ERRONEOUS LEGAL POSITION PUBLISHED BY ‘LIVELAW’ REGARDING COGNIZANCE OF CONTEMPT AGAINST ADV. YATIN OZA'S CASE BY GUJARAT HIGH COURT.
∆ Justice (Retd) Deepak Gupta who is being mocked at by legal fraternity for passing an illegal judgment in Re: Vijay Kurle & Ors using Live-Law portal to publish wrong and misleading legal position in order to salvage his image.
∆ As per the law of Constitution Bench Justice N.V.Anjariya can be summoned as a witness before Gujarat High Court and he being the Enquiry Office, is disqualified to hear the case of contempt against Adv. Yatin Oza.
∆ Contempt petition before Supreme Court against Live-Law and Justice Deepak Gupta is likely to be filed soon.
Mumbai – Indian Bar Association in its press release has slammed the portal ‘LiveLaw’ for publishing wrong legal position which is against the binding precedents of Constitution Benches of the Supreme Court.
( Retd.) Justice Deepak Gupta
Supreme Court Of India
It has further been pointed out that, from the evidence available with the Indian Bar Association, it is clear that, the said articles are published to salvage the image of Justice (Retd.) Deepak Gupta, who is being at mocked by the legal fraternity for passing highly illegal, illogical and irrational judgment in Re:Vijay Kurle and he is also been accused of committing theft of Supreme court records. Also he likely to be arrested soon under the charges of sedition for his anti-Indian Army and Pro-Pakistan/Chinese Army agenda along with Adv. Fali Nariman . (For details please watch the video at following link :https://youtu.be/_j40hiSxCz8 )
Live Law has already been served with a legal notice on 12.05.2020 for publishing an article with wrong legal position on 8th May,2020 authored by Mr. Sparsh Upadhyay under title:-
“जानिए सुप्रीम कोर्ट को अपनी अवमानना (Contempt) के लिए दंड देने की शक्ति कहां से प्राप्त होती है?”
The said sponsored article was published at the behest of and to save the image of Justice (Retd.) Deepak Gupta from further damage by justifying the overruled judgments relied upon by Justice Deepak Gupta. But after service of notice, ‘Live Law’ has kept silent till date.
On 20.06.2020 ‘Live Law’ had again published an article authored by Karitkeya Sharma & Tejas Rao titled as ‘ Court & Contempt : Dissent From the Bar’ where they tried to justify the illegal ratio by Justice (Retd.) Deepak Gupta as under;
“ The most relevant case to understanding the procedure under Section 17, however, is Re: Vijay Kurle, at the Supreme Court of India. That case clarified that the Act in no way curtailed the powers of the Court to suo motu initiate cases of contempt. That judgment also laid out that any Bench may issue notice in respect of an alleged contemptuous act and thereafter place it before the Chief Justice of the Court for listing before the Bench. Subsequently, it becomes clear that the procedure followed in Mr. Oza's case by the Gujarat High Court conforms to the procedural rules laid out by the Act and…’’
The illegality of the above said article is ex-facie clear as under;
In Re: Vijay Kurle, in para 39 of the judgment dated 27.04.2020, it was observed by Justice (Retd.) Deepak Gupta that;
“The Judges of this Court can exercise their powers under Article 129 of the Constitution which is a constitutional power untrammelled by any rules or convention to the contrary.
If an article, letter or any writing or even something visual circulating in electronic, print or social media or in any other forum is brought to the notice of any Judge of this Court which prima facie shows that the allegation is contemptuous or scandalises the court then that Judge can definitely issue notice and thereafter place it before Hon'ble the Chief Justice for listing it before an appropriate Bench.”
It was observed in para 16 that, the directions in P.N.Duda’s case are obiter.
It is wilful disregard and defiance of Full Bench in Bal Thackrey’s Case (2005) 1 SCC 254 and Constitution Bench judgment in Campaign For Judicial ... vs Union Of India (2018) 1 SCC 196 where it is ruled that, an institution has to function within certain parameters and that is why there are precedents, rules and conventions. There cannot be any kind of command or order directing the CJI to constitute a particular Bench. The convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the master of the roster, he alone has the prerogative to constitute Benches. Neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. There cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. Such an order cannot be passed. It is not countenanced in law and not permissible.
It is ruled as under ;
“ 7.. ... We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the master of the roster, he alone has the prerogative to constitute Benches. Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.
10. The rules have been framed in that regard. True, the rules deal with reference, but the law laid down in Prakash Chand (supra) 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.
11 In view of the aforesaid, any order passed which is contrary to this order be treated as ineffective in law and not binding on the Chief Justice of India. ..
In Divine Retreat Centre (2008) 3 SCC 542, it is ruled as under ;
“71. …. The individual Judges ought not to entertain communications and letters personally addressed to them and intimate action on the judicial side based on such communication so as to avoid embarrassment; that all communication and petitions invoking the jurisdiction of the Court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. The individual letters, if any, addressed to a particular Judge are required to be placed before the Chief Justice for consideration as to the proposed action on such petitions. Each Judge cannot decide for himself as to what communication should be entertained for setting the law in motion be it in PIL or in any jurisdiction.
72. It is needless to say that none of these aspects have been taken into consideration by the High Court before setting the criminal law in motion as against the Appellant. The sweeping directions issued by the Court are in the nature of ordering an inquisition against the Appellant and the persons connected with it to find out as to whether they have committed any cognizable offence. Such a course is impermissible in law.’’
In Bal Thackrey’s Case (2005) 1 SCC 254 ,it is ruled by the Full Bench that, the authority to take suo motu cognizance of contempt of any information is with Chief Justice only. If any information is lodged even in the form of a petition inviting this Court to take suo motu action under the Contempt of Courts Act or Article 215 of the Constitution, information should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice for orders in Chambers and the Chief Justice may decide either by himself or in consultation with the other Judges of the Court whether to take any cognizance of the information.
It is ruled as under;
“17. In the light of the aforesaid, the procedure laid and directions issued in Duda's case are required to be appreciated also keeping in view the additional factor of the Chief Justice being the master of the roster. In State of Rajasthan v. Prakash Chand and Others [ (1998) 1 SCC 1] it was held that it is the prerogative of the Chief Justice of the High Court to distribute business of the High Court both judicial and administrative. He alone has the right and power to decide how the Benches of the High Court are to be constituted; which Judge is to sit alone and which cases he can and is required to hear as also to which Judges shall constitute a Division Bench and what work those Benches shall do. The directions in Duda's case when seen and appreciated in the light of what we have noticed hereinbefore in respect of contempt action and the powers of the Chief Justice, it would be clear that the same prescribe the procedure to be followed by High Courts to ensure smooth working and streamlining of such contempt actions which are intended to be taken up by the court suo motu on its own motion. These directions have no effect of curtailing or denuding the power of the High Court. It is also to be borne in mind that the frequent use of suo motu power on the basis of information furnished in a contempt petition otherwise incompetent under Section 15 of the Act may render the procedural safeguards of Advocate-General's consent nugatory. We are of the view that the directions given in Duda's case are legal and valid. ”
Meaning of suo-moto cognizance is explained in the case of Nandlal Sharma vs. Chief Secretary 1984 WLN 161 (DB), where it is ruled as under;
“13. We are in respectful agreement with it & hold that Section 15 is not violative of Article 14 of the Constitution. In view of the plain readings of Section 18 (sic)ad with Section 17 & 18 of the Contempt of Courts Act, we are of the opinion (sic)at, unless the proceedings of contempt which are criminal in nature are (sic) initiated by the Court suo moto which means the initiation by the Chief Justice of the High Court or an application, is moved by the Advocate General or private party with the consent of the Advocate General, this Court is not competent to entertain direct application..”
THE OTHER FLAWS IN THE PROCEEDINGS BEFORE GUJARAT HIGH COURT ARE:-
I] IS JUSTICE N.V. ANJARIA DISQUALIFIED TO HEAR THE CASE OF ADV. YATIN OZA.
1) In the case of Adv. Yatin Oza, the whole case is based on the allegations against the Registry of the Gujarat High Court for listing the matter in '' Pick & choose manner".
2) In the case Adv. Yatin Oza, in his capacity as President of Gujarat High Court Advocates Association [GHAA], wrote a letter on 05.06.2020 to the Chief Justice Shri. Vikram Nath.
3) Cognizance of the said letter was taken by the Chief Justice and on 06.06.2020 a Three-Judge Committee was formed to enquire into allegations. The committee members were:
(I) Justice J. B. Pardiwala (Chairman)
(II) Justice A.J.Desai (Member)
(III) Justice N. V. Anjaria (Member)
4) Even before the Committee had completed its inquiry and submitted the report, the Chief Justice had taken decision on the said inquiry on of the member Shri. Justice N.V. Anjaria who was a sitting Judge alongwith Justice Sonika Gokani, on 09.06.2020 passed the order taking cognizance of contempt against Adv. Yatin Oza. Surprisingly, part in the para 5 of order dated 09.06.2020 is that, despite Justice N.V. Anjaria being member of the committee inquiring allegations in the said letter given by Adv. Yatin Oza to Chief Justice, an incorrect and wrong observations are made in the order as under;
“5. …………….. These scurrilous remarks appear to have been made without any substantive basis and without any intent to know the truth as also without approaching the Honourable the Chief Justice for any inquiry as the Head of the Institution.”
5) Worth to mention that the order is nullity for reliance on the incorrect and wrong statement.
In Walchand Hiralal Shaha 1996 Cr. L.J. 1102 it is ruled that;
“10. It is well settled that an order resulting from suppression of material facts and on a false statement is a nullity in law. There is no need of any judicial precedent in support of the aforesaid proposition.”
II] JUSTICE N.V. ANJARIA IS A WITNESS IN THE CASE :
Hon'ble Supreme Court in Union of India vs. Ram Lakhan Sharma (2018) 7 SCC 670 (supra) had ruled that, the enquiry officer cannot sit as a Judge in the connected case as it amounts to becoming a judge in his own case.
6) Here Justice N.V. Anjaria himself being member of committee enquiring the allegations of Adv. Yatin Oza, was disqualified to sit as a Judge and sign the order on 09.06.2020 for the same matter where he was still acting as an enquiry officer from 06th June 2020 to 10th June 2020.
Hence, the order dated 09th June 2020 is vitiated due to the Judicial Bias as Coram-non-judice. In Davinder Pal Singh Bhullar's case (2011) 14 SCC 770, it is ruled as under;
“36. Thus, it is evident that the allegations of judicial bias are required to be scrutinised taking into consideration the factual matrix of the case in hand. The court must bear in mind that a mere ground of appearance of bias and not actual bias is enough to vitiate the judgment/order. Actual proof of prejudice in such a case may make the case of the party concerned stronger, but such a proof is not required. In fact, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. However, once such an apprehension exists, the trial/judgment/order, etc. stands vitiated for want of impartiality. Such judgment/order is a nullity and the trial coram non judice.”
III] A JUDGE CAN BE SUMMONED AS A WITNESS IN THE CONTEMPT CASE:
1) That, the law of contempt is clear that, the alleged contemnor is entitled for all protections available to an accused in a criminal case. ( R.S. Sherawat Vs. Rajeev Malhotra 2018 SCC Online SC 1347)
2) The alleged contemnor is having right to silence and he can demolish the case by examining witnesses and without examining himself. [Clough Eng. Ltd. 2009 (3) Mh. L.J. 553, Jai Chaitnya Das 2015 (3) AKR 627]
3) In a recent case under contempt in the case of Santy George 2020 SCC OnLine Ker 563, the Division Bench of High Court issued summons to High Court Judge Kamal Pasha.
4) So far as proceedings under Section 14 of the Contempt of Court’s Act,1971 are concerned, the issue regarding summoning a Judge as a witness who had taken the cognizance of Contempt came up before a 3 Judge Bench of this Hon’ble Court in the case of Re: Vinay Chandra Mishra’s case (1995) 2 SCC 584, where Hon’ble Full Bench referring to the Section 14(4) of the Contempt of Courts Act, 1971 ruled that, in the cases under Section 14 of the Contempt of Court’s Act i.e. the case of Contempt on the face of the Court, it will not be necessary to summon a Judge as a witness. However, the response of the Judge was called regarding the contentions of the alleged contemnor in his reply Affidavit
5) Furthermore, in R.Vishwanathan Vs. Rukn AIR 1963 SC 1 the Chief Justice and Two other Judges were examined as a witness to prove the bias of a Judge in passing the order. [Relevant para is para 110]
6) In Murat Lal Vs. Emperor, MANU/BH/0305/1917 it is ruled as under;
“A Judge cannot without giving evidence as a witness, import into a case, his knowledge of particular facts.”
7) In Woodward Vs. Waterbury 155 A. 825, Supreme Court of Connecticut had ruled as under;
“The two judges of the Superior Court called by the plaintiff as witnesses testified as to matters involved in the testimony of Krooner given at the first trial which were not apparent in the transcript of evidence then taken…”
8) In Jawand Singh Vs. Om Prakash 1959 Cri.L.J 1469, in a similar case of private communication with a Judge a Contempt Proceeding was initiated and both the Judges were examined as a witness.
There are strong legal grounds explaining why Justice N.V. Anjaria is disqualified to be on the Bench hearing the contempt petition against Adv. Yatin Oza.
Moreover, the Gujarat High Court has committed contempt of Supreme Court while taking suo motu cognizance of said contempt. This has been explained in detail in earlier article available at below link:-
Gujrat High Court has committed Contempt of Supreme Court while taking suo motu cognizance against Sr. Adv. Yatin Oza
A strong legal action is contemplated against the Livelaw portal for deliberately publishing wrong legal position of recent Contempt cases. The portal has been very prompt in publishing erroneous legal position and is perpetrating this misinformation amongst lawyer and common public, with a malafide intention of justifying the errors committed by Justice (Retd.) Deepak Gupta and thereby undermining the dignity of binding precedents of Constitution and larger Benches of the Supreme Court.