice Rohinton Nariman, Adv. Milind Sathe etc are already included in the complaint sent to the appropriate authorities including Chief Justice of India.

         

            Recently, office of Prime Minister of India has directed Delhi Police to investigate the complaint filed against accused Justice Deepak Gupta and others under various charges including charges of sedition. Delhi Police has commenced the investigation in this case.

There are several other appalling illegalities committed by Justice Deepak    Gupta and Justice Aniruddha Bose, which I shall cover in my concluding article in this series.

Best Regards

Adv. Vivek Ramteke

NEW PRECEDENT SET BY THE TWO JUDGE BENCH THAT THE LAW LAID DOWN BY THE CONSTITUTION BENCH OF THE SUPREME COURT IS NOT BINDING IF NOT CONFIRMED BY THE PUBLICATIONS OF  ‘LEXIS-NEXIS’

                 

     Nothing in the world is more dangerous than               sincere   ignorance and conscientious stupidity.

    

     -     Martin Luther King Jr.

                       

                  

           

                   Adv. Vivek Ramteke

                            Chairman

                   All India SC,  ST & Minority

                       Lawyers Association

                     

The above quote by Martin Luther King Jr. is so apt to describe the gross abuse of power and blatant illegality committed by the Bench of Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose while dealing with Contempt Petition Re: Vijay Kurle and others (Suo Motu Contempt Petition (Crl.) No. 02 of 2019).

The judgment passed by the bench of Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose is the best example of how a judgment, that too of Apex Court OUGHT NOT TO BE!

                     

                          Justice Dipak Gupta

            These two brilliant minds have not left a single opportunity to leave the reader of the judgment utterly disgusted and disappointed by the lack of knowledge, ignorance of basic law, doctrines and sound principles of law, displayed by these two judges in the judgment passed by them on 27.04.2020.

        Having got an opportunity to peruse the relevant documents and submissions of all the parties including that of Amicus Curiae and the copy of Judgment dated 27.04.2020, it can be well inferred that Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose have delivered a severely botched up judgment by blatantly misinterpreting and twisting the legal position on several counts and by contumaciously disregarding the binding precedents of larger/constitutional Benches. Their aide Amicus Curiae Adv. Siddharth Luthra, whose role was to assist the Court, has indulged in all possible tactics to mislead the Court by brazenly providing overruled judgments and more such unfair practices which would directly qualify as acts of professional misconduct. Despite the Amicus Curiae’s shrewd approach adopted by Amicus Curiae in misleading the Court, the Court had ample opportunity and material on record coming from all three Respondents in strong rebuttal to the oral and written submissions of Amicus Curiae. Unfortunately, the Judges have squandered several golden chances available to them to set right the things which had gone terribly awry right from the inception of the case i.e. right from Justice Rohinton Nariman acting as judge in his own cause by issuing show cause notice to two complainants (Mr. Vijay Kurle and Mr. Rashid Khan Pathan) for contempt of court, when both the complaints were against Justice Nariman himself. The reasons for including other two persons – Mr. Nilesh Ojha and Mr. Mathews Nedumpara in the aforementioned show cause notice on flimsy ground that both were acting in tandem.

Being a legal practitioner for more than forty years now and having witnessed and read about the glorious as well as chequered parts of the history of courts in our country, I felt a strong urge to write about this particular judgment which shall impact all the stakeholders of our justice delivery systems – Judges, lawyers, government pleaders, litigants, common public. Moreover, any judgment of the Apex court of our country has wide ramifications.

This is my first article out of three in the series and I have made best attempt to explain succinctly as to how the judgment dated 27.04.2020 is vitiated and non est.   

    

  The first aspect that has shocked me is the new law declared by the   Bench of   Justice   (Retd.) Deepak Gupta and Justice Aniruddha Bose, through their judgment dated 27.04.2020 which in sum indicates that -

        ‘Any law laid down by the Constitution Bench of the Supreme Court is not binding on any party unless and until it is approved by    the Editor of Lexis-Nexis.’

     If you are confused after reading the above statement, please read further, since we now have a bigger question in front of us as to what to follow – contents published by Lexis Nexis or the factual position on law holding the field?

Amicus Curie Sr. Adv. Luthra had submitted his written arguments, in which he had pointed out to the Court that;

i.         As per law laid down by 2-Judge Bench in Pritam Pal’s Case 1992 (1) SCALE 416, the provisions of Contempt of Courts Act,1971 are not applicable to the Supreme Court and the Supreme Court can pass any order against the law, statutes and rules.

ii.         As per the ratio laid down in C. K. Daphtary Vs. O.P. Gupta (1971) 1 SCC 626 and in Dr. D.C Saxena’s Case (1996) 5 SCC 216, no one can attribute motive to the Judge even if the Judge is guilty of serious offences.

In rebuttal to above submissions, Adv. Nilesh Ojha (Respondent No. 3), Adv. Partho Sarkar (Counsel for Respondent No.1 - Mr. Vijay Kurle) and Adv. Ghanshyam Upadhya (Counsel for Respondent No. 2 – Mr. Rashid Khan Pathan) in their written submissions had pointed out that -

i.          The ratio laid down in Pritam Pal Singh’s case and all other judgments of smaller or co equal benches passed by ignoring judgment of Constitution Bench in Baradkanta Mishra (1974) 1 SCC 374 are per incuriam. In Baradkant Mishra’s case, it is ruled that the cases wherein scandalizing of the Court has been alleged, the proceedings are governed by the Contempt of Courts Act, 1971.

This legal position is upheld and followed by the Constitution Bench in Subramanyam Swami's case (2014) SCC 344 as well as in Re: C. S. Karnan’s case  (2017) 7 SCC 1.

ii.       The Full Bench in Bal Thackrey’s Case (2005) 1 SCC 254, has disapproved that part of ratio laid down in Pritam Pal’s case which was decided by a 2-Judge Bench, where it is said that power under Article 129 and 215 is not controlled by the Contempt of Courts Act, 1971. Therefore the ratio of Pritam Pal’s Case is overruled. Furthermore, the other Full Bench Judgment in Pallav Seth (2001) 7 SCC 549 and Maheshwar Peri (2016) 14 SCC 251, had specifically ruled that, the proceedings under either Article 129 or Article 215 must be conducted as per the provisions of The Contempt of Courts Act, 1971.

iii.       The judgment in C. K. Daphtary Vs. O.P. Gupta (1971) 1 SCC 626 case was declared to be no longer a good law as it was of repealed Act. It is clarified by the Supreme Court in:

   

   a)  P.N.Duda’s case (1988) 3 SCC 167

  

   b) Biman Basu’s case (2010) 8 SCC 673 [Para 17]

It was held by the Supreme Court that, since the judgment of C. K. Daphtary is delivered before the new Act of 1971, it is no longer a good law.

iv.          The judgment of Pritam Pal’s case 1992 (1) SCALE 416, was also criticized by ‘‘The National Commission to Review the working of the Constitution [NCRWC]”.

Based on the report of NCRWC the Contempt of Courts Act 2006 is amended.

The Constitution Bench in Subramanian Swamy’s case (2014) 12 SCC 344, had referred the report of NCRWC and clarified that, the proceedings under Article 129 of the Constitution have to be conducted as per section 2,13,15,17 etc. of the Contempt of Courts Act, 1971.

v.           The judgment in C. K. Daphtary (supra) and Dr. D.C. Saxena’s case (supra), is per-incuriam and overruled.

It is per-incuriam for not considering the earlier binding precedent of Constitution Bench in Bathina Reddy’s case AIR 1952 SC 149, where it is ruled that, if any party is having proof that the Judge has passed an order for malafide purposes, then it is for the public good that such proof should be published.

It is overruled because of later Seven - Judge Constitution Bench judgments in Re: C.S. Karnan (2017) 7 SCC 1, Subramanian Swamy (2014) 12 SCC 344, Re: Lalith Kalitha 2008 (1) GLT 800, R.K. Jain (2010) 8 SCC 281 etc.

i.           The Counsels for the Respondent Nos. 1 and 3 had prayed for action against Sr. Adv. Siddharth Luthra for providing overruled judgments, which is a gross professional misconduct and falling standard of professional ethics and unbecoming of someone who is a designated Senior Advocate. The Counsels have also prayed for striping off the designation of Senior Counsel conferred on Adv. Siddharth Luthra,  as per the law laid down in Lal Bahadur Gautam (2019) 6 SCC 441, Nalinikanta (2004) 7 SCC 19, Heena Dharia 2016 SCC OnLine Bom 9859, E.S. Reddy (1987) 3 SCC 258.

Now, in response to the accusation of providing overruled judgments, Sr. Adv. Siddharth Luthra, in his written argument dated 02.03.2020, has made submission that, since the "Case Treatment'' obtained from ‘‘Lexis - Nexis’’ of Pritam Pal's case(supra), Dr.D.C. Saxena’s case (supra), C. K. Daphtary (supra), is not showing them as overruled or per- incuriam, these are to be considered as binding precedents !! [Para 13.7 of his submission].

Amicus Curiae Adv. Luthra has gone to the extent of attaching the screenshots from Lexis-Nexis software to prove his stand of justifying his utterly cavalier approach of relying on the results displayed by a legal software rather than checking the factual position.

   Such an approach could have been understandable at the most from a novice in the field of law or a law intern who is learning the ropes, but not from someone who is a designated Senior Advocate. Mr. Siddharth Luthra who was expected to know the basic law of binding precedents.

Para 13.7 on page 32 of the written submission by Amicus Curiae is reproduced below verbatim:

“13.7. However, in order to rebut the allegations made by Respondent No.3, the Amicus has annexed herewith and marked as ANNEXURE ‘A’ the ‘Case-Treatment’ obtained from Lexis-Nexis’ of the following cases, which are incorrectly alleged to be per incuriam or alleged to be overruled by the Respondent No. 3

         a. C.K. Daphtary case

       

         b. Pritam Pal case

     

        c. Supreme Court Bar Association case

     

        d. Zahira Shaikh case

       

        e. D.C. Saxena case”

You may refer to the screen shots from Lexis Nexis as provided by Amicus Curiae in his written submission.

    Justice Deepak Gupta, vide his order dated 02.03. 2020 had directed Respondents to submit their reply by 16.03.2020 to above submission of Adv. Luthra.

On 16.03.2020, all the Respondents in their written submissions had again pointed out the law of binding precedent that the law laid down by Full Bench in C.N.Rudramuthy's case (1998) 8 SCC 275, wherein it is ruled that, when view taken by higher benches is on record, then the Supreme Court need not re-examine a case which had by implication, be declared incorrect. Hence the other contrary view taken by Smaller Benches stands impliedly overruled. If provisions of Act are explicitly explained by the Larger Benches, then no contrary view is permissible by Smaller Benches.

   In Lal Bahadur Gautam (2019) 6 SCC 441, it is ruled that, the reliance on the judgment of a repealed Act amounts to reliance on an overruled judgment by the advocate and is therefore a professional misconduct.

          It was pointed out that, the opinion of ‘Author or Editor’ cannot supersede the ratio laid down by Full Bench and Constitution Bench.

             Similar view is taken in Sandeep Bafna’s Case (2014) 16 SCC 623, Mr. Roy Joseph Creado 2008 ALL MR (Cri.) 851.

                   

Despite the settled law, Justice (Retd.) Deepak Gupta has accepted the submission of Mr. Siddharth Luthra and has refused to follow the Full Bench and Constitutional Bench judgments, his rationale being that these judgments are contrary to the view taken by author Mr. Samaraditya Pal of the book ‘The Law of Contempt (2013)’ published by Lexis Nexis and Justice (Retd.) Deepak Gupta further chose to follow the author’s editorial note in the book by ‘Lexis Nexis’ and relied on the overruled judgment of smaller benches. In para 7 of the judgment pronounced by the Bench of Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose on 27.04.2020, it is observed as under;

      ‘‘7. Before we deal with the objections individually, we need to understand what are the powers of the Supreme Court of India in relation to dealing with contempt of the Supreme Court in the light of Articles 129 and 142 of the Constitution of India when read in conjunction with the Contempt of Courts Act, 1971. According to the alleged contemnors, the Contempt of Courts Act is the final word in the matter and if the procedure prescribed under the Contempt of Courts Act has not been followed then the proceedings have to be dropped. On the other hand, Shri Sidharth Luthra, learned amicus curiae while making reference to a large number of decisions contends that the Supreme Court being a Court of Record is not bound by the provisions of the Contempt of Courts Act. The only requirement is that the procedure followed is just and fair and in accordance with the principles of natural justice.

Article 129 of the Constitution of India reads as follows:

       “129. Supreme Court to be a court of record - The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.”

A bare reading of Article 129 clearly shows that this Court being a Court of Record shall have all the powers of such a Court of Record including the power to punish for contempt of itself. This is a constitutional power which cannot be taken away or in any manner abridged by statute.

……….. A comparison of the provisions of Article 129 and clause (2) of Article 142 clearly shows that whereas the founding fathers felt that the powers under clause 92) of Article 142 could be subject to any law made by parliament, there is no such restriction as far as Article 129 is concerned. The power under clause (2) of Article 142 is not the primary source of power of Court of Record which is Article 129 and there is no such restriction in Article 129. Samaraditya Pal in the Law of Contempt- -Pg 9-10 The law of Contempt- contempt of Courts and legislatures, Fifth Edn. Lexis Nexis Butterworth Wadhawa, Nagpur(2013) has very succinctly stated the legal position as follows:

 “Although the law of contempt is largely governed by the 1971 Act, it is now settled law in India that the High Courts and the Supreme Court derive their jurisdiction and power from Articles 215 and 129 of the Constitution. This situation results in giving scope for “judicial self-dealing”.

The High Courts also enjoy similar powers like the Supreme Court under Article 215 of the Constitution. The main argument of the alleged contemnors is that notice should have been issued in terms of the provisions of the Contempt of Courts Act and any violation of the Contempt of Courts Act would vitiate the entire proceedings. We do not accept this argument. In view of the fact that the power to punish for contempt of itself is a constitutional power vested in this Court, such power cannot be abridged or taken away even by legislative enactment.’’

             The above view taken by the Bench of Justice Deepak Gupta is in direct contravention of the law laid down by the Full Bench in Bal Thackeray's case (2005) 1 SCC 254 and by Pallav Seth’s Case (2001) 7 SCC 549.

In Pallav Sheth's case (2001) 7 SCC 549 it is ruled as under;

“31. This Court has always frowned upon the grant or existence of absolute or unbridled power. Just as power or jurisdiction under Article 226 has to be exercised in accordance with law, if any, enacted by the legislature it would stand to reason that the power under Article 129 and/or Article 215 should be exercised in consonance with the provisions of a validly enacted law. In case of apparent or likelihood of conflict the provisions should be construed harmoniously.

     32. …….. A three-Judge Bench in Dr L.P. Misra case [(1998) 7 SCC 379] observed that the procedure provided by the Contempt of Courts Act, 1971 had to be followed even in exercise of the jurisdiction under Article 215 of the Constitution. It would, therefore, follow that if Section 20 is so interpreted that it does not stultify the powers under Article 129 or Article 215 then, like other provisions of the Contempt of Courts Act relating to the extent of punishment which can be imposed, a reasonable period of limitation can also be provided.”

             In Bal Thackeray's case (2005) 1 SCC 254, the conviction was set aside for not following the provisions of the Act. It is ruled as under;

“23. 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.................................... In absence of compliance of mandatory requirement of Section 15, the petitions were not maintainable.

24.  As a result of aforesaid view, it is unnecessary to examine in the present case, the effect of non-compliance of the directions issued in Duda's case by placing the informative papers before the Chief Justice of the High Court.

25.  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.

Furthermore Justice Deepak Gupta has also refused to follow the binding judgment in P.N. Duda's case (1988) 3 SCC 167 by declaring it as an obiter.

The judgments in Pallav Sheth’s case and P.N. Duda's case are followed by around 291 (Pallac Sheth’s case by approx. 183 Benches and P.N. Duda case by approx.108 Benches)  Benches of the Supreme Court and High Courts.

Justice Gupta has applied the yardstick that if author Samaraditya Pal's view in the book of ‘Lexis Nexis’ as interpreted by Justice Gupta, does not concur with any of the judgments of the Full Bench and Constitutional Bench, then such judgments are liable to be rejected even if it tantamount to accepting judgments of smaller benches even if these are overruled or per-incuriam, only on the ground that their ratio matches with the view of the author as suggested by Sr. Adv. Siddharth Luthra.

Justice Deepak Gupta has also refused to follow the law that only Chief Justice of India is the of Master of Roster, as laid down in Prakash Chand's case (1998) 1 SCC 1 and followed in Bal Thackeray's case, and in his judgment dated 27.04.2020, said that as per Article 129, any Judge and or Bench can take cognizance of the contempt without the same being assigned to him by the Chief Justice.

     The above view is against the law laid down by the Constitution Bench in Campaign for Judicial Reforms (2018) 1 SCC 196, wherein para 10 it is ruled that any judgment by any Judge or Bench of the Supreme Court, without being assigned by the Chief Justice of India cannot be executed. It stands vitiated, null and void. It is ruled as under;

 ‘‘10. The rules have been framed in that regard. True, the rules deal with reference, but the law laid down in Prakash Chand [State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1] has to apply to the Supreme Court so that there will be smooth functioning of the Court and there is no chaos in the administration of justice dispensation system. If any such order has been passed by any Bench, that cannot hold the field as that will be running counter to the order passed by the Constitution Bench. Needless to say, no Judge can take up the matter on his own, unless allocated by the Chief Justice of India, as he is the Master of the Roster.’’

      Owing to such creative and novel approach of the Supreme Court Judges of blindly trusting the submissions of Amicus Curiae, without applying their own mind and solely relying on the stand taken by Amicus that the legal software and books published by the publisher Lexis-Nexis are more accurate than the factual position on the law holding the field, the lawyers in India and Judges of High Courts including Secretary General of the Supreme Court are facing a predicament as to which law to follow now onwards.

Given the patent and grave errors committed by Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose, the members of the legal fraternity and common citizenry expect the Chief Justice of India to suo-motu intervene and clear the issue and prevent further damage to the highest temple of justice in the country.

        It is worthwhile to quote para 4 of  a judgment of Bombay High Court in Suresh Subhashrao Bhoyer Vs. Shri Manohar s/o Narayan Bhagat (Contempt Petition No.276 of 2007, Writ Petition No.6582 of 2005), where it was ruled that:

              

    “4. Now, first dealing with the objections raised by  the learne  Counsel, one has to be alive to the factual position coupled with                        legal parameters and also the discipline. 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 Honorable 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.”

I am till today deeply disturbed upon thinking that there are some Judges in our Supreme Court, who are so naïve that they do not understand that a judgment passed by three judge bench or a constitution bench overrules the judgment passed by two judge or single judge bench if both are dealing with  the same question of law.

There is no doubt that all the Presiding officers and Judges of High Courts and Supreme Courts are well aware of Article 141 of our Indian Constitution. But this particular judgment has shaken my conscience and has forced me to think whether Supreme Court is living up to its role of Protector of Rule of Law?

Amicus Curiae Adv. Siddharth Luthra whose intellectual caliber was amply displayed through his act of providing screen shots of Lexis Nexis software to justify that overruled judgment were valid since the software did not indicate these as over ruled, has made another preposterous submission – which even when committed by any of the interns of my office, would have called for severe admonishment.

Amicus Curiae Adv. Siddharth Luthra, has made following submission which is so outrageously erroneous that it raises serious concerns over the credibility of process of conferring the designation of ‘Senior Advocates’.

In para 10.39 on page no. 20 of his submission dated 02.03.2020, he states that in Pallav Sheth’s case (2001) 7 SCC 549, the Zahira Shaikh’s case (2006) 3 SCC 374 was not even referred to.

Now, Pallav Sheth’s case pertains to 2001 and Zahira Shaikh’s case is of 2006. The citations are (2001) 7 SCC 549 and (2006) 3 SCC 374 respectively.

Did the learned Amicus Curiae expect that the SC Bench would preempt in 2001 what it would decide in Zahra Shaikh’s case which came up in Supreme Court in 2006??

A photo extract of the submission of Amicus Curiae is attached herewith to leave no room for doubt in minds of those readers who would find it difficult to digest the fact that someone of stature of Senior Advocate has actually committed such a serious blunder.

This ridiculous submission of Amicus Curiae was rebutted by Respondents in their written submission by stating that:

“10. And the height is in para 10.39 of submission by Ld. Amicus, where it is submitted that, since in Pallav Sheth’s Case (2001) 7 SCC 549 it is not said that Zahra Shaikh (2006) 3 SCC 374 is not per-incuriam therefore, it cannot be treated as per-incuriam. It is ludicrous. How this Hon’ble Court in the year 2001 in Pallav Sheth will be knowing and mentioning as to in future in 2006 the judgment in Zahira Shaikh will be delivered per-incuriam.”

The screen shot of above from the Respondent’s submission is also attached herewith.

Such shoddy submissions from a person who is designated Senior Advocate and who has been Additional Solicitor General in the past are highly condemnable.

In the same para 10.39 on page no. 20 of his submission, Amicus Curiae states that since the Constitution Bench of 7-Judges in Re: C.S. Karnan’s case (2017) 7 SCC 1 did not refer to the Zahira Shaikh’s case (2006) 3 SCC 374, therefore view taken by the 2-Judge bench in Zahira Shaikh’s judgment, even if contrary to Constitution bench’s judgment, is binding.

To this, the Respondents have clarified that the law regarding this was laid down by Full Bench in C.N. Rudramurthy (1998) 8 SCC 275 where it was  ruled that, when view taken by higher benches is on record, then the Supreme Court need not re-examine a case which had by implication been declared incorrect. The other contrary view by Smaller Benches stands impliedly overruled. If provisions of Act are explained by the larger benches, then no contrary view is permissible by smaller Benches.

But Sr. Counsel Mr. Luthra seems to be bereft of knowledge of this basic legal principle.

Moreover, what was the compulsion for Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose to flagrantly overlook the binding precedents especially when Respondents had very clearly brought out the binding precedents applicable in this matter and where there was no room for discretion for the judges to oscillate beyond the established law regarding proceedings under the Contempt of Courts Act, 1971.

What Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose have

delivered on 27.04.2020 is not fit to be called a judicial determination, but is a farce. I say this owing to following:

a.    The Bench has deliberately disregarded around 158 binding precedents of Hon’ble Supreme Court and I feel more might surface as I revisit the judgment for penning down Part 2 of this series.

b.    Wilful and obdurate neglect of several legal points which were vehemently put forth by the Respondents time and again (which fortunately are part of the records of the case today)

c.    The judgment that runs into 92 pages contains page wise analysis of the complaints of Shri. Vijay Kurle and Shri. Rashid Khan Pathan – which is in fact a unilateral analysis by the Bench since there was never a submission or argument either by Amicus Curiae or the Respondents on any of the observations by the Bench made on page 51 to 91 of the judgment dated 27.04.2020! This is evident from the orders uploaded on the website of Supreme Court for each date of proceeding as well as written submissions of all the Respondents as well as Amicus Curiae. What more do we need to term such act as a legal malice?

d.    Now the crescendo – As per the order dated 09.12.2019, the matter was fixed for deciding preliminary objections and the discharge application and should the discharge application be rejected, then the Bench was to decide whether charge was liable to be framed or not. While the Bench decided to hear preliminary objections and main matter together (which is illegal and not permissible as per law), the Bench was expected to pass an order on discharge applications filed by Respondents. But such was the hurry to hold the respondents guilty of contempt, that the Bench has jumped the gun and pronounced the final judgment directly. The farce did not end here…

e.    The principles of natural justice were unabashedly thrown out of the window by these two judges, who denied the respondents reasonable time to avail of legal remedies that they were entitled to upon being held guilty. Despite the global pandemic caused by corona virus and the ensuing technological challenges in conducting hearing through video conferencing, Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose showed tearing hurry and forced the Counsel for Respondent 2 to argue on sentence on a whatsapp video call – providing a lame excuse that Justice Deepak Gupta was about to retire in a couple of days thereafter and hence the hurry to decide on sentencing. This is included in the order dated 05.05.2020.

There are several other grounds wherein Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose have openly flouted the sacred legal principles and doctrines, which are reflected ex facie in the judgment.

It certainly warrants a separate and exclusive publication.

The present case reminds me the words of Albert Einstein -

“Human genius has its limits, but stupidity does not.”

Please watch this space for Part II of this series.

    Best Regards 

  Adv. Vivek Ramteke